In short: the sources of product liability law in France

Sources of law

Product Liability Laws

Is there a law that governs product liability disputes?

European Directive 85/374/EC of July 25, 1985, transposed into French law by Law No. 98/389 of May 19, 1998 governs product liability in French law. Its rules have been codified in the Civil Code in articles 1245-1 to 1245-17.

The directive applies to products put into circulation after 1998 – the general rules of civil liability apply to products put into circulation before this date but French case law is generally aligned with the content of the directive before 1998.

The product liability regime is exclusive of other liability regimes – that is, a claimant must bring a claim under this regime if the alleged damage is believed to have been caused by a defect in the product. He cannot choose to initiate proceedings on the “general” liability regime.

Liability is strict under the product liability regime (article 1245-10 Civil Code). This means that the plaintiff is not required to prove the existence of negligence or fault on the part of the manufacturer, but simply to prove that the product was defective because it did not offer the security that consumers are entitled to expect such products.

Traditional theories of responsibility

What other theories of liability are available to product liability claimants?

If a plaintiff has the obligation to avail himself of the special regime of product liability when he alleges that his damage was caused by a product, this does not mean that he cannot seek his liability for other reasons (article 1245-17 French Civil Code).

Exceptions exist to the exclusivity of the product liability regime, whether contractual or tort (Cass Civ 1^stFebruary 25, 2016, n°14-29.000):

• fault liability – the plaintiff must allege a fault of the manufacturer distinct from the defect which caused the damage;
• hidden defects or
• lack of conformity of the product with the terms of the contract.

consumer law

Is there consumer protection law that provides remedies, imposes obligations or otherwise affects product liability litigants?

Prior to the conclusion of the contract for the sale of a good, the professional is required to inform the consumer, in a clear and understandable manner, of the essential characteristics of the good or service, its price, the possibility for the buyer of exercise legal guarantees (i.e. conformity, hidden defects, etc.) (article L 111-1 Consumer Code).

Furthermore, Article L 217-3 of the Consumer Code provides that the professional must sell goods that comply with the contractual conditions of sale.

Pursuant to article 1641 of the Civil Code, the seller is bound by the guarantee for the product affected by a defect rendering it unfit for the use for which it is intended, or reducing its use insofar as the buyer does not would not have acquired, or would have offered a lower price, if he had been aware of the defect. The defect must be prior to the sale. In these circumstances, the consumer will have the right either to return the good for a full refund or to keep the good and obtain a partial refund.

Criminal law

Can criminal penalties be imposed for the sale or distribution of defective products?

Criminal penalties may apply to the sale or distribution of defective products. Penalties include fines and imprisonment.

For instance:

• in a case of sale of defective breast prostheses (PIP), the founder of the company selling the defective goods was sentenced to four years’ imprisonment and a fine of €75,000 (CA Aix-en-Provence, May 2, 2016 , confirmed by Cass Crim, September 11, 2018, n°16-84.059);
• a manufacturer who puts a product into circulation, the withdrawal of which is then requested by the competent authorities, but who refuses to do so, exposes himself to criminal penalties (Cass Crim, October 27, 2015, n°14-87.259);
• in addition, the putting into circulation of a defective product, even unintentionally, may engage criminal liability in the event of damage to physical integrity, endangering the life of the consumer or his death;
• the manufacturer may also incur criminal liability if he intentionally misleads his customer, among othersby failing to provide all the required information on the quality and risks of the product (articles L 451-1 to L 454-7 of the Consumer Code).

New theories

Are there new theories available or emerging for product liability claimants?

While it hasn’t appeared in the last 12 months (it started appearing in the mid to late 2000s), the most obvious innovative theory is the possibility, admitted by the French courts, of proving the causal link between the defect in the product and the claimant’s loss based on a convincing body of circumstantial evidence, in circumstances where it is not possible to produce strong scientific evidence of this link.

Product defect

What breaches of duty or other theories can be used to establish a product defect?

Under the terms of article 1245-3 of the Civil Code, a product is deemed to be defective when it does not offer the security that can legitimately be expected. When assessing the safety of a product, all relevant circumstances should be considered, including the presentation of the product, its intended use and when it was released. Consequently, French case law has considered that a product will not necessarily be considered defective simply because it presents certain risks or can objectively be dangerous.

Since the regime takes a broader view and takes into account a number of parameters, the defect may be intrinsic to the product itself or result from a failure, on the part of the manufacturer, to inform of adequately inform the end user of the possible risks associated with the product and its use (the manufacturer must make all relevant information accessible to the end user, among others by means of a user manual available on its website or a warning appearing on the product).

Default standard and burden of proof

By what standards can a product be considered defective and who bears the burden of proof? Can this burden be transferred to the opposing party? What is the standard of proof?

It is a fundamental principle of French law that the burden of proof lies with the plaintiff.

Concerning product liability more specifically, the French Civil Code provides that the plaintiff must prove his damage, the defect in the product and the causal link between the two (article 1245-8 French Civil Code). If the plaintiff is successful, the product manufacturer is responsible as of rightunless it can prove that one of a limited number of grounds for exemption applies, such as the fact that it has not put the product into circulation or the fact that the scientific knowledge available at the time of circulation of the product did not allow the manufacturer to identify the defect (article 1245-10 Civil Code).

Possible respondents

Who can be held liable for injury and damage caused by defective products? Is it possible for respondents to limit or exclude their liability?

Claimants will generally bring their claims against the manufacturer, which is the business entity that manufactured the end product or produced raw materials or sub-components that were incorporated into the product.

However, they can also exercise their recourses against entities that are legally assimilated to the manufacturer, such as entities that:

• present itself as a manufacturer by affixing its name, brand or logos to the product; and
• import the product into the European Community for sale, hire or otherwise distribute.

Manufacturers cannot, in principle, limit or exclude their liability. However, article 1245-14 of the French Civil Code provides an exception for damage caused to property which is not used by the victim for personal use but for professional purposes (limitation and exclusion clauses are valid between professionals).

Causality

What is the standard by which the causal link between the defect and the injury or damage must be established? Who bears the burden and can it be transferred to the opposing party?

The French Civil Code provides that the plaintiff must prove his damage, the defect of the product and the causal link between the two (article 1245-8 Civil Code).

Until relatively recently, French courts required the plaintiff to prove a direct and certain causal link, namely a scientifically proven causal link between the defect in the product and the damage suffered by the plaintiff (see, for example, Cass Civ 1^st, September 23, 2003, No. 01-13063). However, claimants often struggled to provide this incontrovertible proof, particularly in matters relating to alleged defects in pharmaceutical drugs, where there can sometimes be a significant time lag between exposure to the product and the date on which the Claimant’s loss crystallized and legal proceedings were instituted.

Given the obstacles described above, the courts have gradually allowed a certain pragmatism and accepted that, where it was not possible for plaintiffs to produce strong scientific evidence of causation, they could rely on a convincing set of circumstantial evidence leading to a “serious, precise and constant” presumption that the product actually caused the damage (CA Versailles, November 25, 2005, No. 04/03953; Cass Civ 1^st, May 22, 2008, No. 05-20.317; Cass Civil 1^stSeptember 20, 2017, No. 16-19643).

However, the courts insist on a rigorous and demanding application of this mechanism of “proof by presumption” and it can only be invoked successfully if the body of circumstantial evidence is convincing, if the plaintiff’s argument is supported by a clear scientific consensus regarding the nature of the underlying mechanisms and whether, in fact, there were no other possible causes that could have led to the disaster. In addition, the Supreme Court requested and obtained confirmation from the Court of Justice of the European Communities that this procedure complied with the European directive on product liability (ECJ, 21 June 2017, C-621/15).

After-sales rights

What after-sales obligations can be imposed on potentially liable parties and how could liability be imposed in the event of a breach?

In accordance with Articles L.423-2 and L.423-3 of the Consumer Code:

• manufacturers adopt measures enabling it:
  • • stay informed of the risks that its products may present, and
    • implement any action necessary to manage such risks, including market withdrawals, adequate and effective consumer warnings, product recalls;
• when manufacturers know that their products do not provide the safety that consumers can legitimately expect of them, they must take all the necessary measures to prevent risks for consumers and immediately inform the competent administrative authorities.