Sylvie Gallage-Alwis, Alice Decramer, Elias Boukachabine, and Nikita Yahouedeou examine product liability laws in France in The Legal 500’s Product Liability Comparative Guide

By Sylvie Gallage-Alwis & Alice Decramer & Elias Boukachabine & Nikita Yahouedeou

Partner Sylvie Gallage-Alwis and Associates Alice DecramerElias Boukachabine, and Nikita Yahouedeou examine product liability laws in France in The Legal 500’s sixth edition of its Product Liability Comparative Guide.

The Legal 500: Product Liability Comparative Guide was published 3 April 2024, and Sylvie, Alice, Elias, and Nikita’s full chapter can be found here.

1. What are the main causes of action upon which a product liability claim can be brought in your jurisdiction, for example, breach of a statutory regime, breach of contract and/or tort? Please explain whether, for each cause of action, liability for a defective product is fault-based or strict (i.e. if the product is defective, the producer (or another party in the supply chain) is liable even if they were not individually negligent).

The primary cause of action is the strict defective product liability statutory regime established by a dedicated EU directive (85/374/EEC) codified in Articles 1245 to 1245-17 in the French Civil Code by law no. 98-389 of 1998. It holds the manufacturer/distributor/seller liable for their product’s defect when it has caused damage to someone.

Consumer law plays an important role since it provides for a general product safety obligation. Directive 2001/95/EC is transposed into the French Consumer Code and enshrines a fundamental right to safety for customers (Article L.421-3 of the French Consumer Code).

Tort law is also relevant as the manufacturer’s/distributor’s/seller’s liability can be sought for any damages somehow caused by their product where such damage does not result from a breach of a contractual obligation. This is a fault-based liability regime.

Contract law, sales law, and statutory warranties can also apply. Besides, in the event of bodily injury or lack of compliance with a specific regulation, criminal law may also come into play. Except for the liability for defective product, all other regimes of liability are generally fault-based liability regimes.

2. What is a ‘product’ for the purpose of the relevant laws where a cause of action exists? Is ‘product’ defined in legislation and, if so, does the definition include tangible products only? Is there a distinction between products sold to, or intended to be used by consumers, and those sold for use by businesses?

A “product” is defined under Article 1245-2 of the French Civil Code, which provides for a broad definition. A product refers to “any movable asset, even where it is incorporated into an immovable asset, including the products of the soil, stock-farming,  hunting and fishing. Electricity is considered as a product”.

No distinction is made between tangible and intangible assets, the only criteria on the nature of the asset is that it must be a movable asset.

The definition of product thus encompasses elements of the human body, the products derived from it, and software. In a written question submitted by a Member of Parliament to the Ministry of Justice on 15 June 1998, the Minister of Justice clarified that the product liability regime was applicable to software as they fall within the legal category of movable assets, but specified that the application of these texts “only covers situations where the software would be the direct cause of a damage to personal or assets security”. This approach reflects a response from the European Commission which, answering to a written question, confirmed that the European Union’s Directive is applicable to software. This is further clarified by the Proposal for a Directive on liability for defective products (COM/2022/495 final) which reads, at Article 4: “‘Product’ includes electricity, digital manufacturing files and software”.

3. Who or what entities can bring a claim and for what type(s) of damage? Can a claim be brought on behalf of a deceased person whose death was caused by an allegedly defective product?

There are no restrictions on who can bring a claim based on the strict defective product liability regime. The claimant is only required to prove the defect of the product, the damage suffered and the causal link between the damage and the defect. The damage can be direct and indirect, opening a claim to contractors down the supply chain or the heirs of a deceased person.

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