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Sylvie Gallage-Alwis and Gaëtan de Robillard discuss product regulation and liability in France in Lexology

By Sylvie Gallage-Alwis & Gaëtan de Robillard

Partner Sylvie Gallage-Alwis and Associate Gaëtan de Robillard provide a year in review of the legal framework on product regulation and liability in France.

Read Sylvie and Gaëtan’s article published in Lexology, 7 March 2024, here and here

Introduction

In France, the product regulation and liability landscape is governed by a mix of domestic laws and European Union regulations, emphasising consumer safety and manufacturer accountability. Compliance with these regulations is closely monitored by several regulatory bodies which ensure that products placed on the French market meet high safety, environment, and quality standards.

On the liability front, French law, in line with the EU’s directive on product liability, imposes strict liability upon manufacturers and distributors for damages caused by defective products. This framework allows consumers to claim compensation for harm caused by defective products without needing to prove a fault or negligence. The aim is to protect consumers and incentivise companies to uphold high safety standards. These laws are part of a broader consumer protection approach, which mandates clear and accurate product information and provides redress mechanisms in cases of harm.

Introduction to the product liability framework

Year in review

i Environmental information

With the development of the circular economy in France, manufacturers are facing challenging regulatory requirements for supply chain changes. Law No. 2020-105 of 10 February 2020 and Law No. 2021-1104 of 22 August 2021 have created new rules aiming for more sustainable production and consumption. The most emblematic labelling or marking requirements are the Triman Logo and sorting instructions (Info-Tri), which are progressively entering into force. Article L. 541-9-3 of the French Environment Code provides that the purpose of the Triman Logo is to inform consumers of the fact that the product is recyclable, whereas the Info-Tri specifies ‘the conditions of the sorting or contribution of the waste resulting from the product’. These are applicable to all products placed on the French market for households and the issuer of which falls under the ‘extended producer responsibility scheme’, except for household packaging of glass beverage containers. Depending on the type of products placed on the French market, manufacturers must provide certain additional environmental information, such as the repairability index,2 information on the environmental qualities and features of waste-generating products3 or information on the social and environmental impacts of a product.4

ii Market surveillance authority’s activity

The Directorate General for Competition Policy,Consumer Affairs and Fraud Control (DGCCRF) is monitoring the product market, with a specific focus on environmental allegations and on electronic and electrical products. In a recent official communication, the regulator indicated that a lot of products put on the market are dangerous. Especially worrying was the fact 41 per cent of toys are hazardous.5 The DGCCRF has also expressed its intention to use the ‘name and shame’ practice more frequently. Among its priorities are the fight against greenwashing, inaccurate labelling, and the monitoring of the reparability and refurbished products sectors.

Legal framework

The French legal framework for product liability is a multifaceted system designed to ensure the safety and protection of consumers, primarily influenced by EU directives and regulations. A cornerstone of this framework is the strict liability for defective products, which is rooted in the EU Product Liability Directive. This directive is incorporated into French law through Articles 1245 to 1245-17 in the French Civil Code. Under these provisions, the manufacturer, distributor or seller is held liable for any damage caused by a defect in their product. This approach emphasises the responsibility of these parties to ensure the safety and reliability of their products, thereby protecting consumers from potential harm.

In addition to the strict liability rules, French product liability law is significantly influenced by consumer law, which focuses on the relationship between professional sellers and consumers. This aspect of the law is guided by Directive 2001/95/EC on general product safety, transposed into the French Consumer Code. It establishes a fundamental right to safety for consumers, imposing a general product safety obligation on sellers. Moreover, the French legal framework extends beyond just these two areas. Tort law plays a crucial role in addressing damages caused by products where the damage is not a result of a breach of contractual obligation by the manufacturer, distributor or seller. Furthermore, contract law, sales law and statutory warranties provide may also come into play. In cases of bodily injury or non-compliance with specific regulations, criminal law may also be invoked to address product liability issues. This legal structure ensures a robust and multi-dimensional approach to product safety and consumer protection in France.

Regulatory oversight

In France, the authority that regulates the largest number of products is the DGCCRF.

In addition to the DGCCRF, there are several other market surveillance authorities responsible for checking product safety within specific industries or product categories. Vehicle safety is regulated by the Directorate General for Energy and Climate. The competent authority for animal origin food products is the Directorate General for Food. All other food products fall under the DGCCRF’s scope of surveillance. The French National Agency for the Safety of Medicines and Health Products controls and regulates health products.

The trigger for notification to authorities in France is in line with that provided by Directive 2001/95/EC on serious and immediate consumer risks. Manufacturers or distributors can, if they wish, file notifications, even in lower-risk cases, as this helps the authorities to better monitor the market and adjust the measures to be taken.

When a product presents an immediate serious safety risk, the manufacturer or distributor must immediately take the necessary action to prevent risks to consumers and inform the competent regulatory authorities.6 The format of that notification will depend on the type of product at issue:

  1. for food products, a specific form must be completed (this is available online);
  2. for motor vehicles, the manufacturer must provide the information listed in either the French Order dated 17 August 2016 for two-wheeled vehicles or the French Order dated 4 May 2009 for motor vehicles and their trailers; and
  3. for other products, the manufacturer or distributor must file a notification online through the Product Safety Business Alert Gateway.

In addition to informing consumers and the competent administrative authorities, companies proceeding with a product recall must declare the recall on a dedicated website.7 The declaration is mandatory and must be updated when new information or changes are available. In the absence of any notification, a fine is imposed, in accordance with Article R. 452-5 of the Consumer Code.

Causes of action

i Strict liability for defective products

Article 1245 et seq. of the French Civil Code (FCC) applies when a product does not offer the security that can be legitimately expected, considering, notably, the presentation of the product, the use that can reasonably be expected of it and the time it was placed on the market.8

The rules laid down in these articles are based on strict liability, meaning that no fault, negligence or breach of contract is required to condemn the manufacturer. The claimant is only required to prove the defect of the product, the damage suffered and the causal link between the defect and the damage. The manufacturer is liable for damage caused by a defect in its product regardless of whether the parties have concluded a contract. Accordingly, this rule applies to any end user in possession of a product, irrespective of whether the end user concluded a contract with the manufacturer.

ii Tort liability

Tort liability can be sought by any claimant where compensation is claimed for damage that does not result from the manufacturer’s breach of a contractual obligation. The defendant can be held liable in tort only if the claimant can prove that:

  1. the defendant is responsible for either a fault (intentional or otherwise) or negligence;
  2. the claimant has suffered a loss; and
  3. there is a causal link between the loss and the fault or negligence.9

The other regime that exists links liability to ‘things that are in one’s custody’ (i.e., a thing that a party has the power to use, manage and control).10 The existence of a fault is not required and the claimant must only prove that the damage was caused by a ‘thing’ (i.e., any type of product) under the defendant’s custody.

iii Contractual liability

Contractual liability can be based on a breach of contractual provisions but also on statutory warranty against hidden defects.

Breach of contractual provisions

The manufacturer’s contractual liability is established when three conditions are met: a breach of the contract; a loss; and a causal link between the breach and the loss.11 A party that does not comply with its contractual obligations or is late in performing them commits a fault. One of the main obligations of a manufacturer is to deliver products free of any defects. Accordingly, if a contracting party can demonstrate that the manufacturer failed to comply with this obligation by delivering a defective product, it is entitled to claim damages.

Statutory warranty against hidden defects

Pursuant to Article 1641 of the FCC, a seller is liable where a defect that was not apparent at the time of the sale renders the product unfit for its intended use or reduces its usefulness to such an extent that the buyer would not have acquired it or would not have paid the same price had they been aware of the defect. This allows the end user to sue the manufacturer even after expiry of the statute of limitations for a standard contractual claim to be brought.

iv Criminal liability

A commercial practice is considered deceptive under Article L. 121-2 of the Consumer Code if it involves creating confusion with a competitor’s goods or services or is based on false claims or misleading information. This includes inaccuracies about the product or service’s availability, essential characteristics, price, sale conditions, after-sales service or the advertiser’s identity. It is also deceptive if the advertiser is not clearly identifiable, or if a product is falsely presented as identical to those sold in other countries, despite having different compositions or characteristics. This law is designed to protect consumers and ensure fair market competition.

Article L. 132-2 of the Consumer Code punishes these deceptive commercial practices by up a two-year prison sentence and a €3 million fine. The fine amount can be increased, in proportion to the benefits derived from the offense, to 10 per cent of the average annual turnover, calculated over the last three known annual turnovers as of the date of the offense, or to 50 per cent of the expenses incurred for the advertising or practice constituting this offense. This latter percentage is increased to 80 per cent in the case of deceptive commercial practices in some cases when they are based on environmental claims.

Litigation

i Forum

Product liability cases brought by consumers against companies are typically handled by civil or commercial courts (at the claimant’s choice).

Consumers ordinarily bring their claims before a civil court. Civil courts generally rule with three judges, with exceptions depending on the subject matter of the case. Civil court judges are career judges who, after law school, are trained in the specific school for judges in France.

If a claim is brought by a professional, commercial courts have jurisdiction to hear it. Commercial courts are composed of a panel of three judges, although cases may be heard by only one judge. Commercial court judges are not career judges, but are professionals who have been elected by their peers within professional unions. There are, however, career judges at the appellate level.

There are no juries in the French legal system, except in criminal proceedings relating to the most serious criminal offences. It is notable that if an authority considers that a product is not compliant, the case will likely be analysed by criminal courts, which have jurisdiction not only to rule on cases where there has been a personal injury due to the use of a product, but also when deceit or misleading commercial practices are involved. If criminal courts are seized, claimants will be able to seek compensation before the criminal courts, which will rule on both the criminal liability and civil compensation. However, this type of case is not heard by a jury.

ii Burden of proof

The burden of proof lies, in principle, with the claimant and then shifts to the defendant whenever the defendant invokes a limitation of liability.12

However, in practice, French courts tend to shift the burden of proof to the manufacturer. When it cannot prove a flagrant misuse of the product by the claimant, the manufacturer must demonstrate that its product is safe and compliant with the relevant regulations when responding to a claimant’s claim that the product is, for instance, affected by a hidden defect.

The burden of proof also lies with the manufacturer for mass produced products. If one part of a batch is alleged to be defective, the manufacturer must prove the absence of serial defect. This was significant in the Boston Scientific case, which gave rise to a judgment by the Court of Justice of the European Union on 5 March 2015.13 Interpreting Article 6 of the EU Product Liability Directive, the Court notably ruled that where products belonging to the same production series have a potential defect, it was fair to classify all products in that production series as defective without the need to establish that any specific product was in fact defective.

In most product liability cases giving rise to preliminary expert proceedings, whereby a court-appointed expert tries to determine the origin of the damage, manufacturers tend to focus more on demonstrating the lack of defect, notably by ordering tests, filing technical documents and providing explanations. These efforts are necessary because French courts tend to be favourable towards claimants by giving credit to evidence that does not prove adequate causation or equivalence of the causes (the two co-existing causation theories pursuant to French law) but is mostly presumptive. However, manufacturers can rely on an established line of case law that states that the mere involvement of a product in the occurrence of damage is not sufficient to establish its defect within the meaning of Article 1245-3 of the FCC.

iii Defences

Defences available to manufacturers vary depending on the nature of the claim filed. French courts tend to be severe towards manufacturers because the manufacturers know their products best and could therefore most easily avoid defects or user misuse or disappointment.

Strict liability

In strict liability for defective products cases, Article 1245-10 of the FCC provides that the manufacturer will not be liable if it proves any one or more of the following:

  1. it did not place the product on the market;
  2. the defect appeared after the product was placed on the market;
  3. the product was not manufactured to be sold or distributed for profit;
  4. scientific and technical knowledge at the time the product was placed on the market was insufficient to identify the defect (development risk defence), except where damage was caused by an element of the human body or by its products;14 and
  5. the defect results from compliance with mandatory regulations issued by public authorities.

Other means of defence are available, in particular when the claimant is at fault or when its negligence contributed to the damage, in which case the manufacturer’s liability can be reduced or excluded.15

The manufacturer’s liability can only be totally excluded if it can prove that the claimant’s fault was unforeseeable and irresistible (as in force majeure cases). This is notably the case if the product is used by the claimant in an abnormal way that could not have been reasonably expected by the manufacturer. Nonetheless, French courts have a very strict approach to this defence, often considering that manufacturers should always expect the worst and most unusual behaviour by users.

In addition, the liability of the manufacturer towards the injured will not be reduced where the act or omission of a third party contributed to the damage.16 However, the manufacturer can bring an indemnity claim against the third party whose actions caused the damage.

Manufacturers of components benefit from additional grounds for defence. They will not be held liable if it is established that the defect is attributable to the design of the product in which the component has been incorporated or to instructions given by the manufacturer of that product.

Actions based on strict liability for defective products must be brought within three years of the claimant becoming aware or being in a position where they should reasonably have become aware of the defect, the identity of the producer and the existence of the loss. However, the manufacturer can only be found liable up to 10 years after the product was placed on the market.17

Tort liability

In tort claims, the manufacturer’s liability can be excluded if it proves the existence of an extraneous cause for the defect caused by force majeure or a fault committed by the claimant or a third party, or contributory negligence that could result in shared liability.

Contractual liability

In contractual liability cases, the manufacturer’s liability can be excluded if it can prove:

  1. an extraneous cause for the defect caused by an event of force majeure; or
  2. a fault committed by the claimant or a third party or contributory negligence that could result in shared liability.

Contractual liability and tort actions are time-barred five years after the date on which the claimant knew, or should reasonably have known, of the facts on which the action is based.18

Hidden defects

In cases where the claimant alleges that the product is affected by a hidden defect, the fact that the manufacturer was not aware of the existence of the defect is not a valid defence. Sellers are allegedly aware of hidden defects affecting their products.

In theory, the manufacturer could escape liability by demonstrating that the defect was apparent at the time of the sale. However, in practice, it is very difficult to avoid liability on the grounds of the hidden defects warranty. The definition of an apparent defect varies depending on who the purchaser is (i.e., whether they are a knowledgeable professional who could have properly inspected the product and noticed a defect, a consumer or a professional of another specialty). That being said, case law specifies that buyers do not have to carry out a thorough verification at the time of delivery.

Actions based on the statutory warranty against hidden defects must be brought within two years of the discovery of the defect. Previously, such actions were limited to a five-year period following the sale of the product but a series of decisions by the French Supreme Court on 21 July 2023 extended that period to 20 years. This fourfold increase in the timeframe significantly impacts manufacturers, which now face the possibility of liability over a more extended period. The French Supreme Court has established this extended timeframe uniformly, applying it to both standalone sales and those that are part of a series of contracts, irrespective of the product’s type. Time will say if case law will evolve to render the other conditions of the recognition of liability for hidden defect more stringent given this extended time period.

iv Personal jurisdiction

In civil matters such as product liability cases, both national and EU laws make the defendant’s domicile in the French territory the primary criterion of jurisdiction of French courts.19 This principle applies equally to domestic and cross-border cases if there is no applicable provision or jurisdiction clause agreed upon between the contracting parties that would preclude it.

The jurisdiction of the French courts may also result from the location of the claimant’s domicile within the French territory. Article R. 631-3 of the Consumer Code allows the consumer to bring an action either before the court of the place where they resided at the time of the conclusion of the contract or the court of the place where they resided at the time of the event giving rise to the damage.

Similarly, Article 18 of the Recast Brussels Regulation20 states that in matters relating to contracts concluded by consumers, the consumer may bring proceedings against the other contracting party ‘either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled’. Therefore, based on these provisions, a consumer domiciled in France is free to bring proceedings before the French courts against a professional manufacturer, distributor or seller domiciled in another EU Member State or in a third jurisdiction.

v Expert witnesses

French evidentiary law draws a distinction between evidence of legal facts and that of legal deeds. The former is subject to the principle of freedom of evidence while the latter requires written evidence to prove the existence of legal acts involving a sum higher than €1,500.21

In this context, expert witness testimony to prove facts relating to an incident linked to a product is allowed before French courts. However, judges have full discretion on whether to give credit to this testimony; in practice, this type of testimony is not seen as conclusive by judges.

It is more common in product liability litigation for a judicial expert to be appointed by French courts prior to a trial (through summary proceedings) or even during a trial. During expert operations22 conducted by court-appointed experts, each party can be assisted by its own expert. Parties can either choose an expert who is listed by French courts of appeal or the Supreme Court as being knowledgeable in a specific area or they can choose an unlisted expert, bearing in mind that an unlisted expert’s opinion may be looked on as less convincing than that of a listed expert. Party-appointed experts will submit written reports and statements to the judicial expert during the expert operations, and these will contribute to the evidence in the case.

The merits of the case are not discussed at this stage. Experts can only address technical (and not legal) issues.23 It is key that the expert does not legally qualify a defect to avoid any potential ambiguity during the proceedings on the merits.

The expert proceedings end when the court-appointed expert files their final report with the clerk, a copy of which is sent to the parties’ lawyers. This report is not binding on the court and is legally merely an opinion given to the court.24 However, French courts generally tend to adopt the judicial expert’s conclusions on technical points.

vi Discovery

There are no procedures for disclosure or discovery of documents under French civil law. Parties are free to select the documents they wish to disclose during the proceedings.

They can, however, request the production of evidence that is not disclosed by the other party or detained by a third party, but only under very strict conditions. Parties can request legally permissible preparatory inquiries before proceedings, ‘if there is a legitimate reason to preserve or to establish . . . evidence of facts upon which the outcome of the dispute depends’.25 If the conditions are met, the court may order investigative measures for the collection of evidence. This way, a party has the possibility to preserve or establish crucial evidence for use in a possible trial. The requesting party shall properly identify the sought document because ‘fishing expeditions’ are not allowed.26

vii Apportionment

Under French law, there is no possibility of holding liable an entity that has not been properly served. If established, joint and several liability can only be shared between the parties to the dispute.

When the claimant is at fault, or its negligence contributed to the damage, the manufacturer’s liability can be reduced or excluded.27 It stems from case law that the claimant’s fault will only have an impact on the right to compensation if the fault effectively contributed to causing the damage by participating in its occurrence. If the fault merely aggravated the damage once it had occurred there will be no shared liability between the manufacturer and the claimant, despite the fault of the latter.28

In tort claims, the manufacturer’s liability can be excluded if it proves the existence of an extraneous cause for the defect caused by force majeure or a fault committed by the claimant or a third party, or contributory negligence that could result in shared liability.

In toxic tort cases, particularly in cases of gross negligence based on exposure to asbestos, French courts have developed a system of shared liability between the claimant’s different employers pursuant to which each of them will bear a share in the liability based on the years of exposure for which they are responsible.

viii Mass tort actionsHamon Law class actions

The first class action mechanism was introduced in France by the Hamon Law of 17 March 2014, which came into force on 1 October 2014, under the name ‘group action’. The scope of this group action was limited to consumer and competition law breaches only. This opt-in system can only be launched by a specific and limited list of consumer associations, which must find at least two people suffering from similar damage.

By Law No. 2016-41 of 26 January 2016, the group action mechanism was extended to the field of health products and cosmetics. The purpose of this specific group action is to enable users of the health system and consumers using cosmetics to obtain compensation for losses resulting from bodily injuries, including in product liability matters. Actions can be launched against manufacturers, suppliers and service providers using health products (including pharmaceuticals and medical devices). The particularity of the mechanism in this field is that it allows personal injuries to be compensated.

Despite the above, group actions are not yet frequently used in France. As of 2023 only 32 group actions have been submitted, and less than 20 per cent of them have been successful.29

Mass litigation

Mass litigation (i.e., a significant number of individual claims filed by the same counsel before the same court and that are generally subject to the same procedural schedule and heard during the same trial hearing) is more common than class actions in France. These cases are a challenge for defendants as claimants are likely to present them as one large case with exactly the same evidence for all claimants, without that evidence being personal or showing specific damage. However, procedurally, these cases should be treated as individual cases that could be tried individually. Defendants need to insist on this point to increase their chances of success in these cases and to avoid a general sentence being passed against them.

The Collective Redress Directive

At the EU level, the Collective Redress Directive30 required Member States to enact regulations providing for a collective redress mechanism by 25 December 2022, with enforcement of these regulations required by 25 June 2023. The Directive allows collective actions to be brought by a representative body against businesses that breach EU laws intended to protect consumers, which includes laws in a broad range of areas such as data protection, travel and tourism, financial services, energy and telecommunications.

France is currently in the process of incorporating the Collective Redress Directive into its national legislation. A significant legislative step was achieved when the National Assembly passed a bill on 8 March 2023. However, this bill is still pending approval from the Senate. The timeline for the publication of the final text remains uncertain, as well as any potential amendments that may be introduced. The primary objective of this legislation is to enhance the appeal and effectiveness of group actions. Key innovations include the establishment of specialised courts dedicated to these matters and expanding the range of scenarios in which a group action lawsuit can be initiated.

ix Damages

The principle is that the claimant must be fully compensated, meaning that all compensatory damages must be paid. This principle explains why there are no punitive damages in France.

The damages awarded in product liability disputes generally cover economic damage but can also extend to non-economic damage, such as moral damage. In terms of personal injuries, the claimant is entitled to claim for a wide range of damages as set out in medico-legal rating scales,31 which encompass pecuniary losses before and after stabilisation, functional impairment, pain and suffering, aesthetic loss, etc.

In addition, the successful party can recover all procedural costs listed in Article 695 of the French Code of Civil Procedure (such as court-appointed experts’ fees, witnesses’ expenses or services fees).32

Any other legal costs incurred by a party, such as legal fees, fall under the scope of Article 700 of the Code of Civil Procedure, which states that the court will order the party bearing the court costs, or failing that the losing party, to pay to the other a sum determined by the court corresponding to the costs incurred that are not included in the procedural costs. The losing party will never have to reimburse the full amount spent by the winning party. The court will assess, on a case-by-case basis, a fair amount to grant, taking into account equity or the economic position of the paying party and the amount of damages granted.

In the event of misleading commercial practices, a criminal penalty of up to €1.5 million may be imposed on the legal entity. Depending on the benefits derived from the offence, the amount of the penalty may be increased to 10 per cent of the average annual turnover, calculated on the last three annual turnovers, or to 50 per cent of the expenses incurred in carrying out the advertising or misleading commercial practice. If the practice is based on environmental allegations, the rate is increased to 80 per cent. The manufacturer, distributor or seller is also exposed to additional sanctions, such as the publication of the court’s decision in the media. Individuals may also be held liable and can be exposed to a criminal penalty of up to €300,000 and to a two-year prison sentence. A number of supplementary penalties can also be imposed, including the prohibition against carrying out the professional activity in which the offence was committed. The court can also order the cessation of the misleading commercial practice.33

Outlook and conclusions

The French legal system is getting increasingly complex and sophisticated to enhance consumers’ protection which remains the primary focus. This being said, the development of the circular economy to achieve an ecological transition has reshaped the obligations incumbent on manufactures so they must now inform consumers about the environmental characteristics and qualities of their products. To put it in another way, the preservation of the environment is a new significant source of liability and it cannot be ignored by manufacturers. Currently, the next anticipated ground-breaking regulations regarding product safety are the Proposed Directive on Liability for Defective Products and the General Product Safety Regulation No. 2023/988 which will enter into force on 13 December 2024. Discussions will again take place on what safety means when it comes to complex and connected products for instance.

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