France: Product Liability

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This country-specific Q&A provides an overview to product liability laws and regulations that may occur in France.

This Q&A is part of the global guide to product liability. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/product-liability/

  1. Please summarise the main legal bases for product liability

    The main legal bases for product liability are the rules relating to strict product liability, tort law and contract law.

    The French strict product liability regime was created by Law n°98-389 of 19 May 1998, transposing the European Directive of 25 July 1985 relating to liability for defective products (83/374/EEC).

    However, a product being defective can also, under certain conditions, lead to criminal liability on the grounds of involuntary bodily harm, endangerment of the lives of others or deceit.

  2. What are the main elements which a claimant must prove to succeed in a strict liability type claim for damage caused by a defective product?

    The following elements must be cumulatively proven by a claimant to succeed in a strict liability claim:

    • A damage suffered by the claimant or his/her property other than the defective product itself;
    • A product defect; and
    • A causal link between the product defect and the damage suffered by the claimant.

    Regarding the characterisation of the defect, product is defined as defective when it does not provide the safety one can legitimately expect of it.

    The safety that can legitimately be expected of the product is assessed according to the common legitimate expectations of an average user.

    All the circumstances regarding the product must be considered, including the way in which the product is presented, the use that can be reasonably expected of it and the time when the product was put on the market.

    The claimant must provide proof of the product's participation in the occurrence of the damage(s) suffered (Supreme Court, 29 May 2013, n° 12-20.903).

  3. With whom does liability sit? If there is more than one entity liable, is liability joint and several?

    Under the strict product liability rules, liability sits with the producer of the defective product.

    Producer is defined as a person acting in a professional capacity presenting himself as a producer by affixing his name, trademark or other distinctive sign to the product.

    If the producer cannot be identified, the seller, the lessor or any other professional supplier of the defective product will be held liable.

    Joint and several labiality is possible in the case of damage(s) caused by a defective product incorporated into another product.

    As such, the producer of the component and the producer having incorporated the product are jointly and severally held liable.

  4. Are any defences available? If so, please summarise them.

    The producer shall not be held liable if:

    • The damage is caused jointly by a defect in the product and the fault of the victim or a person for whom the victim is responsible;
    • The damage is caused by force majeure.

    Articles 1245-9 to 1245-16 of the Civil Code provide for the following specific defences:

    • The defendant cannot be qualified as the producer of the defective product, meaning that (i) the defendant did not put the product into circulation and (ii) if the product was put on the market by the defendant, it was not intended to be sold or distributed in any manner;
    • The absence of a product defect, the burden proof lying with the defendant;
    • The state of scientific and technical knowledge, at the time the product was put on the market, did not allow the existence of the defect to be detected. This is not applicable where the damage was caused by an element of the human body or by products derived from it;
    • The defect is due to the conformity of the product with mandatory legislative or regulatory rules, the defendant remaining however liable for a defective product that has been manufactured in accordance with existing standards or has been the subject to administrative authorisation;
    • The damage is caused jointly by a defect in the product and by the fault of the victim or a person for whom the claimant is responsible.
  5. What is the limitation period for bringing a claim?

    The limitation period for bringing a strict liability claim is three years from the date on which the claimant became aware, or reasonably ought to become aware, of the defect, the identity of the producer and the existence of the damage(s).

    However, a second limitation period is provided for: the producer can only be held liable up to ten years after the product was put on the market, except in case of fault.

  6. To what extent can liability be excluded (if at all)?

    Liability, towards the claimant, can be excluded if:

    • The claimant fails to prove the elements necessary to the success of a strict liability type claim (see question 2);
    • The defendant successfully raises one of the aforementioned defences (see question 4);
    • The limitation period of three years from the date on which the claimant became aware, or reasonably ought to become aware, of the defect, the identity of the producer and the existence of the damage(s), has expired;
    • The product was put on the market more than ten years prior to the claim being filed.

    In principle, liability can however not be excluded by a clause intended to exclude or limit liability for defective products. Such clauses are prohibited and considered void.

  7. What are the main elements which a claimant must prove to succeed in a non-contractual (eg tort) claim for damage caused by a defective product?

    The claimant must prove cumulatively the following elements to succeed in a tort claim:

    • A fault or negligence of the defendant, which is determined by reference to the “reasonable person” standard;
    • A damage suffered by the claimant; and
    • A causal link between the fault/negligence and the damage(s) suffered by the claimant.

    In addition, a claimant may claim for damages against a person having custody of the defective product. The proof of the existence of a fault or negligence is not required, the proof that the damage was caused by the defective product in the defendant’s custody is sufficient.

    A defective product will be considered as being in someone’s custody upon the condition that the given person has the power to use it, control it and manage it.

  8. What types of damage/loss can be compensated and what is the measure of damages? Are punitive damages available?

    The types of damages/losses that can be compensated are as follows:

    • Pecuniary damages/losses, for example loss of professional earnings;
    • Physical damages suffered by the claimant, such as bodily injury;
    • Damages caused to the claimant’s mental integrity;
    • Loss of opportunity to obtain a future benefit;
    • Anxiety caused by the exposure to a defective product.

    Under French law, the principle is a full compensation of the damages/losses suffered by the claimant, upon the condition that they be certain, direct and determined.

    Damages granted to the claimant are intended to solely compensate the claimant for the damage(s) suffered, and not to punish the defendant.

    Punitive damages are not available under French civil law.

  9. How are multiple tortfeasors dealt with? Is liability joint and several? Can contribution proceedings be brought?

    Any defendant having committed a fault or negligence or having the defective product in his/her custody can be held liable.

    Joint and several liability is possible, upon the condition that the joint and several liability be provided for by law or by contract.

    As such, the claimant can obtain full compensation for his/her damage(s) from any of the tortfeasors held liable.

    If defendants are held jointly and severally liable, a defendant having paid the entire amount can claim from other defendants the proportion of their liability.

  10. Are any defences available? If so, please summarise them.

    If the producer can prove that the defect of the product was caused by force majeure or a
    fault committed by the claimant or a third party, the defendant’s liability can be excluded.

    Force majeure is defined as an unforeseeable event, exterior to the situation, which, if anticipated, would have been too strong to be controlled.

    The fault committed by the claimant or a third party must be unforeseeable and if anticipated, too strong to be controlled, for the defendant’s liability to be totally excluded. If not, the fault of the victim may result in a partial exclusion of the defendant’s liability.

  11. What is the limitation period for bringing a claim?

    The limitation period for bringing a tort liability claim is five years from the date on which the claimant knew, or reasonably ought to have known, the facts having given rise to the claim.

    In the event of physical injury, the limitation period for bringing a tort liability claim is ten years from the date of consolidation of the initial or aggravated damage(s).

  12. To what extent can liability be excluded (if at all)?

    Liability can be excluded in the following cases:

    • The claimant fails to prove the elements necessary to the success of a tort liability type claim for damage(s) caused by a defective product (see question 7);
    • The defendant successfully raises one of the defences aforementioned (see question 10);
    • The limitation period of five years from the date on which the claimant knew, or reasonably ought to have known, the facts having given rise to the claim has expired;
    • In the event of physical injury, the limitation period of ten from the date of consolidation of the initial or aggravated damage(s) has expired.
  13. Does the law imply any terms into B2B or B2C contracts which could impose liability in a situation where a product has caused damage? If so, please summarise.

    The Civil Code provides for a duty to deliver and guarantee the sold good. Pursuant to case law, the seller therefore has an obligation to provide the purchaser with a product that complies with the agreed contractual specifications.

    In addition, the purchaser benefits from a warranty against hidden defects. As such, the seller can be held liable where the defect, not apparent at the time of the sale, renders the product unfit for the use for which it is intended, or reduces this use to the extent that the purchaser would not have acquired it, or would have paid a lower price for the product, had he been made aware of the defect.

    In B2B contracts, clauses limiting the guarantee against hidden defects are permitted. Nevertheless, this clause may be considered void, (i) if the seller is acting in bad faith and knew the defect at the time of the sale or, if (ii) the purchaser is a professional, not working in the same field and in the same speciality as the professional seller.

    The burden of proof lies with the professional purchaser, who must prove that the defect was present at the time of purchase. The purchaser’s knowledge of the product is considered.

    Clauses limiting the compliance of the product with the agreed contractual specifications are also allowed in B2B contracts provided that the professional purchaser works in the same field and in the same speciality as the professional seller.

  14. What types of damage/loss can be compensated and what is the measure of damages?

    The types of damages/losses that can be compensated are as follows:

    • Pecuniary damages/losses, for example loss of professional earnings;
    • Material damages to property belonging to the claimant;
    • Physical damages suffered by the claimant, such as bodily injury;
    • Damages caused to the claimant’s mental integrity;
    • Loss of opportunity to obtain a future benefit;
    • Anxiety caused by the exposure to a defective product;
    • Interest for delay in the performance of the contract.

    The principle is a full compensation of the damages/losses suffered by the claimant, upon the condition that they be certain, direct and determined. In contract law, the damage must, in addition, have been foreseeable at the time of the performance of the contract.

  15. To what extent can liability be excluded (if at all)?

    Liability can be excluded in the following cases:

    • The claimant fails to prove the elements necessary to the success of a contractual liability type claim (see question 13).
    • The defendant successfully raises one of the following defences:

      - The product defect is caused by force majeure;
      - A fault/negligence is committed by the claimant or a third party.

    • The following limitation periods, where applicable, have expired:

      - Regarding hidden defects the limitation period of two years from the discovery of the defect, within a limit of five years from the delivery of the product;
      - Regarding the duty to deliver and guarantee the product, the limitation period of two years if the claimant is a consumer and five years if the claimant is a professional;

    • In B2B contracts between professionals of same speciality, a clause limits the guarantee against hidden defects and/or the compliance of the product with the agreed contractual specifications
  16. Are there any recent key court judgements which have had a significant impact on the approach to product liability?

    Two key judgements rendered by the Supreme Court in 2017 have had a significant impact on the approach to product liability:

    • The judgement rendered on 11 January 2017 (n° 16-11.726) held that the producer of a defective product is held liable, regardless of whether the product is used for a professional or private purpose. Through this decision, French law distinguishes itself from European Directive 85/374/EEC relating to defective products, solely applicable to damages caused by a product intended for private use; and
    • The judgement dated 7 July 2017 (n° 15-25.651) confirms that European provisions relating to strict product liability, being considered as public policy provisions, are applicable even though the claimant grounds his/her claim on fault where such fault is characterised by a product defect. As such, the courts are to apply strict product liability rules even though the claimant does not bring a claim on the grounds of strict product liability.

    In addition, in a judgment of 21 June 2017 (case C-621/15), the ECJ replied to the preliminary question referred by the French Supreme Court regarding the powers granted to the national courts with regards to assessing the use of presumptions to prove a product defect, where “medical research does not establish a link between vaccination and the occurrence of the disease”.

    The ECJ rules that each Member State determines the rules relating to proof and the use of serious, precise and consistent presumptions to characterise defect under the strict product liability regime.

    This decision does not modify the state of French case law. The Supreme Court, subsequently, in its judgments of 18 October (n°14-18.118) and 20 December 2017 (n° 16-11.267), confirmed the position of Courts of Appeal rejecting the evidence referred to by a plaintiff considering that they do not constitute serious, precise and consistent presumptions.

  17. What are the initial litigation related steps you should take if you are facing a product liability claim or threatened claim?

    When faced with a product liability claim or when being threatened with a claim, the following steps should be taken:

    • Get a clear understanding of the scope of the claim and the evidence produced by the claimant;
    • Identify if the alleged defective product is manufactured by the defendant;
    • Collect information and evidence to demonstrate that the product is not defective;
    • Assess whether the damage(s) of the claimant is due to the product defect;
    • Assess whether the damage(s) of the claimant is related to the lack of compliance with the precautions for use indicated in the product information leaflet;
    • Assess whether the precautions for use indicated in the product information leaflet were detailed enough to prevent the damage(s) from occurring;
    • Assess risk of mass litigation.
  18. Are the courts adept at handling complex product liability claims? Are cases heard by a judge or jury?

    French civil courts are adept at handling complex product liability claims given that they have dealt with product liability claims for many years in a large variety of fields. As such judges have developed an expertise relating to product liability claims.

    Cases are heard by professional judges, not juries as juries are not used in civil proceedings in France, except in criminal proceedings relating to the most serious criminal offences.

  19. Is it possible to bring a product liability related group action? If so, please summarise the types of procedure(s) available

    Group actions, known as a “collective actions”, were first introduced by the Hamon law of 17 March 2014 (n°2014-344), at first limited to the field of consumer law. It was extended, in 2016, to the field of health by Law n°2016-41 of 26 January 2016.

    The collective action, created by the Hamon law, aims at obtaining compensation for individual damage(s) suffered by consumers being in the same or a similar situation, the damages having as common origin a failure by the same professional to respect his legal or contractual obligations when selling goods or providing services.

    To be eligible for a collective action, one must be considered as a consumer, meaning a natural person entering into an agreement for a purpose which can be regarded as being outside his trade or profession.

    However, consumers cannot directly bring a claim themselves. Solely an accredited consumer protection association, representative at national level, can bring a collective claim.

    In 2016, the possibility for multiple users of the health system to bring a claim against a person for compensation for bodily injuries related suffered due to a health product was put into place.

    Regarding the types of procedures available, the collective action is based on two types of procedures:

    • An opt-in procedure which requires each claimant wishing to be part of a group action to expressly manifest an intent to participate in the group action by becoming part of the association having filed the claim;
    • A simplified procedure which does not require any active approach on the part of the consumer. The court rules on the liability of the defendant and orders him/her to compensate individually and directly each consumer affected by the defective product.
  20. How are cases typically funded? Can lawyers charge success fees? Is third party funding permissible?

    Cases are typically funded by the clients themselves.

    Third party funding is permissible, but not yet common practice.

    Although third party finding is not prohibited, the ethical rules to which lawyers are held impose certain limitations to third party funding, with regards to conflicts of interest and the payment of fees.

    The ethical rules to which are held lawyers provide that lawyers can only receive payment of fees from their clients or an authorised representative of their clients – not any third party.

    In addition, lawyers are prohibited from communicating confidential information to third parties without their client being present and having consented to the communication of the given information to the third party.

    Finally, the ethical rules, both at national and European level prohibit lawyers from agreeing to receive a purely success-based fee.

    However, lawyers can enter into a written agreement providing that the agreed fees may be increased in the event of a determined result, the calculation of which is laid out in advance.

  21. How common are product liability claims and what factors influence their frequency?

    Product liability cases are quite common since consumers are generally aware of their rights and the possibility of bringing a claim.

    In recent years, the rise of social media has undoubtedly contributed to influence the frequency of product liability claims.

    Numerous internet websites for group actions have been put into place. These types of websites aim to help and encourage claimants to regroup by the possibility for potential online for claimants to register in a group action.

    In addition, today, many lawyers specialise solely in representing claimants in product liability claims.

  22. What are the likely future developments in product liability law and practice? To what extent is the suitability of the law being challenged by advances in technology?

    The landscape of product liability is undoubtedly changing and developing, including through the impulse of advances in technology.

    Consumers are increasingly linked together through social media. As such, information spreads between consumers and stakeholders at an increased speed and on a larger scale.

    The European Commission has announced that in mid-2019, it “will issue […] a report on the broader implications for, potential gaps in and orientations for, the liability and safety frameworks for artificial intelligence, the Internet of Things and robotics”.