2.2.2. Nuanced Approach

We have seen that most commentators perceive the causal enquiry in French administrative law as based upon the adequacy theory. These writers have thus concluded that the but-for test, or la théorie de l'équivalence des conditions,⁵⁷ has not been favoured by the administrative courts,⁵⁸ owing to its over-inclusive nature⁵⁹ and the need to find a more effective tool for limiting responsabilité administrative.⁶⁰

(p.172) And yet, it is incorrect to suppose that the but-for test plays no role in determining causal responsibility in French law. On the contrary, there is evidence that it has performed a very useful function as a preliminary filter of causal connection in certain contexts.⁶¹ This is most striking when the complaint is in respect of liability for an unlawful administrative act. In this situation, the public authority might argue that the irregularity did not affect the content of the administrative decision: the same act could have been taken lawfully if, for instance, the proper procedures had been followed. Thus, the court must answer the following question: but for the specific illegality could the same administrative decision nonetheless have been taken? If so, the loss would still have been sustained and thus the illegality did not cause the harm. The but-for test is rigorously applied in order to exclude liability for decisions which are merely procedurally flawed. This will be examined in more depth below.⁶²

There are other indications of a more nuanced test of causation in French law. Some authors have made a distinction between two stages of the causal enquiry, drawing a dichotomy between the threshold and extent of causal responsibility.⁶³ The adequacy theory is applied to determine the ‘threshold situation’ where the court is establishing whether the defendant is liable at all. The extent of liability of one who has caused tortious damage is determined by the test of directness, so that the courts hold that too indirect consequences are not recoverable.⁶⁴

Many cases do illustrate the latter test of directness.⁶⁵ Moreover, there are indications that the courts apply the direct consequences test of causation in a restrictive manner.⁶⁶ Thus, in personal injury actions recovery can only be made for consequential expenditure which is strictly necessary,⁶⁷ and the extent of claims by ricochet victims is closely scrutinized.⁶⁸ (p.173) Likewise, there is evidence of a restrictive judicial interpretation of directness in pure economic loss claims.⁶⁹ Similar considerations apply to claims in damages for harm to property. The abattement procedure under which the courts will reduce the damages award in order to take account of the substitution of new materials for old is seen by some as a rule of causation.⁷⁰

Despite the conceptual divide between threshold and extent of causal responsibility, cross-over between the two limbs of causation is also apparent.⁷¹ In the final analysis, the distinction drawn by the authors may just be expressive of the freedom of the administrative judiciary to determine the test of causation they apply, resulting in a blended application of causal tests of adequacy and direct consequences.⁷²