French Law: Formal Bases of Liability and Practical ‘Irresponsibility’ simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0012

Abstract and Keywords

This chapter addresses the question of liability in the administration for failures in the organisation or control of product safety. Firstly, it is concerned with the possession by public bodies of powers relating to product safety which give rise to administrative liability. Secondly, the chapter is concerned with the imposition of liability in respect of failures in the exercise of powers of control by a public body over other persons, whether public or private, rather than over its own activities. Thirdly, it is concerned with questions of liability in the administration in respect of the safety of products, rather than their quality. Fourthly, the chapter discusses how the exercise of public powers of safety has influenced the development of criminal responsibility for death and personal injury more widely and, indirectly, the incidence of criminal responsibility of other private ‘decision makers’.

Keywords:   liability law, product safety, product liability, administrative liability, public powers, criminal responsibility

In this part, I shall look at what may be thought by an English lawyer to be a more specifically ‘public’ topic, the question of liability in the administration for failures in the organisation or control of product safety. For example, where a local authority or a government minister has power to regulate or control a product in the interests of safety (for example, by ordering its withdrawal from the market), can the public body in question, whether national or local, be liable to a person who suffers harm as a result of its exercise or failure to exercise the power in question? I shall look in this chapter at the response to this question in French law and in the following chapter at the response of English law, drawing there comparisons between the two.

This is a particularly revealing topic as regards the general picture of liability for products in France in a number of ways. First, the issue of liability for failures in the exercise of safety powers requires an understanding of the sources of public power in French law, sources which are very different from their English ‘equivalents’. Secondly, it is an area where the Conseil d’Etat has revised the law very considerably, moving from a denial of liability, to a requirement of faute lourde and, increasingly but somewhat patchily, towards a requirement merely of faute simple. In this last respect, the affaire du sang contaminé provides both a very striking example and may well have a wider influence on the law’s development, a public scandal provoking a significant revirement. Thirdly, however, the area shows the difficulty of assessing the practical impact of the formal rules of administrative liability. For even where liability for failures in the exercise of powers of control in the interests of safety may in theory be established (given the standard of liability required by the Conseil d’Etat), in practice it may not actually be imposed. The reasons for this are found in a number of particular rules relating to the comparative attractiveness as a matter of substantive law of claiming against any private persons also liable for the harm caused by an unsafe product coupled with the approach of the administrative courts to recourse actions by private persons against the administration in this context; in the rules concerning the time within which claims against the administration must be brought; and in the general rule denying joint liability between a private person and a public person liable to a claimant in respect of the same harm.¹ These systemic reasons for the non-imposition of liability on the administration in respect of the exercise of public safety powers are (p.306) strikingly illustrated by their circumvention by the Conseil d’Etat in the affaire du sang contaminé.²

There are four further preliminary points. First, this chapter is concerned with the possession by public bodies of powers relating to product safety which give rise to administrative liability: I have already noted that some private persons may bear liability in respect of their control of product safety, as in the case of the certification of ships³ and contrôleurs techniques of buildings.⁴ Secondly, it is concerned with the imposition of liability in respect of failures in the exercise of powers of control by a public body over other persons, whether public or private, rather than over its own activities. Where a public body itself provides a service involving the use or provision of products, this brings different issues of liability which I have already explained.⁵ Thirdly, my discussion will be concerned with questions of liability in the administration in respect of the safety of products, rather than their quality. Fourthly, I shall discuss later how the exercise of public powers of safety have influenced the development of criminal responsibility for death and personal injury more widely and, indirectly, the incidence of criminal responsibility of other, private ‘decision makers’.⁶