(A) Faute simple, faute lourde and illegality

As has already been seen in relation to the former administrative law relating to the use or supply of products by public hospitals,⁵² the French law of administrative liability for fault combines the use of different notions of fault with a willingness to manipulate them to suit what the Conseil d’Etat perceives to be the justice of the case or, as (p.312) Gaudemet more elegantly puts it, ‘the theory as to administrative fault is, like many of the theories adopted by the case law, nuanced and noted for its empiricism’.⁵³ This is certainly true of liability in respect of the control of product safety, whether this consists of a failure to intervene (sometimes termed la carence de la puissance publique) or an inadequate intervention.

My starting point is that French public lawyers generally treat the liability of public authorities in respect of the exercise of their powers to maintain ordre public as a category of liability, even if not an altogether homogeneous one. As I have explained, ordre public extends to public health and safety⁵⁴ though particular instances within this broad heading are often quite differently treated: so liability in the exercise of ‘police powers’ in the narrow sense⁵⁵ tends to be treated differently from the liability of a commune for a failure to supervise a public swimming area,⁵⁶ the granting by a public authority of a license to an unsafe pharmaceutical⁵⁷ or the failure in a regulatory authority to control the financial affairs of a société mutualiste.⁵⁸ At one time, liability in respect of these pouvoirs administratifs de police would in general only give rise to liability for faute lourde, but this clearly does not reflect the variety of modern judicial practice, which sometimes imposes liability for faute simple and sometimes for faute lourde, with faute simple apparently becoming increasingly common.⁵⁹ Indeed, it has been questioned how long liability for faute lourde will be retained by the Conseil d’Etat.⁶⁰

Two suggestions have been put forward as to the basis on which the Conseil d’Etat decides between these two. The first distinguishes according to the difficulty of the particular activity undertaken by the administration, difficulty leading to the more lenient standard of faute lourde.⁶¹ Certainly, there are many cases in which a particular administrative activity presents considerable difficulty and in which a standard of faute lourde has at one time been fairly consistently applied, notably cases involving rescues by the fire service⁶² or police action against terrorists.⁶³ However, if the ‘difficulty’ of a public body’s activity refers indirectly to the cost of an effective public provision owing to the physical difficulty or complexity of the task or tasks to be undertaken, then these factors could clearly be taken into account in determining whether faute simple existed rather than in determining the formal standard of liability⁶⁴ and this no doubt has been one of the reasons for the change in 1998 of the (p.313) general standard for the liability of rescue services to faute simple.⁶⁵ Moreover, faute simple may sometimes disguise a very strict approach. In one case, for example, the Conseil d’Etat held a commune liable for harm caused by a delay in the use of fire equipment by the fire service, on the basis that ‘where it was not shown that the equipment’s malfunction was attributable to cas fortuit, this delay itself constitutes a fault of a nature to attract liability’.⁶⁶ The difference between tying liability to faute simple rather than to faute lourde therefore lies in the fact that with the former ‘the characterization of the facts shall no longer be influenced by the preoccupation a priori to restrain the possibility of liability arising’.⁶⁷ Conversely, the maintenance of a standard of faute lourde may reflect a concern to discourage ‘defencive practices’ especially in relation to regulatory authorities.⁶⁸

A second approach distinguishes between those ‘acts’ of the administration which have legal consequences (‘actes administratifs’) which attract a standard of faute simple, and physical activities (‘activités’ or ‘opérations sur le terrain’) which attract a standard of faute lourde.⁶⁹ Here, it is important to understand the significance of holding that the standard of liability for actes is mere ‘ordinary fault’. For, while all enacted règlements count as actes administratif, by no means all administrative decision making will so qualify, but only those which count as décisions, i.e. promulgated norms whose purpose is to modify or to maintain a person’s legal position.⁷⁰ In general the illegality of an acte administratif is equated with faute (simple) sufficient to attract liability for any consequential harm and conversely, making a legal acte does not constitute faute.⁷¹ However, while the requirements of administrative legality are numerous, the main test as to the substantive appropriateness of a public authority’s decision requires something very like serious fault as here the Conseil d’Etat holds an administrative acte illegal only if it rests on a ‘manifest error of assessment’ of the matter in question. And where the illegality of an acte is not concerned with its substantive appropriateness, then this illegality, while constituting faute, will often be held causally unrelated to a complainant’s harm.⁷² So, for example, if a ministerial decision not to exercise product safety powers contained in the Code de la consommation were held illegal for (p.314) failing to consult the Commission de la sécurité des consommateurs,⁷³ any loss caused by this lack of consultation is unlikely to be related to harm caused to a citizen using the product in question.

The approach of the Conseil d’Etat to the substantive appropriateness of administrative decision making in the context of product safety may be illustrated by its decision in 1982 in Union fédérate des consommateurs⁷⁴ In this case, the Union, a national federation of local consumers’ groups, requested the Minister of the Economy to order the withdrawal under consumer safety powers of a particular model of car tyre and, when he refused to do so, applied to the administrative courts to annul this refusal. However, the Conseil d’Etat refused to do so since the Minister had decided in reliance on a scientific and technical study and not on any materially inaccurate facts that the tyres did not present a danger to vehicle safety of a nature to justify their withdrawal from the market and, in so doing, had not made any ‘manifestly erroneous assessment of the circumstances of the case’.⁷⁵ The Conseil d’Etat has taken a similar approach to a public authority’s failure to enact regulations governing a product.⁷⁶ Indeed, it has been said that the Conseil d’Etat will not intervene where technical matters are involved as it ‘does not recognise in itself a power to check whether or not a shampoo is dangerous’.⁷⁷ While these cases concerned refusals to intervene, it is clear that the Conseil d’Etat would take the same approach to an allegedly inappropriate decision to intervene.⁷⁸ If, therefore, an administrative court views a public body’s exercise of a product safety power as an acte administratif, there is little difference between a standard of liability in faute simple and faute lourde: faute simple requires illegality, and where substantive illegality requires ‘manifest error’ it looks very like faute lourde.

However, French courts appear to prefer to treat cases involving the exercise of safety powers (and in particular those concerning the general powers which maires possess within their communes),⁷⁹ not in terms of the illegality of any decisions or failures to decide but rather in terms of the degree of care taken, whether faute simple (in the sense of lack of ordinary care) or faute lourde (some grosser form of fault). For example, in Doublet⁸⁰ a local householder sued the commune as responsible for its maires failure to enforce regulations regarding the health and safety of a camping site opposite his house. The Conseil d’Etat held that the maire’s ‘systematic failure’ to enforce the regulations constituted a faute lourde so as to entail liability in the commune.

(p.315) In the affaire Stalinon, decided in 1968, the Conseil d’Etat upheld this approach to the basis of liability in the context of product safety, but did not impose liability in the circumstances.⁸¹ At the time, pharmaceuticals had to be approved and licensed by an administrative committee, the Commission des spécialités pharmaceutiques, and this had been done in respect of a drug called ‘Stalinon’. After Stalinon caused many deaths and serious injuries, the company director and scientific consultant responsible for its composition were convicted of offences of involuntary homicide and causing personal injuries and held liable in damages in full to the drug’s many victims, despite an argument that their liability should reduced on account of the ‘irregularity’ of the public committee’s operations which had led to the granting of the drug’s licence.⁸² Ten years later the insurers of the company which manufactured and marketed the drug and of its promoter claimed contribution from the State in respect of these liabilities on the basis that they were subrogated to their policyholders’ claims.⁸³ While the Conseil d’Etat accepted that the public committee might well have committed a faute lourde in its decision to license Stalinon, it held that this would not give rise to liability towards the insurers whose losses were the ‘direct consequence’ of the faults of those who had promoted the drug and had been convicted.⁸⁴

However, following the general trend, the Conseil d’Etat appears to be moving away from a requirement of faute lourde towards faute simple in the sense of ‘ordinary fault’ even in the context of the control of ‘activities’ undertaken or neglected which affect product safety. So, while in earlier decisions, faute lourde was held to be the appropriate basis for the claims in respect of the persons drowned when vessels sank even after public inspectors had declared them seaworthy⁸⁵ in 1998 the Conseil d’Etat imposed liability in a similar case merely for faute simple.⁸⁶ This trend appears to be confirmed by its approach to liability in the administration for failures in regulation and safety in the affaire du sang contaminé.⁸⁷