(C) Systemic tendencies towards the ‘irresponsibility’ of the administration

In principle, therefore, an administrative authority which has failed in its control of the safety of a product may be liable to a person injured by it, whether on the basis of faute lourde or faute simple. However, there are a number of reasons why in this context (and in others like it) in practice this fairly liberal approach to the imposition of liability does not result in liability actually being imposed on public authorities. These reasons are complex, and involve the relative substantive bases of liability in public and private law; the administrative law rules as to delay and prescription; the administrative law defence of fait d’un tiers; and the Conseil d’Etat’s restrictive attitude to recourse actions by private persons held liable by the ordinary courts. While none of these rule out the possibility of a public body being held liable for its failures in control of product safety, their effect, either singly or in combination, works against this happening: some create disincentives, some create legal tripwires. In all this, the jurisdictional division between the ordinary courts and the administrative courts is of key importance.

Let me start my explanation of this by posing a simple hypothetical case. Let us say that a defective product is put onto the market by a French manufacturer and this product causes numerous injuries owing to its design or lack of warnings. After a while, these injuries come to the notice of its manufacturer and of the public authorities responsible for product safety, either at the national or departmental level.¹¹³ However, for a period of six months, the relevant public authorities fail to take any action in respect of the product in question, neither warning the public nor ordering its withdrawal from the market. Our hypothetical claimant is a person who suffers (p.320) serious personal injuries caused by a newly purchased product’s defect four months after its dangers have come to the attention of the manufacturer and public authorities.¹¹⁴ In these circumstances, the claimant has a potential claim against the manufacturer in the ordinary courts and against the public authority in the administrative courts. However, she cannot claim damages in either jurisdiction against both types of defendant, but must choose whether to bring actions in both jurisdictions or elect which defendant to sue in the latter’s appropriate jurisdiction.

In French law, there is no legal reason why a claimant should not bring parallel proceedings in both jurisdictions against different (appropriate) defendants in respect of the same harm¹¹⁵ and, unlike the position as regards criminal and civil proceedings,¹¹⁶ proceedings in the ordinary courts do not suspend proceedings in the administrative courts or vice versa. If the proceedings are allowed to run their course, one will come to judgment prior to the other and, once satisfied, such a judgment will go to reduce or extinguish the loss in respect of the claim in the other jurisdiction; on the other hand, bringing parallel proceedings possesses the obvious disadvantage of cost and time spent by a claimant; and if a claimant recovers in full in one jurisdiction and then terminates the litigation in the other, he may be faced not merely with his own wasted costs in that jurisdiction, but also those of the other side.¹¹⁷

What, then, of limiting one’s proceedings to the ordinary courts? There are a number of good reasons why a claimant would prefer to claim in the ordinary courts rather than the administrative courts,¹¹⁸ but if he chooses to do so, there is no sure way in which he can protect his position in relation to any future claim against a public authority in the administrative courts against the risk of being out of time under the ‘four-year prescription’ rule (la prescription quadriennale formerly termed la déchéance quadriennale).¹¹⁹ For while a written application for compensation to a public authority by a person will interrupt the running of time for this purpose,¹²⁰ making such an application creates its own risk. If it is accepted in full, then well and good; if the public authority fails to respond to the claim, this silence does not trigger a short period within which proceedings must be brought¹²¹ (even though it is deemed to be a rejection for the purposes of allowing proceedings to be brought);¹²² but if the public authority expressly rejects the application for compensation, either wholly or in part, the applicant then has only two months in which to contest this by bringing proceedings for damages in the administrative courts.¹²³ So, applying for compensation to a public body runs the risk of accelerating the period in which a claim must be brought from four years to two months.

(p.321) In the following discussion, I shall explain the reasons why my hypothetical claimant is likely to choose to claim in the ordinary courts rather than the administrative courts and, secondly, how this choice is likely to affect the ultimate imposition of liability in the public body.