2. The Traditional Picture and its Application to Liability for Products

I shall distinguish two broad questions in setting out the pieces of the traditional picture of the involvement of the criminal process in imposing liability in damages for death and personal injuries: the substantive criminal law and whom it governs and the (p.369) role of the partie civile. I shall illustrate these points with cases in which liability for products has been in issue.

(a) The substantive criminal law and whom it governs

French law divides criminal offences into three categories,¹³ and this has important effects for the courts in which and procedures according to which they are prosecuted, as well as the penalties inflicted.¹⁴ They are, in descending order of seriousness: crimes, tried by the Cour d’assises¹⁵ where judgment is made by a mixed bench of professional and lay judges or ‘jury’¹⁶; délits, tried by the Tribunal correctionnel;¹⁷ and contraventions, tried by the Tribunal de police.¹⁸ Most French lawyers further distinguish as regards any criminal offence between its élément materiel (what the defendant did or failed to do); its élément légal (the classification of those facts as a matter of law) and its élément moral (the ‘fault’ element, whether intention, negligence or without fault).¹⁹

The general criminal law, which consists of its fundamental principles and its most important offences, is found in the Criminal Code of 1994,²⁰ which thoroughly revised its predecessor enacted in 1810.²¹ The new Code left all but intact the previous laws of voluntary and involuntary homicide and causing personal injuries (though it made the deliberate nature of a breach of an obligation de sécurité an aggravating factor in sentencing),²² but it created a new offence of the deliberate placing of a person in danger in breach of an obligation de sécurité.²³ More importantly, it accepted in principle (as the previous law had not) that personnes morales (‘legal persons’) could commit criminal offences, though this is qualified considerably as regards public bodies.²⁴ The remainder of French criminal law (its ‘special part’) is found scattered among particular special laws or réglements and in particular provisions of other codes; this body of law includes the offences of tromperie and falsification, which particularly concern products and which were created by a special loi in 1905, later being incorporated in the Consumer Law Code.²⁵

I shall start by explaining briefly the pattern of offences special to the product context, though their role has not been large in permitting compensation for personal injury and death; then the law of voluntary homicide, both because of its significance in the affaire du sang contaminé and in order to understand the importance of the changes made to the ‘fault element’ for involuntary homicide and causing personal injuries.

(i) Criminal offences particularly concerning products

(p.370) While criminal law plays a very significant and varied role in reinforcing the very many norms governing products generally and individual types of products in particular, there is a surprising absence of an overall criminal offence overtly dealing with the supply of unsafe products, even after implementation in France of the General Product Safety Directives of 1992 and 2001.²⁶ So, while French law has since 1983 contained a general duty on business suppliers to supply products and services offering ‘the safety which people are legitimately entitled to expect’,²⁷ breach of this duty does not of itself constitute a criminal offence, its role being rather to set the conditions on which the administration can intervene, whether by regulation or otherwise.²⁸ There are instead a multitude of interconnecting offences, the only common element of which is that they do not require any harm to have been caused before criminal responsibility is established.

Historically, the two most important offences have been tromperie and falsification, together known as fraudes and classed as délits.²⁹ Their primary aim was the elimination of the unfair effects of fraudulent trade practices on competition endemic at the turn of the twentieth century,³⁰ but they have played a significant role in controlling the safety of products.³¹

Tromperie is committed where a person, whether or not party to a contract, deceives or attempts to deceive a contractor concerning the substantial quality, type, suitability for purpose, or risks in use of goods or services.³² Despite the principle of strict interpretation of the criminal law,³³ its elements have been interpreted broadly and so, for example, ‘goods’ are understood as any corporeal movable property which can be counted, weighed or measured.³⁴ The thrust of the offence is deception, but it has been used to protect citizens from unsafe products, for example, where a dealer fails to warn a customer that a car which he sells has been in an accident,³⁵ it being ‘tromperie par abstention’ to do an act which suggests that a product does not possess certain defects which it has.³⁶ It was tromperie of which the senior officers of the French National Blood Transfusion Centre were convicted in the affaire du sang contaminé.³⁷

Falsification is committed by a maker or supplier of adulterated goods destined for sale of certain types, i.e. food and drink, animal feeds, medicines and agricultural or natural products.³⁸ For this purpose, ‘adulteration’ includes any improper alteration of the characteristics of the product in question from its natural state or any difference between their actual composition and its ‘proper’ composition, the ‘proper’ (p.371) elements defined in terms both of any specific legal rules governing the product (which are numerous, especially as regards food) and in terms of the practices of the particular trade.³⁹ So, for example, a baker was convicted of falsification for offering for sale bread containing letherine since this was not added to bread according to the ‘fair and continuous customs of the trade’.⁴⁰

What is the élément moral of these related offences? In the case of tromperie, its core meaning and the original intention of its creators requires proof that a defendant knew that the characteristics of the goods or services in question did not conform to their description of them, that is, an intentional fault.⁴¹ However, in the case of manufacturers and importers, the Cour de cassation allows lower courts to deduce bad faith from a failure to check the goods for their conformity to their description and in this way to reduce the fault element to negligence.⁴² A similarly strict approach is taken to falsification, though in practice a distinction is drawn between the person who tampered with the product and a person who merely supplies it in an already adulterated state, who is more likely to succeed in a defence of good faith.⁴³

Apart from these two offences, the criminal law sanctions directly the supply of products in breach of administrative regulations by contraventions,⁴⁴ but these offences have not appeared frequently as the basis of prosecution, partly because breach of a regulation can form the basis of a charge of falsification or tromperie⁴⁵ and partly because breach of a regulation which causes death or personal injury has often attracted a charge of the more serious offences of involuntary homicide or causing personal injury.⁴⁶

(ii) Voluntary homicide

The distinction between voluntary and involuntary homicide reflects the fundamental difference between intentional and unintentional criminal fault. While the Criminal Code has defined unintentional fault for this purpose (and in an increasingly complex manner),⁴⁷ neither the code nor the courts have defined intentional fault, notably for the crime of murder, with the striking exception of the Tribunal correctionnel in the first criminal case in the affaire du sang contaminé.⁴⁸ The jurists have, however, to an extent taken up the baton. Pradel, for example, distinguishes within dol (deliberate wrong-doing) between dol général (the intention to accomplish an act which one knows to be forbidden) and dol spécial, where there is a further element either of awareness of the causing of a harm or the seeking of a particular result⁴⁹ and of which murder (p.372) furnishes the typical example as it requires an intention to kill.⁵⁰ He also sees a distinction within dol général between dol direct (where a person seeks a particular result) and dol indirect (where he knows that his chosen act will lead—certainly or almost certainly-to a result which is not sought), but he considers this distinction more used outside France and that the two are assimilated by French courts.⁵¹ On the other hand, in general a person’s motive in acting is irrelevant to their criminal responsibility: euthanasia is a crime in France, the ‘good’ motive leaving untouched a defendant’s intention to kill.⁵²

While the Cour de cassation has declared that an intention to kill must be shown for murder,⁵³ it allows this to be ‘deduced’ from the circumstances by the Cour d’assises (for example, from the vulnerability of the part of a body which the defendant has attacked⁵⁴), and this ‘power of deduction’ allows the line between intending an act (which kills) and intending to kill to be blurred. For example, in a case in 1880, an apprentice baker incorporated a compound of arsenic into the dough in order to cause difficulties to his employer, but thereby killed 280 people who consumed it: he was convicted of the crime of poisoning (which is generally considered to have the same élément moral as murder⁵⁵) even though he bore no malice to the bread’s consumers.⁵⁶ It was to the crime of poisoning to which some of the victims of the affaire du sang con-taminé turned when they heard that some of those responsible for the supply of the blood had known of its deadly risks at the time.⁵⁷

(iii) The traditional law of involuntary homicide and causing personal injury

Between 1810 and 1996 it was a criminal offence classed as a délit for a person to cause serious injury or death by negligence or breach of any rule, legislative, regulatory or otherwise. Article 221–6 of the Criminal Code of 1994 (reflecting closely earlier provisions⁵⁸) as enacted stated that:

The act of causing by clumsiness, imprudence, inattention, negligence or breach of an obligation of safety or care imposed by loi or by réglements the death of another person constitutes involuntary homicide and is punished by three years imprisonment and a fine of 300,000 F.

It also provided for a délit of causing serious personal injuries, their seriousness being defined in terms of a total incapacity for work for three months or more, its companion regulations providing for contraventions where the injury was less serious.⁵⁹ Under the Code of 1994 most délits were to be crimes of intention, but these offences were included within this category because of the importance of the interests which they protect.⁶⁰ I shall look first at their ‘fault element’ and at a criminal court’s interpretation of the requirement of a causal link between the defendant’s fault and the victim’s injury. Both (p.373) these were very significant for the victim’s choice of the criminal process for claiming damages and both were changed (in part and in some circumstances) on reform of the law in 1996 and 2000. The following law, therefore, remains valid for some types of case, but not others.⁶¹

First, the ‘fault element’ was very broadly defined and was very broadly interpreted by the courts: not merely negligence or lack of care, but breach of any rule or regulation was enough. So, for example, a manufacturer was held guilty of ‘negligence’ in the design of the packaging of a product for failing to leave an appropriate margin for expansion of a corrosive product which therefore burst out of its plastic bottle on use and injured a customer⁶² and another manufacturer was held guilty of causing serious injury through negligence by failing to recall earlier versions of a product (a toy chemistry set) once he had changed its design in response to reported accidents, even though he was not in a position to contact his customers.⁶³ There was no requirement of any degree of seriousness of the negligence established.

Even more extensive was the courts’ interpretation of the phrase ‘breach of règlements’, for they accepted that this included not merely administrative regulations (règlements in the constitutional sense), but ‘any prescription of an obligatory character whose lack of respect has caused the harmful result in question’.⁶⁴ So, for example, breach of professional standards⁶⁵ or even of the rules of rugby football⁶⁶ were held sufficient to provide the necessary ‘fault element’ to establish these offences. Moreover, the mere breach of a legal regulation constituted in itself a fault so as to attract criminal responsibility, without any additional carelessness or negligence needing to be shown, with the result that the ‘fault element’ was reduced to nothing, the offence being effectively strict (une infraction matérielle).⁶⁷ This approach meant that where the law provided many specific regulations (as in the case of products, road traffic and the workplace)⁶⁸ it was very much easier for the ‘fault element’ required for these serious crimes to be established.⁶⁹

This may be illustrated by the affaire Stalinon, where over 100 people were killed and injured when they used a drug of that name.⁷⁰ The drug was conceived by a qualified pharmacist, who entrusted the necessary research before marketing it to a chemist. After various tests, the pharmacist applied to the French pharmaceutical licensing authority on the basis that it was a modified version of an already licensed drug (which it was not), the rights to which he had acquired. The licence was granted and it was made up by a laboratory and marketed. The pharmacist was charged with involuntary homicide and causing personal injuries, against which he argued that he had fulfilled his various regulatory duties to ensure that suitably qualified persons tested and made the drug and was not responsible for the way in which this was put into effect by the laboratory. However, the court held that the regulations in question imposed a duty of direct control on manufacturers of drugs at all stages of their manufacture and his breach of this duty and his (p.374) failure to act when Stalinon’s difficulties were drawn to his attention were the direct cause of the catastrophic results.⁷¹ He was therefore convicted and ordered to pay damages to the drug’s victims who were parties civiles to the proceedings.

Apart from the words used by the Code to define the crimes of involuntary homicide and causing personal injuries, French criminal courts were very strict in their assessment of their ‘fault element’ because of its significance for compensation for the person injured by the alleged offence. While this relationship was typically expressed in terms of the ‘unity of criminal and civil faults’, in fact this doctrine has a number of distinct aspects.⁷² The first and most important aspect, so much assumed as to be taken as axiomatic, was that any finding of a ‘criminal fault’ also establishes the existence of a civil fault for the purposes of civil liability under articles 1382 or 1383 of the Civil Code. In the case of involuntary homicide and causing personal injuries, this is readily comprehensible, given that their traditional definition used very similar words to the definition found in article 1383, but the significance was and is wider, for both the criminal and the civil courts consider that any offence of whatever seriousness or élément moral constitutes une faute civile, just as a civil court would find any other breach of duty as constituting une faute civile: while delictual fault includes a lack of care it is broader than a common lawyer would understand by ‘negligence’.⁷³ This French position clearly worked (and still works) as a fundamental pillar of the criminal courts’ imposition of liability to compensate the victim of any criminal offence which they find.

However, further elements of the ‘unity doctrine’ could have a less favourable effect on the victim’s chances of achieving compensation. One of these (a rule which subjected all claims for damages based on a criminal offence to the much shorter prescription periods of the criminal prosecution) was abolished in 1980,⁷⁴ but there remained a further rule, known as l’autorité de la chose jugée au criminel sur le civil⁷⁵ according to which the decision of a criminal court as to a defendant’s ‘fault’ (whether guilty or not guilty) bound any subsequent civil court,⁷⁶ a rule made more potent by the duty of civil courts to stay their proceedings once a criminal court is seized of the same facts.⁷⁷ This meant that a criminal court’s acquittal of a person of the offence of involuntary homicide or causing personal injuries prevented both the criminal court and any subsequent civil court from imposing liability in damages on the basis of civil fault. In the result, as Viney famously observed in 1982, this combination of rules meant that the criminal judges:

often feel constrained, even in cases where the suppression of crime appears not at all necessary for the protection of ordre public, to find a ‘speck of fault’ with the sole aim of saving the victim’s right in any civil court.⁷⁸

(p.375) This situation was improved by legislation in 1983 which allowed a criminal court to impose liability in damages on a defendant acquitted of involuntary homicide or causing personal injuries towards a partie civile on some civil law basis other than fault, notably for the ‘deeds of things’ or breach of an obligation contractuelle de résultat or de moyens.⁷⁹ Nevertheless, the potentially distorting effect on criminal responsibility of its necessary connection with civil liability was a key reason for their partial divorce by the loi of 2000.⁸⁰

Secondly, the criminal courts took an extensive approach to the causal relationship necessary between a defendants ‘fault’ and a victim’s injury for the purposes of involuntary homicide and causing personal injury, an approach seen as wider than the approach taken by the civil courts to liability for delictual fault.⁸¹ This difference created a very real advantage for the victims of these offences in bringing their claims for damages before the criminal rather than civil courts, because the criminal courts applied their finding on criminal causation to the issue of a defendant’s liability in damages as well as to his criminal responsibility.

The difference of approach to causation in the two courts is difficult to pin down exactly, because their decisions are often cloaked behind their ‘sovereign power of assessment’ as the juges du fond.⁸² The jurists often try to catch the difference by saying that the criminal courts follow a theory of causation based on the theory of the ‘equivalence of conditions’ whereas the civil courts follow the theory of ‘adequate causation’,⁸³ but this suggests a more systematic approach than has been favoured by either jurisdiction. Indeed, as Carbonnier observed, there has been a general tendency on the part of both the civil and criminal courts to confuse the issue of causation and of the gravity of fault, so as to give extra causal potency to an act or omission which also constitutes an offence.⁸⁴ Certainly, for the criminal courts their approach to causation made ‘the extreme importance of moral culpability stand out’.⁸⁵

While, therefore, the Chambre criminelle of the Cour de cassation required the causal relationship between a defendant’s fault and the victim’s injury to be ‘certain’,⁸⁶ sometimes criminal courts found one where it was ‘very conjectural, and even improbable’.⁸⁷ An example given by Merle and Vitu of where this was the case concerned the supply of a glazing product to a mason who had been engaged by some wine makers to resurface a storage vat in their cellar.⁸⁸ The court held the technical director of the product’s manufacturer negligent in failing to warn of the product’s inflammability (p.376) and of its dangers when used in a confined space and that this negligence was a cause of the mason’s failure to warn the vine growers, one of whom smoked in the cellar and caused an explosion: presumably the conjectural element was the question whether the mason would have passed on the warning to the wine makers. Perhaps more clear are cases where the criminal courts held that the alleged offender’s behaviour was merely one of several possible factors or actions which led to the accident, there being (until 2000) no requirement that the causation be either ‘direct or immediate’.⁸⁹ For example, in one case a water company had undertaken the provision of water for a small town under a contract of concession under which it had a duty to maintain the town sewers which ran close to the wells.⁹⁰ The town suffered an epidemic of typhoid, some of whose victims died. The company’s head of operation’s conviction for involuntary homicide was upheld on appeal on the ground that he had not taken any precautions to ensure the soundness of the sewer walls through which waste had leaked into the water supply: his suggestion that the epidemic was caused by a deliberate act of an unknown third party was dismissed as ingenious speculation. The Cour de cassation refused to interfere with this decision, as it resulted from a sovereign assessment of the facts of the juges du fond as to causation. Again, the defendant was held civilly liable to the victims, as was the water company as vicariously liable for his actions. Similarly, in the affaire Stalinon, the court held that the drug’s manufacturer could not escape conviction on the ground that the public licensing agency was to blame for the deaths and injuries which the drug caused because it had not taken proper care in testing the product before allowing it onto the market (though it took care not to pronounce upon the existence of such an ‘administrative fault’).⁹¹

On the other hand, while the criminal courts have considered that the ‘contributory fault’ of a victim of involuntary homicide or personal injuries excludes a defendant’s criminal responsibility only where it constitutes force majeure or is the exclusive cause of his own harm,⁹² since 1972 the criminal courts have not applied this approach to the defendant’s civil liability, it being for the juges du fond to decide whether an injured party was at fault, whether this was causally related to his injury and, if so, to what extent the damages recovered should be reduced.⁹³

(iv) The defendants

Until 1993 it was a fundamental rule of French criminal law that only human persons could be guilty of offences⁹⁴ and this left people who ran trading companies (including those producing or selling products) or elected representatives or administrative officials (whose duties included the supervision of product safety) in the firing line of prosecution. While the Criminal Code of 1994 departed from this fundamental rule, it did not abolish it entirely but rather created a number of important exceptions which at first distinguished according to particular offences and which still distintinguish between different types of personnes morales.⁹⁵

(p.377) As regards human defendants, in general French courts considered that the chef d’entreprise or dirigeant (the ‘factual boss’, usually the managing director) of a company was the most appropriate defendant where its product caused death or serious personal injury⁹⁶ and they held dirigeants of a firm criminally responsible for offences committed by the firm’s employees even though he himself did nothing and knew nothing about them.⁹⁷ While this has been seen as a vicarious criminal liability, it is generally treated as an example of responsibility for negligence by omission, the dirigeant being liable for failing to prevent the offence from being committed. It remains difficult for a dirigeant to rebut this presumption of fault,⁹⁸ and so while a dirigeant may sometimes escape criminal responsibility where he shows that he ‘delegated his powers of control’, for example, as to health and safety⁹⁹ even here a court may hold him responsible by finding some more personal fault in him.¹⁰⁰ While sometimes other members of the company staff have been convicted in this sort of context, it was rare for a junior member of staff to be prosecuted, even if he was the person ‘physically responsible’ for an injury or death.¹⁰¹

In the case of unsafe products, criminal responsibility has been imposed not merely on their manufacturer, but also on their supplier.¹⁰² The range of defendants who can be involved in a prosecution for involuntary homicide and causing personal injuries may be illustrated by the affaire du ‘Cinq-Sept’ which concerned the criminal responsibilities for the deaths of nearly 150 young people and a similar number of injuries in a fire at a discotheque outside a small French town.¹⁰³ The discotheque had been newly built out of concrete and was owned and run by two companies, controlled by three businessmen. The immediate cause of the fire lay in the heating system, which allowed hot air and gas to escape, but its devastating effects resulted from the decoration of public areas with a highly inflammable polyurethane-based product, which, when alight, emitted lethal fumes, and from the main exit being blocked by a pedal-operated turnstile. A number of people who had contributed to this tragedy were held guilty of involuntary homicide and causing serious personal injuries: the businessmen who ran the discotheque and those who made and installed the central heating on the basis of their breach of building regulations and their personal lack of care; and the managing director of the company which made the polyurethane-based product on the ground that he knew that it would be used for decorating public rooms and ought to have warned of its potential dangers. All these defendants were also held liable in damages to the victims of their crimes present as parties civiles.

(p.378) Perhaps most interesting was the position of the local maire. The maire had granted planning permission for the construction of the discotheque and this imposed on him certain specific duties in respect of the safety of the establishment seen by the court as examples of his more general duty ‘to ensure good order, security, safety and public health’.¹⁰⁴ On the facts, it was held that the maire had failed to perform his public duty by not taking proper care in the supervision of the construction and operation of the discotheque and was therefore guilty of involuntary homicide and causing personal injury, despite his argument that, as an elected official with no special training, he could not possibly know and in fact was not aware of all his legal duties and that he should not be convicted in the absence of moral fault. However, the criminal court’s conviction of the maire did not lead to the imposition on either him or the commune of civil liability in damages since as part of the ‘ordinary jurisdiction’ (ordre judiciaire) it lacked the competence to impose liability on an individual member of the administration in respect of a fault connected with the exercise of his public functions or on the administration itself¹⁰⁵ Here, therefore, the principle of the separation of powers and the division between the public and private jurisdictions prevented the court from giving effect to the normal consequences of a criminal conviction for the benefit of the victims of a crime.

While the maire’s argument in the affaire du ‘Cinq-Sep’ did not allow him to avoid conviction, the association of maires lobbied the government to introduce a special legislative immunity to protect them from prosecution in respect of any alleged failure to fulfil their many public duties, though the loi as enacted instead only made their prosecution subject to a special vetting procedure by the local préfet.¹⁰⁶ This procedure was, however, swept away in 1993 in the interest of simplifying procedure and removing what looked to the general public like an unjustified protection for elected officials.¹⁰⁷

Turning to the position of personnes morales as defendants, the Criminal Code of 1994 introduced the possibility of their criminal responsibility for three main reasons: to increase the deterrent and preventative effect of the criminal law, particularly in the case of serious offences affecting public health, the environment, company affairs and social legislation;¹⁰⁸ conversely, to deflect criminal prosecutions away from the individuals who ran them and who in practice bore a ‘presumption of criminal responsibility…in respect of offences of whose existence they are often unaware’.¹⁰⁹ Under the present law:

Legal persons, with the exception of the State, shall be criminally responsible according to the distinctions provided by articles 121–4 to 121–7 for offences committed on their behalf, by their governing bodies or officers [organes] or their representatives.

(p.379) Nevertheless, local authorities and their groupings shall be criminally responsible only in respect of offences committed in the exercise of activities which may be the object of an agreement to delegate a public service.

The criminal responsibility of legal persons does not exclude that of physical persons who are the authors or accomplices of the same acts.¹¹⁰

This is a complex provision and has given rise to much doctrinal discussion,¹¹¹ but there are three important points.¹¹²

First, in principle all legal persons may be convicted of crimes, the only absolute exception being the State itself, the reason for the latter being said to be its monopoly of the right to punish.¹¹³ While it was discussed in Parliament whether other exceptions should be made, notably in the case of trade unions or political parties, the French legislature felt constrained to take this very inclusive approach, for fear that any special immunity retained for a particular type of body would be held unconstitutional by the Conseil constitutionnel on the grounds of inequality before the law.¹¹⁴ Thus, all private law bodies, including non-profit-making companies, trade unions, political parties and charitable foundations, as well as commercial companies are included, as are most public law bodies, such as établissements publics industriels et commerciaux. On the other hand, local authorities can be criminally responsible only in respect of criminal offences committed ‘in the exercise of activities which may be the object of an agreement to delegate a public service’. This last expression has a technical meaning in French administrative law which has apparently been adopted by the Cour de cassation for this purpose, rather than simply distinguishing between offences committed in areas which do not concern their special public powers (prérogatives de puissance publique).¹¹⁵ Thus, a commune could be responsible in respect of such matters as its own running (en régie) of a school bus service, refuse collection or the distribution of water,¹¹⁶ but would not be in respect of activities such as the exercise of its powers in the areas of public order, health and safety, its pouvoirs de police administrative.¹¹⁷ This means that, for example, a commune in circumstances such as the affaire du ‘Cinq-Sept’¹¹⁸ remains incapable of being prosecuted in respect of the deaths and injuries caused in part by its maire’s failures to exercise safety powers and nor could any local authority in respect of any alleged failure in its powers of control of unsafe products. As a result, the criminal responsibility of local authorities has been very little invoked.¹¹⁹ And of course many administrative powers of control of the safety of products¹²⁰ belong to State authorities, whether a minister or the préfet,¹²¹ and these authorities remain immune from criminal responsibility.

(p.380) Secondly, in order for a legal person to be convicted, the offence must have been committed either by one of its organes or by its human representative on behalf of the legal person.¹²² The term organe is used to describe various senior officers and governing bodies who are by law charged with the administration or direction of the various types of legal persons: for example, in the case of a commune, the organes are the maire and municipal council.¹²³ However, the significance of the term ‘representative’ is far from clear,¹²⁴ though it certainly includes the dirigeant and others who ‘represent’ a company, for example, as its contractual agents, but excludes mere employees.¹²⁵ Moreover, even where committed by a legal person’s organe or representative, an offence must be committed ‘on its behalf in order to lead to its criminal responsibility, this being understood as being ‘in the exercise of activities aimed at ensuring the organisation, the functioning or the objectives of the grouping with legal personality’, even if the legal person has no interest in the activity and does not benefit from it.¹²⁶

Finally, despite the fact that one of the purposes of the introduction of criminal responsibility for legal persons was to deflect prosecutions for non-intentional offences away from individuals, article 121–2 alinéa 3 of the Criminal Code specifically retains the criminal responsibility of those ‘human persons who are the authors or accomplices of the…facts’ for which the legal person is held responsible. It is clear, moreover, from the discussion of the loi of 2000 that individuals remained very much in the firing line, particularly given that the choice of whom to prosecute remains shared between the public prosecuting authorities and the victims of crimes.¹²⁷

(b) The role of the partie civile

Apart from the presence of substantive criminal offences and both human and corporate defendants, the importance of the criminal process in France for the compensation of personal injuries and death (including in the context of products) rests on French law’s recognition of a special role for the victim as partie civile in the prosecution and trial of crimes.¹²⁸

(i) The double role of the partie civile

French criminal law is perceived as an expression of the demands of ordre public and in principle, therefore, a representative of the State, the ministère public or parquet, decides whether the prosecution of an offence is appropriate as a matter of the public interest and, if it is, sets criminal proceedings (the action publique) in motion.¹²⁹ Ministères publics are formally a type of judge (magistrat) and are recruited in the same (p.381) way as are other judges, though they belong to the administration and are under the ultimate control of the Minister of Justice.¹³⁰ In some areas, specialist public agencies investigate ‘regulatory offences,’ such as those relating to health and safety at work¹³¹ and ‘consumer offences’, including tromperie and falsification,¹³² where investigation is in the hands of the Direction générale de la concurrence, de la consommation et de la répression des fraudes.¹³³ While these public agencies do not formally decide whether or not a prosecution should be made, in many cases they choose not to report their findings to the ministère public (who does decide on prosecution) even where they consider that an offence has been committed, preferring instead to warn the offender, leaving prosecution only to very serious cases.¹³⁴ Where a prosecution is brought, any victim of the alleged crime may join the proceedings as partie civile by bringing an action civile¹³⁵ his most obvious purpose in doing so being that, if the defendant is found guilty, the court has the power to award him damages against the defendant (or against any person responsible for the defendant, such as his employer¹³⁶ or insurer¹³⁷) for any harm caused by the offence.¹³⁸ However, the role of parties civiles is much larger than this suggests, for they are full parties to the proceedings and may call evidence and put arguments as to a defendant’s criminal responsibility as well as to his liability to pay damages.

Moreover, French law gives the victim of a criminal offence the power to decide whether or not criminal proceedings are commenced, for by ‘constituting himself partie civile¹³⁹ he places a case directly in the hands of the juge d’instruction (‘investigating magistrate’) and so effectively overrides the discretion of the ministère public as to whether proceedings should be initiated:¹⁴⁰ the victim’s decision has the ‘effect of triggering indirectly (but necessarily) the action publique’.¹⁴¹ This does not mean, however, that the (p.382) victim’s decision necessarily means that the person he accuses will go to trial for the crimes of which he accuses him: the juge d’instruction investigates the case against the accused¹⁴² and must independently decide whether the facts give rise to an offence¹⁴³ and if so, what charges are appropriate to be brought and in which court.¹⁴⁴ If he finds that no crime has been committed, that there is insufficient evidence or that the culprit remains unknown, he may order the proceedings to cease (‘non-lieu’).¹⁴⁵ While the juge d’instructions decisions are fully appealable by the public prosecutor¹⁴⁶ and the accused,¹⁴⁷ a partie civile may appeal from them only where they involve no charges being brought or to the extent that they prejudice his ‘civil interest’.¹⁴⁸ These rules became prominent in the course of the affaire du sang contaminé, as we shall see.¹⁴⁹

French lawyers recognise that the action civile therefore has a double purpose: to permit the victim of a crime to gain damages from the offender but also to allow the victim to participate in the enforcement of the criminal law and so give vent to private vengeance.¹⁵⁰ It is for this reason that the victim of a crime may ‘corroborate the action publique’ where he could not in law claim damages owing to some civil immunity in the accused, as in the case of many accidents at work.¹⁵¹

Given this power to initiate criminal proceedings, it is obviously very important to determine who is to be treated as a ‘victim’ of an offence. At times, French courts have restricted this notion so as to exclude from the action civile some people who could have claimed damages for their harm in the civil courts, for example, the relatives of a person injured by an offence.¹⁵² On the other hand, legislation has extended the definition of a victim of an offence in the context of crimes against consumers so as to include recognised consumers’ associations, who may claim damages in respect of ‘a direct or indirect harm prejudicing the collective interest of consumers’ and as parties civiles may initiate and participate in the prosecution of offences affecting consumers.¹⁵³ In this way, consumers’ associations play a semi-public policing role, being concerned neither with personal compensation nor private vengeance.¹⁵⁴ All three roles of the action civile can be seen in relation to the French criminal law which affects the safety of products, though my present concern is with its role as a vehicle of compensation.

Apart from delineating who counts as a ‘victim’ of a crime, French law restricts the availability of the action civile in three further ways. First, on occasion, the courts have refused to allow it in relation to offences which protect the general interest rather than (p.383) the interests of individuals and therefore are said to give rise only to a préjudice social¹⁵⁵ for example, the offence of failing to report a crime.¹⁵⁶ This has, however, been much criticised by la doctrine, in particular because the search for a criterion to distinguish this category of offence is ‘similar to divination’.¹⁵⁷ It has not been applied to offences of involuntary homicide and causing personal injuries nor to other offences affecting product safety, such as tromperie and falsification¹⁵⁸

Secondly, no action civile can be brought if no action publique can lie,¹⁵⁹ for example, where the alleged offender has died, where the offences have been amnestied or where the prescription period for the action publique has elapsed.¹⁶⁰ The prescription periods set by French law are ten years for crimes, three years for délits and one year for contraventions, all from the commission of the offence.¹⁶¹ In the case of délits (which include involuntary homicide, causing personal injury and the two fraudes),¹⁶² this period is much shorter than that applicable to delictual claims in civil courts which must be brought within ten years from the ‘manifestation or aggravation’ of a claimant’s damage.¹⁶³ As a result, the expiry of the prescription period of the action publique prevents the victim of an alleged offence from claiming by way of action civile in the criminal courts, but it does not prevent him from suing in the civil courts, where the prescription periods of the civil law apply even though the action is ‘founded’ on an offence.¹⁶⁴

Thirdly, article 2 of the Code of Criminal Procedure allows the action civile only to those who have personally suffered harm directly from an offence, in contrast to claims in the civil courts where in principle any type of harm is recoverable.¹⁶⁵ A person who has suffered personal injuries has always been able to bring the action civile, as has the heir of a person who has been the victim of involuntary homicide,¹⁶⁶ and they may also claim damages for any damage to property caused by the defendant’s fault.¹⁶⁷ While the mere relatives of a person injured or killed by an offence could not use the action civile to recover either their financial losses or their dommage moral¹⁶⁸ since 1989 this has been allowed.¹⁶⁹ Moreover, a number of bodies which have paid compensation to the direct victim of a crime may claim damages for this loss from the offender in the criminal court, notably, Caisses de sécurité sociale¹⁷⁰ or private insurers,¹⁷¹ though these parties civiles may only join existing criminal proceedings and do not possess the power to initiate them.¹⁷²

(ii) Advantages of claiming by way of action civile

(p.384) I have already explained that a victim of a crime may prefer to claim damages by way of action civile so as to take advantage of the criminal court’s generous view of ‘fault’ and of causation,¹⁷³ but there are three other more procedural reasons.

First, a major practical advantage for a victim of an offence in claiming as partie civile is that he may take advantage of the methods of gathering evidence of the criminal process which are seen as more effective than those available in the civil process and reflect the fundamentally different nature of the two types of proceedings. Traditionally, as Merle and Vitu observe:

In the civil context, the case is a matter for the parties, something which they bring before a neutral and passive judge; the proceedings are an activity before the court. In the criminal context, by contrast, it is completely different: the proceedings are a matter for the State owing to the public interests which are at stake, and they are an activity of the court, which is active in the search for the truth.¹⁷⁴

While the contrast between the civil and criminal processes has been narrowed somewhat owing to changes in the relative roles of the parties and the court in civil proceedings,¹⁷⁵ there remain considerable differences, the criminal process retaining a predominantly ‘inquisitorial’ spirit.¹⁷⁶ As regards délits,¹⁷⁷ the ministère public may choose to set in motion an investigation of the facts by a juge d’instruction, whose function is to gather evidence and compile the dossier with the aid of the police judiciaire¹⁷⁸ and then to determine on the basis of the evidence if there is a case to go before a trial court.¹⁷⁹ Where a partie civile initiates proceedings this instruction is automatic.¹⁸⁰ To fulfil his mission, the juge d’instruction possesses considerable powers: he may make any investigations or inquiries which are not expressly forbidden by law.¹⁸¹ These powers, which may be exercised either on the request of a party to the proceedings (including the partie civile) or on the judge’s own initiative, include the taking of evidence from witnesses or the victim and examining possible defendants,¹⁸² ordering a judicial expertise¹⁸³ visiting the scene of the alleged crime, and conducting searches.¹⁸⁴ The juge d’instruction has the right to examine and, if necessary, seize any document, whether confidential or not.¹⁸⁵ Moreover, a party can call an expert to give evidence which he can then use to counter the official expertise.¹⁸⁶ These powers of investigation can lead to a very much wider range of evidence being available to a criminal court than can be reached by way of the methods provided by the civil process and commentators agree that they play (p.385) significant role in attracting claims for damages for personal injuries and death away from the civil courts.¹⁸⁷

But what about the burden of proof? In criminal proceedings the burden of proof lies either on the procureur de la République (who represents the State at the trial) or on the partie civile to prove the necessary elements of any criminal offence in the defendant,¹⁸⁸ this reflecting the principle of the presumption of innocence.¹⁸⁹ This principle is seen as requiring the acquittal of someone where there remains a sufficient doubt that prevents the judge arriving at a certainty’.¹⁹⁰ Rather oddly to a common lawyer used to distinguishing different standards of proof in civil and criminal trials,¹⁹¹ French law does not use any particular formula to describe how well established any fact must be to justify a conviction: to a French lawyer this is both unnecessary and inappropriate given the recognition of a ‘sovereign power of assessment’ in the juges du fond as to the relative weight of the evidence: as the Code puts it, ‘[l]e juge décide d’aprés son intime conviction.¹⁹² Clearly, therefore, the presumption of innocence can work to the disadvantage of a partie civile,¹⁹³ particularly at a time when the result of the criminal prosecution determined entirely the availability of liability in damages.¹⁹⁴

Secondly, French commentators agree that it is in general quicker and cheaper for a person to sue in the criminal courts rather than in the civil.¹⁹⁵ This relative speed of the criminal process stems from the idea that ‘the certainty and speediness of prosecution and conviction rather than the severity of punishment are indispensable to its effectiveness,’ whereas delays are part of the fabric of civil procedure.¹⁹⁶ A victim of a crime’s claim for compensation benefits from this relative speed because the criminal court normally gives its decision on this issue at the same time as on criminal responsibility itself¹⁹⁷ Where a court finds itself unable to do so, notably for lack of information as to the victim’s loss, it may suspend its decision on the award of compensation until it is able to do so, for example, having ordered an expertise on the victim’s injuries.¹⁹⁸

As to the cost, since 1993 in principle the State always bears the costs of prosecution (which include the cost of attendance of witnesses and any expertise¹⁹⁹) and does not attempt to recover them from the defendant,²⁰⁰ with the exception of very small fixed amounts to be recovered either from the convicted person or from the partie civile where he has initiated proceedings which have failed.²⁰¹ On the other hand, in principle (p.386) all private parties to the proceedings (whether the defendant, his insurer or employer, or the partie civile) bear their own costs, notably for the employment of legal counsel,²⁰² though a partie civile can recover them from any convicted defendant subject to the courts consideration of ‘equity or the economic position of the person convicted’,²⁰³ and on an order of no case to answer (non-lieu) or an acquittal, an accused’s costs may be borne by the State or by a partie civile who initiated the proceedings.²⁰⁴ The important difference between civil and criminal proceedings is not, therefore, so much in the rules which apply to the recovery of costs by a successful claimant, but rather in the State’s shouldering of a considerable part of the burden of the expenses of the case in criminal proceedings whatever its outcome. Where the case is long or complicated, this is no inconsiderable advantage.

Thirdly, the action civile possesses an advantage stemming from the very nature of criminal trials themselves, which are very different from French civil hearings, having much more of the character of English trials (whether civil or criminal).²⁰⁵ In particular (and unlike French civil hearings) a good deal of evidence in a French criminal trial is oral,²⁰⁶ the accused, witnesses of fact and (if a party calls them) expert witnesses being asked questions in person by the court and (since 2000 and under the control of the court) by the ministère public and the parties’ counsel,²⁰⁷ allowing the possibility of a ‘type of cross-examination à la française’.²⁰⁸ Clearly, some victims of crimes prefer this ‘real trial’ in which they are face-to-face with the accused and can hear him give evidence; this may indeed form part of a process of closure after the death of a relative.²⁰⁹

(iii) Further restraints on the exercise of the action civile

So described, the action civile is clearly open to abuse. Apart from the liminary control exercised by the juge d’instruction²¹⁰ there are a number of further restraints on its exercise. First, a partie civile who initiates proceedings must, if without legal aid, deposit a sum deemed sufficient to cover the possibility of being ordered later to pay up to €15,000 as a ‘civil fine’ if a juge d’instruction considers his initiation of proceedings to have been ‘abusive or dilatory’.²¹¹ Secondly, a partie civile may find himself ordered to pay a defendant’s costs if the juge d’instruction ends the proceedings or on an acquittal.²¹² And thirdly, a defendant who is acquitted may himself initiate proceedings as partie civile against the partie civile in the earlier proceedings on the basis of the offence of malicious prosecution (dénonciation calomnieuse) where the original partie civile knew that his (p.387) complaint was untrue.²¹³ However, where a person has suffered serious personal injuries or his relative has been killed and there is some suggestion of fault in a person whom he names in his complaint, these restraints are unlikely to be considered appropriate.