(E) The present status of earlier French jurisprudence

The parliamentary compromise which finally allowed the passing of the loi of 1998 did so on the express understanding of the existence of more protective jurisprudence on which a victim of a product could rely: but has this jurisprudence, all of which was pinned more or less to the Civil Code, survived the combined effect of the loi itself and the European Court’s decisions of 2002? This question is crucial practically, as on this turns whether or not the new product liability has more than a limited impact;²⁵³ it is also interesting theoretically, as it is revealing of the relationship between French legislation and jurisprudence.

Unfortunately, the answer remains highly controversial, though there are some areas on which most of la doctrine appear to agree. On one side of the argument it is said that the loi of 1998 itself abrogated earlier jurisprudence. As Larroumet put it:

Liability for defective products was, before the new loi, purely a matter of jurisprudence. How can a judicial construction subsist once the legislator has intervened to install a new regime of liability? It is impossible, for the role of judges is to apply la loi and possibly to create a rule under cover of interpretation of la loi.²⁵⁴

For Larroumet, the position taken by the Garde des Sceaux by which a producer could rely on the development risks defence under the new law, but not if sued under the droit commun, was absurd.²⁵⁵ Mazeaud also sees the force of this argument, considering that the retention of an option in a victim of a product to sue either under the new loi or previous jurisprudence ‘appears difficult to reconcile with the elementary principles which govern the binding force of the new loi in our legal system’: for if new legislation overturns existing legislation, how much more should it overturn previous jurisprudence?²⁵⁶ However, reference to the travaux préparatoires of the loi of 1998 could be used to control (p.462) the implications of this line of argument, which could be so destructive of a person‘s possible claims against producers and suppliers, as the abandonment of all the judicial constructions in favour of victims of products would fly in the face of the basis of the legislative compromise reached in the loi of 1998, as expressed in its retention of claimants’ rights to rely on the droit commun either of delict or contract. And this possibility for a Member State was affirmed by the European Court in its decisions in 2002.²⁵⁷

The working out of these arguments has generally differed depending on the particular legal doctrines which the courts had earlier constructed. So, almost all French jurists agree that the obligations de sécurité constructed by the courts in the 1990s to implement the Directive,²⁵⁸ and imposed on producers and sellers in respect of their defective products have not survived the loi of 1998;²⁵⁹ this jurisprudence is in any event incompatible with the position taken by the European Court in relation to the liability of suppliers, as it imposes the same subject matter and legal basis as the 1985 Directive and yet goes beyond it.²⁶⁰ On the other hand, it is agreed that a producer or supplier of a product can still be liable under the law of sale, whether under the garantie légale or for contractual non-conformity, a significant position given the extension of these liabilities beyond privity,²⁶¹ a position clearly acceptable to the European Court whose decisions of 2002 refer to liability for latent defects and under the general law of contract as coming within the permission granted by article 13 of the Directive.²⁶²

French jurists also agree that in principle the droit commun of delictual liability for faute may be imposed on either a producer or supplier (subject, it is assumed, to the operation of non-cumul):²⁶³ this is specifically provided by the loi itself²⁶⁴ and was clearly permitted by the European Court.²⁶⁵ The significance of this survival is very considerable. First, it means that a person injured by a product may bring a claim as partie civile for damages before a criminal court, enjoying the substantive and procedural advantages which I have earlier described.²⁶⁶ Secondly, ironically, it can produce the same effect as the obligation de suivi condemned by the European Court as an improper restriction on two of the producer’s defences in article 7 of the 1985 Directive and so removed from the loi of 1998,²⁶⁷ for a producer’s failure to monitor properly the safety of his products can be liable to any person injured or whose property is damaged as a result on the basis that this constitutes une faute délictuelle,²⁶⁸ giving rise to liability with less restrictive time limits than the new (p.463) product liability.²⁶⁹ Thirdly, though, the status of the jurisprudence of the 1970s which held that the mere putting onto the market of a defective product by a producer constituted delictual fault must be more doubtful, for while it is based on the general law,²⁷⁰ it appears to fall foul of the European Court’s decision just as much as the later jurisprudence of the 1990s on obligation de sécurité: both overtly impose liability on manufacturers on the ground of their putting onto the market a defective product which has caused harm. Fourthly, by contrast, it has been suggested that the courts may extend the benefit of the sellers strict contractual obligations (whether for vice caché or contractual non-conformity) to third parties by holding that their non-performance in itself constitutes delictual fault under articles 1382 or 1383.²⁷¹ Certainly French courts have on occasion come to this striking conclusion, thereby blurring considerably the line between contract and delict.²⁷² Finally, though, few jurists seem to wish to retain the liability of producers as gardiens de la structure under article 1384 aliéna 1, as the juristic splitting of la garde on which this would rest has been widely condemned.²⁷³

Perhaps most difficult is the status of the jurisprudence imposing on sellers and suppliers (as on a number of other professionnels) obligations d’information²⁷⁴ It may be thought to be a judicial creation governing liability of producers and suppliers in respect of defective products; this was its earliest manifestation and has remained an important context for its application, and this suggests that it should be abandoned. On the other hand, obligations d’information are found outside the context of unsafe defective products, find their source in the general laws of delict (pre-contractual faute) or contract (for non-performance of a contractual obligation), were given a legislative basis in 1992, and are linked to the general principle of good faith. All these features suggest that they may survive even as regards the liability of producers and suppliers in respect of unsafe products. If this were the case, their significance would be to allow suit beyond the restrictive periods of the loi of 1998, rather than to impose any stricter liability.²⁷⁵

There are, moreover, three further questions as to the relationship between the new product liability and other French bases of civil liability.

First, the European Court noted that article 13 of the Directive allowed a Member State to retain ‘a special liability system existing at the moment when this Directive is notified’, interpreting this to mean one governing particular categories of products and having in mind special legislative systems.²⁷⁶ It has been argued, though, that this exception should be relied on so as to perpetuate French jurisprudence which applied special, more protective approaches to the victims of health products by recognising a ‘true presumption of causation’, even though this was done under the general law.²⁷⁷ There is no reason, it is argued, why a ‘special liability system’ for ‘health products’ has to be legislative and while the relevant court decisions post-date the notification of (p.464) the Directive in 1985, the principle of the retroactive effect of jurisprudence means that the law actually existed prior to its formal recognition and therefore before notification.²⁷⁸ In their view, acceptance of these arguments would have the advantage of allowing French law to retain and to develop a special set of liability rules for health products, without distinguishing (as does the loi of 1998 in relation to the development risks defence) between products derived from the human body and other health products, such as pharmaceuticals.²⁷⁹ Clearly, there are a number of counter-arguments (notably, that the European Court would not consider particular judicial interpretations or applications of general rules for particular categories of products as ‘a special liability system’ for the purposes of article 13); and it may be thought that a French court which wished to perpetuate its strict approach to causation as regards health products could do so straightforwardly without this elaborate justification, either as a matter of liability under the loi of 1998 itself (which appears in principle to leave causation to the laws of Member States and the ‘assessment’ of their courts)²⁸⁰ or under the general law which has survived it.

However, the suggestion is illustrative of the degree of dissatisfaction among French jurists with the practical and juridical effect of the product liability legislation. Again, though, the position has been further complicated by the politics of wider French legislative reform. For, as part of the package of measures introduced by loi in 2002 to govern medical liability, it was specifically provided that there should be a retroactive presumption of causation as to infection by hepatitis C after a patient receives contaminated blood and later contracts the disease.²⁸¹ It could be argued that this special and limited legislative reform precludes more general application of a presumption by the courts.

Secondly, French jurists accept (and the decisions of the European Court of 2002 allow) that the new legislation does not affect liability in producers or suppliers under the garantie légale in sale. But can this law be reformed so as to make it more protective of ‘buyers’ and, incidentally therefore, of the victims of products? This could be thought to provide a way around the substantive effect of the European Court’s condemning of the French extensions of liability under the Directive, but the question has been overshadowed by the debate as to how French law should implement the Consumer Guarantees Directive, some fearing that legislative implementation of this second directive might weaken the palliative effect of existing contract law on the effect of the 1985 Directive.²⁸² As will be seen, the principal candidate for reform was the garantie’s bref délai and provision on this was indeed tucked into the projet de loi of 2004,²⁸³ despite not being required either to correct French implementation of the 1985 Directive nor to implement the 1999 Directive—and it actually found its way into law on the promulgation of the ordonnance of 17 February 2005.²⁸⁴ Here, therefore, we can glimpse the potentially difficult relationship in French law between the two directives and their proper implementation.²⁸⁵

(p.465) Thirdly, some French jurists have expressed concern about the possible wider and retrogressive effect of the loi of 1998 on French civil liability, both within and beyond the liabilities of producers and suppliers. In particular, some fear that the loi’s formal inclusion of the development risks defence may have a ‘contagious effect’ on liability under the droit commun,²⁸⁶ possibly by encouraging the Cour de cassation to abandon its requirement that force majeure needs to be exterior to the thing’.²⁸⁷ How can the Cour de cassation continue to refuse to allow a defence of development risks when ‘a legal provision, which is actually inserted into the Civil Code, expressly states the contrary’?²⁸⁸ Could a court intervene of its own initiative in the interests of ordre public so as to ensure that the loi of 1998 is applied even where a claimant relies on other laws which are to his greater advantage?²⁸⁹ The decision to implement the 1985 Directive by amending the Civil Code certainly invites French courts to give it a more diffuse effect.