(P.531) 1. French Law (a) The impact of implementation of the 1985 Directive on producers, importers and suppliers

There are two preliminary difficulties in assessing the impact of the 1985 Directive in French law caused by the way in which it was implemented there.

First, there are a number of particular points where the loi of 1998 remains incompatible with the Directive’s scheme of liability, quite apart from those which were censured by the European Court in 2002 and which were corrected by the loi of 9 December 2004,² notably, its inclusion of all cases of damage to property, its formal denial of any impact on ‘builders’ and its over-narrow definition of a product’s being put into circulation’.³ It is as yet not clear what will be the fate of these further incompatibilities. In principle, the European Court’s decisions in 2002 mean that they are unlawful as compromising its completely harmonising scheme⁴ and this could mean either that they could be brought before the European Court and censured on this ground or that a French court could interpret the loi in such a way as to be compatible with the Directive where this is possible. While they remain in the Civil Code, however, undenounced by la doctrine and uncensored by the European Court, it is more likely that they will be applied by the courts, compatible or not.

Secondly, as I have explained, implementation of the Directive by way of amendment of the Civil Code has obscured its impact on the administrative law liabilities of producers or suppliers. As I shall explain, the Directive’s provisions do have implications here (the most obvious and important example being public liability for medical products), but these are closely related to other private law liabilities. Moreover, their significance would be very much more considerable if ‘supplier’ for the purposes of article 3(3) is to be interpreted according to the wider sense of user at the end of the chain of distribution (as I shall later explain).⁵ I shall, therefore, look at these later.⁶ At this stage, therefore, I shall look at the impact of the Directive on established private law liabilities of producers and suppliers, and leave until later its relationship to the administrative law affecting the production or supply of products.

Most French jurists agree that the overall substantive impact of the loi of 1998 on the liability of producers and suppliers depends on the uncertain fate of aspects of the previous jurisprudence,⁷ but that a producer or supplier will remain potentially liable under the ‘general law of delict’ (whether for proven fault and possibly for the ‘deeds of things’) or under the garantie légale in the law of sale.⁸

Let us take the latter first. Where a person who has bought the product suffers damage, he can claim damages under the garantie légale against his own seller or any other seller in the change of distribution up to and including its manufacturer if the (p.532) seller is professionnel and subject to proof of a latent defect.⁹ In the vast majority of cases covered by the loi of 1998, an injured buyer could equally well claim under this garantie légale, for while ‘latent defect’ does not focus on a lack of safety as does ‘defect’ under the loi of 1998, it has certainly included claims of this sort.¹⁰ There are, however, three important remaining differences between the two liabilities, quite apart from the possible difference as regards the extent of liability for property damage.¹¹

First, under the garantie légale a ‘business seller’ cannot escape liability by identifying his own supplier or the product’s manufacturer in the way in which the ‘supplier’ can under article 3(3) of the Directive (and under the loi of 1998 as it has been amended to conform to the European Court’s decision of 2002).¹²

Secondly, while a defendant under the garantie légale enjoys some of the defences granted to ‘producers’ under the loi of 1998 (such as contributory fault) others are differently treated or do not exist at all. In two cases, the difference is one of burden of proof: so under the loi of 1998, the burden of proof rests on the defendant to show that the defect did not exist at the time of his putting the product into circulation, whereas under the garantie légale the buyer must show that the product was defective at the time of its delivery by the seller in question.¹³ There is (or should be) a similar reversal of the burden of proof as to the issue of the ‘professional’ nature of the defendant’s activity, which needs to be proved by the buyer under the garantie légale, but disproved by the producer under the Directive.¹⁴

More importantly, however, under the loi of 1998 the Directive’s defendants enjoy a development risks defence for all products other than those consisting of or made from an element of the human body; this defence does not exist under the garantie légale, a difference whose importance was seen as crucial at the time of the loi’s enactment.¹⁵ To this extent, therefore, a manufacturer, importer or other member of the contractual chain bears a greater burden under the garantie légale than under the loi of 1998.

Thirdly, there are and will remain differences in time periods within which claims must be brought. As I have described, under the loi of 1998 a producer’s liability ceases after a period of three years after the claimant becomes aware of the damage, the defect and his identity (though subject to any suspension or interruption as provided by French law generally) or after a period of ten years from the date on which the producer put the actual product which caused the claimant’s damage into circulation whichever is the shorter.¹⁶ At first sight, the contrast with the traditional bref délai which applied to claims under the garantie légale from 1804 to amendment by ordonnance in 2005 could hardly be greater, as the period within which they had to be brought was in practice being between six months and a year.¹⁷ However, some care must be taken here, for the ‘delay’ only ran from the time of the effective discovery of the defect by a buyer (an issue within the assessment of the juges du fond) and this meant that the buyer could claim many years after he had purchased the product. Moreover, in implementing the Consumer Guarantees Directive, the French government also took occasion to reform (p.533) the bref délai in sale more generally, providing that claims must be brought within ‘a period of two years from the date of the discovery of the defect’.¹⁸ As a result, subject to practical questions of proof, a buyer injured by a product may be able to claim under the garantie légale after a period when the ten-year foreclosure period of the loi of 1998 has expired. This reform of the national law of sale may therefore have a significant impact on the relative attractiveness of claiming against a producer or supplier under the garantie légale rather than under the loi of 1998.

However, despite French law’s extension of liability under the garantie légale by action directe to all buyers within the chain of distribution, its ambit does not extend to those outside the chain and so if the producer’s or supplier’s liability is to be sought there, it must be under the general law of delict or under the loi of 1998. As I have explained, it is here that the position becomes less clear.¹⁹ The general view is that French courts should not and are not likely to impose liability on producers or suppliers under article 1384 aliéna 1 of the Civil Code, as a manufacturer can be held to be gardien only by invoking the much criticised distinction between the gardien de la structure and the gardien du comportement, and it is difficult to see how a supplier (such as a seller or hirer) can exercise the powers associated with la garde once he has parted with possession.²⁰

On the other hand, a person outside the chain of supply²¹ who suffers harm by an allegedly defective product and who can show une faute délictuelle in one of the Directive’s defendants, can certainly recover damages, this claim having the advantage of a prescription period of ten years from the time of the ‘manifestation or aggravation’ of the claimant’s harm.²² While this prescription period compares favourably with the two time limits governing the new product liability, proof of fault in the sense of imprudence looks more difficult than proof of defect, particularly given the reversed burden of proof as to the existence of the defect at the relevant time under the loi of 1998.²³ However, the relative attractiveness of the two liabilities is actually more difficult to pin down given the diversity of conduct which has at different times been held by French courts to constitute delictual fault by French courts.²⁴ The breadth of this concept has certainly been used before to avoid shorter prescription periods applicable to special schemes of liability.²⁵

Perhaps the interpretation of delictual fault with the most potential to subvert the restrictions on liability under the loi of 1998 is the idea (visible in jurisprudence of the 1960s and early 1970s) that it is itself une faute for a producer to put a defective product into circulation.²⁶ This interpretation has not, however, been used by French courts for a number of years and, moreover, looks inconsistent with the European Court’s decision upholding the completely harmonising character of liability under the Directive.²⁷ Secondly, more radically and more recently, the Cour de cassation has held that a person who fails to perform a contractual obligation, including an obligation (p.534) de résultat, thereby commits a delictual fault so as to attract liability to third parties,²⁸ but this rests on an idea which would, if more generally accepted, radically revise the relationship between contract and delict, denaturing contractual obligation and delictual fault and reducing the principle of the relativity of contracts to little more than a cipher.²⁹ Thirdly, delictual fault exists where a person commits a criminal offence, even where the criminal offence in question does not require proof of intention or even of imprudence, but rests on breach of a regulatory duty; and establishing criminal (and therefore delictual) fault has all the procedural and investigative advantages of the criminal process which I have outlined.³⁰ Of all these, therefore, it is its relationship with ‘criminal fault’ which is most likely to give delictual fault a continuing role in the liability of producers and suppliers to those outside the contractual chain.

However, the liability of the Directives defendants in respect of their products may also be sought on more particular bases of liability, notably, where they are ‘suppliers’ in the narrow sense of a person who transfers or provides the product and in the context of buildings.

Let me start with a simple example. In established French jurisprudence, a person who orders dinner at a restaurant is owed an obligation de sécurité de résultat as to the safety of the food: if he suffers food poisoning as a result, he does not need to show any defect in the food, nor can the restaurant escape liability by showing that any defect in the food which caused his harm was unforeseeable and beyond its control.³¹ However, the jurisprudence relating to obligations de sécurité is notoriously unsettled and particularised.³² So, for example, by contrast with the restaurant, it has been held that a hairdresser owes only an obligation de moyens as to the products which he uses on his customers.³³ Clearly, if a supplier of a product knows the identity of his own supplier he can escape liability if sued under the loi of 1998 even if the product is defective, but any remaining liability to his customers under the surrounding law will depend on the court’s view of the proper content of the contractual obligation de sécurité.

In these examples of the liability of suppliers of products, there is the additional possibility that a French court could decide that this jurisprudence of obligation de sécurité which imposes liability on the Directive’s ‘suppliers’ beyond its terms should not survive the combination of the loi of 1998 and the European Court’s decisions, any more than the obligation de sécurité which was overtly modelled on the 1985 Directive in the 1990s.³⁴ It is unlikely, though, given that this jurisprudence forms part of a much more general interpretation of the Civil Code (articles 1135 and 1147) from which French courts are likely to be loath to depart and which can be distinguished from the Directive’s scheme of liability in that it does not rest on suppliers as such but on ‘other grounds’ and therefore falls within the proviso allowed by article 13 of the Directive.³⁵

Another example of the way in which the liability of ‘suppliers’ under existing French law may relate to liability under the Directive may be found in the case of (p.535) those who hire out products (‘owners’) who are specifically included by the loi of 1998 as suppliers.³⁶ Liability under the Directive here rests on a combination of proof of a defect and a failure to identify the owner’s own supplier or the producer, but this contrasts unfavourably with the range of liabilities which owners of property owe to the person who hires it, one of which is modelled on the liability of sellers under the garantie légale³⁷ and one based on an obligation de résultat.³⁸ On the one hand, following the normal logic of contractual privity, in principle only the person who hires the property can sue on this ground, unless a court finds an implicit contract for the benefit of a third party made by the owner for the third party in question.³⁹

There are, however, two areas in which the liability of producers and suppliers of products is made more difficult by its interaction with other important French categories and systems of liability.

The first is found in the context of buildings. Here, the more straightforward situation is found in the manufacture or supply of products for use in construction and which are supplied or used by a person who does not count as a ‘builder’ for the purpose of French law’s special construction liability regime,⁴⁰ for example, a manufacturer who supplies a product to a ‘builder’ or a building sub-contractor who incorporates one into the building. Apart from liability under the loi of 1998, this category of defendant would be liable either under the law of sale (for ‘latent defect’) or the general laws of either contract (‘contractual non-conformity’) or of delict (‘fault’), the main difference in practice being the prescription periods applicable.⁴¹ As regards these defendants, too, much of what I have said already of the relative impact of these established liabilities and the liabilities imposed by the 1985 Directive holds good.⁴²

More difficult is the position of ‘builders’.⁴³ While liability under the special construction liability regime rests on ‘latent defect’ as regards all categories of defendant covered, three distinct liabilities arise depending on the nature and seriousness of the defect and lasting for three different periods (ten years, two years and one year), all starting from the date of formal acceptance by the person who commissioned the building.⁴⁴ While liability under the construction regime is contractual and cannot in general be invoked by third parties to the contracts of construction, it runs with the property for the benefit of its sub-purchasers.⁴⁵ As I have earlier noted, the loi of 1998 formally denied the Directive’s regime of liability any impact on this construction liability regime, but the legality in EC law of this denial is open to doubt.⁴⁶ In particular, while a ‘builder’ who incorporates a product (such as a tile or a pipe) in a building may not count as its ‘producer’ (in that he produces an immovable result and so not a ‘product’), he may still be its ‘supplier’ so as to face liability on the terms provided by article 3(3) of the Directive. While generally a person who has suffered damage as a result of the supply of a defective building product in this way may see no advantage in claiming under the Directive’s scheme of liability rather than under French law’s construction liability regime, there may be particular instances where he will do so, (p.536) notably as a function of prescription periods, either in terms of their length or when they start. As long ago as 1988 the leading construction lawyer, Malinvaud, was right to foresee the sorts of difficulties to which this type of potential overlap between the Directive’s scheme of liability and the French law of construction would give rise and also right to realise that they have not gone away by the French legislator’s attempt at normative tidiness.⁴⁷

The second context is liability for medical products, an area which remains difficult to describe with any certainty owing to the complex relationship between the previous case law, the Directive of 1985, the loi of 1998 and French legislation of 2002 which reformed medical liability more generally and transferred part of the risk of medical liability from insurers to the State.⁴⁸ Let me attempt to assess the position according to the different potential defendants.

First, the loi of 1998’s introduction of liability for defective products appears to have made more strict the basis of liability imposed on manufacturers of pharmaceuticals and other medicines to their consumers, as previous case law held them liable only for proven fault in the sense of lack of care. The loi of 1998 also made a similar change as regards the liability of dispensing pharmacists (sometimes as ‘producers’ though typically as ‘suppliers’ of pharmaceutical and other medical products) whose liability formerly rested on fault, though where they merely supply products the amendment of the loi so as to conform to article 3(3) of the Directive reduces its primary significance to one of record keeping.⁴⁹

On the other hand, the position of the liability of producers of other medical products is less clear. Under the jurisprudence of 1995, the Cour de cassation and the Conseil d’Etat held producers of blood products (blood transfusion centres, whether public or private) liable without proof of fault or defect⁵⁰ and while (owing to the organisational changes which I have described) only the approach of the Conseil d’Etat remains relevant in this context,⁵¹ the question arises as to the relationship between this earlier case law and liability under the 1985 Directive. The decision of the European Court in Veedfald makes clear that a public body who produces a product and then ‘puts it into circulation’ falls within the Directive’s scheme of liability as its producer’,⁵² and, as a consequence, that a public body who merely supplies such a product will also do so to the limited extent which the Directive provides. But does the European Court’s affirmation of the ‘completely harmonising’ nature of the Directive’s scheme in 2002 or the enactment of the loi of 1998 mean that the Conseil d’Etat should abandon its former case law?⁵³ In interpreting article 13 of the Directive (which provides that the Directive did not affect ‘any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability’), (p.537) the European Court distinguished between the Directives system of liability (based on a defect in a product causally linked to damage) and contractual and non-contractual liability ‘based on other grounds, such as fault or warranty in respect of latent defects’.⁵⁴ Clearly, the examples given by the Court are derived from typical (civilian) private law, but would the jurisprudence of the Conseil d’Etat imposing liability for risk qualify so as to fall within article 13’s protection? Even if it did, would the Conseil d’Etat consider that its own jurisprudence had survived the legislative intervention of the French Parliament not merely in the loi of 1998 but also in the loi of May 2002 which specifically preserved liabilities in respect of medical products (having in mind the loi of 1998) from its general subjection of liability to fault?⁵⁵ Moreover, the contrast with the positions of the mere supplier of blood by French public or private hospitals is striking. Under the jurisprudence of 1995, the Cour de cassation and Conseil d’Etat imposed liability here only on the basis of proven fault, but the Directive’s scheme of liability would impose liability on them for defect, subject to the possibility of the avoidance of liability by identification of their own supplier. In addition, the European Court’s interpretation of article 13 of the Directive suggests that the hospitals’ general liability for fault (which was confirmed by the loi of May 2002)⁵⁶ survives the effect of the 1985 Directive as it rests on ‘another ground’.

Secondly, there remains a difficulty in fitting the scheme of liability under the 1985 Directive together with the special liability without fault of hospitals for nosocomial infections.⁵⁷ I have suggested that nosocomial infection is likely to include some cases involving products, but if this is the case, should the French legislation be interpreted so as to exclude these cases from the special strict liability which it imposes for the consequences of these infections? It could clearly be argued that the imposition of liability for products without proof of defect (and the other incidents of the Directive’s scheme) would run counter to the completely harmonised scheme required by the Directive, but if such an interpretation were required of the French legislation as a matter of European law, it would create a difficult distinction within cases of nosocomial infections (those caused by and those not caused by products) which would detract from the intended strictness of liability.

Thirdly, the earlier jurisprudence of the Cour de cassation imposing strict liability in respect of products which hospitals or doctors use in treating their patients but which they did not supply to them in the ordinary sense did not survive the French legislation of 2002 which returned their liability to a basis on fault.⁵⁸ But if a ‘supplier’ of a product under article 3(3) of the Directive is interpreted to mean any person within the chain of distribution who uses a completed product as well as any person who provides it to another person, then hospitals or doctors could be affected.⁵⁹ For example, where a hospital uses an X-ray machine whose defect allegedly causes a patient harm, the latter could request the hospital to identify the hospital’s own supplier or the producer of the machine within a reasonable time, in default of which it would itself be liable.⁶⁰

However, putting aside the difficulties relating to nosocomial infections, the general picture as regards liability for medical products is that a claimant is likely to (p.538) wish to proceed against their producer or supplier under the Directive’s scheme of liability, rather than against the doctor or hospital whose liability is based on fault, proven or presumed.⁶¹

What then is the overall verdict of French private law jurists on the impact of the loi of 1998 on the liability of the defendants which it includes? For some it has not done much to improve the substantive chances of recovery of the victims of defective products, though it is praised for its the abolition of the ‘discrimination’ between contractual and non-contractual victims.⁶² For others, whether the loi is useful in practice will depend on the extent to which the courts continue the jurisprudence of the 1990s imposing an obligation de sécurité on producers and suppliers, but even if the loi takes over this task, the change would not be great.⁶³ Some jurists, though, are much more critical, holding the legislation to be either useless (given that it does not improve a claimant’s chances of recovery)⁶⁴ or even harmful (given the risk of it contaminating the rest of the law with its ‘development risks’ defence).⁶⁵ From the point of view of improving consumer protection it is difficult not to agree that from the French point of view it was not worth the wait or the effort.