(II) Administrative law

How does this picture change when turning to persons liable in French administrative law in circumstances where the producer of a product could be liable under the loi of 1998? (p.552) As has been explained, French administrative law differs significantly from the position taken by its private law, denying any general rule of ‘solidary liability’ in the co-authors of the same harm and granting to a public body liable to a person harmed by its fault the defence of fait d’un tiers, the effect of which is to reduce or even to exclude liability in the administration.¹⁷³ The decision as to whether to reduce liability in a public body and to what extent is based on the relative responsibilities of the public and private co-authors in the view of the administrative court, this possessing elements both of their comparative faults and their comparative causal roles.¹⁷⁴ On the other hand, where the liability of the administration is imposed without fault or under the special rules applicable to public works’ (whether or not liability is based on fault), then the Conseil d’Etat accepts that the administration may be liable in full as against a primary victim, even if another person is also liable for the same harm as a matter of private law.¹⁷⁵

How do these administrative law rules affect the patterns of liability for products and, in particular, the ultimate liability of their ‘producer’?

First, I have already explained that while the Conseil d’Etat accepts that a public authority may be liable for personal injury or death caused by its failure to exercise its powers over the safety of products either on the basis of faute simple or faute lourde, there are a number of factors which combine to channel liability away from the public body.¹⁷⁶ In particular, a person injured by a product is likely to prefer to sue a person liable in private law (whether its gardien, its vendeur professionnel, or its producer) in the ordinary courts rather than sue the public authority in the administrative courts;¹⁷⁷ and where such a person has been held liable by the ordinary courts, the Conseil d’Etat has been very restrictive in its attitude to any claim for contribution from a public body even if the claimant can show the requisite standard of fault.¹⁷⁸ This means that in this sort of case any potential liability in the administration is likely to have little impact on the liability of a producer under the loi of 1998.

Secondly, if a person injured by a product can claim damages against the administration on the ground of a liability without fault, it may be thought that the primary victim of the product would prefer to sue in the administrative courts rather than in the private law courts, leaving it to the administration to recover contribution against any private person liable (such as the producer of the product). However, it is difficult to think of any practical examples of such a situation, given the marginal impact of administrative liability for dangerous things or activities and the dearth of other ‘general’ administrative liabilities without fault which would permit recovery in respect of harm caused by a product.¹⁷⁹

Thirdly, however, the position may differ somewhat in the context of ‘public works’, where liability is typically imposed without proof of fault and where there are a range of defendants liable (the works contractors who undertake the work and the public bodies on whose behalf the work is done), none of whom can reduce their liability by invoking the defence of fait d’un tiers.¹⁸⁰ Where liability for ‘public works’ covers liability for a product, can its producer held liable in the ordinary courts claim (p.553) contribution from those liable under this special administrative law regime in the administrative courts or vice versa? Here, it would appear that in principle a public body held liable under the law of ‘public works’ may claim contribution against a private co-author of the primary victims harm in the ordinary courts and as subrogated to the rights of the primary victim in private law.¹⁸¹ Less clear, however, is the position of a person held liable as a matter of private law for damage caused by a product as regards any claim for contribution against one of the possible defendants liable under the law of public works, for example, if a person is injured when a public bridge collapses in part due to the defect of one of the materials used in its construction,¹⁸² or a pupil is injured when his hand breaks through defective glass used in a door of his state school.¹⁸³ In principle, a private person (such as the producer of the product) may bring a recourse claim against a public body in the administrative courts by way of subrogation to the rights of primary victim,¹⁸⁴ but, as I have explained, such a claim risks being out of time as a result of the four-year prescription period applicable to administrative liabilities and a different view being taken by the administrative court as to the causal significance of the private persons action as compared to the public body’s action.¹⁸⁵ Again, therefore, while the existence of administrative liabilities concurrent with liability in a producer of product could in theory reduce the impact of the producer’s liability as found by an ordinary court, in fact they would not often do so.