Droit Administratif and Liability for Products simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0006

Abstract and Keywords

This chapter explains how administrative law may govern liability for products. It starts by looking briefly at how liability for fault may govern liability for products and explain why the specifically administrative law of contracts has had relatively little impact on it. The chapter then looks at administrative liability for dangerous things and activities and how liability for ‘public works’ relates to liability for products.

Keywords:   French law, liability law, administrative law, product liability, public works

In this chapter, I shall start to explain how administrative law may govern liability for products by looking generally at how liability is imposed for fault and then at the special rules governing liability for dangerous things and for travaux publics (‘public works’).¹ In the following chapter, I shall look at how some of these liabilities relate to particular contexts (brought together loosely by the idea of the provision of public services), and in a later chapter at the particular case of liability in the administration for failures in its exercise of powers affecting the safety of products.²

As I have explained, a very important way in which the Cour de cassation gave effect to its desire to impose liability without fault for personal injuries and death was by constructing a liability for the ‘deeds of things’ based on article 1384 alinéa 1 of the Civil Code.³ In French private law, therefore, ‘liability for things’ is a distinct legal category with a broad unity of treatment of the position of a particular class of defendants (gardiens), even if the courts have nuanced this treatment by sometimes dividing la garde and by manipulation of the concept of the ‘deed’ of a thing.⁴ This law has considerable importance for liability for products, given that all physical things and therefore all ‘products’ are included within it.⁵

By contrast, denial of the Civil Code as a basis for development of the law of administrative liability has profoundly affected the way in which it governs liability for products, for this denial has led to the rejection by the Conseil d’Etat of a distinct legal category governing liability for physical things.⁶ So instead of the division of liability between liability for personal deeds (for fault), for the ‘deeds of things’ and the ‘deeds of others’ which we find in private law,⁷ the basic division in administrative law is between cases where liability is imposed on the basis of faute and cases where liability is imposed sans faute (or on risque), with liability for ‘public works’ forming a further distinct heading of liability straddling this dichotomy. As I indicated earlier, these broad categories of liability are not at all homogenous, for within them distinctions are made on a variety of bases.⁸ Thus, within liability for faute, a distinction may be drawn between liability for actes (which includes administrative rule-making and many (p.114) decisions), where faute is simply equated with administrative illegality, and liability for administrative activities,⁹ where it rests sometimes on faute simple (‘ordinary fault’) while in others it is the more demanding faute lourde (‘gross fault’).¹⁰ Examples of administrative liability without faute are even more heterogeneous,¹¹ with their own rationale, ambit and usual context, the jurisprudence of the Conseil d’Etat often looking markedly ad hoc.¹² In all this, the involvement of a physical thing (whether movable or immovable) in the production of a claimant’s harm forms an element in the imposition of liability in two bases of liability: administrative liability for dangerous things or activities, and liability for ‘public works’.

Here, I shall start by looking briefly at how liability for fault may govern liability for products and explain why the specifically administrative law of contracts has had relatively little impact on it.¹³ I shall then look at administrative liability for dangerous things and activities and how liability for ‘public works’ relates to liability for products.