2. A Restrained Role for the Administrative Law of Contract

The private law of contract has been immensely important in imposing liability for products, the ordinary courts developing the liabilities which were already provided by the Civil Code (as in the case of the garantie légale in sale), imposing new liabilities and extending them beyond the parties to a contract.³³ By contrast, the administrative law of contract is relatively unimportant in governing liability for products. There are two main reasons for this.

First, many cases of liability arising from the use or supply of things in a public context are governed by the administrative law of extra-contractual liability, even though (p.117) on similar facts in the private context liability would be considered contractual. There are two factors at work here. The first is that in some situations French law views the provision of a public service as giving rise to a special relationship of public law, between its provider and its ‘user,’ the citizen.³⁴ Where this is the case, the Conseil d’Etat refuses to see any contract between the provider of the service and its recipient, even if this provision arises from their agreement and its users incur a charge. So, for example, a person who uses a public ferry service may count as its ‘user’ rather than as party to a contract³⁵ as are patients in public hospitals.³⁶ This means, among other things, that any liability arising from the way in which the public service is provided, including as regards any products used or even supplied to its recipients, can only be extra-contractual: the public law analysis of the relationship ousts contract, even administrative contract. The second factor relates again to the absence of the Civil Code as the basis of the Conseil d’Etat’s development of liability and can be seen clearly by contrasting the position in private law. I have earlier explained that the ordinary courts have tended to expand the domain of contractual liability at the expense of the delict and obligations de sécurité were a prominent means of achieving this.³⁷ While their particular purpose has varied over time and according to context, their imposition allows the courts to avoid the requirement of proof of delictual fault found in articles 1382 and 1383 of the Civil Code or, by contrast, the strictness of liability for the ‘deeds of things’.³⁸ By contrast, French administrative judges have not needed to invoke contract for either of these purposes: they do not need to use contract to avoid the law of extra-contractual liability, which is entirely in their hands, unfettered by legislative texts. So, for example, when the Conseil d’Etat wished to impose liability without fault for accidents at work, it did not need either to find an obligation de sécurité in the contract of employment under which its employees worked³⁹ nor re-interpret existing legislation (as was done by the ordinary courts in the case of article 1384 alinéa 1 of the Civil Code),⁴⁰ but instead could rely directly on the idea that the administration should be liable for any harm caused to someone who risks danger in the public service.⁴¹ So too, in the absence of any ‘liability for the deeds of things’ of the strictness and generality of that recognised by the ordinary courts, administrative courts did not feel the need to use contract to protect some classes of defendant from an inappropriately strict liability:⁴² the Conseil d’Etat was free to recognise (p.118) extra-contractual strict liability where and on the basis which it thought fit without the resort to reclassification.⁴³ Overall, therefore, the Conseil d’Etat sometimes has positive reasons for seeing the provision of a public service as non-contractual (as it treats the recipient of such a service as in a relation of public law exclusive of contract) and sometimes simply has no reason to see liability as other than non-contractual.

A second reason for the restrained impact of the administrative law of contract on liability for products is that most contracts for the supply of property, whether goods or land, which are entered by public bodies, whether as supplier or recipient, are classed as ‘civil contracts’, attracting both the jurisdiction of the ordinary courts and the application of private law. Of these, perhaps the most important examples are contracts of supply made by sociétés publics industriels et commerciaux, which are public bodies, institutionally governed by public law, but whose operations are in general a matter for private law. Included within this category are the main suppliers of gas⁴⁴ and electricity⁴⁵ whose liability to their customers is therefore placed en bloc in the private law domain.⁴⁶ On the other hand, the activities of these corporations can attract liability to non-customers in administrative law, notably under the special rules relating to ‘public works’. As I shall later explain, liability in respect of the supply of these products is a complex combination of public and private law.⁴⁷

Finally, even where French law treats a particular contract as being administrative, the substantive law which the Conseil d’Etat chooses to apply is often not particularly ‘administrative’ in its character, sometimes being virtually identical with that applied by the ordinary courts. This is notably the case as regards the commissioning of building works by public bodies, the contracts for which are ‘administrative’, but the liability regime for which has been inspired by the principles of the relevant provisions in the Civil Code.⁴⁸