2. Liability in Respect of the Supply of Public Utilities

The supply of piped water and gas and networked electricity in France constitutes services publics but their combinations of public and commercial elements are reflected in the complex of rules by which they are governed. In terms of their institutional status, gas and electricity have long been supplied by Gaz de France (GDF) and Electricité de France (EDF), both of which are public bodies (établissements publics) and enjoyed legal monopolies in respect of the supply, though this is changing as the French gas and electricity markets are liberalised in accordance with EC directives.³¹ By contrast, (p.137) piped water is supplied either directly by local authorities (en régie) or by private companies (sociétés de capitaux privés),³² typically under contracts of concession with central or local government.³³ Thus, both public and private bodies perform a service public of the supply of products, a service which is considered as ‘industrial or commercial’ rather than ‘administrative’ in character.

Following the general position, French courts accept that those who receive gas, water and electricity do so under contracts, despite the existence of a duty of supply in their provider (as with EDF and GDF), the setting of many of their terms by decree, and the possibility of unilateral variation of the terms of the supply by their supplier.³⁴ For the supplier’s obligation to be contractual it is ‘enough in fact that the obligation to do the thing in question arises from the agreement on a particular purpose, even if the exact determination of the latter is the work of a third party, and even if one of the parties is forbidden by reason of its monopolistic position from refusing its consent’.³⁵ While for the most part the courts have not felt the need to classify these contracts and have simply described their obligations, sometimes they have been treated as contracts of sale.³⁶ This has left the courts more free to work out the consequences of the suppliers’ obligations.

First, EDF and GDF owe their customers an obligation de résultat as to the maintenance of the supply of the electricity or gas and are therefore liable for any failure in supply in the absence of force majeure or contributory fault in the customer. Thus, in one case, an action for damages was organised by an association of some 4,500 commercial companies against EDF in respect of losses caused by a power cut resulting from a strike by its employees.³⁷ The Cour d’appel de Paris held EDF bound to an obligation de résultat in respect of the supply of electricity to its customers, though it found force majeure in the intervention of the government’s role in relation to the causes of the strike.³⁸

Secondly, the courts have imposed liability on these public suppliers in respect of the quality or safety of the products which they supply. For example, in one case a manufacturer of edible ice sued the Lyonnaise des Eaux alleging that its water contained ferrous elements which gave the ice a reddish colour, apparently caused by rust in the company’s old pipes.³⁹ Despite the somewhat special use to which the claimant put the water, the Cour de cassation agreed that ‘a customer…has the right to demand that water supplied by the public service is not only drinkable but also suitable for the various uses…to which it is usually employed’, an analysis similar to the obligation of conformity of the property in the contract of sale.⁴⁰

(p.138) Thirdly, the courts have held EDF, GDF and the water companies to an obligation de sécurité de résultat in respect of the safety of the installations (equipment, branch circuits, etc.) necessary to supply their products. For example, in one case, the claimant’s building was seriously damaged by a fire caused by a short circuit in an electrical circuit which had been left under tension.⁴¹ Where water or gas escape owing to deficiencies in the installations or apparatus by which the product is supplied, the courts distinguish between cases involving the particular branch’ of a customer, where private law applies, and those involving the main pipes or electricity network where the fact that the harm is suffered by a customer is considered irrelevant and where administrative law applies.⁴²

Fourthly, French law has subjected claims by non-customers (tiers⁴³) for harm caused by the activities or products of these service providers to the jurisdiction of the ordinary courts and to the rules of private law, with the exception of cases involving public works’.⁴⁴ Here the courts have taken a broad view of the ambit of this exception. So, for example, in one case a driver was killed when he lost control of his car on the failure of the lighting of the public road; his widow and child claimed damages in the ordinary courts against EDF as gardien of the electrical current, but the Cour de cassation denied jurisdiction holding that public lighting constituted a fitting of the public highway’ (an ouvrage public) so that their claim should have been brought in the administrative courts.⁴⁵ If it had been, the law of public works’ would have seen the driver as a ‘user’ of the public road with the result that he (and those claiming through him) would benefit from a presumption of fault in the public authority or ‘works contractor’ responsible for the lighting.⁴⁶ On the other hand, where a ‘third party’ to an ouvrage public used by EDF to supply electricity was electrocuted owing to the modification of the voltage, his widow could claim damages on the basis of a stricter liability without fault.⁴⁷

Overall, therefore, this discussion shows that the similarity of activity of ‘industrial or commercial’ services publics to ordinary commercial suppliers has generally led to the application of a similar regime of liability, but where a claimant is not a customer and yet suffers harm (typically, therefore, for a reason other than the quality of the product), liability is usually imposed on the basis of the special regime of administrative liability for ‘public works’. Given that many (though not all) ‘non-customers’ for these purposes will also count as ‘third parties’ under the law of ‘public works’, the result is that EDF or GDF is liable to them without proof of fault or defect in either the thing supplied (water, electricity or gas) or in the ouvrage public with which it is associated.⁴⁸ To this extent, therefore, liability is very strict, whether it is (p.139) classified as private and contractual (as in the case of customers) or administrative and non-contractual (as in the case of non-customers).

Finally, this area illustrates that the designation of a situation as sufficiently public to attract the application of administrative law is not an all or nothing decision: instead, French law possesses different layers of ‘publicness’, each of which possess their own criteria and entail their own consequences. So, a service offered to the public may count as a service public, where the public’ aspect is defined principally in functional terms and attracts a set of specifically public principles as to their provision;⁴⁹ a service public may then be classed as ‘administrative’ or ‘industrial or commercial’, where this further ‘public’ aspect of the service’s operation is decided according to a further set of factors and has important effects on the legal relations between its provider and its recipients;⁵⁰ and the activities of a service public may involve ‘public works’, with again a different understanding of what the ‘public’ element requires and a set of legal consequences, including as to the basis of liability.⁵¹ And at each stage of the layering, the resulting classifications affect the regime of liability, but in the context of the supply of public utilities they very much favour the imposition of liability without either defect in the product supplied or fault in the supplier.