Product Liability Law In France

France has implemented both Council Directive 85/374/EEC of July 25, 1985, on the approximation of the laws, regulations, and administrative provisions of the Member States concerning liability for defective products (the "PLD") and Directive 2001/95/EC of December 3, 2001, on general product safety (the "GPSD").

French product liability law is profoundly inspired by these European provisions, although French law continues to include several other provisions governing liability for defective products that remain applicable in addition to the PLD and GPSD principles. This chapter will briefly highlight the principal rules specific to French law.

LIABILITY FOR DEFECTIVE PRODUCTS

Product liability principles exist under both civil and criminal law.

Civil Liability

Causes of Action

The user of defective goods has several causes of action against the vendor or manufacturer. The user may assert all available causes of action should their conditions be fulfilled.1

Several legal actions may enable the buyer of defective products to obtain the rescission of the sale, a reduction of the sale price, or damages based upon:

Latent defects (vices cachés), Article 1641 et seq. of the French Civil Code;2 Nonconformity defects (défaut de conformité), Articles 1603 and 1604 of the French Civil Code and Article L. 211-4 of the French Consumer Code;3 General civil liability, whether tortious, Article 1382 et seq.4 of the French Civil Code, or contractual, Article 1147 et seq.5 of the French Civil Code; or Strict liability of the manufacturer of a defective product, Article 1386-1 et seq. of the French Civil Code. Legal actions based on latent defects and compliance defects apply only in the case of a sales agreement, and there need not be a safety issue. In contrast, the strict liability rules aim to protect persons from a product's lack of safety even in the absence of a contract.

Principles Derived From the PLD

Since May 1998,6 the French Civil Code has included an exhaustive set of regulations that apply when a defective product7 harms an individual.8 Treating them as important general principles, the French legislature inserted this set of rules into the French Civil Code (Title IV bis: Liability for defective products), just after the chapter relating to general civil liability rules (Title IV: Undertakings formed without an agreement).

Pursuant to Article 1386-1 et seq., the producer is liable for any loss or damage caused by a defect in goods put into circulation after May 21, 1998,9 whether or not the producer has a contract with the injured person.

A "producer" is defined under Article 1386-6 as "the manufacturer of a finished product, the producer of a raw material, the manufacturer of a component part, where he acts as a professional." The same article considers a "producer" to be any person acting in a professional context (as opposed to acting for its private use and benefit) "who presents himself as the producer by putting his name, trade mark or other distinguishing feature on the product" or "who imports a product into the European Community for sale, hire, with or without a promise of sale, or any other form of distribution."

In sum, the injured consumer may start a legal action against:

Manufacturers (of finished products or of component parts) and producers of raw materials; Own-branders – Suppliers who put their names on the products and give the impression that they are the producers; Importers – Meaning importers into the European Union, not just into the French market. Pursuant to Article 1386-4 of the French Civil Code and in accordance with the PLD, a product is defective "when it does not provide all the safety that can be legitimately expected from it."10

As required by general French civil liability rules, the injured person must prove actual damage, a defect in the product, and a causal relationship between the defect and the damage.11 Once these elements are proven, the producer shall be held strictly liable for all damage to the injured person, despite the producer's absence of fault or negligence.

The producer can avoid or limit liability if it can prove any of the seven defenses listed under Article 7 of the PLD (transposed in Article 1386-11) or if it can prove the claimant's negligence (Article 1386-13 of the French Civil Code):

The producer did not supply the product; The state of scientific and technical knowledge at the time it supplied the product did not permit the discovery of the defect;12 The defect was the inevitable consequence of complying with mandatory laws or regulations; The defect was not in the product at the time it was supplied; The product was not intended to be sold or distributed in any manner; In the case of a producer of a component used in another product, the defect was due either to the design of the finished product or to defective specifications given to the component manufacturer by the producer of the finished product; or The damage was jointly caused by a defect and by the injured person's negligence (or by the negligence of someone under the injured person's control). Moreover, Article 1386-10 of the Civil Code provides that "the producer may be responsible for the defect even when the product was manufactured in accordance with good engineering practices or existing standards or when the distribution of the product was subject to and obtained an administrative authorization." Recent cases have held that insufficient information regarding the product can make the product defective.

Finally, a strict liability civil action is subject to two statutes of limitation as the PLD provides:

First, the injured person must begin his or her court action within three years of the date of injury or, if later, the date when he or she knew or should have known of the claim against the defendant (see Article 1386-17 of the French Civil Code). However, the producer cannot be sued 10 years after the product was introduced unless a legal action was started during that period (Article 1386-16 of the French Civil Code). Warranties and Limited Liability Provisions

A buyer may also benefit from contractual warranties. The French Consumer Code provides that the seller may offer a "commercial warranty" to the buyer in addition to other legal warranties (such as latent defects and product safety) that remain applicable in any case (Articles L. 211-15 and 211-16 of the French Consumer Code).

While as a general rule the producer cannot limit or exclude its liability to the injured person by contract (Article 1386-15 of the French Civil Code), contractual provisions limiting liability between professionals are valid as long as: (i) they relate to damage caused to property not used by the injured party mainly for its own private use (Article 1386-15, paragraph 2, of the French Civil Code); (ii) the defect does not result from an intentional act (or omission) or from the supplier's gross negligence (which French case law defines as negligence of extreme severity bordering on willful misconduct and denoting the unfitness of the defaulting obligor to fulfill its contractual duty13); (iii) the clause limiting liability does not make the core obligations of the defaulting party meaningless—i.e., the maximum amount of the indemnification contractually defined must not be so low that it contradicts the core obligation of the contract;14 and (iv) the contract containing the clause limiting the warranty against hidden defects is concluded between professionals of the "same specialty" (which is narrowly interpreted by case law) and does not involve a consumer.

Brief Description of Civil Proceedings

Civil proceedings begin with a statement of claim (assignation) served on the defendant before French civil courts (Tribunal d'instance, Tribunal de grande instance, or Tribunal de commerce). Proceedings usually last several months. The court may appoint a judicial expert to analyze the product and determine the cause of any defect and injury. In this case, proceedings can then last up to two years.

During civil proceedings, the parties (the plaintiff and the respondent), usually represented by lawyers, exchange various written submissions in which they present their own versions of the events, their legal arguments, and claims. The parties also have to disclose to each other the evidence on which their claims or defenses rely.

In contrast to civil procedure in the U.S., broad pretrial discovery is not available in France. A "fishing expedition" is not permitted, and parties need disclose only the evidence useful to their claims.15 Nevertheless, a party which knows that the other party holds some relevant evidence can ask the court to order the other party (or even third parties) to produce it, subject to a fine for noncompliance (Articles 11 and 145 of the French Code of Civil Procedure). There is no provision in French procedure for the deposition of witnesses or interrogatories.

Once the parties have exchanged all of their evidence and arguments and the case is deemed ready for argument, an oral hearing takes place before the court. While the appearance of witnesses in civil and commercial proceedings remains the exception, when witnesses appear during hearings on the merits, the judge conducts their examination. The court will then render its decision within several weeks or months. The parties may appeal the decision within one month of the date of notification (Article 538 of the French Code of Civil Procedure16). Save when the court has ordered provisional enforcement of the judgment, the appeal is suspensive, and the judgment may not be enforced during the pendency of the appeal.

"Class Actions" Under French Law

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