Product Liability 2009 - Arnold & Porter LLP

France
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to, to rely on such a breach in order to satisfy the first condition of
Article 1382 (a negligent act or omission).
Article 1382 of the French Civil Code applies irrespectively of the
intentional breach or omission to act as a reasonable man.
Moreover, an action based upon Article 1382 may be brought where
there has been a breach of a statutory obligation, when such a
breach causes an injury, regardless of the existence of other specific
sanctions punishing such a breach in particular.
Strict tort liability based upon Article 1384 of the French Civil Code
Article 1384 provides that “one shall be liable [...] for the things
that one has under one’s custody”. Under this system of liability,
no fault is required. The claimant only has to prove that his or her
injury was caused by a “thing”, of which the defendant had the
powers of use, control and management.
As regards accidents caused by products, French case law has
adapted this principle in order to hold a manufacturer or a
distributor strictly liable, by considering that they have retained
“custody” of the products, despite their apparent transfer to the
users. This has been applied by case law when the product, by its
nature, contained a latent potential for harm (e.g., explosion of
products such as televisions, gas cylinders, fire extinguishers and
bottles of sparkling water or sodas).
1.2 Does the state operate any schemes of compensation for
particular products?
The French legislator has sometimes tried to ensure that where there
are multiple victims of the same harmful product, these victims
should be properly compensated. The State has budgeted for
various funds created by the legislator (e.g., statute of 23 December
2000 creating the fund for the victims of asbestos (“FIVA”)). The
aim of such public compensation systems is to give victims full and
fast compensation, instead of having to go through long and
expensive court proceedings. Similarly, an establishment created in
2002 (“ONIAM”) compensates victims, on behalf of the State for
some damages caused by medicines, such as serious side effects of
mandatory vaccinations or therapeutic hazards. ONIAM also
compensates patients contaminated by HIV or HCV via
transfusions of blood and injections of blood-derived medications.
Such establishments and funds usually rely on both direct aid from
the State and private insurance schemes. Moreover, they may bring
subrogation actions before courts against the parties liable for the
harmful effects of the products, under certain conditions.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Under strict product liability, since the Simplification of the Law
statute of 2004, a seller, lessor or professional distributor may only
be held liable if the producer (defined by Article 1386-6 of the
French Civil Code as the manufacturer of a finished product,
producer of raw material, or the manufacturer of a component) is
unknown (Article 1386-7 of the French Civil Code). He may
escape liability by designating, within three months from the time
he is notified of the victim’s claim, his own supplier or the
manufacturer.
Supposing he has not done so, the seller, lessor or professional
distributor can still sue the producer, under the same rules as if he
had been the victim and if he commences this action within one
year of being sued under the strict product liability regime.
Under contractual liability, because there are implied warranties
and obligations which bind the seller and/or the distributor, these
parties may often be held liable for the defect of a product (e.g., on
the grounds of the warranty against hidden defects, see question 1.1
above).
Under Article 1382 of the French Civil Code, any party in the
distribution chain may be held liable if he or she has committed a
fault.
Under Article 1384 of the French Civil Code, any party who may
be regarded as having kept the powers of use, control and
management over the product may be held liable. For example, the
lessor of a device, having teams of technicians at his disposal, may
be held liable, on the grounds that he had the power of control of
the product (French Supreme Court, 3 October 1979).
When a product liability claim has been brought against a seller,
lessor or professional distributor, they may then choose to bring a
claim against another party further up the supply chain, either by a
third-party action during the same proceedings (it is known as
“appel en garantie” (Article 1640 of the French Civil Code)) or a
claim for redress after they have been held liable (it is known as
“action récursoire” (Article 1214 of the French Civil Code)).
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to recall
be brought?
Directive 2001/95/EC of 3 December 2001 on General Product
Safety (hereinafter “GPSD”), which is aimed at protecting
consumers from products that would not meet safety standards, was
implemented into French law notably by an Ordinance dated 9 July
2004 completed by a recent Ordinance dated 22 August 2008. In
order to ensure such protection, national authorities have been
granted additional powers and further obligations have been
imposed on the manufacturers and distributors.
Follow-up and recall obligations
Under the general principle of consumer safety set out in Article
L.221-1 of the French Consumer Code, all products sold in France
must, when used under normal conditions or under abnormal
conditions which are reasonably foreseeable by a professional,
present the level of safety which one may legitimately expect and
not endanger the health of persons. This is a “performance
obligation”, which means that the sole failure to achieve this result
will be regarded as a breach of this obligation.
The notion of professional covers producers and distributors. Since
the Ordinance of August 2008, Article L.221-1 of the French
Consumer Code clearly defines the notions of producer and
distributor.
The producer has a duty to take the necessary measures to be kept
informed of any risk that his or her product may create and, where
necessary, to withdraw and recall any product that may endanger
the consumers (Article L.221-1-2 of the French Consumer Code).
The distributor shall not provide a product if he is aware of the fact
that safety requirements are not fulfilled (Article L.221-1-4 of the
French Consumer Code).
Given that producers and distributors are under an obligation to act
diligently and may not supply products which they as professionals
knew (or should have known) did not meet the required standards,
a failure to recall a defective product constitutes a fault, which may
give rise to an action for compensation, should the other conditions
of liability be fulfilled.
Notification obligation
Producers and distributors are obliged to immediately notify the
authorities (DGCCRF, DGAL or DSCR) if they discover that their
product is dangerous (Article L.221-1-3 of the French Consumer
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