French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Article 1245-8 (former Article 1386-9) of the Civil Code requires the plaintiff to prove the existence of a causal link between the damage and the defect in the product . The evidence may be provided by any means, by the use of expert appraisals  or presumptions . The trial courts assess the causal relationship between the defect and the damage at their sole discretion, based on the evidence submi …

Proof

Article 1245-8 (former Article 1386-9) of the Civil Code requires the plaintiff to prove the existence of a causal link between the damage and the defect in the product . The evidence may be provided by any means, by the use of expert appraisals  or presumptions . The trial courts assess the causal relationship between the defect and the damage at their sole discretion, based on the evidence submitted to them, provided, however, that they do not base their decision on hypothetical grounds . The mere involvement of the product in the realization of the damage is insufficient to characterize the causal link . In principle, the courts require a direct and certain link . This requirement is met by the victim who establishes that he was directly hit by a jet of steam coming from a pressure cooker although the applicable standard requires that the closing zone be shaped so that the jet of steam cannot directly hit the user .

 In the medical field, particularly in the case of injection of vaccines, evidence of a direct and certain causality between the product defect and the damage is not always easy to establish . When a link between the absorption of the drug and the onset of the disease is scientifically recognized, courts may, according to the Court of Cassation, rely on a body of evidence  to establish the causal link. On the other hand, the scientific uncertainty has raised doubts in the courts. Some courts have inferred an impossibility of establishing the causal link  while others have adopted a more flexible attitude, presuming its existence from circumstances such as the family history of the victim or the concomitant nature between the vaccination and the onset of the disease . The Court of Cassation was at first hostile to such an approach, considering that the causal role of the vaccine in the occurrence of the disease cannot be presumed on the basis of indices  as in the case of contamination resulting from a blood transfusion . It then went back on its position: the causal link between the vaccination and the onset of the disease may result from mere presumptions, provided they are serious, specific and consistent . It thus held that the impossibility of scientifically proving both the causal link and the absence of a link between multiple sclerosis and the vaccination against hepatitis B, should give way to a case-by-case assessment, by presumptions, of this causal link, meaning that in view of the victim's previous state, family history, ethnic origin, time between the injections and the onset of the disease, and the abnormally high number of injections administered, the existence of serious, specific and consistent presumptions making it possible to correlate the vaccinations at issue with the onset of multiple sclerosis, is established . The Court of Cassation asked the Court of Justice for a preliminary ruling on the possible ways of producing evidence of the causal link within the framework of the implementation of the liability of pharmaceutical laboratories. It therefore asked whether a system of presumptions under which the existence of a causal link between the defect attributed to a vaccine and the damage suffered by the victim is considered to be demonstrated if certain indicators of causality are present, is compatible with Union law, and if the use of such a system is permissible in the case where medical research does not establish a link between the vaccination and the onset of the disease or whether, on the contrary, evidence of a causal link can only be regarded as produced if it is established scientifically . The Court of Justice  answered that EU law does not preclude national evidentiary rules, which, where medical research neither establishes nor rules out the existence of a link between the administering of a vaccine and the occurrence of the disease, do not require the victim to produce certain and irrebuttable evidence of a defect in the product and of a causal link between the defect and the damage suffered, but authorizes the court, where applicable, to conclude that such a defect has been proven to exist, on the basis of the serious, specific and consistent indicia brought by the applicant, such as the temporal proximity between the administration of the vaccine and the occurrence of the disease and the lack of personal and family history of that disease, together with the existence of a significant number of reported cases of the disease occurring following such vaccines being administered. However, evidentiary rules are precluded where they are based on presumptions according to which, where medical research neither establishes nor rules out the existence of a link between the administering of the vaccine and the occurrence of the victim's disease, the existence of a causal link between the defect attributed to the vaccine and the damage suffered by the victim will always be considered to be established when certain predetermined causation-related factual evidence is presented . Aligning itself to the Court of Justice's position, the Court of Cassation added that such rules of evidence, notwithstanding the rebuttable nature of the presumption, ignore the burden of proof insofar as the producer would have to reverse said presumption in order to successfully defend the claim even before the trial court has had the opportunity of taking cognizance of the factors of assessment and the arguments put forward by it . According to the Court of Appeal of Orleans, the solution adopted by the Court of Justice is transposable to products other than the vaccine against hepatitis B and damage other than the developing of multiple sclerosis, as evidenced by its refusal to establish a predetermined list of factors, the combination of which would necessarily establish the link between the product and the injury and the absence of which could disclaim that link .

  Cass. 1re civ., 5 April 2005, LawLex200500006006JBJ: the victim must provide proof of the existence of a safety defect and a direct and certain causal link between the defect and the damage; CA Rennes, 14 June 2019, LawLex201900000862JBJ:   the liability of the energy provider must be retained on the basis of Article 1245 of the Civil Code when the expert's report establishes a causal link between the malfunctioning of all the electrical appliances of a dwelling and the variations in the voltage level of the electrical network - often below the tolerance threshold of 195 volts - to which the latter have been subjected. However see CA Toulouse, 20 May 2019, LawLex201900000693JBJ: the emotional damage which compensates the moral damage suffered by certain relatives following the death of the direct victim is subject to proof of a personal, direct and certain loss, so that the moral damage caused by the deprivation of the effective and affective presence of a little sister cannot be accepted as legally indemnifiable for a child who was neither born nor even conceived at the time of death;  CA Bordeaux, 22 May 2019, LawLex201900001300JBJ: in the absence of evidence of a direct, certain and exclusive causal link between the victim's exposure to Lindane contained in the paint used in 2004 at his home and the ophthalmological and psychological disorders which developed in 2007, and, taking into account the fact that the victim was a professional painter and decorator between 2005 and 2006 and handled various solvents - enzyme-inducing agents which exacerbate the toxicity of Lindane, the paint manufacturer is not liable under Articles 1245 et seq. of the Civil Code.

However, a court of appeal cannot hold a laboratory strictly liable on the basis of Articles 1245 et seq. of the Civil Code, as producer of the drug Mediator while assigning a new expert to describe the etiology of valvulopathy, specify if it is possible to limit the factors that could be at the origin of that disease and give its opinion on the causal link between taking the drug and the current condition of the victim, Cass. 1re civ., 27 June 2018, LawLex201800001002JBJ.

  CA Versailles, 2 May 2001, LawLex200300004419JBJ.

  Cass. 1re civ., 23 September 2003, LawLex200300003288JBJ.

 Cass. 1re civ., 23 November 1999, LawLex200600001289JBJ. Initially found in case law, the presumption of causality is now legal: Article 102 of Law No 2002-303 presumes the existence of a causal link between the blood transfusion and the contamination of the victim by the Hepatitis C virus.

 Cass. 1re civ., 25 June 2009, LawLex201600000553JBJ, JCP G, 2009, 308, obs. SARGOS: a court of appeal cannot dismiss the victim's action for liability for defective products against the laboratory concerned on the grounds that there is no formal evidence of a direct and certain causal link between the vaccination and the onset of the disease, while noting the absence, in the family history and background, of any elements likely to evoke a neurological disease, favors a probable causality, while the causal role may result from mere presumptions, provided they are serious, specific and consistent; 9 July 2009, LawLex201200001777JBJ; CA Rennes, 28 November 2012, LawLex201400000753JBJ.

 Cass. 1re civ., 10 July 2013, LawLex201300001428JBJ.

 Cass. 1re civ., 12 November 2015, LawLex201500001437JBJ.

Case C-621/15  Sanofi Pasteur MSD, Judgment of 21 June 2017, LawLex201700001080JBJ.

Cass. civ. 1re, 20 December 2017, LawLex201800000005JBJ: in the absence of scientific consensus on the cause of multiple sclerosis and in favor of the existence of a causal link between this disease and immunization against hepatitis B, its is necessary to consider that the absence of any personal or family-related risk factor and other possible causes of the disease in the victim, the scarcity of the occurrence of multiple sclerosis in children and the criterion of temporal proximity between the onset of the first symptoms and the vaccination of the interested party, do not constitute serious, specific and consistent presumptions such as to attribute the onset of the disease to the vaccination. See earlier ruling: Cass. civ. 1re 18 October 2017, LawLex201700001783JBJ: the trial courts, which may not demand evidence that multiple sclerosis is hypothetically imputable to the hepatitis B vaccination, or deduce the absence of any serious, precise and consistent presumptions from the mere lack of scientific consensus on the causes of multiple sclerosis, can legitimately hold, in exercising their discretionary powers of assessment of the value and scope of evidence submitted to them, that the conjunction between the vaccination and the onset of the disease, and the absence of any previous personal or family neurological history, taken together or in isolation, do not constitute presumptions which allow a finding of a causal link between the vaccine administered and the disease. Cf. concerning the drug Mediator, Cass. civ. 1re, 20 September 2017, LawLex201700002004JBJ: there are serious, specific and consistent presumptions of aortic insufficiency due to the drug Mediator, even if the court-appointed expert witness found the causality only plausible, insofar as the panel of experts charged with issuing an opinion on the damages and liabilities with a view to an amicable settlement of the victims of Benfluorex, then concluded the same and knowledge on the harmful effects of the drug has progressed, no hypothesis involving an exterior cause has been produced, and as it was not established that the pathology of the interested party existed prior to taking the drug Mediator.

 CA Orléans, 20 November 2017, LawLex201700001965JBJ, concerning the drug Depakine. 

 CA Bourges, 4 September 2014, LawLex201600000583JB; CA Douai, 24 October 2019, LawLex201900001296JBJ: the convergence in January 2014 between the appearance of the cutaneous reaction on the front surface of the victim’s tibia after wearing the shin guards followed from August 2014 by the rapid development of its dermatological pathology until the regression of the cutaneous lesions, and the assessments of the forensic expert, who also concludes that there is a correlation based on the clinical and para-clinical analysis of the documentary information provided by the parties, together constitute serious, clear and consistent presumptions of the existence of a causal link between the pathology of the victim and the wearing of the protections at issue; CA Toulouse, 9 December 2019, LawLex201900001572JBJ: the presence of wet rocks in a narrow passage, bordered by a ravine on the right in the descent, which was bound to prompt an experienced hiker such as the victim to seek a firm foothold away from these rocks at the moment when the pole collapsed, causing him to lose his balance and then to fall into the ravine, constitute serious, precise and consistent presumptions which are sufficient to prove the causal link between the accident that occurred to the victim and the lack of compression resistance of the telescopic trekking pole in question, which suddenly retracted on a stronger surface in a more difficult passage, which is a risk that was not pointed out to the customer at the time of the sale.

  Cass. 2e civ., 9 July 2009, LawLex201200001776JBJ

  Cass. 1re civ., 29 May 2013, LawLex201300000873JBJ; 22 October 2009, LawLex201200001520JBJ; 22 October 2009, LawLex201200001520JBJ.

 CA Paris, 27 February 2015, LawLex201600000624JBJ:  a product whose presentation made it possible for its users to expect an aesthetic improvement effect without any real risk of serious side effects since they were indicated as theoretical, whereas the report of the medical expert states that its injection is the direct and certain cause of the granulomas that appeared on the victim's face, incurs the liability of the manufacturer; CA Riom, 13 September 2017, LawLex201700001528JBJ: the causal link between the fire in the washing machine and its defect is not established when the expert's report does not specify the conditions under which this appliance is connected to the domestic electrical distribution network, which does not make it possible to determine that it was the sole cause; CA Riom, 9 September 2020, LawLex202000002200JBJ:  the causal link between the defect and the damage, i.e. multiple chemical hypersensitivity developed by the victim, is established since the insufficient information on the toxicity of the product, the risks related to its use and the contra-indication of its use in rooms usually frequented by people, led the victim to choose this product and to use it without being aware of the risks involved, for a use that the manufacturer considers inappropriate and which exposes him durably to said risks.

  CA Agen, 1 February 2011, LawLex201200001570JBJ

Cass. civ. 1re, 10 April 2019, LawLex201900000528JBJ: a court of appeal cannot grant the victim's requests for an advance on damages on the grounds that his pathologies are attributable to the vaccination, that the vaccine is defective and that the exemption for developmental risk invoked can be set aside while ordering a new expert report for the purpose of determining whether there was a direct and certain causal link between the vaccination and the alleged symptoms and disorders; 4 July 2019, LawLex201900000885JBJ: to admit a causal link between the injection of the vaccine at issue and the multiple sclerosis presented by the victim, an appeal court cannot rely on the expert report which mentions that it is not possible to exclude that the vaccination could be a non-specific stimulus triggering an acute episode of demyelination in the same way as a banal viral infection or another vaccine on an individual level, whereas the experts had concluded that the role of vaccination in the etiology of the disease could not be retained, an action favoring the clinical emergence of the first attack being very improbable taking into account the scientific data and the delay between the injections and the symptoms.

 Cass. 1re civ., 5 April 2005, LawLex200500006006JBJ: the fact that the victim developed this toxic effect within the period usually observed between the administration of the product and the occurrence of the disorder and that its cessation coincided with the cessation of the drug and that neither the existence of a prescription error, nor the patient's predisposition to the syndrome, nor an association with other drugs is established.

 CA Paris, 2 June 2006, LawLex200600002451JBJ: due to the lack of scientific consensus recognizing a definite causal link between the hepatitis B vaccine and multiple sclerosis or a statistically significant association likely to attribute in a highly probable, or even plausible manner, this pathology to the vaccine (concordance of time between the onset of the symptoms of the disease and the vaccination, absence of risk factors, absence of other explanations for the disease) cannot be regarded as constituting serious, specific and consistent presumptions in favor of the vaccine administered being responsible for the disease. 

French Consumer Law

677. Proof

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