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French Consumer Law

Article 1245-10 (former Article 1386-11) of the Civil Code provides that “the producer shall be liable as of right unless he proves: […] 4° That the state of scientific and technical knowledge at the time when the product was put into circulation was not such to enable to reveal the existence of the defect”. However, Article 1245-11 (former Article 1386-12) of the Civil Code excludes the producer  …

Development risk

Article 1245-10 (former Article 1386-11) of the Civil Code provides that “the producer shall be liable as of right unless he proves: […] 4° That the state of scientific and technical knowledge at the time when the product was put into circulation was not such to enable to reveal the existence of the defect”. However, Article 1245-11 (former Article 1386-12) of the Civil Code excludes the producer being able to invoke the development risk to exempt itself from liability when the damage was caused by an element of the human body or by products derived from it .

Article 15 (1) of Directive No 85/374 of 25 July 1985 left the Member States the option of introducing into their internal legislation a cause of exemption for development risk . The transposition of this provision into domestic law took place in two stages. Initially, the Law of 19 May 1998 deprived from exemption the producer invoking the development risk if, in the case of a defect revealed within ten years after the product was put into circulation, it had not taken the necessary steps to prevent its harmful consequences . Censured for incorrect transposition, France abolished this follow-up obligation with Law No 2004-1343 of 9 December 2004. In this context, the Court of Cassation stated on several occasions that the manufacturer could not invoke the development risk, when at the time when the product was put into circulation, Directive No 85/374 had not yet been transposed into national law .

The exemption for development risk is only possible if the defect was undetectable in the light of the technical and scientific knowledge at the time when the product was put into circulation . In effect, the directive sets a high standard. According to the Court of Justice, the exemption provided for in Article 7(e) of the directive “is not specifically directed at the practices and safety standards in use in the industrial sector in which the producer is operating, but, unreservedly, at the state of scientific and technical knowledge, including the most advanced level of such knowledge, at the time when the product in question was put into circulation”. Regardless in this respect the state of knowledge which the producer was or could be concretely or subjectively informed, “the objective state of scientific and technical knowledge of which the producer is presumed to have been informed” must be retained, provided that it was accessible at the time when the product in question was put into circulation .

Similarly, for the French courts, the assessment of the risk of development must be made in a purely objective manner , without taking into account the qualities and abilities of the producer . Thus, the producer of the defective propeller is not entitled to invoke exemption from liability on the grounds of development risk since, according to the findings of the expert witness report, the coupling phenomenon, which caused the ejection of the helicopter's propeller, had been known for a long time and the manufacturer of the propeller had methods and means at its disposal at the time of the design of its product that were capable of determining the dangerous vibrational modes . The manufacturer of a medicinal product thus legitimately invokes the development risk, since at the time when the prescribed and used product was put into circulation, there was no epidemiological evidence of a significant causal association between the taking of this medicinal product and the pathology concerned, and that the applicant does not demonstrate that the laboratory was aware of the defect in the product at issue at the time of its prescription . Similarly, the producer of a Camembert cheese carrying the E. coli O26 strain must be exonerated from its liability as of right for the defect in its product, since at the time of the facts, this was the first epidemic of E. coli, of strains other than O157, linked to the consumption of Camembert cheese made from raw milk, and no reference or validated alternative method was available to detect the non-O157 pathogenic strains .  

The courts consider that the existence of publications implicating a product as being at the origin of a series of defects is enough to rule out the development risk . The Court of Cassation has recently stated that when the court finds that a product has been defective, following the identification of serious risks connected with its use, it is not obliged to ascertain the knowledge of these risks by the producer at the time the product was put into circulation or of its prescription, where the latter has not availed himself of the exemption from liability for development risk .

 Reference is made here, in particular, to damage resulting from contamination by blood transfusion.

 “Each Member State may, by way of derogation from Article 7 (e), maintain or, subject to the procedure set out in paragraph 2 of this Article, provide in this legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.”

Cass., 1re ch. civ., 5 May 2021, LawLex202100002975JBJ.

 CA Toulouse, 13 August 2018, LawLex201800001215JBJ: noting that the appearance, as early as 1997, of publications implicating Mediator as the cause of recurrent effects and which should have led its manufacturer to investigate the reality of the reported risk or, at the very least, to inform doctors and patients of it, is sufficient to rule out the development risk as a reason for exemption, which was sufficiently proven before the offending product was put into circulation and administered to the victim between 2001 and 2009

 Cass. 1re civ., 25 February 2016, LawLex201600000539JBJ, 6 December 2023, LawLex202300014873JBJ.

 This provision was then provided for in Article 1386-12 (now Article 1245-11), paragraph 2, as resulting from the Law of 19 May 1998.

 Cass. 1re civ., 9 July 1996, LawLex200300003035JBJ; Cass. 3e civ., 28 November 2001, LawLex200300003119JBJ; Cass. 1re civ., 15 July 2007, LawLex200700000754JBJ: holding that if the national court, hearing a dispute falling within the scope of a directive, is required to interpret its national law in the light of the text and the purpose of Directive No 85/ 374, it is on condition that it is binding on the Member State, meaning that it cannot exempt the manufacturer for development risk, when the optional provision of the directive providing for that cause of exemption is not yet transposed into national law; 9 July 2009, LawLex201600000614JBJ. See also CA Paris, 12 September 2008, LawLex201200001866JBJ.

 CA Aix-en-Provence, 14 January 2016, LawLex201600000176JBJ.

 Case C-300/95 Commission v United Kingdom, Judgment of 29 May 1997 , LawLex200900002170JBJ.

 CA Orléans, 20 November 2017, LawLex201700001965JBJ, finding that although the manufacturer may not claim lack of knowledge at its placing into circulation of the extent of the adverse effects of its product on the fetus exposed to it in order to challenge the claim that its product is defective, it is important, however, to find out objectively if a major teratogenic effect of this product was known and whether it was brought to the knowledge of the public.

 CA Toulouse, 22 February 2000, LawLex200600001047JBJ.

CA Limoges, 4 March 2015, LawLex201800001014JBJ.

 CA Versailles, 15 November 2007, LawLex201200001859JBJ.; Cass. civ. 1re, 29 June  2016, LawLex201600001232JBJ: the interim applications court may not grant a provisional sum to the victim ruling out any exemption of the producer for development risk, insofar as the invocation of a cause of exoneration from liability constitutes a challenge the basis of which must be assessed by the court without it requiring evidence of the fulfillment of the conditions for exemption at this stage; CA Paris, 11 January 2018, LawLex201800000091JBJ: as the risk of cardiotoxicity was not proven prior to November 2009, the existence of an obligation by the laboratory in question to compensate for the harm suffered by the victim as a result of taking the drug Mediator, cannot be held to be devoid of serious challenge within the meaning of Article 809 of the Code of Civil Procedure. Cf. Cass. civ. 1re, 20 September 2017, LawLex201700002004JBJ; 22 November2017, LawLex201700001949JBJ: the state of scientific and technical knowledge at the time of the circulation of products administered to the victim, between 2003 and 2009, could have detected the existence of the defect in Mediator, such that the laboratory concerned could not successfully claim an exemption from liability; CA Douai, 24 October 2019, LawLex201900001296JBJ: the state of technical and scientific knowledge at the time of the release of the disputed shin guards, made it possible to detect the existence of a defect, constituted by an allergenic risk, since as early as April 2012, users had reported red patches on the area of contact between the shins and the guard in question, so that the producer, who should have investigated the reported risk and at least informed users by references on the product's instructions and label, cannot be exempted from liability.

French Consumer Law

679. Development risk

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679. Development risk

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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