CJEU, 10th chamber, November 24, 2022, No C-691/21

THE COURT (Tenth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 2 and Article 3(1) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29), as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 (OJ 1999 L 141, p. 20).

2 The request has been made in proceedings between Cafpi SA and its insurer, Aviva assurances SA, on the one hand, and Enedis SA, an electricity distribution system operator, on the other hand, concerning the compensation for loss caused by a voltage surge.

Legal context

European Union law

3 The fourth and fifth recitals of Directive 85/374 read as follows:

‘Whereas protection of the consumer requires that all producers involved in the production process should be made liable, in so far as their finished product, component part or any raw material supplied by them was defective; whereas, for the same reason, liability should extend to importers of products into the Community and to persons who present themselves as producers by affixing their name, trade mark or other distinguishing feature or who supply a product the producer of which cannot be identified;

Whereas, in situations where several persons are liable for the same damage, the protection of the consumer requires that the injured person should be able to claim full compensation for the damage from any one of them’.

4 Article 1 of that directive provides:

‘The producer shall be liable for damage caused by a defect in his product.’

5 Article 2 of the directive provides:

‘For the purpose of this Directive, “product” means all movables even if incorporated into another movable or into an immovable. “Product” includes electricity.’

6 Under Article 3 of the same directive:

‘1. “Producer” means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.

2. Without prejudice to the liability of the producer, any person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business shall be deemed to be a producer within the meaning of this Directive and shall be responsible as a producer.

3. Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. The same shall apply, in the case of an imported product, if this product does not indicate the identity of the importer referred to in paragraph 2, even if the name of the producer is indicated.’

7 Article 5 of Directive 85/374 provides:

‘Where, as a result of the provisions of this Directive, two or more persons are liable for the same damage, they shall be liable jointly and severally, without prejudice to the provisions of national law concerning the rights of contribution or recourse.’

8 Article 9 of that directive states:

‘For the purpose of Article 1, “damage” means:

…

(b) damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of [EUR 500], provided that the item of property:

(i) is of a type ordinarily intended for private use or consumption,

and

(ii) was used by the injured person mainly for his own private use or consumption.

…’

9 Article 11 of the directive is worded as follows:

‘Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.’

French law

10 Directive 85/374 has been transposed into the French legal order by loi no 98-389, du 19 mai 1998, relative à la responsabilité du fait des produits défectueux (Law No 98-389 of 19 May 1998 on liability for defective products) (JORF of 21 May 1998, p. 7744), which introduced into the code civil (French Civil Code) Articles 1386‑1 to 1386‑18, which became Articles 1245 to 1245‑17 of that code.

11 Article 1386‑1 of the Civil Code, which became Article 1245 of that code, provides:

‘The producer shall be liable for the damage caused by a defect in its product, whether or not it is bound to the injured person by contract.’

12 Article 1386‑2 of the Civil Code, which became Article 1245‑1 of that code, provides:

‘The provisions of this title shall apply to compensation for damage resulting from personal injury.

They shall also apply to compensation for damage exceeding an amount defined by decree resulting from damage to property other than the defective product itself.’

13 Article 1386‑3 of the Civil Code, which became Article 1245‑2 of that code, provides:

‘Any movable property is a product, even if it is incorporated into immovable property, including produce of the soil, farming, hunting and fishing. Electricity shall be considered to be a product’

14 The first paragraph of Article 1386‑6 of the code, which became the first paragraph of Article 1245‑5 of the same code, is worded as follows:

‘When acting in a professional capacity, the manufacturer of a finished product, the producer of a raw material, the manufacturer of a component is a producer.’

15 Article 1386‑7 of the Civil Code, which became the first paragraph of Article 1245‑6 of that code, provides:

‘If the producer cannot be identified, the vendor, hirer (with the exception of a hirer under a hire-purchase agreement or a hirer similar thereto), or any other supplier in the course of business shall be liable for safety defects in its products under the same conditions as the producer, unless it designates its own supplier or producer, within three months from the date on which the injured person’s claim was notified to it.’

The dispute in the main proceedings and the question referred for a preliminary ruling

16 On 28 July 2010, certain electrical equipment at an agency of the company Cafpi malfunctioned. According to a privately appointed expert, that malfunction was caused by a voltage surge caused by a break in the neutral circuit of the electricity distribution system operated by Enedis.

17 Cafpi was partially compensated by its insurer, Aviva assurances. Cafpi and Aviva assurances brought an action against Enedis for compensation for the damage suffered pursuant to the general provision for contractual liability, namely ex-Article 1147 of the Civil Code. Enedis submitted that only the Civil Code rules on liability for defective products were applicable, and that the action for compensation brought by Cafpi and Aviva assurances was time-barred.

18 By a judgment of 6 July 2018, the court hearing the action rejected the application of the latter rules while also rejecting the applicants’ claims on the merits.

19 By a judgment of 6 February 2020, the Cour d’appel de Versailles (Court of Appeal, Versailles, France) set that judgment aside. It considered, first, that the electricity produced by Électricité de France SA was not a finished product in that it is at high voltage and therefore not fit for consumption and, second, Enedis transforms electricity for distribution to the final consumer, such that it was the manufacturer of the final product intended for distribution to the consumer, and that it was therefore a producer, within the meaning of the legislation on liability for defective products. Consequently, that court held that that was the applicable legislation and that the action brought by Cafpi and Aviva assurances was inadmissible as a result of being time-barred.

20 Cafpi and Aviva assurances lodged an appeal against that judgment on a point of law before the Cour de cassation (Court of Cassation, France), the referring court.

21 The referring court raises the question of whether an electricity distribution system operator which alters the voltage and current of electricity so that it may be distributed to the final consumer should be regarded as a ‘producer’ of electricity within the meaning of Directive 85/374.

22 First of all, that court states that, according to its Advocate General, the qualification of an operator such as Enedis as an electricity producer, is ‘contrary to the reality of the contractual and economic relationships between the various actors in the sector’, since, first, the distribution system operator cannot produce electricity from a raw material which it has not purchased and, second, it does not sell that electricity: the consumer purchases it from the supplier.

23 Next, that court observes that, in a similar case, the Bundesgerichtshof (Federal Court of Justice, Germany) held, in a judgment of 25 February 2014, that an electricity distribution system operator should be regarded as a producer if it alters significantly the electricity product by transforming its voltage so that it can be used by the final consumer.

24 Finally, the referring court expresses doubts as to that assessment on the ground that it could not be compatible with the directives on the internal electricity market, namely Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20), Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), and Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55), which required transmission and distribution system operators to be independent of the activities of the generation and supply of electricity, which are open to competition.

25 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must [Article 2 and Article 3(1) of Directive 85/374] be interpreted as meaning that an electricity distribution system operator may be regarded as a “producer” if it alters the voltage of the electricity from the supplier so that it may be distributed to the final consumer?’

Consideration of the question referred

Admissibility

26 The European Commission, without formally raising an objection of inadmissibility, raises the possibility that the question referred may be inadmissible on the ground that it is not relevant for the purposes of resolving the dispute in the main proceedings, given that the damage for which Cafpi seeks compensation is damage to electrical equipment used in the course of that company’s trade, whereas Directive 85/374 governs, pursuant to Article 9 thereof, the liability of an operator to a consumer for its defective products.

27 In that regard, it should be noted that, admittedly, it is apparent from Article 9(b) of Directive 85/374 that that directive applies to the damage to or destruction of an item of property, provided that the item is of a type ordinarily intended for private use or consumption and has been used by the injured person mainly for his or her private use or consumption.

28 However, according to the Court’s case-law, as the harmonisation brought about by Directive 85/374 does not cover compensation for damage to an item of property intended for professional use and used for that purpose, that directive does not prevent a Member State from providing in that respect for a system of liability corresponding to that established by that directive (judgment of 4 June 2009, Moteurs Leroy Somer, C‑285/08, EU:C:2009:351, paragraph 31).

29 In the present case, however, as the referring court stated in response to a request for clarification sent by the Court, Article 1386‑2 of the Civil Code, now Article 1245‑1 of that code, states that, when transposing Directive 85/374 into the French legal order, the national legislature did not restrict the scope of application of the scheme for liability for defective products to the compensation for damage caused to goods intended for private use and consumption and used for that purpose.

30 It is settled case-law that the Court has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 34 and the case-law cited).

31 In such circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 35 and the case-law cited).

32 Thus, an interpretation by the Court of provisions of EU law in situations not falling within the scope of EU law is warranted where such provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 36 and the case-law cited).

33 Since, as has been pointed out in paragraph 29 of the present judgment, the French legislature, when transposing Directive 85/374 into the French legal order, chose to apply the system of liability for defective products established by that directive also to damage caused to goods which are not intended for private use or consumption and used for that purpose, it must, in the light of the case-law cited in paragraphs 30 to 32 above, be concluded that there is a definite EU interest in the Court’s ruling on that request for a preliminary ruling, such that it must be held to be admissible.

Substance

34 As a preliminary point, in so far as the referring court refers, in its question, to Article 2 of Directive 85/374, it should be observed that that article contains the definition of the term ‘product’ and, in that context, expressly provides that electricity must be regarded as a product within the meaning of that directive.

35 The class of liable persons against whom an injured person is entitled to bring an action under the system of liability laid down by Directive 85/374 is defined exhaustively in Articles 1 and 3 of that directives. Since that directive seeks to achieve complete harmonisation in the matters regulated by it, its determination in those articles of the class of liable persons must be regarded as exhaustive and cannot be made subject to the setting of additional criteria which do not follow from the wording of those articles (judgments of 10 January 2006, Skov and Bilka, C‑402/03, EU:C:2006:6, paragraphs 32 and 33, and of 7 July 2022, Keskinäinen Vakuutusyhtiö Fennia, C‑264/21, EU:C:2022:536, paragraph 29).

36 In those circumstances, the referring court’s question must be understood as asking whether Article 3(1) of Directive 85/374 must be interpreted as meaning that the operator of an electricity distribution system must be regarded as a ‘producer’, within the meaning of that provision, where it changes the voltage level of electricity with a view to its distribution to the final customer.

37 According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraph 94 and the case-law cited).

38 In the first place, it should be noted that, according to the wording of Article 3(1) of Directive 85/374, ‘“producer” means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer’.

39 In the second place, as regards the context of that provision, it must be observed that it is clear from Article 5 of Directive 85/374 read in the light of its fourth recital that, in respect of the same product, several persons may be classified as the ‘producer’ within the meaning of Article 3(1) of that directive and, on that basis, all those persons are to be jointly and severally liable for the damage caused by that product.

40 As regards the respective roles of the various economic operators involved in the production and marketing chains of a product, the Court has stated that the choice was made in principle to allocate to the producer liability for damage caused by defective products, since, in the great majority of cases, the supplier does no more than sell the product in the state in which he or she bought it and only the producer is able to influence its quality (see, to that effect, judgment of 10 January 2006, Skov and Bilka, C‑402/03, EU:C:2006:6, paragraphs 28 and 29).

41 In that regard, as regards the distinction between the manufacturing and marketing processes of a product, it should also be borne in mind that it is clear from the case-law of the Court that a product must be considered as having been put into circulation, within the meaning of Article 11 of the directive, when it leaves the production process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed (see, to that effect, judgment of 9 February 2006, O’Byrne, C‑127/04, EU:C:2006:93, paragraph 27).

42 In the third place, as regards the objective pursued by Directive 85/374, the fourth recital of that directive states that protection of the consumer requires that all producers involved in the production process should be made liable, in so far as their finished product, component part or any raw material supplied by them is defective.

43 The concept of ‘producer’, within the meaning of Article 3(1) of Directive 85/374, which is an autonomous concept of EU law, thus meets the objective of consumer protection, which requires, first, that several persons may be regarded as producers and, second, that consumers may bring claims against any one of them, so that the search for a single liable person, that is to say, ‘the most appropriate person’ against whom consumers should assert their rights, is not relevant (see, to that effect, judgment of 7 July 2022, Keskinäinen Vakuutusyhtiö Fennia, C‑264/21, EU:C:2022:536, paragraph 35).

44 In the present case, the referring court’s question concerns the situation of an electricity distribution system operator which changes the voltage level of electricity with a view to its distribution to the final customer, it being noted that, in the absence of any intervention by that manager, no use of high voltage electricity produced by Électricité de France would be possible by the consumer.

45 Consequently, an operator who acts in that way does not merely supply a product, in this case electricity, but participates in its production process by altering one of its characteristics, namely its voltage, so that it is in a state to be offered to the public to be used or consumed.

46 Contrary to the submission by the French Government, the voltage level of electricity is a characteristic of that product, irrespective of whether voltage surge constitutes a defect in the safety which the general public may legitimately expect. In that regard, it should be observed that a characteristic of a product may be altered without it being defective before or after the modification in question.

47 It follows that a system operator which changes the voltage level of electricity must be regarded as a ‘producer’ within the meaning of Article 3(1) of Directive 85/374.

48 Contrary to what has been stated by the referring court, that interpretation of the concept of ‘producer’ is not contrary to the provisions of the directives referred to in paragraph 24 of the present judgment, in particular the provisions which required a separation between the production and distribution tasks of electricity.

49 As is clear from the case-law cited in paragraph 35 of this judgment, the class of liable persons against whom an injured person is entitled to bring an action under the system of liability laid down by Directive 85/374 must be determined having regard solely to Articles 1 and 3 of that directive, without it being possible to impose additional criteria not laid down in those articles. As regards the directives referred to in paragraph 24 above, those directives pursue other objectives.

50 In the light of the foregoing considerations, the answer to the question referred is that Article 3(1) of Directive 85/374 must be interpreted as meaning that an electricity distribution system operator must be regarded as a ‘producer’, within the meaning of that provision, where it changes the voltage level of electricity with a view to its distribution to the final customer.

Costs

51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 3(1) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, must be interpreted as meaning that an electricity distribution system operator must be regarded as a ‘producer’, within the meaning of that provision, where it changes the voltage level of electricity with a view to its distribution to the final customer.