In four decisions delivered in related matters, the French Cour de cassation (Supreme Court for civil and commercial cases) specified potential grounds for producers’ liability besides product liability.

In 2002, the CJUE (then CJEC) already confirmed that the product liability regime set out by the Product Liability Directive No. 85/374/EEC of 25 July 1985 was not exclusive and did not prevent the victim of a damage allegedly caused by a product to seek compensation under other regimes, whether contractual or non-contractual, for liability based on grounds others than the product’s defect, such as a fault or a warranty for latent defects (CECJ ruling of 25 April 2002, C-183/00). French case law confirmed this non-exclusivity in several decisions (Civ. 1re, 11 juill. 2018, n°17-20.154 ; Civ. 1re, 17 mars 2016, n°13-18.876; Civ. 1re, 10 déc. 2014, n°13-14.314 P).
Last November, the Cour de cassation (First Civil Chamber) ruled that a producer could be held liable in torts (Article 1240 of the French Civil Code) for maintaining into circulation a product known to have a defect or for a breach of his duty of care (“duty of vigilance”) as to the risks posed by the product.

While the Cour de cassation did not explain further what constituted sufficient evidence of these faults under tort law and left it to the competent Court of Appeals to decide, these decisions extend the scope of liability of the producers for damages caused by a product.

In effect, these decisions allowed the victims who were time-barred in respect of product liability to choose another legal ground, in those cases tort law, which is subject to longer limitation periods. Indeed, the limitation period under French tort law ranges from 5 to 10 years in case of physical injury (articles 2224 and 2226 of the French Civil Code).

Although these matters concern a specific situation involving pharmaceuticals, the general principles set out by the Cour de cassation are applicable in other fields.

As for the producers’ duty of care referenced by the Cour de Cassation, this concept was already formalized by French Law No. 2017-399 of 27 March 2017 (now Article L. 225-102-4 of the French Commercial Code) which foresees the obligation for multinational companies having their registered office in France to:

• establish a vigilance plan aimed at identifying risks and preventing violations of human rights, damages to the environment and health resulting from the activities of the company, the companies it directly or indirectly controls, and the activities of subcontractors or suppliers with whom it has an established commercial relationship;
• in that regard, draw up a list including a risk mapping system, regular assessment procedures, appropriate actions, a warning mechanism, and a system for monitoring measures.

On 23 February 2022, the European Commission also published a proposal for a Corporate Sustainability Due Diligence Directive (CSDDD), which aims to set out new requirements around how companies must conduct due diligence (in other terms, their duty of care or vigilance) across their operations and value chains. EU lawmakers are currently negotiating the final text of the CSDDD and are expected to reach agreement in 2024.

The new rules will apply to the following companies:

• all large EU limited liability companies with significant economic power (employing more than 500 people and with a worldwide net turnover of more than 150 million euros);
• other limited companies operating in defined high-impact sectors that do not meet either of the thresholds mentioned above but employ more than 250 people and have net worldwide sales of 40 million euros or more.

To comply with the new directive, companies shall:

• integrate the duty of care into their policies;
• identify actual or potential negative impacts on human rights and the environment;
• prevent or mitigate potential impacts and stop or minimize actual impacts;
• establish and maintain a complaints procedure;
• monitor the effectiveness of the vigilance policy and measures;
• communicate publicly on their duty of care.

More recently, the concept of duty of care was also the subject of a decision by the Paris Court of First Instance dated 5 December 2023, which condemned the French company La Poste for the employment, by one of its subcontractors, of undocumented workers during nightshifts.