Liability for Defective Products
Recourse Between Producers
Because of their highly technical nature, many goods on the market are composite products, which contain one or more component parts manufactured by third parties.
In the event of a claim involving one of these products, the manufacturer may be held liable if the damages lie within their own product, but also if they arise from third party components used in its production. This remains the case, even if the said third party component is exclusively at fault for the damages.
Indeed, the manufacturer cannot avoid liability by proving that the defect in his product results exclusively from a defective third-party component[1].
Accordingly, recourse from the manufacturer of a finished product towards component parts manufacturers must be taken to ensure defendants can seek a contribution or indemnity towards any damages payable to the claimant, against the third-party whose component part caused the damage.
The liability regime for defective products establishes joint and several liability between the manufacturer of a finished product and the producer of a defective component within it[2], on the grounds that “the defect is transferred to the final product, thereby rendering it defective as well”[3].
This joint liability gives the victim and/or their subrogated insurer the option of taking action solely against the producer of the composite product or the producer of the finished product, as well as both.
The claimant can therefore bring an indemnity claim solely against and directly to the finished product manufacturer. On the other hand, it is uncommon to see such actions brought against the component producer, and this is due to several reasons.
Firstly, the manufacturer of the component part may be based outside of the European Union, hence operating under a different legal jurisdiction, and thus complicating legal proceedings.
Secondly, the claimant bears the responsibility of proving that the defect lies within a component part. This constitutes a complex and challenging task, given the ways with which a component part may be integrated within a finished product.
Finally, the identity of the manufacturer of the incorporated product is often unknown to the claimant.
For all these reasons, claimants most often will seek to take action against the manufacturer of the overall product, rather than against the manufacturers of specific parts.
Nonetheless, the burden of proof of the fault and damages still lies, in principle, with the claimant, who must prove both the damages and defect, as well as the causation between the two.
However, in view of the difficulties encountered by victims in providing scientific proof of the existence of a defect and the causal link between this defect and damages, most notably in cases involving pharmaceutical products, case law has lightened the burden of proof by giving credit to evidence that merely gives rise to presumptions, provided they are “serious, specific and consistent”, regardless of the industry and nature of the claim[4].
Directive (EU) 2024/2853[5], recently adopted and due to be transposed by EU Member States by 9 December 2026, also admits a flexible standard of proof. It introduces several rebuttable presumptions[6], placing more emphasis “on the balance of probabilities” of defect rather than on proven direct defectiveness[7].
Crucially, however, these flexible standards do not efface the necessity for proper investigation into a defect and its root cause, nor should they undermine the principle that the mere involvement of a product in the occurrence of damages is not sufficient to establish its defect.
Fortunately, French courts are mostly continuing to uphold the need for rigorous technical analysis in claims submitted to them when assessing the existence of a defect.
It is nevertheless too early to assess the impact Directive (EU) 2024/2853 will have on the rigor of investigating product defects, as it has yet to be transposed into French national law.
In any case, once the root cause of the damage is identified, the manufacturer of the final product has the right to bring a claim against the component manufacturer who has, so to speak, “spoilt” the entire product.
In such instances, the former has a range of legal options, ranging from subrogation process after paying damages to the claimants, through to their own direct indemnity claims.
1. Subrogated claim
The first option available to the manufacturer of the finished product is a subrogated claim, in which they “step into the shoes” of the indemnified claimant, to recover the monies paid out[8].
This action is based on the general rules of law governing apportionment between joint and several debtors.
While Articles 5 and 8 of Directive 85/374/EEC and Articles 12 and 14 of Directive (EU) 2024/2853 explicitly provide for joint and several liability between two manufacturers, the final apportionment of the indemnity is left to the internal law of Member States.
In French law, apportionment between joint and several debtors is ruled by Article 1317 of the Civil Code, which dictates that each joint and several debtor contributes to the debt for his share. In the absence of specific provisions in the Code, French courts have clarified that liability is apportioned based on the existence and seriousness of any fault.
In a ruling relating to defective product liability, the French supreme court upheld that contribution “falls outside the scope of Directive 85/374/EEC” and stated that “under national law, contribution between joint and several debtors, in the absence of fault [cases of strict liability], is split equally”[9].
Therefore, the extent of the final product manufacturer’s claim against the component manufacturer depends on the liability source of the latter. If the component producer is based on strict liability, then the claim will be limited to 50% of the damages paid to the claimant.
It would arguably be more equitable for apportionment between the finished product manufacturer and the component producer to be based not on tort, but on the causal role of the defective component in the damage.
A causation-based approach would allow for a fairer allocation of risk, as a finished product manufacturer currently bears 50% of the final liability for damage caused entirely by a component outside of their control.
A proposed reform of the French civil liability regime had, in fact, suggested an apportionment based on causation in cases of strict liability[10].
As for proving a fault or negligence in tort liability, it is inherently more difficult; the concept of “defect”—which triggers the liability of the finished product producer – is entirely independent of fault or negligence. The existence of a defect in a product does not imply that its manufacturer acted wrongfully[11].
Seeking to engage the liability of the component producer based on tort liability is therefore naturally more difficult, and a subrogated claim can be less attractive for the finished product manufacturer.
However, the manufacturer of the finished product can avoid the equal apportionment by pursuing personal claims against the component producer.
Another option is to submit a personal claim following a subrogated claim to recover the remaining 50% of the indemnity paid.
2. Personal Claims
The nature of the finished product manufacturer’s personal claims against the component producer depends on their relationship — whether contractual, within a chain of contracts, or entirely non-contractual.
These liabilities can be pursued if their conditions are met.
Non-Contractual Claims
When the damage is not caused by the breach of a contractual obligation by the component producer, the finished product manufacturer must first determine whether the liability regime for defective products applies to their claim.
The strict liability regime means that no fault, negligence, or breach of contract is required for the component producer to be held liable.
If this regime is applicable, it would reduce the freedom of the producer of the finished product to bring liability claims, whether contractual or extra-contractual.
Indeed, liability for defective products allows action on other grounds only if they are based on a fault or negligence (for tort) or breach of contractual provision (for contractual liability) distinct from a safety defect[12]. This rules out certain grounds, such as strict liability for things under one’s control under article 1242(1) of the French Civil Code, as they inherently involve a safety defect[13].
If the product liability regime does not apply, the finished product manufacturer is free to seek compensation based on tort liability, or other applicable grounds.
In a personal claim against the component producer, the finished product manufacturer will generally seek compensation for the “economic damage arising from the payment made to compensate the direct victim”[14].
Currently, such economic damage is excluded from the scope of product liability unless there is also personal injury or damage to property[15].
This exclusion will continue to apply under Directive (EU) 2024/2853, which limits compensation for non-pecuniary losses to those consequential to physical or material damages[16].
Thus, the inapplicability of the product liability regime to the finished product manufacturer claim against the component producer is advantageous, as it can be based on general tort liability.
Contractual Liability
In case of a contract or chain of contracts, the finished product manufacturer may bring a contractual liability claim against the component producer. These include:
- A contractual warranty action, in cases where all parties have agreed to such a warranty. However, this is dependent on the contractual terms, which may not provide for full coverage of the economic damage or the unrecovered amount.
- A statutory warranty action, such as a claim against hidden defects under Articles 1641 et seq. of the French Civil Code.
- A contractual liability action, based on a breach of contractual provisions (Article 1231-1 of the French Civil Code) or non-conforming delivery (Article 1604).
These actions are based on the French Civil Code, provided that the law applicable to the contract – determined by choice-of-law clauses or conflict of laws rules – is French law.
Special attention should be given to sales agreement to determine whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 applies, unless expressly excluded.
Furthermore, attention must be paid to limitation of liability clauses in the contract.
Subject to any applicable defences, the finished product manufacturer may bring an action against the component producer based solely on contractual grounds to shift the full burden of compensating the victim onto the component producer, or to recover the unpaid portion after a subrogated claim.
3. Case-by-Case Analysis of Legal Strategy
Finished product manufacturers therefore have a wide array of actions they can bring against component producers.
However, assessing the likelihood of success of each action requires fact-specific analysis, particularly of the technical investigations from the court-appointed expert that leads to damages being paid under product liability rules.
Careful attention must also be paid to the statute of limitations, as they vary depending on the product liability system.
[1] Pursuant to a combined reading of Articles 1245-10 and 1245-13 of the Civil Code. ↩︎
[2] Article 1245-7 of the French Civil Code: « In the case of harm caused by a defect in a product incorporated into another, the producer of the component part and the person who effected its incorporation are jointly and severally liable”. ↩︎
[3] Etendue des recours entre coresponsables : la responsabilité du fait des produits à la pointe de l’égalité, J-S. Borghetti, D., 2015, p. 405, § 3. ↩︎
[4] Cour de cassation, 1st Civil Chamber, 22 May 2008, n°06-10.967 ; Cour de cassation, 1st Civil Chamber, 18 October 2017, n°14-18.118, Published in the Bulletin ; CJUE, 21 June 2017, case Cts WW / Sanofi-Pasteur, C‑621/15 that upheld that: « notwithstanding the finding that 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, certain factual evidence relied on by the applicant constitutes serious, specific and consistent evidence enabling it to conclude that there is a defect in the vaccine and that there is a causal link between that defect and that disease.». ↩︎
[5] Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC. ↩︎
[6] Article 10, paragraphs 2,3 et 4 of the Directive (UE) 2024/2853. ↩︎
[7] Recital 48 of the Directive (UE) 2024/2853 : « Given that manufacturers have expert knowledge and are better informed than the injured person, and in order to maintain a fair apportionment of risk while avoiding a reversal of the burden of proof, that claimant should be required to demonstrate, where the claimant’s difficulties relate to proving defectiveness, only that it is likely that the product was defective, or, where the claimant’s difficulties relate to proving the causal link, only that the defectiveness of the product is a likely cause of the damage. ». ↩︎
[8] Article 1346 of the French Civil Code. ↩︎
[9] Court of Cassation, 1st Civil Chamber, 26 November 2014, No. 13-18.819, Published in the Bulletin. ↩︎
[10] Reform Bill on Civil Liability n°678 from 29 July 2020, article 1267: « Where one or more persons are liable for the same harm, they are jointly and severally liable to make reparation for it to the victim. If all or certain of them have committed a fault, they make contribution to each other in proportion to the seriousness and the causal role of the action giving rise to liability which is attributable to them. If none of them has committed a fault, they make contribution in proportion to the causal role of the action giving rise to liability which is attributable to them, or, by way of default rule, in equal parts. » ↩︎
[11] Cour de cassation, 1st Civil Chamber, 14 September 2022, n°21-15.374, Unpublished. ↩︎
[12] CJCE, 25 April 2002, Gonzàlez Sàanchez, Case C-183/00, paragraph 31, the Directive « does not preclude the application of other systems of contractual or non-contractual liability based on other grounds, such as fault or a warranty in respect of latent defects». This solution was consequently adopted by the Cour de cassation (Cour de cassation, Commercial Chamber, 26 May 2010, n°08-18.545 ; Cour de cassation, 1st Civil Court, 10 December 2014, n°13-14.314, even if, on reading the rulings handed down on 15 November 2023 (Cass., 1st Civ., 15 November 2023, n°22-21.174, 22-21.178, 22-21.179 et 22-210.182), this solution seems to be called into question, since it is difficult to see how faults constituted by “keeping the product in circulation, the defect of which [the producer] is aware, or failing in his duty of vigilance with regard to the risks presented by the product” can be distinct from a product safety defect, when they are necessarily inferred from the latter, and such a fault involves precisely an extrinsic defect in the product. ↩︎
[13] Cour de cassation, 1st Civil Chamber, 11 July 2018, n°17-20.154, Published in the Bulletin; Cour de cassation, 1st Civil Chamber, 26 October 2022, n°20-23.425. ↩︎
[14] D. Bakouche, N. Morel, Regards croisés sur le produit incorporé dans le régime de la responsabilité du fait des produits défectueux, RCA n°10, October 2020, Study 9, § 14. ↩︎
[15] Ibid. ↩︎
[16] Article 6, paragraph 2, of the Directive (UE) 2024/2853. ↩︎