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Country:

France

Court:

Conseil d'Etat, 3 March 2004, n° 241151

Topics:

Asbestos

Regulatory liability

Precautionary principle

State liability

Facts:

Employees had suffered asbestos-related illnesses due to prolonged exposure to this material whilst at work. Two of the claimants had spent a portion part of their working-life in factories which produced asbestos-based products, and the other two claimants had worked in factories where asbestos-based products were used.

The claimants brought an action against the State on the basis that there had been a wrongful failure on the part of the public authorities to take the necessary measures to avoid or reduce the health risks related to asbestos exposure. A series of facts were cited by the claimants in support of their contention. The toxic nature of asbestos had been known since mid-50s. However, measures had not been undertaken in France to reduce the risks until 1977. No in-depth study was undertaken by the authorities until 1995.

Legal questions:

Can the State be held liable for failure to implement the necessary measures to reduce or avoid health risks in a professional setting?

Decision:

(1) The state was held to be under a duty to investigate work-related dangers, to undertake necessary studies, and to take necessary measures to restrict or eliminate such dangers: "whilst an employer is obliged to protect the health of the employees under his control, it is beholden upon the public authorities who are charged with the prevention of risks at work to inform themselves of the dangers which workers run during their professional activity."

(2) The court held that the omission of state to take preventive measures to reduce risks of asbestos constituted a fault. The measures taken after 1977 to reduce the risks of those exposed to asbestos, where not shown to have been adequate to protect those who worked in an environment where asbestos was present. No study had been undertaken before 1995 in order to determine the exact dangers of asbestos exposure, even though the carcinogenic nature of the product was fully appreciated by then, and the cases of work-related asbestos-related diseases were on the increase.

Comments:

In France, damages claims against the state proceed before the administrative courts, which apply a different set of principles to those laid down by the civil courts. The basic principle of governmental liability is that "illégalité vaut faute." In other words, any unlawful governmental decision (quashed by the administrative courts) constitutes a fault capable of giving rise to administrative liability. The administrative courts have also created heads of no-fault liability (eg in medical sphere).

The Conseil d'Etat's judgment of 3 March 2004 is an important decision of the French Supreme Administrative Court. It is one of a series of pioneering decisions concerning the liability of public authorities in their regulatory role (financial institutions, pharmaceuticals, blood products). Initially benefiting from a quasi-immunity, the state as regulator is now subject to the rigours of the French governmental liability.

In this decision, the Court imposed a significant duty upon the State to undertake research and investigations to identify potential risks, and then to act upon any findings. Commentators see here a concrete application of the much-vaunted Precautionary principle (principe de précaution).

The background to the decision should be underlined. The French authorities acted very slowly in dealing with the health risks associated with asbestos exposure, implementing measures much later than other European countries.

Other sources of compensation are available in French law. There is a specific Social Security regime for employees afflicted by work-acquired diseases or injuries (Art. L 451-1 Social Security Code), with an administrative procedure leading to fixed social security payments. Legal actions have also been launched against French employers. The Cour de cassation (French Supreme civil and criminal court) has developed its case law concerning the liability of employers to their employees concerning asbestos-related diseases. Payments may be gained from an employer where a "faute inexcusable" of the employer is shown. The court has held that this is the case where "the employer was aware or ought to have been aware of the risk which the employee was exposed to, and did not take the measures which were necessary to avoid this."

Over and above this, the legislature has created a statutory compensation fund, specifically for asbestos victims, the Fonds d'Indemnisation de Victimes de l'Amiante (Law of 23 December 2000). A claim may be brought by person (or next-of-kin) who has suffered asbestos-related health problems, whether work-acquired or environmental. In France, there are an estimated 100,000 potential claimants.

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