In two recent judgments, the French Supreme court made a reminder towards rules on prescription (17 January 2018 No. 16-25817 and 31 January 2018 No. 17-11259).
Between 1995 and 1997, two patients were injected with hepatitis B vaccine. Shortly after the injections, they were diagnosed with multiple sclerosis.
In 2013, the patients acted in liability against the manufacturer of the vaccine which defective nature was invoked.
The difficulty of these cases lies in the temporal application of the regulations concerning liability for defective products. Indeed:
- Council Directive of 25 July 1985 on the subject, which member states were required to transpose before 30 July 1988, provides for two liability limitation period:
(i) manufacturers' liability expires 10 years from the date the product was put into circulation; and
(ii) actions' by victims are time-barred after a period of three years from the time the victim became aware of the damage
- The Directive was transposed into French law on 19 May 1998
In the present case, the claimants were injected with hepatitis B vaccine between 1995 and 1997, i.e. the period before transposition in France had occurred.
In accordance with the usual case law regarding defective products, the Courts of Appeal of Montpellier and Besançon found that the claimants' actions were time barred on the basis of an interpretation of the rules of prescription in the light of the Directive.
However, according to two recent judgments on January 2018, the visa of former article 2270-1 of the Civil code, the French Supreme Court reminds that this method of interpretation is not applicable. The Court states that "an action for extra-contractual liability against the producer of a product which defective nature is invoked ... shall be time barred, in accordance with the provisions of domestic law, which cannot be subject to an interpretation in accordance with the law of the union, ten years from the date of consolidation of the damage, (...) enabling only the claimant to measure the extent of its damage and to have knowledge of it ".
These two judgments are therefore favourable in the patient's interest.
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