On 17 September 2015, the French Constitutional Council
("Conseil Constitutionnel") issued a decision partly
repealing law no. 2010-729, dated 30 June 2010, as amended by law
no. 2012-1442, dated 24 December 2012, prohibiting the use of
bisphenol A in food packages, thereby promoting the principle of
free enterprise to the detriment of the precautionary
It must be reminded that, originally, French law prohibited the
use of bisphenol A in feeding bottles and then extended this
prohibition to "the manufacturing, importation, exportation
and placing on the market, whether in return for payment or free of
charge of [...] any packaging, container or utensil containing
bisphenol A and designed to be in contact with foodstuffs",
which was implemented on 1 January 2015. Such a prohibition went
far beyond European directives and most European member states did
not have such limitations on the use of bisphenol A.
In that context, Plastics Europe, a professional European
organisation representing plastic manufacturers, brought the matter
before the French State Council ("Conseil d'Etat") to
seek the annulment for abuse of power of a note from the
Directorate-General for Competition, Consumer Affairs and
Prevention of Fraud ("DGCCRF") dated 8 December 2014
concerning the aforementioned law. The company also asked the
French State Council to refer to the French Constitutional Council
a preliminary ruling on constitutionality ("question
prioritaire de constitutionalité") concerning this
Consequently, on 17 June 2015, the French State Council referred
this question to the Constitutional Council on the grounds
"...that the argument according to which [these provisions]
prejudice the rights and liberties guaranteed by the Constitution,
notably in the sense that they prejudice the principle of free
enterprise in a way that the precautionary principle, which is
enshrined in article 5 of the Charter for the Environment, may not
justify, raises a question relating to the scope of this
On 17 September 2015, the Constitutional Council ruled that
prohibition on the importation and placing on the national market
of packaging, containers or utensils containing bisphenol A did not
constitute a disproportionate interference with the principle of
free enterprise considering the objective of health protection
pursued. However, it partly granted Plastics Europe's request
by deciding that the manufacturing and marketing of such products
should be authorised, on the grounds, notably, that they were
allowed in numerous countries.
Such a decision, which is quite surprising considering the
courts' usual line of cases, exemplifies the difficulty of the
legislator who has to find a usually fragile balance between the
precautionary principle enshrined in our law and other principles
of equivalent value, in this case the principle of free enterprise,
in the context of the use of substances whose effect are often
Client Alert 2015-260
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On 28 July 2016, the Court of Justice of the European Union ruled that a standard choice of law clause in favour of the law of the EU Member State in which the seller or supplier is established, is unfair.
Two recent cases serve as useful reminders of the principles involved in relation to fitness for purpose in the context of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
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