On the 9th of November 2015, the French State Council
("Conseil d'Etat") admitted for the first time the
possibility for an employer held liable on the grounds of
inexcusable fault to take action against the State so as to be
guaranteed in whole or in part of any damages it would have been
ordered to pay by Social Security Courts.
In the present case, a shipbuilding company, held liable several
times on the ground of inexcusable fault due to the exposure to
asbestos of some of its employees, initiated proceedings against
the State, arguing that public authorities had failed to comply
with their duty to prevent occupational risks until 1996, when
asbestos was prohibited.
The French State Council invalidated the Nantes Administrative
Court of Appeal's decision, on the grounds that it had failed
to clarify whether the company's fault "precluded the
recognition of a direct causal link between the
administration's alleged fault and the alleged damage or
whether it had been deliberately committed and was of such gravity
that the company could not invoke the administration's failure
to take appropriate measure to prevent [the company] from
committing [such fault]."
Indeed, even though the employer is subject to a general safety
obligation pursuant to Article L. 4121-1 of the French Labour Code,
public authorities which are in charge of occupational risks are
also bound to stay informed of dangers to which employees may be
exposed and to take, according to current scientific knowledge and
available information, the most appropriate measures in order to
limit or eliminate these dangers, when possible.
The French State Council thus considered that the employer's
inexcusable fault was not sufficient to prevent the latter from
invoking the administration's own fault. The High Court
nevertheless distinguished between the time-period prior to 1977,
for which it held the State partially liable for failing to take,
before this date, "appropriate measures to avoid or at
least limit the dangers associated with asbestos
exposure", and the time-period posterior to 1977, date of
the first Decree relating to asbestos dust, for which it
considered, after ruling that the company did not prove its own
compliance with the applicable legislation, that the latter did not
demonstrate that "the occupational diseases
[developed] by its employees would directly find their cause in
a faulty deficiency from the State".
Consequently, the French State Council partly allowed the
company's request, considering it could be compensated in part
for payments made to the French Health Insurance Fund (Caisse
Primaire d'Assurance Maladie) under the occupational diseases
legislation, sums awarded to its employees pursuant to Social
Security Courts' rulings relating to inexcusable fault and
amounts it was ordered to pay by courts in application of Article
700 of the French Procedure Code relating to the opposing
parties' legal fees.
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