Executive Summary This client alert is
relevant for companies that are exposed to industrial risks in
France, and addresses in particular the asbestos cases and the
related injuries. It points out the fact that, following the
judgment rendered by the French Supreme Court very recently, the
injury resulting from exposure to asbestos does not exist
separately to the injury of anxiety to workers of classified
In a judgment rendered on 3 March 2015, the French Supreme Court
limited compensatory damages for injuries resulting from anxiety to
workers fulfilling the conditions laid down in Article 41 of the
Law of 23 December 1998 and the ministerial order registering an
establishment on the official list of establishments that
potentially entitles asbestos workers to claim early retirement
(ACAATA, or Allocation de cessation anticipée
d'activité des travailleurs de l'amiante).
As a result of this judgement, workers of non-classified
establishments launched a claim for compensation for injury
resulting from exposure, allegedly distinct from the injury caused
by anxiety, which would "necessarily be caused to the worker
due to the employer's failure to fulfil its due care".
These claims clearly sought to circumvent the French Supreme
Court's restrictive position, either because the workers worked
in a non-classified establishment, or because they did not meet the
requirements of the classification decision, or because the
establishment was ACAATA-classified after its official receivership
was ordered. This would result in the de facto non-existence of
compensation given the lack of cover for injury caused by anxiety
provided by the Association pour la gestion du régime de
Garantie des créances de Salaires (AGS), or wage guarantee
This issue was addressed in a judgement rendered by the French
Supreme Court on 27 January 2016. In this
judgement, a company was included on the list of establishments
entitling workers to benefit from the ACAATA, but only after the
company's official receivership. Therefore, because the AGS
guarantee is triggered only with respect to claims filed before the
institution of bankruptcy proceedings (French Labour Code,
Art. L. 3253-8), these workers' claims for
compensatory damages for injury caused by anxiety could not be
Faced with this situation, the workers dropped their claims for
compensatory damages for anxiety. Instead, they filed claims for
"injuries distinct from the injury of anxiety resulting [from]
the failure to provide safety rather than from awareness of the
The French Supreme Court dismissed the appeal, upholding that
"a worker's non-pecuniary damage resulting from the risk
of developing an illness caused by that worker's exposure to
asbestos consists only of those injuries caused by the anxiety, for
which compensation redresses all of the psychological injuries
resulting from the awareness of such risk". (French
Supreme Court, Social Division, 27 January 2016, no. 15-10640 et
The French Supreme Court therefore rejected compensation claims
for non-pecuniary damage "presented as distinct" from the
injury of anxiety, for workers claiming injuries resulting from
exposure to inhalation of asbestos dust.
This approach must be extended to non-classified establishments,
as has already been held by a number of courts of appeal.
(Court of Appeal of Bordeaux, Social Division, Section A,
20 May 2015, no. 13/04422; Court of Appeal of Aix-en-Provence, 18th
Division, B, 3 July 2015, no. 13/22769; Court of Appeal of
Chambery, Social Division, 9 July 2015, no. 14/02860)
Indeed, since the French Supreme Court holds, on the one hand,
that the injury caused by anxiety redresses all the psychological
injuries suffered by a worker who was exposed to asbestos and, on
the other, limits compensation of this injury to workers of
classified establishments, the workers from establishments not
included on the list of those benefiting from the ACAATA scheme can
therefore not claim any damages.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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