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Case:
Cour de Cassation, First Civil Chamber, (pourvoi no. 03-19,534)Bull.civ. 2006 I no. 33 p. 31
Date:
24 January 2006
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

In view of article 1147 Code civil, interpreted in the light of EC Directive no. 85/374 of 25 July 1985, not yet incorporated in national law:

Given that according to the first of the texts mentioned even a person who is not in bad faith is answerable for the non-performance of an obligation binding on him unless he can prove that it results from an external cause which is not attributable to him, and that,  interpreted, as it must be,  in the light of the second text mentioned, the producer of a product is answerable as a guarantor for damage caused by the product if at the time he put it into commerce it did not afford the safety legitimately to be expected of it, taking account of all the circumstances, in particular the way it was presented, the use to which it could reasonably be expected to be put and the time it was put into circulation;

Given that after being vaccinated in September 1995 against hepatitis B with a  vaccine Genhevac B, manufactured and marketed  by Pasteur Vaccines, Mme Y… developed the Guillain-Barré syndrome and sued that firm for damages, in which suit  the judgment under attack, being based on article 1147 Code civil interpreted in the light of EC Directive no. 85/374 of 25 July 1985, its successor, Aventis Pasteur MSD, was held wholly liable for the damage suffered by Mme Y…and required to pay damages to her and to the local social security office;

Given that the court having held that the vaccine Genhevac B, the trigger for the Guillain-Barré syndrome, was defective and did not afford the safety that could legitimately be expected on the sole ground that the permit to market the vaccine, which provided no defence against a claim at common law, stated that this affliction was among the undesirable side-effects of its use, though “neuropathological effects are very rare”;

But given that to hold that these findings justified a conclusion that the vaccine in question was defective constituted a violation of the texts mentioned above:

For these reasons the decision below is QUASHED and ANNULLED.

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