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.