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 establishments.

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 insurance scheme.

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 considered.

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 danger”.

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 seq.)

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.