For the first time in France, the firm Monsanto - in the meantime bought by Bayer for 63 billion dollars - has been condemned on the grounds of product liability.
It was in the United States in particular that the American agricultural giant was condemned for its Roundup, a highly toxic herbicide composed in particular of glyphosate. In France, we had to wait until January 15, 2019 and a decision of the administrative court of Lyon for its marketing authorization to be canceled in the name of the precautionary principle.

This time it is for another herbicide, Lasso - also banned for sale in France since 2007 - that Monsanto has been condemned in France following a long legal saga.

In 2004, Paul François, a cereal farmer from the Charente region, suffered a serious accident due to the inhalation of chlorobenzene vapour present in the herbicide purchased from an agricultural cooperative, while opening a cleaning tank that had been left exposed to the sun.

The legal saga that started in 2007 will cover many areas of liability law, from common liability law to product liability, focusing - in particular - on the notions of the date of release of the product, of the victim's fault, of development risks or of the producer.

The latter will indeed be spread over 16 years and no less than 5 court decisions will be rendered on this subject. If at the end of the first instance decision - confirmed in appeal - it is on the ground of the common law of responsibility that Monsanto will be condemned, it is finally on the ground of the responsibility for the defective products - which we find in articles 1245 and following of the civil code - that the saga will find its epilogue.

We will come back to this saga as well as its epilogue by looking at all the judgments rendered by the various authorities throughout the procedure.

Lasso, a product put into circulation that does not present the safety that can legitimately be expected and that has caused damage

A product put into circulation and mislabelled

The field of the law of responsibility for defective products supposes a temporal applicability of the law of 19 May 1998. It should be remembered that Lasso is a product that has existed for many years, and was already banned in 1985 in Canada.
The date on which the product was put into circulation is thus a pivotal element in the applicability of the regime. This date also sets the point of the 10-year deadline beyond which the producer's liability is extinguished. In accordance with article 1245-4 paragraph 1 of the Civil Code "a product is put into circulation when the producer has voluntarily relinquished it".
The producer can moreover exonerate himself from his responsibility by bringing the proof that he did not put the product into circulation.

We find in this case provisions already defined by the doctrine endeavouring to define the date of putting into circulation of the product not as that of its placing on general sale but as that of the marketing of the batch in which the litigious product was found and not that of the marketing of the Lasso product.
The Court of Cassation thus approved for example the court of appeal to have fixed the date of putting into circulation to the month of July 2002, date of effective handing-over of the product to the distributor.

This ideology is particularly protective of the victim insofar as the defectiveness of the product was assessed - throughout the case - on the basis of its poor labeling.
Indeed, one of the main conditions for the application of the product liability regime is that the product in question can be qualified as defective.
This notion is found in article 1245-3, paragraph 1 of the Civil Code, which provides that a product is defective when it does not offer the safety that can legitimately be expected.
Moreover, all circumstances must be taken into account, in particular the presentation of the product or the use that can reasonably be expected of it.

The defect in the product may therefore be extrinsic to the product itself.
In the case in point, the product's labeling did not comply with the regulations insofar as the risks associated with the inhalation of chlorobenzene, present in significant quantities in Lasso, were not indicated.

If this is a no-fault liability, the victim must nevertheless prove that the said product did indeed participate in the occurrence of his damage.
This proof is complicated when the actual damage is a pathology, even if French law - after much hesitation - has been quick to recognize causality more easily when science cannot prove it with certainty, in particular when the pathology appears long after the harmful event.
Judges thus very often base themselves on clues such as the state of health of the victim before the occurrence of the event, the number of persons having suffered the same consequences (case of the hepatitis B vaccine) or even on the question of temporal proximity.

In this case, the question of causality between the damage and the prejudice was relatively simple to establish - at no time throughout the saga was this question overturned by the judge - taking into account the actual dangerousness as well as the short lapse of time between the inhalation of the said product and the harmful consequences for the victim.

The victim - to whom the burden of proof of the causal link falls - was therefore content to prove that he had been in direct contact with the product at the time when his illness occurred.
The courts throughout the various proceedings were therefore based on the testimonies of the victim's relatives as well as on the fact that the product's label had been transmitted to the hospital staff in charge of treating the patient, who was showing all the signs of chemical poisoning.

Even if - as stated above - when the damage is pathological, the causal link can never be established with certainty, all of this evidence was sufficient to characterize the causality between the inhalation of the herbicide and the neurological disorders to which the victim is still exposed.

Regarding the damage itself, the company has throughout the "saga" reproached the fact of taking for granted that the disorders were linked to the inhalation of the said product, which could not be proven as such, however, the presumption was precise, serious and concordant, sufficient to presume that the product had indeed been inhaled by the farmer.

Monsanto, a producer that cannot exonerate itself from its responsibility

The producer: the company whose name and contact details appear on the label

Regarding the personal scope of liability for defective products, this applies to the producer of the product.
Thus, article 1245-5 paragraph 2 of the Civil Code provides that any person, acting in a professional capacity, manufacturer of a finished product, producer of a raw material or manufacturer of a component part who presents himself as a producer by affixing his name, his brand or another distinctive sign to the product, is considered a producer.

The French company for its part argued, in appeal, that it was impossible to qualify as a producer insofar as the product indicated that it was manufactured in Belgium. However, the product was marked "Monsanto herbicide" followed by "Monsanto agriculture France SAS headquarters", along with the company's address in Lyon and the company's registration number with the RCS.

This was sufficient for the Court of Appeal to hold that the company was to be considered as a producer with regard to the law, thus retaining an objective criterion according to which it is necessary to find out who presents itself as the producer.

It is an objective criterion which is retained here, it is not necessary to retain who the public retains as being the producer but the person who presents himself as producer as such, the public can indeed not be in a position to form an idea on the person of the producer or to have an erroneous belief

The absence of exonerating causes

In matters of liability for defective products, the producer can be exonerated - totally or partially - by invoking the risk of development or the fault of the victim.

These two means have been invoked by Monsanto.
The notion of development risk is found in article 1245-10 of the Civil Code, which provides that: "the producer's liability is excluded when "the state of scientific and technical knowledge, at the time when he put the product into circulation, did not allow the existence of the defect to be detected".

In this case, this argument was not accepted as the judges considered that the toxicological data sheet of the product as well as the scientific advances made it possible, as early as 2002, when the product was put into circulation, to know the risks related to it.
For the Lyon Court of Appeal and the Court of Cassation, this knowledge had to be assessed objectively, taking into account the overall scientific advances, and was the knowledge that the producer should have had at the time the product was put into circulation.
It should be noted that this exoneration is excluded if the damage was caused by an element of the human body or by a product derived from it, this is explained by the genesis of the law of liability for defective products which coincides with the contaminated blood case.

As for the victim's fault, this is a ground that was invoked by Monsanto throughout the proceedings. In fact, due to the victim's agricultural profession and the general diligence in handling products indicated as toxic, the company believes that the farmer should have worn a suit.
If the court of appeal had considered that the damage was exclusively linked to the lack of information on the product, the court of cassation considered that the fault of the victim was without causality with his damage since he should have worn a suit but could not have suspected that he had to protect his respiratory tract.

Here, the exclusion of any causal link between the damage suffered and the farmer's behaviour is not necessarily self-evident, but we find the will to preserve the victim's right to compensation.