Judgment in Case C-691/21 Cafpi and Aviva Assurances

Thursday 24th November 2022

Judgment in Case C-691/21 Cafpi and Aviva Assurances

(Consumer Protection)

This request was made in the context of a dispute between, on the one hand, the company Cafpi SA and its insurer, Aviva assurances SA, and, on the other hand, the company Électricité réseau distribution France (ERDF), now Enedis SA, an electricity distribution network manager. These three companies are established in France.

28 July 2010, dysfunctions appeared on electrical appliances equipping a Cafpi agency, which an amicable expertise attributed to a power surge caused by a break in the neutral circuit of the distribution network. Cafpi was partially compensated by its insurer, Aviva assurances.

On 27 May 2015, arguing that the damage was attributable to the manager of the electricity distribution network Enedis, Cafpi and Aviva assurances sued them before the Commercial Court of Nanterre, so that it could be ordered to pay damages. Enedis argued that only the rules of liability for defective products were applicable and that, as the action had been brought after the expiry of the three-year period, it was time- barred.

By judgment of 6 July 2018, the said court ruled out the application of the liability regime for defective products, but rejected the claims on the merits.

The Versailles Court of Appeal overturned this judgment. It considered that the electricity produced by Électricité de France was not a finished product in that it was high voltage and therefore unfit for consumption, and noted that Enedis transformed the electricity in order to distribute it to the final consumer. Consequently, Enedis was the manufacturer of the finished product intended for distribution to the consumer, so that it was a producer within the meaning of the legislation on liability for defective products. Consequently, it ruled that the liability regime for defective products was applicable and that the action of Cafpi and Aviva assurances was inadmissible due to prescription.

Cafpi and Aviva assurances have appealed to the Court of Cassation. They argue that, by qualifying Enedis as a producer, the Court of Appeal violated Articles 1386-3 and 1386-6 of the Civil Code, now Articles 1245-2 and 1245-5 of the same Code, which transpose Directive 85/374. In this respect, they argue that Enedis, as the manager of the electricity network, is only responsible for the distribution of electricity produced by various producers. Merely intervening in the power of the energy transported does not make Enedis the producer of a new finished product, the electricity distributed, which is distinct from the electricity supplied to it by the producer.

The referring court points out that the classification of an electricity distribution system operator as a producer might not be compatible with the directives on the internal market in electricity. Those directives require the independence of transmission and distribution system operators from the activities of production or supply of electricity. In this respect, it notes that the creation of ERDF, now Enedis, to carry out the activity of managing the distribution network, is the result of the split of the Electricité de France group imposed by the directives on the internal market in electricity.

Background Documents C-691/21