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Legal liability linked to technical standards

By Yasmine EDDAM2 May 2025

Technical standards occupy an ambiguous position in our legal system. Although they are considered to be voluntary, they have a considerable influence on the responsibilities of economic operators. This duality generates a complex legal framework that companies need to master to secure their activities and limit their exposure to risk.

Technical standards and market access

The application of technical standards directly affects companies' access to the market, creating a system of legal presumptions with significant effects.

Presumption of conformity and its limits

Compliance with a recognised technical standard generally confers a presumption of conformity with regulatory requirements. This presumption is a decisive advantage for market access, particularly in the European context.

Under the European "New Approach" system, compliance with harmonised standards whose references are published in the Official Journal of the European Union creates a presumption of conformity with the "essential requirements" defined by the directives. This presumption facilitates the free movement of products throughout Europe.

However, this presumption is not irrebuttable. Market surveillance authorities may challenge it if they demonstrate that a product, despite its compliance with a standard, presents a danger to health, safety or other protected interests. Article R8 of Annex I to Decision no. 768/2008/EC confirms this rebuttable nature of the presumption.

The Court of Justice of the European Union has stated that "the presumption of conformity cannot be interpreted as conferring on the standard a value higher than that of a mere technical specification" (CJEU, 14 April 2011, aff. C-361/09). Judicial review therefore remains possible even for products that comply with standards.

No exemption from compliance with general legal requirements

Compliance with technical standards never exempts you from complying with general legal obligations, particularly in terms of safety.

Directive 2001/95/EC on general product safety imposes a general safety obligation independent of compliance with standards. A product may comply with all applicable standards and still be considered dangerous if it presents a risk to consumers.

Article 3 of this directive establishes a hierarchy: a product is "presumed safe" when it complies with the relevant European standards, but this presumption gives way to concrete evidence that it is dangerous. Compliance with the standards creates a presumption, not immunity.

In French law, the Consumer Code reflects these principles. Article L. 221-1 states that "products and services must be as safe as can legitimately be expected". This obligation goes beyond mere formal compliance with technical standards.

For an in-depth study of the voluntary or mandatory application of standards, see our detailed article on the application of standards in French law.

Civil liability and technical standards

Compliance with technical standards influences the application of civil liability, but does not constitute an absolute shield.

Liability for defective products

Directive 85/374/EEC on liability for defective products, transposed into articles 1386-1 et seq. of the French Civil Code, introduces a system of no-fault liability for producers.

A product is considered defective when it does not offer "the safety that can legitimately be expected". This assessment takes into account a number of factors, including the presentation of the product, its reasonably expected use and the time at which it was put into circulation.

Article 1386-10 of the Civil Code explicitly states that "the producer may be liable for the defect even though the product was manufactured in compliance with the rules of the trade or existing standards". This provision confirms that compliance with standards does not constitute an exonerating circumstance.

One of the grounds for exemption listed exhaustively is "compliance of the product with mandatory rules laid down by law or regulation" (art. 1386-11, 5°). However, this exemption only applies to genuinely mandatory rules, not voluntary standards.

The case law of the Court of Justice of the European Union has confirmed this restrictive interpretation. In Commission v. United Kingdom (C-300/95), it ruled that "compliance with standards cannot exclude or limit the producer's liability".

"Development risk and compliance with standards

The "development risk" exemption is closely linked to the issue of technical standards.

Article 1386-11, 4° of the Civil Code exonerates the producer if "the state of scientific and technical knowledge, at the time he put the product into circulation, did not allow the existence of the defect to be detected". This ground for exoneration, which is controversial but has been accepted by the French legislature, raises the question of the relationship with technical standards.

Compliance with the standards in force at the time of entry into circulation may constitute evidence of the state of technical knowledge. However, the Court of Justice has specified that this exemption "does not refer specifically to safety practice and standards in use in the industrial sector" but to "the state of scientific and technical knowledge, including its most advanced level, as it existed at the time when the product was put into circulation" (ECJ, 29 May 1997, Case C-300/95).

A producer cannot therefore hide behind compliance with the standards in force if accessible scientific knowledge, even outside his sector, makes it possible to identify the risk. Industry practice and existing standards do not define the state of technical knowledge within the meaning of this exemption.

Further information on product certification can be found in our article on product certification and marking.

Contractual liability and standards

In the contractual context, technical standards play a decisive role, but this remains subject to the sovereign judgement of the courts.

Impact of standards on contractual obligations

Where a contract refers to technical standards, these become part of the obligations of the parties. A breach of a standard mentioned in the contract constitutes a breach of contract for which the party responsible may be held liable.

This integration may result from an explicit reference to specific standards (for example, "in accordance with standard NF DTU 43.1") or from a general reference to "best practice" or "current standards". In the latter case, the courts consider that this wording encompasses the approved standards applicable to the sector concerned.

Case law generally interprets the obligation to respect contractually agreed standards as an obligation of result. This means that the debtor cannot exonerate himself by demonstrating that he was not at fault, but only by proving an extraneous cause (force majeure, act of a third party or of the creditor).

The reference to standards in a contract raises the question of the evolution of standards. If the contract does not specify whether the applicable standards are those in force at the time the contract is entered into or those in force at the time of performance, the courts generally apply the standards in force at the time of performance, unless there is a clause to the contrary or evidence of a different intention on the part of the parties.

Limited exemption value of compliance with standards

Compliance with the contractually agreed standards does not necessarily constitute full exoneration in the event of damage.

The Court of Cassation established a fundamental principle in its ruling of 4 February 1976: a standard is the expression of the rules of the art and of minimum safety. Compliance with a standard is not sufficient to exonerate a professional from liability if particular circumstances require additional precautions.

This consistent case law position means that the judge has sovereign discretion to determine whether simple compliance with the standards was sufficient in the circumstances of the case. The professional must adapt his intervention to the particularities of each situation, over and above strict compliance with standard norms.

The construction industry is a particularly good example of this approach. Compliance with the DTU (Documents Techniques Unifiés - Unified Technical Documents), the sector's essential standards, is not an absolute guarantee against contractual liability, particularly the ten-year guarantee. The courts examine whether the builder has correctly assessed the concrete situation and adapted his intervention accordingly.

A builder who formally complies with the standards may nevertheless be held liable if he fails to take account of a particular context (nature of the soil, specific climatic conditions, etc.) that justifies additional measures.

Criminal aspects of non-compliance with standards

The criminal dimension is an often overlooked but potentially severe aspect of the legal consequences of technical standards.

Infringements specific to standardisation

Criminal offences specifically target non-compliance with mandatory standards and fraudulent use of certifications.

Standards made mandatory by ministerial decree acquire binding force. Violation of these standards can result in criminal penalties, generally a fifth-class fine (€1,500, or €3,000 in the event of a repeat offence). This may seem a modest amount, but a large number of these offences are often prosecuted, leading to significant cumulative offences.

The French Intellectual Property Code punishes infringements of collective certification marks, such as the NF mark. Article L. 716-10 punishes with three years' imprisonment and a fine of 300,000 euros the act of "imitating, using or affixing" such a mark in violation of the rights conferred by its registration.

The Consumer Code also punishes "the use of any means likely to lead the consumer or user to believe falsely that a product or service has been certified" (art. L. 115-30). This offence is punishable by two years' imprisonment and a fine of €37,500.

For a detailed analysis of the players in the French standardisation system, see our article on the french standardisation system.

Standards and carelessness offences

In addition to specific offences, failure to comply with the standards may constitute an element of recklessness or negligence in the context of unintentional offences.

Articles 221-6, 222-19 and 222-20 of the French Criminal Code penalise unintentional injury to life or limb resulting from "failure to comply with an obligation of safety or prudence imposed by law or regulation". Violation of a mandatory standard may constitute the legal element of the offence.

The issue of voluntary standards is more delicate. Criminal jurisprudence considers that they may nevertheless constitute a technical standard, the disregard of which constitutes recklessness. Non-compliance with a standard, even if voluntary, is often used as evidence of negligence or imprudence punishable under criminal law.

Article 223-1 of the French Criminal Code, which makes it an offence to expose others to an immediate risk of death or serious injury, may also apply. Placing a product on the market that does not comply with safety standards, even if optional, may constitute a "manifestly deliberate breach of a particular safety obligation" required by this law.

A criminal conviction based on failure to comply with standards generally has civil consequences. The authority of res judicata in criminal cases is binding in civil cases, and criminal misconduct necessarily constitutes civil misconduct enabling victims to obtain compensation for their loss.

Risks of economic sanctions

Failure to comply with the standards may also constitute an act of unfair competition or a misleading commercial practice.

Commercial case law recognises that unjustified non-compliance with the technical standards of a sector may constitute an act of unfair competition when it enables a company to obtain an unfair competitive advantage. The company that complies with the standards suffers compensable damage as a result of this distortion of competition.

Misleading commercial practices, defined in article L. 121-2 of the French Consumer Code, include "false or misleading claims, indications or presentations" relating to the "essential characteristics" of goods or services. Falsely claiming that a product complies with certain standards can constitute this offence, punishable by two years' imprisonment and a fine of 300,000 euros.

Similarly, Directive 2005/29/EC on unfair commercial practices classifies as misleading "any claim that a product has been approved, endorsed or authorised by a public or private body when this is not the case". This qualification authorises national authorities to take repressive measures throughout the European Union.

For a full summary of the legal issues involved in standardisation, see our essential legal guide to standardisation under french law.

The complexity of the interaction between technical standards and legal liability requires specific expertise. Our firm ofstandardisation lawyers can help you assess the legal risks associated with technical standards and define a strategy tailored to your specific situation.