Cass. Civ. 1ère, 28 May 2025, No. 23-13.687 and No. 23-20.341.

In two rulings of 28 May 2025 (No. 23-13.687 and No. 23-20.341), the First Civil Chamber of the Court of Cassation clarified the legal classification applicable under European private international Law to direct action by the sub-purchaser against the manufacturer of a defective product, affirming the tortious nature of this action in accordance with the Rome II Regulation (No. 864/2007).

In the first case (No. 23-20.341), the Portuguese company CSNSP 431 had indirectly acquired photovoltaic panels manufactured by the German company Avancis via a French intermediary, GenSun. Following defects found, the Montpellier Court of Appeal had held that the action was contractual in nature, thereby imposing the application of German law as provided for in a contractual choice of law clause.

The Court of Cassation partially overturned this ruling, emphasising that the direct action of the sub-purchaser falls exclusively within the scope of tort and recalling the absence of a direct contractual link between the manufacturer and the sub-purchaser, in accordance with the case law of the Court of Justice of the European Union, in particular the Handte judgment of 17 June 1992 (ECJ, C-26/91) and the Refcomp judgment of 7 February 2013 (ECJ, C-543/10).

In the second case (No. 23-13.687), the Luxembourg company Swib, faced with damage to machinery manufactured by Hyundai Infracore Europe (formerly Doosan), also contested the applicability of a Belgian choice of law clause in the initial contract. The Reims Court of Appeal had rejected the enforceability of this clause against sub-purchasers, due to a lack of proof of their consent.

The Court of Cassation confirmed that the clause was not enforceable, stating that the action was non-contractual and that the absence of direct agreement by the sub-purchaser to the original contractual clause necessarily implied a tortious qualification.

The Court of Cassation again relied on the Refcomp judgment of 7 February 2013 (CJEU, C-543/10). The Court also emphasised the need to ensure consistency of interpretation between European regulations on jurisdiction and conflict of laws, in accordance with the Kainz judgment of 16 January 2014 (CJEU, C-45/13).

In both decisions, the Court of Cassation therefore ruled that:

‘A choice of law clause in the initial contract concluded between the manufacturer and the first purchaser, to which the subsequent purchaser is not a party and to which he has not consented, does not constitute a choice of the law applicable to the non-contractual obligation within the meaning of Article 14(1) of that regulation.’

These two decisions demonstrate a clear desire to ensure the necessary consistency between European regulations governing jurisdiction (Brussels I bis) and those relating to conflicts of law (Rome I and Rome II).

These decisions also offer enhanced protection to international sub-purchasers, allowing them to invoke the applicable law of the place where the damage occurred, regardless of the initial contractual terms to which they did not consent.

This solution will obviously be welcome to sub-purchasers, who will thus avoid having the applicable law chosen by the manufacturer imposed on them.

In such a dispute, the sub-purchaser will therefore simply have to determine the applicable law on the basis of Article 4 of the Rome II Regulation.

These judgments provide important clarifications for the judicial treatment of complex cross-border disputes, ensuring greater legal certainty and enhanced protection for sub-purchasers in international chains of contracts.

By Olivier VIBERT, lawyer at the Paris bar association,

Kbestan, Business law firm in Evreux and Paris