Judgment;Summary — ECLI:EU:C:2022:926
Date: 2022-11-24
Language of the case: French
Court formation: Tenth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-691/21 – 1 
Case C-691/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
18 November 2021 
Referring court:  
Cour de cassation (France) 
Date of the decision to refer:  
10 November 2021 
Appellants:  
Cafpi SA 
Aviva assurances SA 
Respondent:  
Enedis SA 
  
1 The dispute in the main proceedings  
1 On 28 July 2010, certain electrical equipment at an agency of the company Cafpi 
malfunctioned as a result of a voltage surge caused by a break in the neutral 
circuit of the electricity distribution system.  
2 Cafpi and its insurer, Aviva assurances, invoke the liability of the electricity 
distribution system operator, Enedis, and have brought actions against the 
company for damages. 
3 Enedis argues that the rules on liability for defective products alone are applicable 
(Article 1245 to 1245-17 of the Code civil (Civil Code)), which include a three-
year limitation period (Article 1245-16 of the Code civil), on which it has relied in 
opposition to their actions for damages.  
4 By judgment of 6 July 2018, the Tribunal (Regional Court) rejected the 
application of Articles 1245 et seq. of the Code civil, but dismissed the actions on 
the substance. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-691/21 
 
2  
5 By judgment of 6 February 2020, the Cour d’appel de Versailles (Court of 
Appeal, Versailles) set that judgment aside. It first of all pointed out that, under 
the rules governing liability for defective products, among the producers which 
may be liable is the manufacturer of a finished product. According to the court, a 
finished product is a product ready for distribution. In the present case, the 
electricity produced by Électricité de France, among others, is not a finished 
product in that it is at high voltage and therefore not fit for the consumer. It is the 
company Enedis that transforms that electricity for distribution to the final 
consumer. The court inferred from that that Enedis is the manufacturer of the final 
product intended for distribution to the consumer, and that it is therefore a 
producer. The Cour d’appel consequently held that the rules governing liability for 
defective products were applicable and that the actions brought by Cafpi and 
Aviva were time-barred. 
6 Cafpi and Aviva have brought appeals in cassation against that judgment. They 
maintain that, in finding Enedis to be a producer, the Cour d’appel infringed 
Articles 1245-2 and 1245-5 of the Code civil, which transpose provisions from 
Directive 85/374/EEC concerning liability for defective products. 
2. Provisions of EU law and national law relied on 
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, 
regulations and administrative provisions of the Member States concerning 
liability for defective products, as amended by Directive 1999/34/EC of the 
European Parliament and of the Council of 10 May 1999 
7 Article 1 provides: 
‘The producer shall be liable for damage caused by a defect in his product.’ 
8 Article 2 provides: 
‘For the purpose of this directive, “product” means all movables even if 
incorporated into another movable or into an immovable. “Product” includes 
electricity.’ 
9 Article 3(1) provides: 
‘“Producer” means the manufacturer of a finished product …’ 
The Code civil  
10 Articles 1245-1 to 1245-17 of the Code civil contain provisions which transpose 
certain provisions of Directive 85/374/EEC.  
CAFPI AND AVIVA ASSURANCES 
 
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3. The essential arguments of the parties in the main proceedings 
1. Cafpi and Aviva 
11 Cafpi and Aviva maintain that Enedis is a distributor of electricity, not a producer. 
They state that Enedis is the operator of an electricity distribution system, which it 
runs and maintains, and that it is merely responsible for the distribution of 
electricity produced by various different producers, including in particular 
Électricité de France. They argue that the unbundling of production and 
distribution activities was rendered necessary by Directive 96/92/EC of 
19 December 1996 concerning common rules for the internal market in electricity, 
then by Directive 2003/54/EC of 26 June 2003 concerning common rules for the 
internal market in electricity and repealing Directive 96/92/EC. 
12 In its capacity as electricity system operator, Enedis is responsible for transmitting 
and distributing electricity from electricity producers, and the mere fact that it 
alters the voltage of the electricity transmitted does not make it the producer of a 
new finished product, distributed electricity, distinct from the electricity that is 
supplied to it. 
13 Cafpi and Aviva emphasise that electricity, once generated, can be consumed, 
whatever its voltage, provided that the system receiving it is equipped to deal with 
the voltage. They argue that the electricity system operator’s alteration of the 
voltage of the electricity transmitted is not sufficient to confer on it the status of 
producer of a separate new product, since any consumer can use transformers to 
make low voltage equipment work. 
2. Enedis 
14 Enedis maintains that, under the rules governing liability for defective products, 
the concept of producer is an autonomous concept, separate from that of 
electricity producer for the purposes of the legislation relating to the European 
electricity market. 
15 Under the rules governing liability for defective products, the producer is the party 
that offers a product fit for use or consumption to the public. Electricity produced 
in power stations, at high or very high voltages, is not fit for consumption and it is 
the work of transforming it into low or medium-voltage electricity, carried out by 
the distribution system operator, that enables the electricity to become a product 
fit for use or consumption by customers. It follows that the electricity so 
transformed by the distribution system operator is the final product, and that it is 
the producer of that product. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-691/21 
 
4  
4. Assessment of the Cour de cassation 
16 The appeal raises the question of whether an electricity distribution system 
operator which alters the voltage of electricity so that it may be distributed to the 
final consumer should be regarded as a ‘producer’ of electricity within the 
meaning of Directive 85/374/EEC. 
17 The Advocate General considers that the judgment of the Cour d’appel should be 
set aside. He points out that classifying Enedis as a producer is contrary to the 
fundamental principles which govern the organisation of the electricity sector as it 
is now structured following the various directives on the internal electricity 
market. He adds that classifying Enedis, which is not an electricity producer 
within the meaning of the Code de l’énergie (Energy Code) or the directives on 
the internal electricity market, as a producer for the purposes of the Code civil and 
Directive 85/374/EEC, which it transposes, is hardly compatible with the 
requirement that the law should be clear and comprehensible. The Advocate 
General also argues that the Cour d’appel’s analysis distinguishes between two 
different categories of electricity, that is, electricity as a ‘raw material’ generated 
and transmitted via the transmission system, and electricity as a ‘finished product’ 
distributed via the distribution system, whereas Article 1245-2 of the Code civil, 
which provides that electricity is a product, makes no such distinction. Lastly, he 
emphasises that the appellate court’s analysis is at odds with the reality of the 
contractual and economic relationships between the various actors in the sector, 
since the distribution system operator cannot produce electricity from a raw 
material which it has not purchased and since it does not sell that electricity, 
which the consumer purchases from the supplier. 
18 French courts hearing actions for damages against Enedis following voltage 
surges have adopted different solutions as regards which liability regime is 
applicable. 
19 Courts in other EU Member States have ruled in favour of classification as a 
producer. The Bundesgerichtshof (Federal Court of Justice, Germany) has held 
that an electricity distribution system operator should be regarded as a producer if 
it alters significantly the electricity product by transforming its voltage so that it 
can be used by the final consumer (judgment of 25 February 2014, VI-ZR 144/13, 
paragraphs 12 to 17). 
20 That interpretation, however, is not self-evident and not all courts in the EU are 
sure to adopt it. Indeed, classing an electricity distribution system operator as a 
producer might not be compatible with the directives relating to the European 
electricity market, in particular Directive 96/92/EC of 19 December 1996 
concerning common rules for the internal market in electricity, Directive 
2003/54/EC of 26 June 2003 concerning common rules for the internal market in 
electricity and repealing Directive 96/92/EC, and Directive 2009/72/EC of 13 July 
2009 concerning common rules for the internal market in electricity and repealing 
Directive 2003/54/EC. Those directives in fact rendered it necessary for 
CAFPI AND AVIVA ASSURANCES 
 
5 
transmission and distribution system operators to be independent from the 
activities of the generation and supply of electricity, which are open to 
competition. It was pursuant to that legislation that Law No 2004-803 of 9 August 
2004 was enacted in France to bring about the break-up of the Électricité de 
France group and the creation on 1 January 2008 of a new company to operate the 
public distribution system, namely ERDF (Électricité Réseau Distribution France), 
which subsequently became Enedis. 
21 The question therefore arises of whether an electricity distribution system operator 
may be regarded as a ‘producer’ within the meaning of Article 3 of Directive 
85/374/EEC if it alters the voltage of the electricity supplied by the producer so 
that it can distribute it to the final consumer. In other words, it is necessary to 
determine whether an electricity ‘producer’, within the meaning of Article 3 of 
that directive, is to be apprehended as a distinct concept from that of producer and 
supplier of electricity within the meaning of the directives on the internal 
electricity market. 
22 It is therefore necessary to make a reference to the Court of Justice of the 
European Union for a preliminary ruling. 
5. Question referred for a preliminary ruling: 
23 The Cour de cassation thus refers the following question: 
‘Are Articles 2 and 3(1) of Council Directive 85/374/EEC of 25 July 1985 on the 
approximation of the laws, regulations and administrative provisions of the 
Member States concerning liability for defective products to be interpreted as 
meaning that an electricity distribution system operator may be regarded as a 
‘producer’ if it alters the voltage of the electricity from the supplier so that it may 
be distributed to the final consumer?’