Case 2010-2 QPC

The QPC (Question prioritaire de constitutionnalité) process was created in France in 2008. It allows for preliminary rulings on the conformity of a legal provision with the Constitution. This disposition challenged the 2002 law (Paragraph I of section 1 of the Act of March 4th 2002) that states “No one shall claim he has sustained injury due solely to the fact of being born.” It has been codified into article L.114-5 of the Family and Social Welfare Code.

In this case, the claimant challenged the constitutionality of a disposition stopping the claimant from seeking compensation for a disability her child was born with, which had not been detected during pregnancy. The claimant states that the law violates a right to equality as children born with a disability directly caused by medical negligence can sue, violates the principle of liability and “full relief for injury” because of the impossibility of claiming compensation for the injury across an entire lifetime and unconstitutionally relieves medical professionals of their duty to compensate for injury.

The disposition challenged the 2002 law (Paragraph I of section 1 of the Act of March 4th 2002) states that “No one shall claim he has sustained injury due solely to the fact of being born.” It has been codified into article L.114-5 of the Family and Social Welfare Code.

The court found that the limiting of liability was constitutional but the retroactive application of the law was unconstitutional, allowing children born before passage of the law to bring suit under the old liability obligation.

The Constitutional court found that the limiting of liability under paragraph I of section 1 of the Act of March 4th 2002 was constitutional. The law allowed for relief when a disability from birth was caused, worsened, or made impossible to attenuate by medical negligence. However, the relief can only be for the costs from the specific injury and not the sustained costs due to the disability. The discharge of liability of health professionals contained in paragraph III of article 114-5 of the Family and Social welfare Code was constitutional as it applies only in the specific case of when health professionals negligently prevent the mother from having an abortion. The principle of equality is preserved as the limitations imposed on different groups are not disproportionate in relation to the goals Parliament sought.

The court acknowledged that Parliament has the power to limit the circumstances around liability and Parliament appropriately sought to limit bringing cases on “mere presumptions or deductions” by requiring “manifest negligence.”

Finally, the court observed that paragraph 2 of section II of the Act of February 11th 2005 planning the immediate effect of article 114-5 of the Family and Social welfare Code was unconstitutional. The Constitutional court held that the disposition passed in 2002 could not be retrospective as the general interest purpose of the law could not justify major modifications of the rights of people who commenced legal cases prior to the law.

5.  Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims that the law "shall be the same for all, whether it protects or punishes". The principle of equality does not preclude Parliament from treating different situations in different ways, nor from departing from the principle of equality for reasons of general interest provided that, in each case, the resulting different treatment is directly connected with the purpose sought to be achieved by the statute which introduces said different treatment.

11.  Article 4 of the Declaration of 1789 proclaims : "Liberty consists in the freedom to do everything which does not injure others". From these provisions derives the principle that any person who causes injury to another is under a duty to compensate for such injury. The possibility of bringing proceedings based on such liability implements this constitutional requirement. However, this does not preclude Parliament, in the  general interest, from deciding the circumstances in which such liability may be incurred. It may therefore, on such grounds, accompany this principle by exceptions or limitations on condition that this does not have any disproportionate adverse effect on the rights of injured parties or on the right to effective redress before a court of law which derives from Article 16 of the Declaration.

23.  Paragraph I of Article 1 of the Act of March 4^th 2002 referred to above came into effect on Match 7^th 2002. Parliament made this applicable to proceedings underway at said date when no final judgment had been handed down therein. These provisions concern the right of a child born with a disability to bring proceedings, to the conditions governing the incurring of liability by healthcare professionals and healthcare establishment towards the parents of such a child, together with forms of injury giving rise to compensation when such liability is incurred. If the grounds of general interest referred to above may justify applying fresh rules to future proceedings concerning legal situations which arose prior to the coming into effect of said rules, they cannot justify such major modifications to the rights of persons who have, prior to said date, commenced legal proceedings to obtain compensation for injury sustained by them. 2 of paragraph II of Article 2 of the Act of February 11^th 2005 referred to above must thus be held to be unconstitutional.