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Wednesday, April 8, 2015Jurisprudence

Obligation to advise/to inform: how far should subcontractors go?

© Thinkstock/L'Observatoire des Cosmétiques

Obligation to advise, obligation to inform, obligation to research, obligation to inspect, to uphold the standards of professional practice, to act in good faith… On the pretext that their principals are Responsible Persons as defined by Regulation 1223/2009 on cosmetics, are subcontractors exempt from the obligation to advise? Or on the contrary, can they be held responsible if they fail to exercise their duty to advise even though the principal is the Responsible Person for the product? Sylvie Gallage-Alwis, of the Hogan Lovells law firm, sheds light on the situation.

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The status of Responsible Person is unambiguous. This is the party that is supposed to have the ability to verify the conformity – regulatory, administrative, and in terms of safety – of the cosmetic products that he or she is responsible for. As such, the Responsible Person is perceived as being the ‘knowledgeable person’, the party that knows the most about the product. Since he or she is the principal, it is reasonable to assume that jurisdictions will perceive the Responsible Person as being a ‘professional buyer’ or an ‘informed buyer’, as opposed to the consumer, who is a layman.

On this basis, a subcontractor’s obligation to advise or to inform the Responsible Person is necessarily limited to that which is perceived as falling under the category of ‘ legitimate ignorance ’ on the part of the Responsible Person. How must we approach this ambiguous, subjective concept? The combined analysis of articles 1147, 1134, 1135, and 1615 of the French Civil Code and their interpretation in terms of legal precedents reveals several principles.

The articles of the Civil Code

Article 1147
A debtor shall be ordered to pay damages, if there is occasion, either by reason of the non-performance …

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