In two decisions dated 28 May 2025, the French Supreme Court ruled that the action brought by the sub-purchaser against the manufacturer was tortious in nature, as the choice of law clause contained in the contract between the purchaser and the manufacturer was not enforceable against the latter.
In the case at hand, a French company had been entrusted with the design and construction of a photovoltaic power plant in Portugal by another company, which subsequently assigned the contract to its Portuguese subsidiary. The French company purchased photovoltaic panels from a German manufacturer under a sales contract that included a choice of law clause designating German law.
Noting significant manufacturing defects in the panels and performance deficiencies in the power plant, the Portuguese company (sub-purchaser) sued the French company (purchaser) and the German company (manufacturer), seeking, in particular, the termination of the sales contracts entered into between itself (sub-purchaser) and the purchaser and between the purchaser and the manufacturer.
The judges hearing the case declared, among other things, that the sub-purchaser’s action against the manufacturer was inadmissible under German law. The sub-purchaser therefore appealed to the French Supreme Court.
The French Supreme Court held that, in the absence of any contractual commitment by the manufacturer towards the sub-purchaser, the latter’s direct action fell within the scope of tort law and that the determination of the applicable law was governed by the Rome II Regulation.
Furthermore, the choice of law clause contained in the contract between the manufacturer and the purchaser was not enforceable against the sub-purchaser, who was a third party to the contract. Thus, the applicable law had to be determined objectively by applying Article 4 of the Rome II Regulation, i.e., the law of the country where the damage occurred, in this case Portugal.
