Remedies to compensate for damages caused by social unrest

Damages caused by the gilets jaunes in France is estimated to have approached EUR 250,000 million in compensation paid out by insurance companies. The riots linked to the pension reform caused nearly EUR 500,000 million in damages. In the French overseas departments and territories, although the figures are not yet fully known, insurers have put the figure at over EUR 2 billion, and some have announced their withdrawal from the market.

Will we still be able to take out insurance in these territories? Businesses that have suffered damages, retailers and/or their insurers must take legal action against the French government. However, the admissibility of these appeals, and their chances of success, is subject to various criteria that may not be met in every situation.

To determine who is responsible for reparations, a legal definition is needed for the notion of demonstration, and is defined by the Cour de cassation as “any gathering, static or mobile, on the public highway of an organised group of people for the purpose of expressing collectively and publicly a common opinion or will”.

Thus, when a judge decides to classify an event as a gathering or, indiscriminately, as an “attroupement” (mob gathering), the damages caused by the event in question are compensated by the State.

Liability for assemblies and gatherings is governed by article L. 211-10 of the French Code de la sécurité intérieure (CSI), which says: “the State is civilly liable for damage resulting from crimes and misdemeanours committed, by open force or violence, by armed or unarmed gatherings, either against persons or property”.

In application of this legislative framework, the solution seems straightforward for companies or entities whose property was damaged during the recent social unrest. Insured parties may seek reimbursement of costs incurred from their insurers, who in turn will be able to bring a subrogated action for compensation against the State by virtue of its liability for the assemblies. Uninsured victims may apply directly to the departmental prefect for compensation.

In the event of refusal by the prefect, victims may bring an action before the administrative court to hold the State liable. The wrongful nature of the harmful event does not have to be proven. Once a causal link has been established, this system is not subject to the abnormal or special nature of the loss, nor is it limited by its nature, since it can be applied to any loss, whether material, bodily, moral, or even commercial.

Behind this appearance of simple process, however, is the need to demonstrate that this system contains elements of uncertainty.

A liability system that is difficult to implement

Three conditions must be met for state liability to apply: (1) damages must be caused by open force or violence, as a result of (2) a felony or misdemeanour, and (3) caused by an assembly or gathering. The interpretation of two of these conditions remains a source of uncertainty for communes seeking compensation for their losses.

The difficulties mainly concern the assessment of premeditation of damage caused by gatherings (A), and the exclusion of gatherings formed for the sole purpose of committing offences (B).

A. The difficulty of assessing premeditated damage linked to gatherings

To apply the liability regime, jurisprudence uses the criterion of the spontaneity of the gathering and the damage caused. The size of the group, the organised or detachable nature of the gathering, the primary objectives of the gathering, and the group's anticipation of the use of material means to commit the offence are all indicators which the judge uses to assess spontaneity.

In this context, liability applies to compensation for damages resulting from events, whether or not they are organised, but whose torts (resulting in damages) are committed spontaneously.

Examples include spontaneous gatherings following the accidental death of a man pursued by the police, or after the death of two teenagers resulting from a collision with a police vehicle.

Gatherings may also include demonstrations with no protest aim, such as individuals gathered to express their displeasure at being refused entry to a nightclub, where they defaced the premises.

In these cases, the offences committed are part of a spontaneous gathering, and therefore engage the responsibility of the State. However, in its recent jurisprudence, the Conseil d'Etat has ruled that premeditated damage is not sufficient to exclude the State's liability.

Despite similar circumstances, the solutions adopted by administrative judges with respect to the yellow vest protests are not all harmonious. For example, the administrative court of Clermont-Ferrand did not accept the qualification of attroupement, on the grounds that the actions of the yellow vests presented “a premeditated and organised character”.

Similarly, the Toulouse administrative court of appeal confirmed that the actions of blocking and filtering traffic at the traffic circles “aimed at paralyzing the French economy...were concerted and premeditated...and cannot, as the first judges rightly considered, be considered as attributable to an attroupement or a gathering”.

Despite their protest purpose, the court considered that these actions fell within the scope of the offence of obstructing traffic, thus excluding the liability regime for gatherings. However, in other cases, the offence of obstructing traffic is considered to fall “within the scope of the aforementioned article 92 of the law of January 7, 1983”, even though the blockade was premeditated and organised in advance.

The differing assessments by the courts demonstrate the ambivalence that remains in the qualification of an attroupement or gathering, undermining legal certainty.

B. The ambivalent exclusion of gatherings formed for the sole purpose of committing offences

Application of the statutory liability regime implies the commission of a crime or misdemeanour in the context of an assembly or gathering. Consequently, this regime is not applied in the absence of an offence or an intentional element.

Similarly, gatherings organised for the sole purpose of committing a crime do not qualify as an attroupement. Thus, the term “gathering” does not apply only to those considered to be rioters, even those acting in the vicinity of a demonstration, since these criminal acts do not result from a gathering, as they do not arise “from a spontaneous action in the context or extension of a gathering or assembly”.

What's important is always the link with the event.

Nevertheless, the resulting legal regime is both a source of legal uncertainty and is detrimental to companies and their insurers, who are forced to bear the cost of major repairs.

For example, the Administrative Court of Rouen considers that the offenses of obstructing traffic carried out by the yellow vests to block access to a shopping centre fall under the regime of liability for assemblies, since the damage “which occurred in a context of nationwide protest, was not committed by groups that would have formed and organised for the sole purpose of committing this offense, without any link to the Yellow Vests’ protest movement”.

The Paris Administrative Court also held the State responsible for the ransacking and theft of a jewellery store located near Avenue des Champs-Élysées, since, while the first thieves, “dressed all in black, sometimes with a yellow vest on top, wore gloves, masks and balaclavas or hoods, and carried bags which they filled with jewellery,...nearly 365 demonstrators then entered the store”.

Consequently, “the concomitant presence of demonstrators and rioters in the store” is sufficient to engage the State's responsibility.

---

Admitted to the Paris Bar in 1990, Pierre-Yves Rossignol has been a Partner of Herald since 1997 and specialises in litigation and arbitration disputes in the field of business law, insurance, and defective products. He monitors litigation proceedings in the area of defective product liability on behalf of corporations and insurance companies.