Décision de justice

Exposure to asbestos: the Conseil d’État clarifies the rules for anxiety damages compensation

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An employee who has been exposed to asbestos may apply to the State for compensation for damages due to anxiety within 4 years of learning of this exposure that puts them at high risk of developing a serious illness.

In 2017, the Conseil d’État (French Council of State) accepted that an employee exposed to asbestos could claim compensation for damages due to anxiety caused by the high risks of developing a serious illness and shorter life expectancy. Current or former employees who, under the 1998 legislation, are entitled to early retirement  and, under certain conditions, receive the ACAATA (Allocation de Cessation Anticipée d’Activité [Asbestos Workers Early Termination Allowance]), are not required to provide evidence of anxiety damages. They are entitled to claim such damages by the very fact that such damage exists. For the party concerned, their eligibility for this allowance constitutes recognition of an established link between their exposure to asbestos dust and their lower life expectancy. This circumstance, which is enough in itself to make its beneficiary aware of the risk of falling ill, is the source of compensable damages for non-material loss.

Compensation for anxiety damages can be claimed from the employer or, in the absence of an employer, from the State, in its role as the authority responsible for the prevention of occupational risks, to take effective protection measures against the dangers resulting from asbestos.

The procedure for paying compensation for anxiety damages to claimants in receipt of the ACAATA remains to be determined.

In response to a request for opinion from the Administrative Court of Appeal of Marseilles with regard to the prescriptive period for this type of claim for damages, the Conseil d'État notes that the right to claim compensation for damages shall be regarded as acquired as of the date on which the existence and extent of the damages were fully disclosed, whereas this damage was known and could be accurately measured. In the case of anxiety damages due to exposure to asbestos, it is the awareness of the high risk of developing a serious illness and of a shorter life expectancy following exposure to asbestos dust in the work place that creates such damages. Thus it can be considered that such damages are suffered as of the date of this awareness.

The Conseil d’État deems that the publication of the ministerial order including an employee’s work place on the list of establishments that grants ACAATA entitlement is the means by which an employee is informed of risks due to their exposure to asbestos dust. The 4-year period therefore starts as of the date of this publication. In the event that the establishment has been listed in several successive orders over the period granting ACAATA entitlement, the date to be taken into account is the latest publication date of an order listing the establishment while the employee worked there.

This solution is very similar to the one adopted by the French Supreme Court for anxiety damages compensation claims against private employers. The Supreme Court also takes into consideration the publication of the order listing establishments in specifying the prescription period applicable to the claim against the employer.

The Conseil d'État also sets out the conditions in which the period of 4 years may be discontinued. This is the case when a civil action is filed. In this instance, the prescription period is discontinued.

> Read the decision No. 457560 of 19 April 2022