The Significance of the Court of Cassation’s Judgment on the Concept of Work Not Subject to Insurance Obligation

The judgment delivered by the Court of Cassation on June 22, 2023 is essential. It is, first of all, because it is the first to intervene on the concept of work not subject to the obligation of insurance (only § II relating to the insurance coverage of disorders affecting existing structures had made the subject to interpretation by the Third Chamber). It is, again, in that it is part of a broader perspective: that of the progressive definition of the methods of qualification of the concept of work and its components (notion of works in the plural comprising parts works, items of equipment that may or may not be dissociated, elements that can be dissociated from the building).

To understand these two issues, it is necessary to understand the facts of the case. The real estate project, subject of the work lease contracts entered into in 2006, was aimed at the construction of a waste storage building. This project included the construction of a storm basin (element related to the main waste treatment facility and allowing both the management of excess rainwater by temporarily storing this surplus and also being able to participate in the partial treatment of this water worn). It should also be noted that this type of basin is not geographically integrated into the main waste storage structure, the judgment emphasizing that the storm basin is on the “periphery of the installations”. Was the material damage affecting this structure covered by compulsory ten-year liability insurance (C. insur., art. L. 241-1) or non-compulsory ten-year liability insurance (C. assur., art. L. 241-1)? L. 243-1-1, I)? The issue was major here, since only the compulsory insurance guarantee had been taken out, to the exclusion of any guarantee for works not submitted.

On the interpretation of the notion of work not subject to the yardstick of the reform of June 5, 2005

The contract having been concluded after the entry into force of the order of June 5, 2005, article L. 243-1-1, I, was applicable, article 5 of the said order providing that the text is applicable to markets and contracts entered into after the publication of the ordinance. On the other hand, the amendment made to this text by law no. 2008-735 of July 28, 2008, having added to paragraph 2 an additional structure, namely “structures for the storage and treatment of bulk solids, fluids and liquids”, was not intended to apply to the present case.

The first contribution of the ruling stems from the affirmation of the obvious: the text contains two lists of works not subject to the insurance obligation, the first (1^is para. art. L. 243-1-1, I) contains works which are absolutely excluded from…