LAW No. 2010-2 of January 5, 2010 on the recognition and compensation of victims of French nuclear tests (1)

Data last update for this text: March 25, 2019 NOR: DEFX0906865L
JORF n° 0004 of January 6, 2010
Legislative File: LAW n° 2010-2 of January 5, 2010 relating to the recognition and compensation of victims of French nuclear tests / Timeline for application
The National Assembly and the Senate have adopted,
The President of the Republic promulgates the law, the content of which follows:

Article 1

Modified by LAW n° 2021-1900 of December 30, 2021 – art. 179

I. – Anyone suffering from a radiation-induced disease resulting from exposure to ionizing radiation due to French nuclear tests and registered on a list fixed by decree of the Council of State in accordance with the work recognized by the international scientific community can obtain full compensation for their damage under the conditions provided for by this law.

II. – If the person is deceased, the request for compensation can be presented by his beneficiaries. If the person died before the promulgation of law n° 2018-1317 of 28 December 2018 of finance for 2019, the request must be presented by the beneficiary before 31 December 2024. If the person dies after the promulgation of the same law, the request must be presented by the beneficiary no later than December 31 of the third year following the death.

III.-When a request for compensation based on I of article 4 has been the subject of a decision of rejection by the Minister of Defense or by the compensation committee for victims of nuclear tests before the ” entry into force of Law No. 2017-256 of February 28, 2017 on programming relating to substantive equality overseas and on other social and economic provisions, the applicant or his beneficiaries, if they are deceased, can submit a new claim before December 31, 2020.

Article 2

Modified by LAW n° 2013-1168 of December 18, 2013 – art. 53

The person suffering from a radiation-induced pathology must have resided or stayed:

1° Either between February 13, 1960 and December 31, 1967 at the Saharan Center for Military Experiments, or between November 7, 1961 and December 31, 1967 at the Center for Military Experiments in the oases or in the areas peripheral to these centers;

2° Between July 2, 1966 and December 31, 1998 in French Polynesia.

A decree in Council of State delimits the peripheral zones mentioned in 1°.

Article 3

Modified by LAW n° 2013-1168 of December 18, 2013 – art. 53

The applicant justifies, if necessary with the assistance of the administrations concerned, that the person referred to in Article 1 has resided or stayed in the areas and during the periods referred to in Article 2 and that he is suffering from one of the diseases appearing on the list drawn up in application of Article 1.

Article 4

Modified by LAW n° 2019-222 of March 23, 2019 – art. 102

I.- Compensation requests are submitted to the Compensation Committee for Victims of Nuclear Tests, which issues a reasoned decision within eight months of the filing of the complete file.

II.-The compensation committee, which is an independent administrative authority, comprises nine members appointed by decree:

1° A president, whose function is carried out by a member of the Council of State or by a magistrate of the Court of Cassation, on the proposal, respectively, of the vice-president of the Council of State or of the first president of the Court of cassation;

2° Eight qualified personalities, including at least five doctors, among whom at least:

-two doctors appointed on the proposal of the High Council for Public Health because of their competence in the field of radiopathology;

-a doctor appointed on the proposal of the High Council for Public Health because of his competence in the field of compensation for bodily injury;

-a doctor appointed on the proposal of the High Council for Public Health because of his competence in the field of epidemiology;

-a doctor appointed, after the assent of the High Council for Public Health, on the proposal of associations representing victims of nuclear tests.

The eight qualified personalities include four women and four men.

Alternates of these qualified personalities are appointed under the same conditions. They replace the full members in the event of absence or impediment.

The president may designate a vice-president from among these qualified individuals.

The term of office of committee members is three years. This mandate is renewable, subject to the eighth paragraph of this II.

In the event of a tie vote, that of the chairman of the committee is decisive.

In the exercise of their duties, the members of the committee do not receive instructions from any authority.

III. (Repealed)

IV. The Chairman of the Nuclear Test Victims Compensation Committee has legal standing on behalf of the Committee.

V.-This committee examines whether the conditions are met. When they are, the person concerned benefits from a presumption of causality, unless it is established that the annual dose of ionizing radiation due to the French nuclear tests received by the person concerned was lower than the dose limit effective for the exposure of the population to ionizing radiation set under the conditions provided for in 3° of article L. 1333-2 of the public health code.

The committee shall carry out or cause to be carried out any useful scientific or medical investigation, without being subject to professional secrecy.

He may request from any State service, public authority, body managing social benefits or insurer the communication of any information necessary for the examination of the request. This information may not be used for any other purpose than this.

The members of the committee and the agents designated to assist them must be empowered, under the conditions defined for the application of article 413-9 of the penal code, to know the information referred to in the preceding paragraphs.

When examining requests, the committee respects the adversarial principle. The applicant may be assisted by a person of his choice.

VI. – The operating procedures of the compensation committee for victims of nuclear tests, the elements that must be included in the file presented by the applicant, as well as the procedures for investigating requests, and in particular the procedures allowing compliance with the principle of adversarial proceedings and rights of defense are set by decree of the Council of State. They must include the possibility for the applicant to defend his claim in person or through a representative.

VII .- (Repealed).

NOTE:

In accordance with A of XXIV of Article 109 of Law No. 2019-222 of March 23, 2019, these provisions come into force from the next renewal of each commission.

Article 5

Compensation is paid in the form of lump sum.

Any compensation already received by the claimant for the same heads of damage, and in particular the updated amount of any pensions awarded, is deducted from the sums paid for the compensation provided for by this law.

Article 6

Acceptance of the compensation offer constitutes a transaction within the meaning of Article 2044 of the Civil Code and withdrawal from any pending legal action. It renders inadmissible any other legal action aimed at redressing the same damages.

Article 7

Modified by LAW n° 2013-1168 of December 18, 2013 – art. 53

At least twice a year, the Government convenes an advisory committee to monitor the consequences of nuclear tests. The latter can also meet at the request of the majority of its members. The commission comprises nineteen members including four representatives of the administration, the president of the government of French Polynesia or his representative, the president of the assembly of French Polynesia or his representative, two deputies, two senators, five representatives of associations representing victims of nuclear tests as well as four scientific personalities qualified in this field.

The committee is consulted on the monitoring of the application of this law as well as on any modifications to the list of radiation-induced diseases. As such, it can make recommendations to the Government and to Parliament.

A decree in the Council of State fixes the terms of designation of the members and the operating principles of the commission.

Article 8

Modified the following provisions
Modifies General Tax Code, CGI. – art. 81 (V)
This law will be executed as state law. Done in Paris, January 5, 2010.

By the President of the Republic:

Nicolas sarkozy
The Prime Minister,
Francois Fillon
The Minister of State, Keeper of the Seals, Minister of Justice and Freedoms, 
Michèle Alliot-Marie
The minister of the Interior, overseas and local authorities, 
Brice Hortefeux
The Minister for the Budget, Public Accounts, Civil Service and state reform,
Eric Woerth
The Minister of Defense,
Herve Morin
The Minister of Health and Sports, 
Roselyne Bachelot-Narquin
The Minister attached to the Minister of the Interior, Overseas and Local Authorities, responsible for overseas, 
Marie-Luce Penchard

(1) Preparatory work: law n° 2010-2. National Assembly: Bill n° 1696; Report by Mr. Patrice Calméjane, on behalf of the Defense Committee, n° 1768; Discussion on June 25, 2009 and adoption, after initiating the accelerated procedure, on June 30, 2009 (TA n° 308). Senate: Bill, adopted by the National Assembly, n° 505 corrected (2008-2009); Report by Mr Marcel-Pierre Cléach, on behalf of the Foreign Affairs Committee, n° 18 (2009-2010); Text of committee n° 19 (2009-2010); Discussion and adoption on October 14, 2009 (TA n° 5, 2009-2010). National Assembly: Bill n° 1984; Report by Mr. Patrice Calméjane, rapporteur, on behalf of the joint committee, n° 2098; Discussion and adoption on December 22, 2009 (TA n° 389). Senate: Report by Mr. Marcel-Pierre Cléach, rapporteur, on behalf of the joint committee, n° 122 (2009-2010); Discussion and adoption on December 22, 2009 (TA n° 49, 2009-2010).

https://www.legifrance.gouv.fr/loda/id/JORFTEXT000021625586/2021-01-06/

Decree n ° 2014-1049 of September 15, 2014 relating to the recognition and compensation of victims of French nuclear tests

The Prime Minister,
On the report of the Minister of Defense,
Having regard to the Defense Code, in particular its article L. 4221-1;
Considering the amended law n ° 71-498 of June 29, 1971 relating to judicial experts, in particular its article 2;
Considering the amended law n ° 2010-2 of January 5, 2010 relating to the recognition and compensation of victims of French nuclear tests;
Considering the law n ° 2013-1168 of December 18, 2013 relating to military programming for the years 2014 to 2019 and relating to various provisions concerning defense, in particular III of its article 54;
Considering the decree n ° 92-681 of July 20, 1992 modified relating to the revenue authorities and the imprest accounts of public bodies;
Considering the decree n ° 2006-672 of June 8, 2006 modified relating to the creation, the composition and the functioning of administrative committees of an advisory nature, in particular its articles 9 to 14;
Considering the decree n ° 2006-781 of July 3, 2006 fixing the conditions and the modalities of payment of the expenses caused by the temporary displacements of the civil personnel of the State;
After hearing the Council of State (administration section),
Decrees:

Chapter I: Diseases and affected areas (Articles 1 to 2)

Article 1
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 1

The list of diseases mentioned in article 1 of the aforementioned law of January 5, 2010 is annexed to this decree. The diseases appearing on this list but having their origin in metastases secondary to a disease not appearing there are not retained for the application of these provisions.

Article 2

The Sahara zones mentioned in 1 ° of article 2 of the aforementioned law of 5 January 2010 are those which are inscribed, on the one hand, in an angular sector of 10 degrees centered on the point (0 degree 3 minutes 26 seconds west – 26 degrees 18 minutes 42 seconds north) between the azimuth 100 degrees and the azimuth 110 degrees over a distance of 350 kilometers and, on the other hand, in an angular sector of 40 degrees centered on the point (5 degrees 2 minutes 30 seconds east – 24 degrees 3 minutes 0 seconds north) between the azimuth 70 degrees and the azimuth 110 degrees over a distance of 40 kilometers and extended on the axis of azimuth 90 degrees by a rectangular sector of length 100 kilometers.

Chapter II: Operation of the compensation committee for victims of nuclear tests (Articles 3 to 9)

Article 3

The compensation committee for victims of nuclear tests meets when convened by its chairman.
The convocation specifies the agenda.
The form and deadline for convening the members of the compensation committee for victims of nuclear tests are set by the internal regulations of the committee mentioned in article 9.
The committee can only validly deliberate if at least five of its members are present.

Article 4

I. – The staff of the committee are recruited by the chairman of the committee, within the limit of the appropriations opened for this purpose in the budget of the Prime Minister’s services under the compensation committee for victims of nuclear tests.

II. – The chairman of the committee may also call upon, with the agreement of the ministers concerned, personnel made available by the State services whose assistance is necessary for the accomplishment of his mission. He can call on reservists from the Ministry of Defense.

III. – Category A or equivalent public officials may, within the limits of their powers, receive delegation of signature from the chairman of the committee.

Article 5

The chairman of the committee has authority over all committee staff.

Article 6
Modified by Decree n ° 2020-173 of February 27, 2020 – art. 18

The members mentioned in the second paragraph of article 5 are compensated, after service has been rendered, for any activity carried out on behalf of the authority, when such activity is not covered by the lump-sum compensation provided for in the same article.
This compensation takes the form of holiday pay, the unit rate of which may not exceed a ceiling set by an order of the Prime Minister and the ministers responsible for the budget and the civil service.
The rules for the allocation of these vacation allowances, in particular their maximum number per member in respect of a year, shall be specified by the rules of procedure provided for in Article 14 of the aforementioned Act of 20 January 2017.

Article 7

The assigned accountant of the committee’s revenue and expenditure is the budget and ministerial accountant of the Prime Minister’s services.

Article 8

Revenue and advance funds may be created by the chairman of the compensation committee for victims of nuclear tests on the assent of the budget and ministerial accountant of the Prime Minister’s services under the conditions set by the aforementioned decree of July 20, 1992. .

Article 9

The committee establishes its own rules of procedure, which fixes, in particular, the conditions of its functioning. The deliberation adopting this regulation is published in the Official Journal of the French Republic.

Chapter III: Procedures for investigating compensation claims (Articles 10 to 14)

Article 10

The file presented by the applicant includes:

1 ° Any document attesting that he is affected by one of the diseases appearing on the list annexed to this decree;

2 ° Any document making it possible to certify that he has resided or stayed in the zones and during the periods mentioned in article 2 of the aforementioned law of January 5, 2010;

3 ° Where applicable, all documents relating to other proceedings initiated by the claimant concerning compensation for the same damages and supporting documents for the services and compensation received in this regard;

4 ° All elements likely to enlighten the compensation committee for victims of nuclear tests in the examination of the file.

Article 11
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 2

I.- Requests are sent by registered letter with acknowledgment of receipt to the compensation committee for victims of nuclear tests, which acknowledges receipt of the filing of the request. If the file is incomplete, he invites the applicant to send him the missing documents.

The committee proceeds to register the complete file, which runs the time limits provided for in article 4 of the aforementioned law of January 5, 2010. He immediately informs the applicant of the completeness of his file by registered letter with acknowledgment of receipt.

When a new request for compensation is presented in application of the provisions of III of article 1 of the same law, the committee requests, if necessary, the updating of the file initially submitted. He informs the applicant of the completeness of his file under the same conditions as in the previous paragraph.

II.-The applicant may be assisted by a person of his choice at all stages of the procedure.

He may at any time submit written observations and be informed of the progress of the procedure. He receives communication of any document placed in his file and likely to be taken into account by the compensation committee.

Upon his written request to the Compensation Committee for Nuclear Test Victims, the plaintiff may speak himself before the committee to defend his case, or designate a representative to do so on his behalf. In this case, the travel expenses of the applicant or his representative are the responsibility of the applicant. The applicant or his representative may also speak to the committee by videoconference or conference call.

Article 12
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 3

I.- The committee can have expert opinions carried out at all stages of the procedure.

II.-When the committee has recourse to a medical expertise, the doctor responsible for carrying out it is chosen, according to his competence in the field concerned, in particular from one of the lists mentioned in I of article 2 of the law of June 29, 1971 referred to above. In particular, when the purpose of the medical expertise is to assess the damage to be compensated, the doctor responsible for carrying it out is chosen on the basis of his competence in matters of compensation for bodily injury.

III.-The applicant is convened at least fifteen days before the date of the examination, by registered letter with acknowledgment of receipt. He is informed of the identity and titles of the doctor responsible for carrying out the expertise, as well as the purpose, date and place of the examination. He can be assisted by a person of his choice.

The report of the doctor responsible for examining the applicant is sent within two months to the compensation committee by registered letter with acknowledgment of receipt as well as to the applicant and, where applicable, to the doctor designated by him.

IV.-The costs incurred for the expertises carried out at the request of the committee are borne by the latter, including travel costs incurred by the applicant to submit to it.

Article 13
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 4

The effective dose limit for the exposure of the population to ionizing radiation for the application of the provisions of V of article 4 of the aforementioned law of 5 January 2010 is that set in I of article R. 1333- 11 of the public health code.

The committee determines the methodology it chooses to examine the request and make its decision, based in particular on the methodologies recommended by the International Atomic Energy Agency.

The deliberation of the committee approving this methodology is published in the Official Journal of the French Republic. The description of this methodology and the related documentation are published on the committee’s website and provided to the applicant, at his request.

Article 14
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 5

I. – If it considers the conditions to be met, the committee sends the applicant, by registered letter with acknowledgment of receipt, an offer of compensation which specifies the consequences, set out in article 6 of the law of January 5 2010 above, that its acceptance carries. The applicant makes known, by registered letter with acknowledgment of receipt, whether or not he accepts this offer. If he accepts it without reservation, the applicant may make his response known by e-mail, which the committee acknowledges by the same channel.

II. – The absence of a decision by the committee within the period of eight months from the registration of the request by the compensation committee constitutes rejection of the request.

Chapter IV: The consultative commission for monitoring the consequences of nuclear tests (Article 15)

Article 15
Modified by Decree n ° 2019-520 of May 27, 2019 – art. 6

The meetings of the consultative commission for monitoring the consequences of nuclear tests mentioned in article 7 of the aforementioned law of 5 January 2010 are governed by the provisions of articles R. 133-8 to R. 133-13 of the code of relations between the public and the administration.

The following are members of the advisory committee, acting as representatives of the administration:

1 ° For the Minister of Foreign Affairs: the Secretary General of the Ministry or his representative;

2 ° For the minister in charge of health: the director general of health or his representative;

3 ° For the Minister of Defense: the delegate for nuclear safety and radiation protection for installations and activities involving defense or his representative;

4 ° For the minister in charge of overseas: the general manager of overseas departments or his representative.

The Prime Minister designates by decree, for a period of three years, five associations representing victims of nuclear tests, each of which designates their representative at the meetings of the advisory commission.

Qualified personalities are appointed for a period of three years by order of the Prime Minister.

The commission is chaired by the minister responsible for health or his representative.

Depending on the agenda, the chairman may have the committee hear any person whose hearing appears useful and request an opinion or consultation from any qualified third party.

The expenses relating to the commission are borne by the budget of the Prime Minister’s services. By virtue of their participation in the meetings of the consultative commission for monitoring the consequences of nuclear tests, its members are entitled to reimbursement of their travel expenses under the conditions provided for by the aforementioned decree of July 3, 2006.

Chapter V: Transitional and final provisions (Articles 16 to 19)

Article 16

Modified the following provisions

Amends Code of Administrative Justice – art. R312-14-2 (V)

Article 17

The operating procedures and procedural rules defined by this decree only apply from the installation of the compensation committee for victims of nuclear tests under the conditions provided for by III of article 54 of the Law No. 2013-1168 of December 18, 2013 referred to above.

Article 18

The following are repealed as from the installation of the compensation committee for victims of nuclear tests under the conditions provided for in III of article 54 of law n ° 2013-1168 of 18 December 2013 referred to above:

Repealed the following provisions:

– Decree n ° 2010-653 of June 11, 2010

Art. 1, Art. 2, Art. 3, Art. 4, Art. 5, Art. 6, Art. 7, Art. 8, Art. 9, Art. 11, Art. 12, Art. 13, Sct. Annex, Art. null

– Decree No. 2011-281 of March 18, 2011

Art. 1, Art. 2, Art. 3, Art. 4, Art. 5, Art. 6

Article 19

The Minister of Foreign Affairs and International Development, the Minister of Finance and Public Accounts, the Minister of Defense, the Minister of Social Affairs, Health and Women’s Rights, the Minister of Decentralization and the Civil Service and the Minister of Overseas Territories are responsible, each as far as he is concerned, with the execution of this decree, which will be published in the Official Journal of the French Republic.

Annex

Article
Modified by Decree n° 2019-520 of May 27, 2019 – art. 7

LIST OF RADIO-INDUCED DISEASES MENTIONED IN ARTICLE 1 OF THE ABOVE-PROVIDED LAW OF 5 JANUARY 2010 RELATING TO THE RECOGNITION AND COMPENSATION OF VICTIMS OF FRENCH NUCLEAR TESTS

Designation of diseases
Leukemia (except chronic lymphoid leukemia because it is considered not to be radiation-induced).
Myelodysplasias.
Breast cancer.
Cancer of the thyroid body for exposure during the growth period.
Skin cancer except malignant melanoma.
Lung cancer.
Colon Cancer.
Cancer of the salivary glands.
Esophageal cancer.
Stomach cancer.
Liver cancer.
Bladder cancer.
Ovarian cancer.
Cancer of the brain and central nervous system.
Bone and connective tissue cancer.
Uterus cancer.
Small intestine cancer.
Rectal cancer.
Kidney cancer.
Gallbladder cancer.
Cancer of the biliary tract.
Non-Hodgkin lymphomas.
Myeloma.

Done September 15, 2014.

Manuel Valls
By the Prime Minister:
The Minister of Foreign Affairs and International Development,
Laurent Fabius
The Minister of Finance and Public Accounts,
Michel Sapin
The Minister of Defense,
Jean-Yves Le Drian
The Minister of Social Affairs, Health and Women’s Rights,
Marisol Touraine
The Minister of Decentralization and the Public Service,
Marylise Lebranchu
The Minister of Overseas Territories,
George Pau-Langevin

APPENDIX TO DELIBERATION N° 2020-1 of June 22, 2020 THE METHODOLOGY followed by CIVEN

Caution

The purpose of the CIVEN is to apply Law n° 2010-2 of January 5, 2010 on the recognition and compensation of victims of French nuclear testing, which has been amended several times, to presumed victims of French nuclear testing who request to benefit from its provisions and who meet the legal conditions.

Article 4 of this law provides that “claims for compensation shall be submitted to the Compensation Committee for Victims of Nuclear Tests, which shall issue a reasoned decision”. It sets out the conditions creating a presumption of a link between the disease claimed and exposure to ionizing radiation due to French nuclear testing, as well as the terms and conditions for any reversal of this presumption.

Article 13 of Decree no. 2014-1049 of September 15, 2014 states that “The committee shall determine the methodology it uses to examine the claim and make its decision, based in particular on the methodologies recommended by the International Atomic Energy Agency” and that “The committee’s deliberation approving this methodology shall be published in the Journal officiel de la République française. The description of this methodology and the related documentation are published on the committee’s website and provided to the applicant, upon request.”

It is therefore up to the CIVEN to decide on this methodology and to implement it in each case submitted to it.

This methodology must, first of all, be transparent, as required by the regulations, i.e., it must be made known to all, in terms that can be understood by all. It must also be evolving, in application not only of the texts, which may themselves evolve, but also of the discoveries of scientific research and the experience acquired by CIVEN itself.

To implement it, two principles guide CIVEN: humanity and equity.

CIVEN is very attached to listening directly to the alleged victims or their beneficiaries. It is fully aware of the great suffering and dignity of the claimants’ testimony.

Fairness resides in the guarantee for claimants that, at the end of the detailed examination of their file, decisions concerning them will be made according to rules that are equal for all.

If the CIVEN takes into account, in accordance with the law and the decree mentioned above, measurements of radioactivity in order to assess whether an illness is due to exposure to ionizing radiation due to French nuclear testing, its decision does not, however, result from adding up the measurements of the “radioactive detriment” linked to the tests.

In each case, it also takes into account

-The applicant’s belonging to a risk group, because of sex, age or professional activity at the time of the tests, or any particular circumstance presented by him;

– The phenotypic histological characteristics and the genetic or epigenetic markers of the declared pathology, mentioned on the list annexed to the decree;

– The radiosensitivity, which varies according to the subjects, and in particular, the genetic data documented according to the populations. This is, for example, the case of the greater susceptibility to radiation-induced papillary thyroid cancer of populations originating from Polynesia. 

PART ONE: LEGAL RULES AND THEIR APPLICATION

The activity of the Compensation Committee for Nuclear Test Victims (CIVEN) is governed by

– Law no. 2010-2 of January 5, 2010 on the recognition and compensation of victims of French nuclear testing;

– Decree no. 2014-1049 of September 15, 2014 on the recognition and compensation of victims of French nuclear testing, taken for its application;

– Deliberation no. 2019-1 of October 28, 2019, adopting the CIVEN’s rules of procedure, published in the Journal officiel de la République française (JORF) of November 22, 2019;

– Deliberation no. 2020-1 of June 22, 2020, concerning the methodology for examining applications filed with the CIVEN, published in the JORF of June 28, 2020; the present methodological note annexed to this deliberation is published on the CIVEN website (www.gouvernement.fr/comite-d-indemnisation-des-victimes-des-essais-nucleaires-civen).

This note replaces the methodological note annexed to deliberation no. 2018-5 of May 14, 2018 on the methodology for examining applications filed with the CIVEN published in the JORF of May 30, 2018, which itself replaced a note of May 11, 2015.

The CIVEN’s methodology specifies the conditions under which the CIVEN, on the one hand, assesses the right to recognition as a victim of French nuclear testing and, on the other hand, establishes the compensation offer when it has recognized this right.

In this first part, this note successively examines
– the conditions under which the presumption of causality is established ;
– the conditions for its possible reversal.
In the second part, it sets out the terms of compensation.

I.- The constitution of the presumption of causality :

The law of January 5, 2010 established a legal presumption regime.

If three conditions are met by the claimant – to be suffering from one of the diseases on a list of diseases that may be radiation-induced, i.e. caused by exposure to ionizing radiation, to have been present in certain areas of the Sahara or in French Polynesia, and during the periods of nuclear testing, as defined by the law – he or she is presumed to be a victim of French nuclear testing.

If the CIVEN, under the control of the administrative court, provides the proof, which is incumbent upon it, that the illness could not have been caused by radiation due to French nuclear tests, the presumption is reversed and the claimant cannot be recognized as a victim of these tests. If CIVEN cannot provide this proof, the presumption cannot be reversed and the claimant is recognized as a victim of these tests.

If the claimant is recognized as a victim of the tests, he or she is entitled to full compensation for his or her injuries. The compensation is not a lump sum, it must be applied to the particular case of the claimant, who can claim all the damages that have not already been compensated by an organization, such as a social security fund or a mutual health insurance company. 

A) The condition of illness

Article 1 of the Act of January 5, 2010 provides in its I that “Any person suffering from a radiation-induced disease resulting from exposure to ionizing radiation due to French nuclear testing and included on a list established by decree in the Council of State in accordance with work recognized by the international community may obtain full compensation for his or her loss under the conditions provided for by this Act.”

This list is appended to the decree of September 14, 2014 and now includes 23 diseases, after the addition by decree no. 2019-520 of May 27, 2019 of cancers of the gallbladder and bile ducts, in accordance with the proposals of the commission created by III of article 113 of law no. 2017-257 of February 28, 2017, of programming relating to real equality overseas and bearing other provisions in economic and social matters, known as the EROM law, a commission whose report is also on the CIVEN website.

In order for the claimant to be recognized as a victim of French nuclear testing, the disease(s) that he or she claims must have been caused by exposure to ionizing radiation due to this testing. The diseases listed in the annexed decree of September 15, 2014 may be radiation-induced. It is up to the CIVEN to assess whether, in the claimant’s case, the disease was indeed induced by exposure to radiation from French nuclear tests.

Article 1 of the decree of September 14, 2014, as amended by the decree of May 27, 2019, now states that “Diseases included in this list but originating from metastases secondary to a disease not included in the list are not considered for the application of these provisions. In effect, if a listed disease originates from a metastasis of a disease that is not listed because it is not considered radiation-induced, the disease thus derived from the primary disease cannot itself be considered radiation-induced.

The CIVEN may thus be led to consider that the disease invoked is not one of those mentioned by the decree of September 14, 2014 and that, consequently, the disease condition is not met and the presumption is therefore not created, in the following situations:

– When the application itself mentions a disease that is not included in the list annexed to the decree ;

– When the biopathological analysis of the samples indicates that it is not a disease included in this list, even if the applicant has invoked it as such;

– When a person is suffering from a disease included in this list of diseases that can be radiation-induced, but documents in his or her medical file show that this disease results, in his or her case, from a secondary metastasis to a disease that is not on the list.

B) The condition of location

Article 2 of the law of January 5, 2010 now provides that the condition of place is satisfied by the presence in French Polynesia, whatever the island or atoll of presence. On the contrary, for persons filing a claim for tests that took place in the Sahara, it is necessary to establish their presence at the Saharan Center for Military Experiments or the Oasis Center for Military Experiments, or “in the geographical areas to these centers”, these areas being defined in Article 2 of the Decree of March 15, 2014 by their geographical coordinates.

The CIVEN assesses whether this condition of location is met in light of all the elements provided to it by the applicant or obtained from his employers (army, administrations, companies) or local authorities: certificate of domicile, service record, etc.

C) The date condition

For the dates of the tests in the Sahara, Article 2 of the decree of the law of January 5, 2010 distinguishes between the aerial tests carried out at the Centre saharien des expérimentations militaires (CESM), in Reggane, and the gallery tests carried out at the Centre d’expérimentations militaires des oasis (CEMO), in the Hoggar, at In Ecker.

The first test at Reggane took place on February 13, 1960 and the last on April 25, 1961. The first test at In Ecker took place on November 7, 1961 and the last on February 16, 1966. The law retains the dates of 13 February 1960 and 7 November 1961 as the beginning of the periods and the single date of 31 December 1967, for both sites, as the end of the periods.

For the tests in Polynesia, the law does not distinguish between the aerial tests, which took place from 2 July 1966 to 14 September 1974, and the underground tests, which took place from 5 June 1975 to 27 January 1996, with an interruption between 15 July 1991 and 5 September 1995, and retains the dates of 2 July 1966 as the beginning of the period and 31 December 1998 as the end.

In both cases, proof of presence during these periods is assessed by the CIVEN on the basis of documents provided by the claimant or those that he or she obtains from employers (army, administrations, companies) or local authorities: proof of residence, service record, etc.

If these three conditions of illness, date and place are met, the claimant benefits from the presumption of causality between his/her illness(es) and exposure to ionizing radiation due to French nuclear testing. This presumption can then be overturned if the CIVEN provides proof that there is no link between the illness and the exposure to this radiation, under the conditions set forth in article 4 of the law of January 5, 2010, as amended.

II. – The reversal of the presumption of causality

A) The genesis of the new rule

The presumption of causality between the disease and the exposure to ionizing radiation due to nuclear testing can be reversed. If it could not be reversed, this would mean that the diseases that can be radiation-induced suffered by all the persons present during the tests in these places are caused by exposure to radiation due to the French nuclear tests, which of course cannot correspond to reality. The diseases that can be radiation-induced can also have other causes. They would have been present in Polynesia if there had not been nuclear tests. The role of the CIVEN is to determine, for people suffering from these diseases and present during the tests, whether or not the disease is related to exposure to radiation due to the tests.

The EROM law of February 28, 2017, eliminated this method of reversing the presumption, which had led to the dismissal of most claims, but without replacing it with another possibility of reversing the presumption of causality. The Conseil d’Etat, in its contentious opinion no. 409777 of June 28, 2017, had deduced, in the absence of any legal precision, that the presumption could only be reversed if the CIVEN established that the illness was due exclusively to another cause or that the claimant had received “no” radiation due to the tests. In fact, as the public rapporteur before the Conseil d’Etat himself indicated in his conclusions before the court, these demonstrations were practically impossible and the presumption could not be reversed. In his words, it had become “quasi-irrefutable”.

However, article 1 of the law of January 5, 2010 remained. The purpose of the law is to recognize the status of victim and to compensate “any person suffering from a radiation-induced illness resulting from exposure to ionizing radiation due to French nuclear testing”. It is not a question of compensating, in this capacity, any person suffering from a disease that may be radiation-induced, regardless of its cause, and it is up to the CIVEN to determine whether the cause lies in radiation due to nuclear testing or not.

In the absence of legal provisions on the conditions for reversing the presumption, the CIVEN, in order to play the role entrusted to it by the law, had to establish a criterion on the basis of existing general regulations and established scientific data.

At the same time, a commission was set up to work on this common objective, to identify

This was no longer possible under the law of January 5, 2010, since, as interpreted by the Conseil d’Etat, it meant that potentially all claims would be accepted. 

According to article 113, III of the EROM law, “A commission composed of half members of parliament and half qualified personalities shall propose, within twelve months of the promulgation of the law, measures intended to reserve compensation for persons whose illness is caused by nuclear testing. It shall make recommendations to the Government.

This commission, comprising six parliamentarians, including three representatives of French Polynesia, Ms. Nicole Sanquer and Mr. Moetaï Brotherson, deputies, and Ms. Lana Tetuanui, senator, as well as six specialists in medicine and law, chaired by Ms. Lana Tetuanui, issued a report on November 15, 2018, which was not the subject of any expression of dissenting opinion. It recommended to the Government to retain the modality for reversing the presumption of causality that the CIVEN had already implemented, by its deliberation of May 14, 2018, i.e., the annual dose limit of 1 millisievert (1 mSv), based on the provisions of the Public Health Code, transposing a EURATOM directive, which in turn stems from UNSCEAR recommendations (cf.infra).

In its report, the commission notes that

Legal considerations, taking into account the emotional, affective and psychological dimensions in subjects who, suffering from cancer and having undergone this undue irradiation because imposed by the State (whatever the motives and their admissibility), legitimize this presumption of imputability linked to an irradiation having exceeded the regulatory limit – in a way analogous to what happens in labor legislation for example. (…) 

The commission concludes on this point as follows:

The search for coherence between the commission’s recommendations and the observed evolution of CIVEN’s operations, taking into account the methodology used, is now essential at a time when a very favorable evolution in the number of Polynesians likely to be compensated as a result of recent CIVEN decisions has been noted. The EROM Commission recommends that the situation of all the populations as well as that of the workers concerned be aligned with the 1 mSv measure. This recommendation requires a modification of the Morin law by legislative amendment.

At the end of its report, the commission reiterates its proposal for a Legislative amendment to consolidate the provisional methodology of the CIVEN used for the examination of compensation files with reference to Article 1333-11 of the Health Code since January 1, 2018,” thus specifying that it intends the dose limit of 1 mSv per year to apply as soon as the CIVEN began to implement it, at the beginning of 2018.

The Government having decided to retain this proposal of the report, two amendments to this effect were tabled in theSenate, by the Government and by the Chair of the Committee, Ms. Lana Tetuanui, to the 2019 Finance Bill.

These amendments became Article 232 of Law No. 2018-1317 of December 28, 2018, of Finance for 2019, amending the law of January 5, 2010. 

B) The new legal and regulatory standards

– The 1 mSv dose limit and its origin

V of Article 4 of the Act of January 5, 2010, as amended by Article 232 of the Act of December 28, 2018, now provides:

“V.- This committee shall examine whether the conditions are met. When they are, the person concerned benefits from a presumption of causality, unless it is established that the annual dose of ionizing radiation due to French nuclear testing received by the person concerned was lower than the effective dose limit for exposure of the population to ionizing radiation set under the conditions provided for in 3° of Article L. 1333-2 of the Public Health Code.”

According to Article L. 1333-2 of the Public Health Code:

“Nuclear activities satisfy the following principles:

1° The principle of justification, according to which a nuclear activity can only be undertaken or carried out if it is justified by the benefits it provides on an individual or collective level, particularly in terms of health, social, economic or scientific benefits, compared to the risks inherent in exposure to ionizing radiation to which it is likely to subject individuals;

2° The principle of optimization, according to which the level of exposure of persons to ionizing radiation resulting from one of these activities, the probability of the occurrence of such exposure and the number of persons exposed must be kept as low as reasonably achievable, taking into account the state of technical knowledge, economic and societal factors and, where appropriate, the medical objective pursued;

3° The principle of limitation, according to which the exposure of a person to ionizing radiation resulting from one of these activities may not bring the sum of the doses received above the limits set by regulation, except when this person is exposed for medical purposes or in the context of research mentioned in 1° of article L. 1121-1.”

The consequences of the limitation principle for nuclear activities are set out in articles R. 1333-11 and R. 133-12 of the Public Health Code.

– article R. 1333-11

“I.- For the application of the limitation principle defined in 3° of Article L. 1333-2, the effective dose limit for exposure of the population to ionizing radiation resulting from all nuclear activities is set at 1 mSv per year, with the exception of the specific cases mentioned in Article R. 1333-12.

II. – The equivalent dose limit is set for :

1° The lens of the eye at 15 mSv per year ;

2° The skin at 50 mSv per year as an average value for any 1 cm2 area of skin, regardless of the exposed area.”

– Article R1333-12

“The dose limits defined in Article R. 1333-11 are not applicable to persons subject to the following exposures:

1° Exposure of patients in connection with a diagnosis or therapeutic management based on ionizing radiation from which they benefit, as provided for in I of Article L. 1333-18 ;

2° Exposure of persons who, having been informed of the risk of exposure, voluntarily and privately participate in the support and comfort of the patients mentioned in 1°;

3° Exposure of persons who voluntarily participate in research programs involving the human being and using ionizing radiation sources, as provided for in article L. 1333-18;

4° Exposure of persons subject to radiological emergencies as mentioned in 1° of article L. 1333-3;

5° Exposure of persons subject to the exposure situations mentioned in 2° and 3° of article L. 1333-3;

6° Exposure of workers when exposure to ionizing radiation results from their professional activityprovided for in Article L. 4451-1 of the Labor Code.”

The decree of September 15, 2014, in its article 13 amended by the decree of May 27, 2019, retained the effective dose limit set in 1 of article R. 1333-11 of the public health code, i.e., the lowest dose, the one that isadmissible for any member of the public, even though some of the applicants were, at the time of their passage to the Sahara or Polynesia, in professional activity.

It should be emphasized that this annual dose limit of 1 mSv is not set by national regulations alone.

This level of 1 mSv per year for the public is the result of an international consensus based in particular on the opinion of the United Nations Scientific Committee on the Sources and Effects of Ionizing Radiation (UNSCEAR) and on the recommendations of the International Commission on Radiological Protection (ICRP). Scientific studies do not allow the recognition of the radiation-induced origin of a disease below a dose of one millisievert. This permissible dose level has been adopted by all international organizations: the World Health Organization (WHO), the International Atomic Energy Agency (IAEA), the International Labour Organization (ILO), and international standards bodies.

It was also by EURATOM, in Article 31 of Council Directive 2013/59/Euratom of 5 December 2013 laying down basic safety standards for health protection against the dangers arising from exposure to ionizing radiation. It is this directive that the public health code has transposed.

This condition for reversing the presumption is very different from the “negligible risk” condition. Only the dose received can be taken into account, to the exclusion of factors related to the latency period of the disease or other risk factors (tobacco, alcohol, etc.), which led to a certain number of claims being rejected under the “negligible risk” calculations.

From now on, the legal and regulatory norms will apply to CIVEN. Attentive to each individual case, CIVEN nevertheless recommends that, in certain circumstances, particularly because of the age of exposure for certain cancers, or because of the workstation, people who have received a dose of less than 1 millisievert should be recognized as victims.

– The effective date of the new standard

It is common ground that in matters of liability, unless otherwise stated, the law applies immediately, including to claims filed prior to its entry into force.

However, in two decisions of January 27, 2020, no. 429574 and 432578, the Conseil d’Etat, ruling on the contentious, held that:

By modifying the provisions of V of Article 4 of the Act of January 5, 2010, resulting from Article 113 of the Act of February 28, 2017, Article 232 of the Act of December 28, 2018, broadens the possibility for the administration to combat the presumption of causality enjoyed by persons claiming compensation when the conditions for the latter are met. It must be considered, in the absence of transitional provisions, as applying only to claims that have been filed after its entry into force.

The Parliament then explicitly indicated its desire for the 1 mSv rule to apply as soon as it is implemented by the CIVEN, in accordance with the recommendation of the EROM law commission, which its president had recalled in her speech to the Senate for the vote on article 232 of the law of February 28, 2018.

Article 57 of Law no. 2020-734 of June 17, 2020 on various provisions related to the health crisis, other urgent measures and the withdrawal of the United Kingdom from the European Union thus provides that: “Subject to court decisions that have become res judicata, b of 2° of I of Article 232 of Law no. 2018-1317 of December 28, 2018 on the finances for 2019 is applicable to claims filed with the compensation committee for victims of nuclear tests before the entry into force of the aforementioned Law no. 2018-1317 of December 28, 2018.”

The 1 mSv dose limit criterion therefore applies, once again, for all claims filed with the CIVEN, regardless of when the claim was filed.

C) Application of the standards by the CIVEN

1. Verification of the presumption of causality:

After verifying the identity and status of the claimant – victim or, in the event of the victim’s death, beneficiary – the CIVEN examines whether the three conditions creating the presumption of causality are met.

The committee verifies that : 

– the victim is, or has been, suffering from one or more of the diseases considered to be radiation-induced, mentioned in the appendix to decree no. 2014-1019 of September 15, 2014;

– he or she has resided or stayed (without a minimum duration) in the areas of the Sahara specified in Article 2 of this decree, or in French Polynesia ;

– this presence in these places took place on dates included in the periods mentioned in article 2 of the law.

If one of these conditions is not met, the application must be rejected. 

2. Assessment of the possibility of reversing the presumption of causality

In order to reverse the presumption of causality, the CIVEN must establish that the annual dose received is less than 1mSv. If it does not, the claim must be allowed.

This is the total dose received from external radiation exposure or internal contamination, from ingestion of liquids or foods that may contain radioelements, or from inhalation, over a 12-month period.

To establish whether or not the dose limit has been exceeded, the CIVEN relies on individual or collective measurements or biological examination results.

Since the available measurements are not the same in all places and at all times, CIVEN has adapted its methodology to these different situations, always giving priority to the approach that guarantees that the dose limit has not been exceeded.

2.1. For people working in the test areas of the Centre d’expérimentation du Pacifique (CEP) in French Polynesia

These persons are those who worked, under different statuses (military, CEA agents, employees of their subcontracting companies), on the nuclear test sites at Moruroa and Fangataufa, where firings were carried out, as well as on certain parts of the island of Hao, where contamination following the return of aircraft that participated in the firings may have occurred.

Persons who worked in establishments administratively under the CEP but were present in other islands (notably Tahiti) are not considered to be present at the CEP in the sense of this methodology. For the purpose of examining their situation with respect to external exposure and internal contamination, they are assimilated to the Polynesian population present in the islands.

To assess the level of exposure of persons present at the PEC, it is necessary to evaluate external dosimetry, measuring external exposure to ionizing radiation, and internal dosimetry, determining possible internal contamination. This internal contamination can be assessed by means of anthroporadiometric or radiotoxicological examinations.

– External radiation :

Depending on the periods and the workstations occupied, it was measured by individual dosimeters worn by people during their presence on the site, or during tests only, or only by people entering controlled areas.

According to jurisprudence, it is up to the CIVEN to establish that “the measures taken were appropriate to the situation of each person with regard to the risk of exposure”.

In some cases, the absence of a personal dosimeter may be justified by the tasks to be performed, which did not require the person to enter an area where there was a risk of exposure.

In other cases, the CIVEN, in the absence of individual measurements, relies on the results of area dosimetry measurements (ambient dosimetry).

– These measurements make it possible to determine directly whether or not the external radiation received has exceeded the annual dose limit of 1 mSv. 

– Internal contamination:

This is in addition to external radiation but is not measured in the same way.

Internal contamination, which occurs by ingestion of water or food or by inhalation, can be established by the results of anthroporadiametric or radiotoxicological examinations of excreta.

In some cases, internal contamination can be ruled out without such examinations.

Anthroporadiametric examinations may have been performed on arrival at the site, and/or during periodic inspections, and/or during an exposure incident, and/or on departure from the site. These examinations were most often performed systematically on leaving the site.

The purpose of anthroporadiametric examinations is to search for the presence of non-natural radioelements in the human body. Their results may reveal peaks in the presence of these radioelements (cesium, for example). There may also be a multiple presence of radioelements which increases the average level of radioactivity but without a specific peak. In this case, the internal contamination can be noted by a “sorting index” equal or superior to 2. The sorting index is the ratio of the average radioactivity in the subject to the normal level of radioactivity. If it is equal to or greater than 2, i.e. if the level of radioactivity is twice the normal level, internal contamination is retained, even in the absence of a peak of a radioelement.

This result in sorting index cannot be converted into millisieverts. It will therefore be considered that even if the result of external dosimetry is less than 1 mSv, a sorting index equal to or greater than 2 should lead to the conclusion that the presumption cannot be reversed, given this result and the workstation.

For the results of radiotoxicological examinations of excreta, the measurement of radioelements from the tests alone should lead to the conclusion that the presumption cannot be reversed, taking into account this result and the workstation.

In cases that do not give rise to specific monitoring, internal contamination can be excluded when :

– the workstation does not bring the worker into contact with contaminated products;

– the food and water are not contaminated;

– there has been no direct fallout;

– the results of measurements on air filters do not show the possibility of internal contamination by inhalation.

Whether it is a question of external irradiation or internal contamination, the CIVEN can consider that, for certain workstations and periods of work, there has been contamination, even without measurements establishing it.

2.2 For persons present in the Sahara, in the areas mentioned by the decree of September 15, 2014

The following methodological remarks are applicable to personnel who worked at the Centre sahariend’expérimentations militaires (CSEM, in Reggane) or the Centre d’expérimentations militaires des oasis (CEMO, in In Ekker).

In the absence of a dosimeter, it is necessary to estimate the doses received by the applicant based on the dates of presence on the site and the nature of his activities. In all cases, the locations of the individual will be taken into account with respect to the workstations occupied.

After the nuclear tests, these areas were characterized by the presence of contaminated sand winds.

The results of air filters give an estimate of internal contamination in becquerels per m3 (Bq/m3). The results are most often different for the CESM and the CEMO, the living base or the place of activity. The CIVEN takes the higher of the two.

In this case as well, whether it is a question of external irradiation or internal contamination, CIVEN can estimate that for certain positions and work periods there has been contamination, even without measurements establishing it.

2.3. For persons present in French Polynesia outside the CEP sites

The consequences of radioactive fallout from atmospheric tests are assessed for these islands by the effective dose, which takes into account both external exposure and internal contamination and is calculated according to methods and references adopted internationally (IAEA, ICRP, WHO, EURATOM). For the period of the atmospheric tests, all of these doses appear, in the form of tables, in a CEA study of 2006, whose methodology and results were validated by an international working group commissioned by the IAEA. All these documents are on the CIVEN website.

These tables are established for each year (1966 to 1974), according to the place of residence and the date of birth of the person concerned, with separate data for the dose to the thyroid. The committed effective dose integrates each year all the doses due to external irradiation received during the year and the committed dose resulting from the incorporation during the year (by inhalation or ingestion) of the various radioactive elements.

The dose thus estimated, by year and by age of exposure, is a maximum collective dose. Thus, if this dose is less than 1 mSv, the doses received individually at this location and for the years considered by the persons concerned are necessarily less than this maximum.

When individuals have successively worked at the CEP sites or at the CEA and resided in Polynesia outside the sites, the results of external and internal dosimetry at the sites and the committed effective dose for the atoll of residence should be taken into account, according to the periods of residence.

For the effective doses committed during the underground nuclear tests that took place in Polynesia from 1975 onwards, after the end of atmospheric testing, CIVEN uses the results obtained by the IRSN monitoring network. This monitoring has been carried out since 1975, according to the same international methodologies as the CEA study. It concerns seven islands (Tahiti, Maudit, Hao, Rangiroa, Hiva Oa, Mangareva and Tubuai), representative of the five archipelagos, and consists in regularly taking samples of various kinds from the different environments (air, water, soil) with which the population may be in contact, as well as from foodstuffs, distinguishing between children and adults.

The IRSN has conducted a study covering the period 1974-1981 (inclusive) and another for the period beginning in 1982.

Thus, data on effective doses since the beginning of nuclear testing in Polynesia are available.

PART TWO: THE COMPENSATION PROCEDURE

I. – The compensation decision and the nature of the compensation

Once CIVEN has recognized a claimant as a victim of nuclear testing or as the beneficiary of a victim, CIVEN must determine the amount of compensation.

According to article 1 of the amended law of January 5, 2010 on the recognition and compensation of victims of French nuclear testing, the compensation for the loss is “full”.

As this compensation is full and not lump-sum, the CIVEN must first entrust an expert physician with the task of estimating all the losses suffered. In light of the expert’s report, it is then up to the CIVEN to determine the amount of each of the losses to be compensated and then to award the victim or his or her beneficiary a compensation corresponding to the total amount of the compensation for the losses, possibly increased by default interest.

When the status of victim or beneficiary of a victim results from a judicial decision, overturning a decision of rejection by the CIVEN, this decision may refer the matter back to the CIVEN to determine the amount of compensation after a medical expertise, or it may directly order an expertise and decide on the amount of compensation through a new judicial decision.

In its contentious opinion no. 400375 of October 17, 2010[1], the Conseil d’Etat ruled that “by entrusting the CIVEN with the mission of compensating, through an amicable procedure exclusive of any search for liability, the damages suffered by the victims of these tests, the legislator has instituted a mechanism to ensure the compensation of the victims concerned as a matter of national solidarity.

It deduced, on the one hand, that the litigation of this procedure fell within the scope of full litigation and, on the other hand, that since the purpose of the law was “to ensure, on the basis of national solidarity, the reparation of the damage suffered by the victims of the French nuclear tests, and not to recognize that the State, represented by the CIVEN, would have the status of “responsible perpetrator” or “third party responsible” for the damage, consequently, the recourse of the third-party payers who had paid benefits to the victim of a bodily injury, as organized by article L. 376-1 of the Social Security Code with regard to the social security funds and by the deliberation of February 14, 1974 of the territorial assembly of French Polynesia with regard to the social security organizations of this community, was not possible. 376-1 of the Social Security Code with regard to the social security funds and by the decision of 14 February 1974 of the territorial assembly of French Polynesia with regard to the social security bodies of this collectivity, cannot be exercised before the CIVEN on the basis of the law of 5 January 2010.

Consequently, since this decision, the CIVEN can no longer, contrary to what it did before the decision was rendered, reimburse the social security funds for the sums they incurred to cover the hospitalization or care costs of the victims for the illness for which they are recognized as victims. From now on, the CIVEN may only take into account, in the compensation it pays to the victim or his beneficiary, the expenses incurred by the victim that have not been reimbursed by a social security organization.

II. – Estimation of damages and determination of the amount of compensation

In order to respect the principle of full compensation for the damages suffered by the victim, it is necessary to assess the damages of all kinds suffered by the victim.

The CIVEN has retained the list of losses set out in the so-called “Dintilhac nomenclature”, named after Mr. Jean-Pierre Dintilhac, who was president of the second civil chamber of the Court of Cassation. This nomenclature is the result of a working group, chaired by this magistrate who, in 2004, was given the task of developing a common nomenclature of personal injury in order to guarantee “the right of victims of personal injury to fair compensation[2]”, by harmonizing the conditions of their compensation. This nomenclature has no regulatory value. It is only indicative. The CIVEN has chosen to refer to it because it seemed to be the best way to respond, according to the objective set by the working group that proposed it, to “the legitimate expectation of victims who wish to have a clear understanding of the losses that are likely to be compensated[3]”.

In order to evaluate the various items of damage attributable to the radiation-induced pathology, CIVEN uses a medical expertise, carried out by a doctor specialized in personal injury compensation. The expert is chosen by CIVEN from one of the national lists of experts mentioned in article 2 of law n°71-478 of June 29, 1971, as amended, concerning legal experts.

The terms and conditions for conducting this medical expertise are set forth in Article 12 of Decree No. 2014-1049 of September 15, 2014 on the recognition and compensation of victims of French nuclear testing. Some of these provisions are specified in the CIVEN’s internal regulations, the references of which were indicated in the first part.

The expertise is adversarial.

CIVEN sends a letter of assignment to the chosen doctor. The latter returns the letter signed, thus confirming his agreement to the principle and methods of the expert assessment to be carried out. The expert summons the victim by registered letter, received at least fifteen days before the date of the expertise. The summons specifies the purpose, the date and the time of the expertise as well as the place where it is to take place. The summons shall indicate that the claimant may be assisted by any person of his or her choice and that, if necessary, the appointed expert may call upon any expert of his or her choice.

The expert has a period of two months from the date of receipt of the letter of assignment to submit his or her preliminary report, in two copies, one intended for CIVEN, the other for the victim. This deadline may be extended, in exceptional cases, at the doctor’s justified request, for a further two months. If these deadlines are not respected, CIVEN may call upon another doctor to carry out the expertise. In this case, payment for work already carried out will not be due. The claimant or his or her counsel sends observations to the expert on the preliminary report, which are transmitted to CIVEN. The expert has 15 days to respond to the various observations in his final report, which is also sent to the parties.

The CIVEN assesses the amount of compensation corresponding to the losses, based on the recommendations of the expert report. The amount of compensation for each loss is determined by applying to the level of severity or duration of the loss proposed by the expert an amount based on a scale established by a deliberation of the CIVEN. This scale was established on the basis of various scales used to compensate victims. Depending on the type of injury, it provides for fixed amounts or indicative “ranges” of amounts. CIVEN sets the compensation for each loss and then calculates the total compensation that will be offered.

The compensation offer includes the details of the items corresponding to the different losses and the total compensation proposed. This offer of compensation is sent to the claimant. It constitutes a proposal. In the event that the claimant or his or her counsel makes additional claims, CIVEN may refer the matter back to the expert to ask him or her whether he or she maintains his or her initial proposals or whether he or she modifies them, within the framework of a “statement”.

As mentioned above, the amount of compensation due to the victim does not take into account the sums already received by him/her from other organizations (State, social security, mutual insurance companies, etc.) in reimbursement of the sums incurred, nor does it take into account any capital compensation or pensions that may have been paid for the same injuries.

When the offer of compensation has been accepted by the victim or the beneficiary, the compensation is paid to him/her. If the claimant is deceased, CIVEN pays this amount to one or more heirs, according to the rules of inheritance.

The payment to the victim is made either to the victim’s account or to the heirs, or, if the victim has a lawyer, to the account opened by the latter at the Caisse Autonome des Réglementations Pécuniaires des Avocats, or CARPA, a fund that is an intra-professional organization that secures the handling of funds by lawyers on behalf of their clients.

If the victim is deceased, the compensation is paid into the account of the notary in charge of the estate or into the CARPA account of the claimant’s counsel, who is responsible for taking into account the rules of succession.

III. – The methodology for estimating the various losses

As mentioned above, CIVEN takes into account, in an individualized manner, the prejudices of each direct victim by evaluating all the prejudices suffered.

The notion of consolidation.

The consolidation of the state of health of a person suffering from a pathology represents the moment when the lesions have become fixed and have taken on a permanent, if not definitive, character, such that treatment is no longer necessary, except to avoid an aggravation, and that it is possible to assess the possible existence of a Permanent Physical and Psychological Injury (PIPI).

Consolidation should not be confused with recovery. A new fact can also lead to an aggravation or a relapse. Consolidation can be with after-effects – harmful consequences remain, or without after-effects – no harmful consequences remain, which does not mean that there were no harmful consequences in the past, giving right to compensation.

CIVEN distinguishes between pre and post consolidation damages.

A) Damages before consolidation

1. Temporary economic damages

Current health expenses (DSA)

All hospital, medical, paramedical and pharmaceutical expenses.

Since cancer is a long-term illness (ALD) which entitles the patient to 100% reimbursement of these expenses from the moment of diagnosis, the items already covered by social security and mutual insurance are not reimbursed by the CIVEN (except for justified expenses that are not reimbursed, such as miscellaneous expenses, see below).

Loss of current professional earnings (PGPA)

These are the current losses of income suffered by the victim as a result of his or her injury, compensated only until consolidation. They are compensated on the basis of supporting documents (salary slips, tax notices, social security retirement statement, daily allowances, etc.).

The loss of professional earnings is assessed with regard to the revalued reference income and the salaries actually received before the sick leave.

Miscellaneous expenses (FD)

These miscellaneous expenses are compensated only if they are mentioned in the expert report and justified by the production of receipts:

– Compensation for travel expenses[4] (medical travel, travel to the expert’s appointment);

– Maintenance expenses that the victim’s state of health no longer allows him/her to provide for him/herself: expenses justified by a receipted invoice or an annual flat rate of €100;

– Purchases of health products not reimbursed by social security and mutual insurance companies;

– Equipment related to the person.

Third-party assistance (ATP)

This item corresponds to the compensation for the loss of autonomy of the victim who, as a result of the harmful event, suffers from a temporary functional deficit, making it necessary for him or her to have recourse to a third party to provide assistance in the acts of daily life.

Depending on the qualifications of the assistance, a distinction is made between specialized and non-specialized assistance and, within the former, between active and passive assistance (presence).

– Non-specialized assistance

o Non-specialized active assistance: light acts of daily life performed by the caregiver (shopping, cleaning, toileting, transportation, family assistance, …) :

§ More than 3 hours of assistance/day: 12 € / hour

§ Less than or equal to 3 hours of assistance/day: 10 € / hour

o Non-specialized passive assistance: night or day assistance: 10 € / hour

– Specialized assistance

Specialized assistance is compensated upon production of supporting documents, after deduction of tax credits and other tax benefits, for household help, driving a vehicle and other forms of personal assistance, etc. 16 € / hour.

2. Temporary extrapatrimonial damages

Temporary total or partial functional deficit (TFTD/PFTD)

The total or partial functional disability as well as the time spent in hospital and the loss of quality of life and of the “usual joys of everyday life” during the illness are subject to a lump sum compensation.

The amount is 25 € / day.

Endured suffering (SE) and disorders in living conditions (TCE)

This item includes all the physical and psychological suffering, as well as the associated disorders that the victim must endure during the illness. This damage is evaluated on a scale expressed in degrees from 1 to 7.The expert will evaluate the suffering endured by the victim on this scale. If he considers that the suffering endured is increased by the anxiety due to the evolution of the disease, he can take into account “disturbances in the conditions of life”, leading to an increase.

Temporary aesthetic damages

This item covers the major – but temporary – alteration of physical appearance, the personal consequences of which are very prejudicial. The prejudice results from the need to present oneself in an altered physical state to third parties. The criteria taken into account in determining the amount of compensation include the severity of the physical impairment and the duration of the impairment. The prejudice is compensated according to the same severity standard as that of the suffering endured.

If the expert evaluates this prejudice for continuous periods at different rates, because of the evolution of the victim’s physical appearance, different rates will be applied for each period, pro rata temporis.

B) Damages after consolidation

1. Permanent economic damages

Miscellaneous expenses (FD)

• Adapted housing expenses (FL)

This item is made up of the costs that the victim must pay following the injury to adapt his or her home to his or her disability and thus benefit from a home that is in keeping with his or her state of health after the consolidation. It includes the expenses of adapting the pre-existing home but also the costs of acquiring or renting a better adapted home. It may include the expenses corresponding to the possibility for the victim to have a place to live other than his or her usual home, adapted to his or her disability, such as a home or a nursing home. It also includes moving and furnishing costs (fitting out the new home).

• Adapted vehicle expenses (FV)

This item consists of expenses to help the victim with a permanent disability to get around. These expenses may include the extra cost of replacing the vehicle with an adapted one, as well as its maintenance, or the extra cost of transportation to make it accessible to public transportation. Supporting documents (receipted invoices) are required.

These expenses can only be compensated on the basis of supporting documents (receipted invoices)

Loss of future professional earnings (PGPF)

This item aims to compensate the victim for the loss or reduction of his or her income resulting from his or her permanent, partial or total incapacity to practice his or her profession, as a result of the injury, as of the date of consolidation. This loss may result either from the loss of employment, or from the cost of work stoppages, or from the obligation to work part-time as a result of the consolidated injury. These losses are compensated upon production of supporting documents such as salary slips, tax notices, social security career records, proof of daily allowances, etc.

Loss of professional earnings from consolidation to retirement are calculated on the basis of the revalued reference income and the salaries actually received prior to the sick leave, using the same method as for loss of professional earnings prior to consolidation.

Occupational impact (IP)

The purpose of this item is to take into account damages related to the evolution of the victim’s professional life, such as the prejudice suffered by the victim due to his or her devaluation on the job market, or the loss of a professional opportunity. This item includes the costs of professional reclassification, training or change of position and the loss of retirement rights that the victim will have to bear due to the reduction in his or her professional income because of his or her disability. The assessment is made on a case-by-case basis according to the professional situation, based on supporting documents.

The retirement date taken into account to estimate these damages is the date from which the victim meets the following two conditions: having reached the minimum legal retirement age and having contributed for the entire reference period to benefit from a full rate pension.

Third party assistance (ATP)

This item compensates for the loss of autonomy of the victim who, following the harmful event and after consolidation, is left with a permanent functional deficit, requiring the assistance of a third party to perform the acts of daily life.

The same categories of assistance are retained, with the same hourly compensation rates as for third-party assistance before consolidation.

2. Permanent extra-patrimonial damages

Permanent functional deficit (PFD)

This compensation item includes, for the period after consolidation, “the damage to physiological functions, the loss of quality of life and the disturbances felt by the victim in his or her personal, family and social living conditions.

The compensation is calculated according to the percentage of permanent functional deficit, thus the severity, and according to the age at the time of consolidation, in order to take into account the average life expectancy at that age.

In the event of the victim’s death after consolidation, a pro rata calculation of the permanent functional deficit is applied.

In case of multiple pathologies, a calculation is made according to the rule of remaining capacities, called Balthazar’s rule, which consists in first calculating a deficit on a pathology, from which results a remaining capacity, on which only the rate of disability for the second pathology is applied.

Loss of enjoyment

The purpose of this item is to compensate for the loss resulting from the victim’s inability to regularly practice a sport or leisure activity that he or she had been practicing before the accident.

This loss is compensated as soon as there is a permanent functional deficit.

The compensation is estimated at 10% of the amount of the PFE attributed if it is an activity mentioned in the expert’s report or according to the amount justified by the claimant.

Permanent cosmetic damage

This item corresponds to a permanent alteration of physical appearance. This injury is evaluated on a scale expressed in degrees from 1 to 7. It is compensated according to the reference system of suffering endured.

The CIVEN calculates the permanent aesthetic prejudice on a prorata temporis basis in the case where the expert has evaluated it for several distinct periods for a pathology that has been consolidated only once, possibly at different levels of severity.

If, however, the expert consolidates two pathologies on two different dates, the injury will be evaluated twice, in a distinct manner.

Sexual injury

This prejudice, intended to compensate for the disturbances in the exercise of sexual activity, is compensated according to its characterization by the expert in the report.

The prejudice of establishment

This item, which represents the loss of opportunity to carry out a normal life project, due to the severity of the disability, is compensated according to the particular case. The life project is the possibility to start a family as well as to create a new professional activity.

Exceptional permanent prejudice

The Court of Cassation defines it as “Atypical prejudice directly linked to the permanent functional deficit, which takes on a particular resonance for certain victims because of their person, or because of the circumstances and nature of the harmful event[6] “. This item of prejudice is qualified as exceptional because of its consubstantiality with cancers, and is therefore not usual for cancers.

This prejudice takes into account the seriousness and the conditions of evolution of the disease, by a careful examination of each particular case.

This item of prejudice, which must be definitive, is compensated if it is described by the expert, according to its link with the attributable after-effects and qualified according to its importance in three levels of severity:

– moderate
– significant
– very important.

[Footnotes]

[1] https://www.legifrance.gouv.fr/affichJuriAdmin.do?idTexte=CETATEXT000033255699

[2] Title of the action program of Mrs. Nicole Guedj, Secretary of State for victims’ rights

[3] https://solidarites-sante.gouv.fr/IMG/pdf/Rapport_groupe_de_travail_nomenclature_des_prejudices_corporels_de_Jean- Pierre_Dintilhac.pdf

[4] According to the scale of the applicable official public finance bulletin.

[5] Judgment of the Court of Cassation, 28 May 2009.