Does a Construction Subcontractor Need Decennale Cover?

Does a Construction Subcontractor Have to Carry Decennale Insurance in France?

Under French law, a subcontractor on a construction site is not legally required to carry garantie décennale (France's mandatory ten-year structural liability cover for construction professionals). This is because the subcontractor has no contrat de louage d'ouvrage (France's civil-law works contract, entered into directly between a project owner and a builder) with the project owner — the condition set by article 1792-1 of the French Civil Code for being treated as a "constructeur" and therefore bound by the insurance duty of article L.241-1 of the French Insurance Code. In practice, the main contractor almost always requires proof of decennale cover from its subcontractors by contract, because it alone remains liable to the project owner for defects affecting the subcontracted portion of the works.

The essentials

• A subcontractor does not fall within the categories "deemed constructeur" listed in article 1792-1 of the Civil Code, because it has no contrat de louage d'ouvrage with the project owner (the maître d'ouvrage, the party that commissions and owns the construction project).
• The statutory decennale insurance duty of article L.241-1 of the Insurance Code therefore does not apply to a subcontractor for its work as such.
• The French Supreme Court (Cour de cassation) has ruled that a project owner's claim against a subcontractor is necessarily tortious in nature, outside the ten-year time-bar attached to the decennale regime (Cass. Ass. plén., 12 juillet 1991, n° 90-13.602, published in the Bulletin).
• The main contractor, by contrast, remains liable under the decennale guarantee for the whole project, including subcontracted work — which is why it almost always requires proof of decennale cover from subcontractors by contract.
• The criminal penalty under article L.243-3 of the Insurance Code applies to persons subject to the article L.241-1 duty — not to a subcontractor in that capacity.

This article describes the French legal framework applicable to construction subcontracting; it does not apply outside France.

Is a subcontractor a "constructeur" under French civil law?

No, as a rule. Article 1792-1 of the Civil Code reserves the status of "réputé constructeur" (deemed constructeur) for three categories: parties bound to the project owner by a contrat de louage d'ouvrage (architect, main contractor, engineer...), sellers of a completed building they built or had built, and certain agents treated as equivalent to a builder.

A subcontractor contracts with the main contractor, never directly with the project owner. It therefore meets none of the three conditions of article 1792-1, whatever the volume or technical complexity of the work it carries out on site. This exclusion holds only for its work as a subcontractor: the same firm can be "deemed constructeur" on another project where it contracts directly with a project owner.

Why doesn't article L.241-1 of the Insurance Code apply to a subcontractor?

Article L.241-1 imposes the insurance duty on "any natural or legal person whose decennale liability may be engaged under the presumption established by articles 1792 et seq. of the Civil Code." That duty is therefore strictly tied to the constructeur qualification of article 1792-1.

Since a subcontractor does not meet that qualification in its relationship with the project owner, the decennale liability presumption does not attach to it there, and neither does the statutory insurance duty. This is not an accidental gap: it flows directly from the absence of a direct contractual link between the subcontractor and the project owner — the principle French contract law calls the effet relatif des conventions (the relative effect of contracts, under which a contract binds only its parties).

Can the project owner still take action against the subcontractor?

Yes, but not on decennale grounds. In a landmark ruling, the Cour de cassation's full bench held that a project owner's claim against a subcontractor "can only be tortious in nature," overturning a lower court that had tried to apply the ten-year decennale time-bar to that claim (Cass. Ass. plén., 12 juillet 1991, n° 90-13.602, published in the Bulletin).

The court of appeal had dismissed the claim, reasoning that the project owner only had a contractual action against the subcontractor, limited to the main contractor's own rights — and therefore subject to the main contractor's decennale time-bar. The Cour de cassation reversed: "the subcontractor is not contractually bound to the project owner." The project owner retains an ordinary tort claim (article 1240 of the Civil Code), subject to its own limitation period, independent of the decennale regime.

Why does the main contractor require decennale cover anyway?

Because the law releases only the subcontractor — not the main contractor. The main contractor remains solely liable to the project owner under the decennale guarantee for the whole delivered project, including defects originating in work it had a subcontractor carry out. If found liable, it must compensate the project owner first, before it can, where the subcontract allows, seek reimbursement from its subcontractor.

This full transfer of risk back to the main contractor explains near-universal practice: main contractors write a clause into the subcontract requiring proof of decennale cover, or at least professional liability cover, from the subcontractor — even though no statute requires it. That requirement is contractual, not legal, and the distinction matters for understanding what a missing certificate actually exposes a subcontractor to.

Can a subcontractor face criminal penalties for not having decennale cover?

Not on that basis. Article L.243-3 of the Insurance Code punishes failure to carry decennale insurance with up to six months' imprisonment and a €75,000 fine, but only for persons subject to the article L.241-1 duty. A subcontractor acting purely in that capacity falls outside that duty, and so does not face this specific criminal penalty for its subcontracted work.

The risk it does face is different: contractual and financial. If uninsured and responsible for a decennale-type defect, the main contractor — having had to compensate the project owner — will seek reimbursement from the subcontractor, who then answers out of its own assets, with no insurance backstop.

What cover should a subcontractor actually carry?

	Main contractor (locateur d'ouvrage)	Subcontractor
Link to the project owner	Contrat de louage d'ouvrage	None (contract with the main contractor only)
Status under article 1792-1 of the Civil Code	"Réputé constructeur"	Not applicable
Statutory decennale insurance duty (art. L.241-1)	Yes	No, for this work
Nature of liability toward the project owner	Contractual, under the art. 1792 decennale regime	Tortious (Cass. Ass. plén., 12 juillet 1991)
Criminal penalty for uninsured work (art. L.243-3)	Applicable	Not applicable in this capacity

In practice, a firm that regularly works as a subcontractor has a strong incentive to carry voluntary decennale cover, matching what is required of a direct locateur d'ouvrage: it is the condition most main contractors set before signing a subcontract, and the only real protection against a reimbursement claim after the main contractor has compensated the project owner. To check whether a subcontractor's certificate is valid and actually covers the site in question, see our checklist for verifying a subcontractor's decennale certificate. On the criminal penalty regime that does apply to a main contractor or any direct constructeur, see our article on the penalties for uninsured decennale work.

More broadly, these questions sit within the wider framework of construction insurance for building firms, covered on our construction insurance hub page.

Frequently asked questions

Can a subcontractor without decennale cover legally work on a site?

Yes, nothing prohibits it: the statutory decennale insurance duty does not apply to a subcontractor for that work. In practice, a main contractor may still decline to contract with a subcontractor that cannot show decennale or professional liability cover, as a matter of contractual caution.

Can the project owner claim directly against the subcontractor's decennale insurer?

No: it has no contractual link with the subcontractor. Its claim against the subcontractor is tortious in nature (Cass. Ass. plén., 12 juillet 1991, n° 90-13.602), brought before the ordinary civil courts, outside the specific decennale regime of article 1792 of the Civil Code.

What happens if an uninsured subcontractor causes a decennale-type defect?

The main contractor remains liable to the project owner under article 1792 and must compensate it. It then seeks reimbursement from the subcontractor under their subcontract, and the subcontractor answers out of its own assets if uninsured, with no cap.

Can a subcontractor face criminal penalties for not having decennale cover?

Not under article L.243-3 of the Insurance Code for its subcontracted work, since it is not subject to the article L.241-1 duty in that capacity. It would be, if it separately acted as a direct locateur d'ouvrage for a project owner.

Does the 1975 French subcontracting law require decennale insurance?

No. Loi n° 75-1334 du 31 décembre 1975 governs the project owner's approval of a subcontractor and payment guarantees, not decennale insurance, which is governed solely by the Civil Code and the Insurance Code.

What McLer does

McLer is an insurance brokerage specialised in corporate risk for the road transport and construction (BTP) sectors in France. Based in the Paris region, McLer helps French SMEs and mid-sized companies build, negotiate and manage their insurance programmes.

Want to clarify your exposure as a subcontractor or main contractor under French law? Contact McLer to discuss it, based on your situation.