Subrogation vs. Civil Mandate: the EcoDDS Ruling and the July 2026 Reversal

On 10 November 2023, the Conseil d’État, France’s highest administrative court, issued decision No. 449213, commonly referred to as the EcoDDS ruling. It struck down the subrogation of the mandataire REP that a 2020 decree had created, and for two and a half years it was the reference point for every French EPR mandate.

That is no longer the whole picture. Law n° 2026-602 of 8 July 2026 (article 5, 2°) created Article L. 541-10-9-1 of the Code de l’environnement, in force on 10 July 2026. It requires any person with no establishment in France who is subject to EPR under Article L. 541-10 or L. 541-10-9 to appoint a France-established representative by written mandate, and it provides that this representative is subrogated into all the obligations arising from extended producer responsibility for which it accepts the mandate. EcoDDS annulled a regulatory provision because the regulator had no power to create subrogation by decree. The legislator does have that power, and it has now used it. If what you need is the new obligation itself rather than the history behind it, read our dedicated breakdown of law n° 2026-602 and Article L. 541-10-9-1, which covers the scope, the conditions of the mandate, the marketplace case and the regularisation path.

So the landscape splits in two, on a single question: are you established in France?

• No French establishment. Appointing a representative is mandatory, across all EPR streams, in French national law, and that representative is subrogated into the EPR obligations covered by the mandate. This is the situation of almost everyone reading this page, EU sellers with no French entity included.
• Established in France. Nothing changed for you. EcoDDS still describes your regime: an ordinary civil mandate under Articles 1984 et seq. of the Code civil, no subrogation, no obligation to appoint anyone. You declare in your own name and you can outsource the work, not the obligation.

This article keeps the full analysis of the ruling, because it remains the law for France-established producers, and because it explains why the 2026 change had to come from a statute.

The two competing legal frameworks#

Both frameworks existed in French legal vocabulary long before EPR. EPR regulators and eco-organisms had used the two interchangeably for years, often without distinguishing carefully. The EcoDDS dispute forced the choice.

Subrogation (articles 1346 and following of the Code civil for the general mechanism, and since 10 July 2026 Article L. 541-10-9-1 of the Code de l’environnement for EPR) is the substitution of one party for another in an obligation. In a subrogated EPR framework, the representative carries the obligations covered by its mandate: registration, declaration, the eco-contributions it has accepted, and the corresponding dealings with the administration. It does not become the producer. Producer status is not transferable: you stay the producer, you keep your upstream duties, and you answer for the data you supply.

Civil mandate (Articles 1984 et seq. of the Code civil, Article 1984 defines mandate, Articles 1985 to 1990 cover its formation and powers) is the authorisation given to a mandataire to perform acts in the name and on behalf of the mandant. The mandataire acts for the mandant but does not become the mandant. The mandant retains its underlying status, its obligations, and its liability. The mandataire performs operational acts and bears responsibility for performing them correctly, but not for the underlying obligation those acts discharge.

The two are not subtle variations of each other. They allocate risk fundamentally differently, and since 10 July 2026 which one applies to you is decided by your establishment, not by your contract.

What the Conseil d’État actually held#

Strictly speaking, the court annulled Article R. 541-174 of the Code de l’environnement, a regulatory text introduced by décret n° 2020-1455 of 27 November 2020, insofar as it provided that the mandataire would be subrogated in all of the producer’s EPR obligations. The Conseil d’État held that the regulatory authority had exceeded its competence: no statutory provision in Article L. 541-10 of the Code de l’environnement or elsewhere explicitly authorised subrogation, and the regulator could not create it by decree.

Read the holding closely, because the distinction is the whole story. The objection was to the level of the norm, not to subrogation itself. Subrogation modifies the substantive obligations between operators, which in French constitutional law is reserved to the legislator. A decree could not do it. A law could. That is exactly the gap closed in July 2026.

Between 10 November 2023 and 9 July 2026, with the subrogation provision struck down, every French EPR mandate reverted to the standard civil mandate framework of the Code civil (Articles 1984 et seq.). For producers established in France, that is still the regime today, and two consequences of the ruling still hold for them.

One, the France-established producer remains liable. Administrative sanctions under Articles L. 541-9-5 and L. 541-9-6 (covered in our penalties article) are built around the producer. A France-established company cannot outsource its EPR obligations by hiring someone to file for it; it can outsource the filing work, which is a different thing.

For a producer with no French establishment, this is precisely the point that changed on 10 July 2026. The obligations within the scope of the mandate are now carried by the representative, not merely executed on your behalf. What does not change: you remain the producer, you answer for the accuracy of the data you provide, and the subrogation is prospective. It does not reach back to declarations, contributions or breaches that predate the mandate, and a transfer of an existing debt would require the creditor’s agreement (Code civil, Article 1327).

Two, under a civil mandate the representative is not a deep pocket. An eco-organism cannot use a France-established producer’s service provider as a substitute debtor for unpaid eco-contributions, or for declaration errors that originate in producer data. Under the 2026 statutory subrogation the allocation moves in one direction only: the obligations the representative has expressly accepted become its own to perform. Which is why a serious mandate defines what it accepts, for how long, and what security backs it. Data quality stays on the producer’s side under both regimes.

Why this matters for your contract#

Three concrete drafting consequences, whichever side of the line you are on.

The right legal basis for your situation. With no French establishment, the mandate should be anchored in Article L. 541-10-9-1 and state precisely the streams, the perimeter and the dates over which the representative accepts obligations, because that scope is what the subrogation follows. A mandate that still tells a non-established producer there is no subrogation, you remain the obligated party is the one using outdated language in 2026. If you are established in France, the opposite holds: your contract is an ordinary civil mandate under Articles 1984 et seq. of the Code civil, and it should say so.

Clear allocation of producer-side obligations. Upstream obligations, recycled content under PPWR, eco-design, Triman labelling, Info-tri instructions, stay on the producer in both regimes. The mandate should say so, so that nobody reads the subrogation as wider than it is.

Information flow obligations. The producer must provide accurate volume, material and SKU data. The mandataire must transmit it faithfully and flag inconsistencies. Most disputes between producers and representatives in the past three years have been about data quality on the producer side and timing on the representative side. Under a subrogated mandate that clause matters more, not less: the representative is answering for obligations it can only discharge with your figures.

Why this matters for your exposure#

The honest answer to “who pays the fine?” is more careful than most marketing copy admits, and it is not the same on both sides of the line.

For a producer established in France, the answer is settled. The EPR obligations are yours, the sanctions regime of Articles L. 541-9-5 and L. 541-9-6 is built around the producer, and no service contract changes that.

For a producer with no French establishment, Article L. 541-10-9-1 subrogates the representative into the obligations covered by the mandate. What is established is the obligation side: within that scope, those obligations are carried by the representative. How the administration articulates that with the sanctions regime case by case is a practical consequence still settling, and we will not pretend to more certainty than exists. Three things are certain in both regimes:

• The subrogation is prospective and mandate-scoped. Periods before the mandate took effect, and streams left outside it, stay with the producer.
• You remain the producer. Product data, material composition, volumes and upstream obligations are yours, and a declaration is only as good as the figures behind it.
• Customs, market surveillance and product-conformity matters sit outside the EPR mandate entirely.

We are an EPR representative, not a law firm. Where the law is clear we say so, and where a consequence is still being worked out in practice we say that too.

What this means in practice if you have no French establishment#

Three operational implications.

One, read what the mandate actually accepts. Since the subrogation follows the scope of the mandate, the scope clause is the most important paragraph in the contract: which streams, from which date, for which product perimeter. Execution quality still matters enormously, filing speed, IDU publication, handling of administrative correspondence, but scope is what determines what has genuinely been taken off your desk.

Two, get the mandate template before signing. A representative that cannot show you a current template, updated for the regime in force since 10 July 2026, is either careless or has not kept up. Either way, a flag. The test in 2026 is no longer “does the contract avoid the word subrogation”; it is “is the contract built for the statutory subrogation, with an explicit scope, an explicit duration and an explicit security”.

Three, keep clean records on the producer side. Producer-side documentation (registration certificates, product catalog with material composition, sales records by market) is what survives an audit. The mandataire holds copies; you hold the originals.

For the operational side of choosing and onboarding a representative, see our pricing page and contact form.

FAQ#

What is the difference between subrogation and a civil mandate in this context?#

A civil mandate (Code civil, Articles 1984 et seq.) only authorises the mandataire to perform acts in the producer’s name: the obligation stays with the producer, the mandataire performs the acts that discharge it. Subrogation substitutes the representative in the obligations themselves. EcoDDS held in 2023 that the French EPR mandate was the first form, because a decree cannot create the second. Since 10 July 2026, Article L. 541-10-9-1 of the Code de l’environnement, created by law n° 2026-602 of 8 July 2026, provides the second form by statute for producers with no establishment in France: the representative is subrogated into the EPR obligations it accepts. The civil-mandate reading survives for producers established in France.

Does the EcoDDS ruling still apply?#

Yes, but not to everyone. The annulment of Article R. 541-174 stands, and the ruling still describes the regime of producers established in France: an ordinary civil mandate, no subrogation, no obligation to appoint anyone. For producers with no French establishment it has been superseded on the point of subrogation, because law n° 2026-602 of 8 July 2026 created that subrogation at statutory level (Article L. 541-10-9-1, in force 10 July 2026). That is precisely the level the Conseil d’État said was required: its objection was to a decree doing the job, not to subrogation as such.

Should I rewrite a mandate signed before July 2026?#

If you have no French establishment and your mandate was drafted for the post-EcoDDS civil-mandate regime, it does not reflect Article L. 541-10-9-1 and should be reviewed, so that the scope and the duration of the obligations your representative accepts, and the security backing them, are explicit. Since the subrogation follows the scope of the mandate, the scope clause is what determines what has actually been taken off your desk. If you are established in France, an ordinary civil mandate under Articles 1984 et seq. of the Code civil remains the correct instrument. In both cases, ask to see the current template before signing or renewing.

Mandate built for the law in force#

Our mandate is built for the regime that applies since 10 July 2026: Article L. 541-10-9-1 as the legal basis when you have no French establishment, an explicit scope and duration for the obligations we accept, a clean allocation of the upstream obligations that stay with you, and standard data-flow clauses. Representative fees start from €190/year excl. VAT (eco-organism flat-rate regimes); everything else is confirmed in a fixed written quote within one business day, see /pricing. To request the current template or a written assessment of your existing mandate, write us at /contact.

Sources & references#

• LOI n° 2026-602 du 8 juillet 2026, article 5, 2°, creating Article L. 541-10-9-1 du Code de l’environnement (JO of 9 July 2026, NOR TECX2407166L), in force 10 July 2026. Statutory subrogation of the representative of a producer not established in France.
• Conseil d’État, 10 novembre 2023, n° 449213 (EcoDDS), Actu-Environnement, Decision text and headnote.
• Cabinet Gossement Avocats, analyse de l’arrêt EcoDDS, Specialist legal analysis of the 2023 state of the law.
• Cabinet Altes, Eco-organismes : le Conseil d’État annule partiellement le décret, Second-opinion analysis.
• Article L. 541-10 du Code de l’environnement, Légifrance
• Article R. 541-174 du Code de l’environnement (annulé par l’arrêt EcoDDS), Légifrance
• Code civil, Chapitre Ier « De la nature et de la forme du mandat » (Articles 1984 à 1990), Légifrance, Civil mandate framework, applicable to France-established producers.
• Articles L. 541-9-5 et L. 541-9-6 du Code de l’environnement (sanctions REP), Légifrance
• Directive 2008/98/EC (Waste Framework Directive, consolidated), EUR-Lex
• Verified 31 July 2026.