Actis reconsiders the decision of the Court of Cassation of November 20, 2019 which closes 20 years of procedure

Following this judgment, ACTIS notes that the FILMM considers that the judges have dismissed them in an “incomprehensible” manner, and conceals the course and the precise results of the expert opinions.

Development of the facts

• September 22, 2000: The Versailles Commercial Court orders an expert measure following the complaint from the FILMM
• September 20, 2002: The Versailles Commercial Court dismisses the FILM of its requests for two reasons:
  • The FILMM was not able to provide factual technical elements demonstrating that the communication of Actis was false.
  • The court had requested an expertise from in situ tests. This expertise has never been accepted by FILMM.
• December 19, 2002: The FILMM has appealed this first judgment
• June 17, 2004: The Court prescribes a forensic measure in which in situ tests are required and appoints the experts M. Patierno & M. Delsol

Despite FILMM's opposition for three years, the use of in situ tests was established in 2007.

• The first tests were carried out in Limoux between February 15 and April 25, 2008. The building's sealing level was Q4 * = 1,16 (m3 / m².h). These tests show that at this level of tightness (in the case of a classic renovation still in force in 2019) mineral wool loses up to 75% of its performance.

These tests thus gave rise to a note from the legal expert M. PATIERNO who concluded:

“[…] When a significant air pressure is exerted on the mineral fiber insulation, thus creating convection movements in the insulation, the thermal conductivity characteristics deteriorate to the point of rendering 200 millimeters of mineral wool thermally less efficient than Triso Super thin insulation. […]

• March 11, 2010: the Court rendered a first judgment and stated that "the mere fact that the advertisements in question do not correspond to the results obtained under laboratory conditions is not, in itself, misleading". The Court requests additional expertise. The purpose of this additional expertise is to provide all the technical elements making it possible to determine whether, used under normal conditions of use, the products thus compared can be considered as equivalent.

Expertise is then relaunched.

• As part of this expertise, the company ACTIS provided the Court with a report of real-life tests carried out in 2007 in Germany by the IBP laboratory. The building's waterproof level during the test was Q4 = 0,52 (m3 / m².h) (i.e. the waterproof level required by RT2012 for new construction). Under these sealing conditions, these tests show that the mineral wool loses approximately 28% of its performance.
• In 2013 & 2014, two new tests took place on the Castanet site (near Albi). The expert reports resulting from these tests were rejected by the Court:

The 1st test:

The conditions under which these tests were carried out did not correspond to the "normal conditions" required by the court (the air tightness level was too low, equivalent to that of a passive house ** with a Q4 = 0,176 (m3 / m².h).

On this subject, the Court declared:

"The first test carried out in real life at Castanet near Albi by the Néotim laboratory, from November 3 to December 1, 2013, with the installation of a facing composed of plasterboard joined, cannot therefore be considered significant and relevant and allow to answer the question posed since it was not practiced under the real conditions of the time " (Extract from the Versailles Court of Appeal judgment of 10 January 2017 RG N ° 02/08371)

The 2nd test:

The product used by FILMM was a special manufacture and did not correspond to the products which had to be tested (thickness and density outside standard)

Noting these manipulations (level of tightness not corresponding to normal conditions of use and non-compliant products), the Castanet test reports are declared inadmissible by the Court.

• January 10, 2017: the Court of Appeal dismissed the FILMM of its request.

To make its decision, the court relies in particular on:

• The hearing of Mr. ZOUGHAIB (assistant professor at the Ecole de Mines de Paris), interviewed by the competition authority on June 16, 2010:

“The intrinsic thermal resistance is insufficient to give the unskilled user the final performance of the wall with the product. In addition, today, the debates have made it possible to demonstrate that the performance of mineral wool insulation tested in the laboratory by standardized methods gave performance that was degraded after installation in the frame. In this respect, the value of the facial “R” is rarely reached without the implementation of additional precautions and products such as membranes ”

• The report produced by the expert PATIERNO in its note of December 19, 2008.
• In 2017: The FILMM files an appeal in cassation
• On November 20, 2019, the Court of Cassation confirmed the decision of the Court of Appeal, dismissed the FILMM and definitively agreed with the company ACTIS.

In summary, in order to judge this dispute, the Court ordered that real-life tests be carried out.

The elements defining the actual conditions of use of the time are the same as today.

To know :

• In the new (RT 2012): Q4 = 0,6. Under these conditions the mineral wool underperforms by 28%.
• For renovation, Q4 = 1,3. Under these conditions the mineral wool underperforms by 75%.

The FILMM in its communication suggests that the conditions would have changed, that there would be rules of the art and that the problems would now be resolved.

They forget to mention that, under current regulatory conditions, in renovation with a Q4 greater than or equal to 1,3 the performance of their products deteriorates by -75% and in the new with a Q4 at 0,6 degrades by - 28%.

Respect for the rules of the art by qualified craftsmen does not compensate for the structural and hidden weaknesses of mineral wool.

The Court of Cassation validated the decision of the Court of Appeal of Versailles, and concluded in its expected:

"These circumstances stemming in particular from a lack of rigor in the expertise operations, in addition to the documents seized during the investigation carried out by the Competition Authority establishing the fear of SN FILMM to see reveal that the thermal performance of mineral wool are strongly altered under the effect of a lack of air tightness and again, to the assessments made by Mr. Gilbert Patierno, sapitor, expert accredited to the Court of Cassation, in his note of December 19 2008, lead to dismissing the complaints against Actis of unfair competition by deception on the substantial qualities of its internal insulation product, false advertising and false comparative advertising ” (Extract from the Versailles Court of Appeal judgment of 10 January 2017 RG N ° 02/08371)

* Q4 corresponds to the air renewal rate observed from a test carried out at the “blower door”, it is expressed in cubic meters. Hour per square meter

** in 2019, passive houses represent 0.2% of the construction market