French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

In addition to the criminal sanctions provided for (Art. L. 132-25 Consumer Code), infringements of the rules relating to comparative advertising are subject to Article 1240 of the Civil Code. Therefore cases relative to disparagement by comparative advertising are still possible . Thus, the advertising campaign of a mail order company based on the comparison of its delivery deadlines with those o …

Disparagement by comparative advertising

Comparative advertising can be advantageous in two ways: it stimulates competition between undertakings and allows consumers to become better informed. However there is a risk of unfair competition; undertakings may be tempted to try to discredit their competitors under the cover of comparative advertising . The courts have traditionally considered that direct comparisons made by an economic operator between the merits or the prices of its products and those of its competitors as contrary to usual trade practices . The evolution in practices and a change in attitude more favorable to comparative advertising have led the Court of Cassation to declare lawful advertising on “prices of identical products... sold under the same conditions” . In 1992 , the legislature put comparative advertising on a statutory footing. Under the terms of Article L. 122-1 of the Consumer Code, comparative advertising is lawful only if “it objectively compares one or more essential, pertinent, verifiable and representative features” of the goods or services “meeting the same needs or having the same objective”. In addition, such advertisements must be neither deceptive nor likely to mislead the consumer . Unlike the other types of advertisements which have a purely commercial object, comparative advertising is permitted only to the extent that it is likely to guarantee consumers are given unbiased information about the advantages and disadvantages of the products under comparison. The advertisement must allow consumers to have access to the elements of comparison enabling them to verify its accuracy in order to meet the objectivity requirement set out in Article L. 122-1 of the Consumer Code . Such is not the case of a promotional brochure which presents two trucks, one filled with products sold under the advertiser's brand and the other with those of a competing distributor, displaying the words “30% cheaper” for the advertiser, insofar as the mere statement on the brochure that the comparison was made using an average of the competitor's prices recorded in several stores of the chain does not permit consumers to assess whether the sample of stores is representative . Do those rules - which are intended to protect consumers - also apply to advertisements aimed at other traders? The courts were moving towards disregarding them in such cases . In contrast, when advertisements were disseminated to non-business consumers, the advertiser could use comparative advertising under the conditions stipulated in the Consumer Code . European legislation has since intervened  expressly dealing with comparative advertising and the protection of traders .

CA Rouen, 14 September 2017, LawLex201700001517JBJ: the fact that a comparative advertisement is unlawful is not in itself sufficient to characterize disparagement.

Cass. com., 5 October 1982, D., 1983, I.R., 210; CA Paris, 6 January 1993, LawLex200200001671JBJ.

The Consumer Code does not expressly provide the scope of application of Articles L. 122-1 et seq., whereas Article L. 122-10 expressly refers to the applicability of Articles L. 122-8 and L. 122-9 to advertisements, promotional games, competitions or promotional offers aimed at traders. See CA Papeete, 14 March 2024, specifying that the distribution of comparative advertising from September to December 2018 by a telephone operator in French Polynesia, falls solely, if at all, under the provisions of Article 1240 of the Civil Code in force in this territory, since neither Articles L. 121-1 to L.121-7 of the Consumer Code relating to unfair commercial practices, nor the provisions of EU law directly applicable or transposed by France into its national law are in force in French Polynesia.In addition, the double subterfuge of comparing materially different telephone offers (length of commitment, geographical coverage), by correcting them with references in small print that are not clear and legible, constitutes a misleading and disparaging process, all the more so as it involves posters seen from a distance by motorists or scrolling screens, and as these so-called comparisons only tend to illustrate the campaign slogan: “Vodafone, c'est vraiment moins cher”(Vodafone is really cheaper) in Tahitian.

Cass. com., 22 July 1986, D., 1986, 436; Cass. com., 9 March 1989, D., 1989, 409.

Comparative advertising may not lead to the discrediting or disparagement of trade marks, trade names, other distinctive signs, goods, services, activities, or situation of a competitor (Art. L. 122-2 Consumer Code).

Cass. com., 2 February 2010, LawLex201000000144JBJ.

CA Besançon, 11 June 2014, LawLex201400002192JBJ.

T. com. Paris, 14 September 1992, LawLex200200001713JBJ; CA Paris, 23 October 1996, Gaz. Pal., 1997, 1, 352; T. com. Nanterre, 21 April 1997, LawLex200300001350JBJ; CA Versailles, 30 September 2004, LawLex200500004416JBJ.

TGI Paris, 18 November 1992, RJDA, 1993, No 73, Gaz. Pal., 1993, 1, 265; T. com. Paris, 16 May 1995, LawLex200200001453JBJ; CA Paris, 22 October 1997, LawLex200200001209JBJ.

Directive 2006/114 of 12 December 2006, Art. 1.

Lawfulness of comparative advertising

In addition to the criminal sanctions provided for (Art. L. 132-25 Consumer Code), infringements of the rules relating to comparative advertising are subject to Article 1240 of the Civil Code. Therefore cases relative to disparagement by comparative advertising are still possible . Thus, the advertising campaign of a mail order company based on the comparison of its delivery deadlines with those of its slower competitor, without specifying exactly what the service consists of, is clearly trying to disparage the competitor's product . The comparative advertisement by a company, which is deliberately made in the wake of that of a competitor and which, by praising its own product, implies that the competitor's product is outmoded  is constitutive of both parasitism and disparagement . Similarly, a comparative advertisement is disparaging when it presents the competitor as a bowling pin swaying after being struck by the advertiser's ball or casts doubts as to the judiciousness of its advertising investments by insinuating that it has mismanaged its advertising budgets  or by using terms such as “scam”, “racket” or “cheat” suggesting that the competitor is acting dishonestly towards its customers . In the same way, a comparative advertisement on the theoretical downstream flow rates of the internet access providers in Reunion Island, in the form of tubes, which, through a cleverly designed graphic representation, gives a “middle finger” to the advertiser's competitors, accompanying this offensive gesture with the slogan “an insulting speed” is disparaging . On the other hand, a comparison of prices does not in itself  entail the discrediting or disparagement of a competitor charging higher prices .

To be disparaging, the comparison must, however, be of a misleading or tendentious nature . Such is particularly the case where it only highlights the negative features of a competing product ; falsely presents a product as being the only one possessing a particular quality ; stresses the positive aspects of its own products while doing the opposite in respect of the competitor's product  or where an advertisement comparing the merits of vacuum cleaners is accompanied by a photograph of a specific model of the criticized brand and a model of its competitor in which one cannot make out either the type or the model . In all cases the courts must ascertain whether the comparison made is based on appropriate criteria, i.e. on characteristics which are essential, pertinent and verifiable  and representative of the services concerned . This is not the case for a catalog which compares two products of which one shows signs of deterioration  or for an advertisement published on roadside hoardings which compares non-interchangeable mobile phone subscription plans, one being a low cost plan and the other a high-end subscription, in order to imply that the competing operator is out-of-date and excessively expensive .

See in particular for a case of outside network resale: Cass. com., 4 December 2001, LawLex200200000586JBJ, finding that the action in unfair competition for comparative advertising is admissible for a case between an outside-network reseller and the manufacturer operating on the same market.

CA Douai, 2 October 1995, LawLex200200001425JBJ; TGI Lille, 9 August 1995, LawLex200200001436JBJ.

Cass. com., 25 September 2012, LawLex201200002048JBJ; CA Versailles, 19 September 2013, LawLex201300001363JBJ, for an advertisement which, in comparing the products only highlights a negative feature of the Nespresso system reducing it to the sole image of the production of waste and by associating it with the term “waste” in addition to the claim of the superiority of Bodum with the expression “the best way to make coffee”; CA Lyon, 18 February 2014, LawLex201400001584JBJ, for an advertisement which shows the old models of a competitor's cycle rickshaws thus insinuating  that they are poorly adapted in terms of design and the optimization of the placing of adverts on them; T. com. Paris, 6 June 2014, LawLex201400000806JBJ, disparaging character of Nespresso message affirming, through the intermediary of the Nespresso Club, that the capsules of a competing brand are incompatible with its machines, of poor quality and cause the systematic deterioration of its machines and that they may, in some cases, even be dangerous to the health of consumers.

CA Paris, 16 January 2002, LawLex200200000529JBJ; 23 May 2003, LawLex200300004301JBJ; T. com. Paris, 15 January 2002, LawLex200200000513JBJ; Cass. com., 23 April 2003, LawLex200300001665JBJ.

Cass. com., 23 April 2003, LawLex200300001665JBJ; 25 September 2009, LawLex201200002048JBJ.

CA Paris, 5 January 2010, LawLex201000000739JBJ.

 TGI Colmar, 9 February 2012, LawLex201200000492JBJ: an advertising campaign on the “sesoignermoinscher” website purporting to show that the advertiser is the cheapest operator in the parapharmacy sector is based on a comparison of which the objectivity is contestable and is disparaging, where the consumer does not have the essential, accessible and easily verifiable information -  the products in question not being everyday consumer goods and presenting significant characteristics and differences in quality and price and their availability being aleatory - and where that systematic and ambiguous presentation is clearly likely to alter the economic behavior of consumers.

Cass. com., 18 December 2007, LawLex200800000002JBJ.

CA Toulouse, 19 January 2011, LawLex201100000110JBJ.

CA Saint Denis de la Réunion, 6 May 2015, LawLex201500001112JBJ; 12 February 2020, LawLex2020000000265JBJ: comparative advertising on connection speeds between mobile telephone operators on Reunion Island, in which an advertiser claims to be number 1 and suggests that the comparison includes its network coverage, when in fact it only concerns bandwidth in coverage areas, is likely to mislead consumers as to the characteristics of its services, and therefore constitutes unfair competition.

See also CA Paris, 26 June 2013, LawLex201300001055JBJ, on a comparative advertisement based on the opposition between the slogans “Rowenta focuses its efforts on silence, but its device loses a quarter of its suction power” and “for Dyson, not losing suction is what counts the most”, thus leading the consumer to believe that the competitor in question believes the noise level more important than the efficiency of its vacuum cleaner.

CA Versailles, 10 March 1995, LawLex200200001478JBJ. On the other hand, the commercial presentation of a new data center operator which, in order to demonstrate its concern to improve the site and the services provided to customers, following its takeover and the implementation of major renovations and updating work on the facilities, highlights its status as a neutral operator without calling into question the former operator's involvement in the sector of hosting these infrastructures, even if it indicates that the Marseille site was not a priority for the latter, does not characterize with the degree of evidentiality required in interim proceedings the characteristics of disparaging comparative advertising, CA Paris, 24 November 2017, LawLex201700001991JBJ.

CA Paris, 10 September 1999, LawLex200200000918JBJ. 

T. com. Paris, 22 February 2013, LawLex201300000223JBJ: a mobile phone operator which creates a persistent feeling of distrust and hostility in the minds of customers towards a competitor, by giving credence to the (false) idea that any mobile offer above the alleged “standard” or “fair” price of EUR 19.99 as defined by that operator must necessarily be a “scam”, adopts disparaging behavior by reducing mobile offers to their price component alone and deliberately ignoring competing offers proposing additional services justifying the consumer's choice to pay a higher price. 

CA Saint-Denis de la Réunion, 26 February 2020, LawLex202000000335JBJ.

Cass. com., 8 November 2017, LawLex201700001822JBJ: the mere fact of comparing prices, which is part of the very nature of comparative advertising, does not characterize disparagement.

CA Paris, 4 November 2016, LawLex201600001822JBJ.

CA Paris, 21 June 2000, LawLex200200000766JBJ. Also see Cass. com., 18 May 1993, LawLex200200001642JBJ, necessity for the comparative advertiser to be able to justify the allegations made; CA Paris, 15 December 1994, LawLex200200001505JBJ, comparative advertising issued by a producer presenting the virgin oil produced as the best, but based on no counter-analysis, and offering no guarantee of accuracy; CA Rennes, 6 September 1995, LawLex200200001433JBJ, misleading nature of the advertisement published by a corporation claiming to be the “number one of small ads”; TGI Paris, 31 May 1996, LawLex200200001357JBJ, tendentious and disparaging character of advertisement showing operator on the point of crushing its competitor and casting doubt as to the proper management of its investments; CA Paris, 17 March 1998, LawLex200200001155JBJ; Cass. com., 27 March 2001, LawLex200300001553JBJ, competitor's prices represented as not up-to-date; 25 April 2001, LawLex200200000479JBJ, misleading nature of scientific test referred to in advertisement; CA Paris, 4 September 2009, LawLex201000000020JBJ, advertisements which target a radio station and cite the number of listeners by age group for which its competitor proclaims itself a number without giving the number of listener which has the victim has in the same age groups; 20 March 2024, LawLex202400002603JBJ, holding that since the advertising campaign by the company in question does not aim to compare services and prices, but to stigmatize, in a way that is intended to be humorous but which turns out to be disparaging, that the company's advertising campaign was not aimed at comparing services and prices, but rather at the profession of building manager, by promoting the cooperative model it itself advocates, for which it offers service providers, and that the advertising does not identify a particular building manager or the services offered by a particular building manager, but targets the profession of professional building manager in general, the complaint of unlawful comparative advertising must be dismissed.

French Competition Law

92. Disparagement by comparative advertising

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92. Disparagement by comparative advertising

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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