French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

A large number of recommendations have been published on the website of the Unfair Terms Commission. The courts very frequently use the recommendations of the Unfair Terms Commission for guidance . However, the Court of Cassation stressed very early on that as its recommendations have no normative value, they are not binding on the courts . The Council of State has indirectly aligned itself to tha …

Scope of recommendations and opinions

The Unfair Terms Commission, established by Article 36 of Law No 78-23 of 10 January 1978, constitutes one of the commissions under the authority of the National Consumer Institute. Articles L. 822-4 to L. 822-6 (formerly L. 534-1 to L. 534-3) and R. 822-18 to R. 822-21 (formerly R. 534-1 to R. 534-4) of the Consumer Code lay down its composition and aims. Articles L. 822-10 and L. 822-11 (formerly Art. L. 534-9 and L. 534-10) lays down the rules relating to the investigation of cases handled by the commissions operating under the authority of the National Consumer Institute.

Under the terms of Article L. 822-4 of the Consumer Code, the aim of the Unfair Terms Commission, under the control of the Minister for Consumer Affairs, is to ensure that it is informed of all types of agreements generally proposed by “professionals” to their non-business co-contractors or to consumers. It must ascertain whether such agreements contain terms that may be unfair . If this is found to be the case, it will recommend that the terms at issue be amended or removed . 

Cases may be referred to the Commission by the Minister for Consumer Affairs, approved consumer protection associations, or interested business professionals. It may also initiate investigations of its own motion .

The Unfair Terms Commission is composed of 13 members : a magistrate of the judicial court system as president; two judges of the judicial or administrative courts or members of the Council of State (Conseil d'État); two persons qualified in the field of law or the technical aspects of contracts selected after an opinion from the National Consumer Institute; 4 trade representatives of traders; 4 representatives of consumers. A Vice-president is appointed from among judicial or administrative judges or members of the Council of State. The Director General of the National Consumer Institute or his representative may attend the meetings of the commission but cannot participate in the votes on recommendations and opinions.

The President and the members of the Commission are appointed by decree of the Minister of Consumer Affairs for a term of three years which is renewable one time. The appointment of judges is made on the proposal of the Minister of Justice. The members of the Commission may not take part in the deliberations if they have a personal interest in the case in question or represent or have represented within five years of the deliberation any of the interested parties .

The Commission sits in plenary session. The President may appoint a case handler (rapporteur) from among its members for the investigation of a case. The Commission can only regularly deliberate in the presence of the president or his deputy and at least six other members . The Commission may request information or consult on site any documents that it considers relevant for the accomplishment of its mission and cannot be prevented from doing so on the basis of Articles 226-13 and 226-14 of the Criminal Code and Article L. 1227-1 of the Labor Code.

The President may, by reasoned decision, summon or take statements from any person likely to provide information concerning cases of which the Commission is seized or arrange for the members of the Commission or the officials of the National Consumer Institute designated by the Director General to do so.

Any person convened has the right to be assisted by the legal counsel of their choice. Before giving its opinion, the Commission hears the persons concerned, except in urgent cases. It always hears the professional concerned and carries out the necessary consultations . Interested parties may also request a hearing before deliberations except when the deliberations concern judicial proceedings .

The Commission ensures the dissemination of information, opinions and recommendations that in its view needs to be brought to the knowledge of the public, whilst refraining from disclosing any matter identifying individual situations . In practice, information is provided through the Commission's website . 

Consumer Code, Art. L. 822-4 (formerly L. 534-1).

Consumer Code, Art. L. 822-6 (formerly L. 534-3).

Consumer Code, Art. L.822-5 (formerly L. 534-2).

Consumer Code, Art. R. 822-18 (formerly R. 534-1).

Consumer Code, Art. R. 822-19 (formerly R. 534-2).

Consumer Code, Art. R. 822-20 (formerly R. 534-3).

Consumer Code, Art. L. 822-10 (formerly L. 534-9).

Consumer Code, Art. L. 822-9 (formerly L. 534-8).

Aims, composition, function

A large number of recommendations have been published on the website of the Unfair Terms Commission. The courts very frequently use the recommendations of the Unfair Terms Commission for guidance . However, the Court of Cassation stressed very early on that as its recommendations have no normative value, they are not binding on the courts . The Council of State has indirectly aligned itself to that position by holding that, as recommendations are devoid of binding force, they do not constitute administrative decisions capable of being subject to an action on the grounds of ultra vires . Judicial decisions blatantly in contradiction with the recommendations of the Unfair Terms Commission are nevertheless quite rare . 

When the unfair aspect of a contract term is raised before the court, Article R. 822-21 (formerly R. 534-4) of the Consumer Code allows the court to refer to the Commission for an opinion. Although any urgent or protective interim measures necessary can be taken, the request for an opinion suspends the ruling on the merits of the case until such opinion is given or on expiry of the maximum period of three months from the date of the referral to the Commission. More than 30 opinions have been given under this judicial referral procedure. Like recommendations, opinions are not binding on the court  and the courts are inclined to disregard an opinion when the claimant consumer association was involved in preparing it . 

For a clause held void ab initio (deemed not written) on the basis of Recommendation No. 82-04 relating to the right to compensation in the event of loss of photo development work see: Cass. 1re civ., 19 June 2001, LawLex200400001144JBJ; see also CA Aix-en-Provence, 25 June 2008, LawLex201300000429JBJ, considering that the number and the importance of terms recommended for removal by the Unfair Terms Commission in a remote surveillance agreement justifies it being voided.

Cass. 1re civ., 13 November 1996, LawLex200300001228JBJ; 1 February 2000, LawLex200300001208JBJ; 8 November 2007, LawLex200700001863JBJ, upholding CA Versailles, 15 September 2005, LawLex200500009927JBJ. See also CA Montpellier, 16 May 1991, LawLex200300002004JBJ; TGI Paris, 7 September 1999, LawLex200300001882JBJ, TI Nîmes, 9 October 2001, LawLex200400001258JBJ; CA Paris, 11 March 2016, LawLex201600000659JBJ.

Cons. d'Ét., 16 January 2006, LawLex200600000542JBJ.

E.g. CA Bourges, 24 October 2000, LawLex200400001587JBJ; TI Nîmes, 9 October 2001, LawLex200400001258JBJ; CA Aix-en-Provence, 19 June 2014, LawLex201400002193JBJ; CA Paris, 11 March 2016, LawLex201600000659JBJ.

TGI Grenoble, 30 June 2003, LawLex200400000447JBJ; CA Versailles, 15 September 2005, LawLex200500009927JBJ; TGI Nanterre, 3 March 2006, LawLex200600001687JBJ, CA Douai, 14 November 2019, LawLex201900001416JBJ.

TGI Grenoble, 30 June 2003, cited above; TGI Nanterre, 2 September 2003, LawLex200400000459JBJ. Cf. Cass. 1re civ., 8 November 2007, LawLex200700001863JBJ, cited above, holding that the involvement of a representative of the applicant association in the development of the recommendation does not infringe the principle of fair trial, insofar as such documents are devoid of binding force.

French Consumer Law

8. Scope of recommendations and opinions

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Les notions juridiques connexes

8. Scope of recommendations and opinions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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