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

Article R. 515-2 (former Article R. 215-2) of the Consumer Code empowers investigators to carry out “basic controls” in order to identify the goods or to identify their possible non-compliance with the characteristics required of them. They are then required to draft minutes of their findings. The Court of Cassation has ruled that the fact that the agents having personally established the findings …

Audits, taking of samples and analysis of goods 

Article R. 515-2 (former Article R. 215-2) of the Consumer Code empowers investigators to carry out “basic controls” in order to identify the goods or to identify their possible non-compliance with the characteristics required of them. They are then required to draft minutes of their findings. The Court of Cassation has ruled that the fact that the agents having personally established the findings have not signed the minutes is not an obstacle to the finding of the infringement insofar as the particulars entered in the minutes and reports prepared by other agents are valid for information purposes and may be sufficient to form the basis of the court's opinion . In addition, it has been held that authorized officers do not have to provide evidence of when weighing instruments used in those operations were last verified . According to Article R. 515-3 (formerly R. 215-2), reimbursements are due for goods rendered unusable due to the controls where it is not established that they do not comply with the regulations . The owner or the person in possession of the goods may also under that provision include in the minutes any declaration he or she deems useful (Article R. 512-11, formerly R. 515-3). Article R. 512-7 (formerly R. 215-2) allows investigators to collect, by convocation or on the spot, the statements of any person likely to provide any information useful to their findings. 

To investigate and establish offenses, the authorized agents can take samples in accordance with the provisions of Articles R. 512-9 to R. 512-23. According to Article R. 512-17 (former Article R. 215-4), any samples, subject to exceptions , must be taken in at least three copies, one to be sent for analysis at a state-run laboratory , and the two others to be analyzed by independent experts. In accordance with that provision, the Court of Cassation considers that an analysis carried out “for information purposes” on single samples without an expert assessment in the presence of both parties, cannot serve as a basis for prosecution . If three samples of the goods cannot be taken due to their nature, value or the quantity of products available, they will all be placed under seal in application of Articles R. 512-20 et seq. (formerly Article R. 215-13) . The particularly strict formal requirements for the taking of samples can be explained, inter alia, by the need to ensure respect for the rights of the defense . Accordingly, the Court of Cassation has clarified that investigators are not always required to take samples. In effect, it considers that the fact that no samples are taken by DGCCRF agents does not result in the invalidity of the procedure insofar as evidence witnessed on site is sufficient to establish the offense . Further, during the basic controls referred to in Article R. 515-2, the establishment of a simple report recording the finding of a defect which is visible to the naked eye, rather than minutes, does not constitute a procedural irregularity or an infringement of the rights of the defense . The Court of Cassation deems that in that case the fact that the products at issue are not seized or placed under seal, like non-compliance with the procedure for the taking of samples, does not constitute an irregularity vitiating the procedure .

Under Article R. 512-10 (formerly. R. 215-5) of the Consumer Code, any removal of products gives rise to the immediate drafting, on unstamped paper, of minutes containing the information listed in it. The minutes must, in addition, contain a brief description of the circumstances under which the sample was taken, must include the marks and labels affixed to envelopes or containers, the size of the batch of merchandise from which the sample was taken as well as any information deemed to be necessary to establish the authenticity of the samples taken, the identity of the merchandise and the exact name under which the latter was held or put on sale.

The analyses, the process of which is governed by Articles R. 512-30 to R. 512-38 and that allow the establishment of the material element of the offense, and, hence, form the basis of the prosecution, must have a limited scope  and must be precise  to avoid too much variation in the results obtained . When several analyzes are successively performed on the same product, the court must check that they definitely relate to the product in question and are able to be compared with each other . The analyses are not exclusive of other types of lawfully admissible evidence , in particular current commercial norms .

The reports drawn up in application of Article R. 515-2 of the Consumer Code are not subject to the formality requirements set out in Article R. 512-10, so that the offense of relating to spoiled foodstuffs which harmful to health is established even in the absence of the signature of the agents having personally conducted the findings, Cass. crim., 15 June 2010, LawLex201400000661JBJ; 30 November 2010, LawLex201200001732JBJ.

CA Paris, 27 November 1996, LawLex200400001135JBJ.

Cass. crim., 30 November 2010, LawLex201200001732JBJ: At most, the failure to seize or place under seal a bottle of favored mineral water, in which was found the presence of filamentous clusters consisting of molds, like the failure to comply with the proper procedure for the taking of samples, may undermine the probative value of bacteriological tests carried out in application of Article R. 512-23.

CA Dijon, 30 June 2010, LawLex201200001854JBJ: analyses performed on consignments of meat only have no probative value with respect to the samples on which they were focused and may cover, by extension,  the whole of the products manufactured on the date in question.

CA Orléans, 13 January 2004, LawLex200400001107JBJ.

CA Pau, 9 February 1994, LawLex200400001467JBJ.

Cass. crim., 27 May 2008, LawLex201200001742JBJ; 15 November 2005, LawLex200600001662JBJ: The analysis of the addition of sugar to wine implies that the wine of reference be comparable to that which is analyzed, including as regards the vintage and the period of the grape harvest, in order to establish the real degree of alcohol due to the addition of sugar.

Cass. crim., 25 June 2003, LawLex200300003024JBJ; 15 November 2005, LawLex200600001662JBJ: a simple analysis of the wording of documents is not sufficient to conclude that sugar has been added to wine.

Cass. crim., 17 January 1996, LawLex200400001175JBJ.

Under the conditions set out in Article R. 512-14 (formerly R. 215-9): "according to their value on the date of the seizure, inclusive of taxes". 

Except in matters relating to bacterialogical controls, see Article R. 512-23 (formerly R. 215-14) Consumer Code, and for the control of mycotoxin levels in foodstuffs, see Art. R. 512-22 (formerly R. 215-15) Consumer Code. Similarly, the administrative seizures provided for in Article L. 511-14 aimed at determining the characteristics of the products or services or assessing their harmful nature, include the removal of a sample consisting of one or several units of the product depending on the needs of the analysis or tests.

Consumer Code, Article R. 512-31, para. 1. 

Cass. crim., 8 February 2005, LawLex200500005613JBJ.

In this case, the report on the seizure and the goods under seal is sent to the Public Prosecutor, who notifies the presumed perpetrator of the offense that the sample will be is to be subject to expert analysis. That party is informed that it has a period of three full days to make known whether if he intends to use his right to designate its own expert. If the alleged perpetrator exercises its right within that period, the Public Prosecutor or the investigating judge appoints two experts simultaneously. If no expert is designated or if the person concerned declares, before the expiry of the time-limit provided for in the third paragraph, that it accepts the conclusions of the expert requested by the Prosecutor or designated by the investigating judge, the latter may appoint an expert immediately.

Cass. crim., 2 April 1974, LawLex200600001558JBJ.

Cass. crim., 3 April 2001, LawLex200300003371JBJ. 

Cass. crim., 30 November 2010, LawLex201200001732JBJ.

French Consumer Law

15. Audits, taking of samples and analysis of goods

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15. Audits, taking of samples and analysis of goods

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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