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

Although the consumer movement took off in the United States in the 1960s, it did not find any legal expression until a decade later in France. Law No 73-1193 of 27 December 1973 , known as the Royer Law, constitutes one of its very first manifestations. Article 46 of that law opened up to “properly registered associations explicitly having as their statutory object the defense of the interests of consumers”, if they had “been authorized for that purpose” before all courts, “civil actions with respect to the facts directly or indirectly harming to the collective interest of consumers”. However, in adopting a restrictive interpretation of the legislation, the first civil chamber of the Court of Cassation has paralyzed the development of such actions. In a landmark ruling , it in effect held that “although Article 46 of the Law of 27 December 1973 authorizes properly registered and approved associations having as their statutory object the defense of the interests of consumers, to act before all courts, civil as well as criminal, this must not, under the terms of that provision, be in order to bring any type of civil claim, but must be with regard to “civil action”, i.e. an action for compensation for harm caused by a breach of the criminal law”, thus formally excluding contractual disputes from the scope of actions open to associations.

To give a new impetus to actions brought by consumer associations, Law 88-14 of 5 January 1988 relating to actions by approved consumer associations and on consumer information  repealed Article 46. Even though it reproduced the same provisions in Article 1 (which then became Article L. 421-1 Consumer Code and is now Article L. 621-1), it also added two new types of action which do not require the existence of a criminal offense: actions for the removal of unfair terms laid down in Article 6 (becoming first Article L. 421-6 of the Consumer Code, and now Article L. 621-7 and L. 621-8), and the intervention before the civil courts under Article 5 (which became Article L. 421-7 and is now Article L. 621-9). Further, in an aborted attempt to introduce class actions to France, Law 92-60 of 18 January 1992 for the strengthening of consumer protection  instituted the joint representation action ("action en représentation conjointe"), which is now found in Articles L. 622-1 to L. 622-4 (former Article L. 422-1 et seq.) of the Consumer Code. This allows associations to collect mandates from identified consumers in order to sue for compensation for individual harm having a common origin caused by the same trader. Finally, after a numerous years of debate on the question, a genuine class action emerged with Law 2014-344 of 17 March 2014 (Hamon Law) , which is responsible for the insertion of Articles L. 423-1 to L. 423-26 into the Consumer Code, (now re-codified under Articles L. 623-1 to L. 623-32.

European law deals with the question of actions by consumer associations incidentally under Article 7 of Directive No 93/13 of 5 April 1993 on unfair terms in consumer contracts . The directive refers to action taken by “organizations, having a legitimate interest under national law in protecting consumers”, which may “take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such term”.  Such actions were then the subject of a harmonization directive, Directive No 98/27 of 19 May 1998 on injunctions for the protection of consumer interests , since repealed and replaced by Directive No 2009/22 of 23 April 2009 . The limited scope of application of the directive and its restrictive conditions of application have impeded the development of cross-border actions. In April 2018, in order to relaunch the process, the Commission unveiled its “New Deal for Consumers” package, including a plan to create a European collective action. Presented as a response to the concerns raised by recent “mass harm situations” with cross-border consequences, the proposal for a directive aims to offer consumers uniform rules enabling them to obtain compensation for their collective damages while avoiding the excesses of US-style class actions.

Directive No 2020/1828 on representative actions for the protection of the collective interests of consumers was finally published on 4 December 2020 .  It repeals and replaces Directive No 2009/22 from 25 June 2023. Even if it does not go as far as its stated ambition by leaving a lot of room for manoeuvre to the Member States, the representative actions directive nevertheless ensures “that at Union and national level at least one effective and efficient  procedural mechanism for representative actions for injunctive measures  and for redress measures is available to consumers in all Member States” (recital 7), which, in practice, is a step forward since nine Member States still do not have one. In order to prevent abusive claims, the directive imposes, on the one hand, rules for the allocation of legal costs in the case of representative actions for damages, according to the “loser pays” principle, whereby the losing party is ordered to pay the costs, excluding the costs incurred by the consumer as a result of his intentional or negligent conduct (Art. 12) ; and on the other,  it regulates the funding of third-party claims in order to promote transparency and prevent conflicts of interest (Art. 10) ; lastly it ensures better access to justice (Art. 20) .

The scope of the directive is broader than the directive it replaces: firstly, it covers not only representative actions aimed at obtaining injunctive measures - as is the case today - but also remedial measures ; in addition, the directive allows action to be taken in the event of infringements of consumer rights in more areas, with Annex I referring to some sixty directives and regulations - compared to the current sixteen. While in practice, in each Member State, qualified entities will be able to seek measures on behalf of a group of consumers harmed by a trader who has infringed one of the EU instruments it covers, the directive distinguishes between national and cross-border actions. While for cross-border actions, the criteria for class actions have been harmonized (Art. 4) ,  on the other hand, for national actions, the Member States themselves set the criteria in line with the objectives of the directive.  Undertakings will therefore be likely to be confronted with 28 different regimes, one unified cross-border regime and 27 national regimes, with the risk of forum shopping not being excluded. Moreover, the directive provides that “[w]hen bringing a representative action, the qualified entity should  provide sufficient information on the consumers concerned by the  representative action to the court or the administrative authority” without further clarification, which in practice may lead to issues of interpretation. Finally,  apart from two exceptions ,  the directive leaves the choice to the Member States between the “opt in” mechanism, which only concerns consumers who express their wish to be party to the action or the “opt out” mechanism, which includes by default all the potential victims of an identified conduct, unless they explicitly express their wish not to be represented (Art. 9) , which, once again, risks leading to inconsistencies of application within the Union.

OJ of 30 December 1973, corrigendum OJ of 19 January 1974. The legislation relating to action taken by consumer associations is however  older: Decree No 56-149 of 24 January 1956, codifying legislative texts concerning family and social assistance (OJ of 28 January 1956, 1109) in effect authorized family associations to take legal action for compensation of the damage relating to acts adversely affecting the moral and material interests of families. The text is currently codified in Articles L. 211-1 et seq. of the Family and Social Action Code.

Cass. 1re civ., 16 January 1985, LawLex201400000259JBJ

"Funding of representative actions for redress measures"

1.   Member  States shall ensure that, where a representative action for redress  measures is funded by a third party, insofar as allowed in accordance  with national law, conflicts of interests are prevented and that funding  by third parties that have an economic interest in the bringing or the  outcome of the representative action for redress measures does not  divert the representative action away from the protection of the  collective interests of consumers.

2.   For the purposes of paragraph 1, Member States shall in particular ensure that:

(a) the decisions of qualified entities in the context of a  representative action, including decisions on settlement, are not unduly  influenced by a third party in a manner that would be detrimental to  the collective interests of the consumers concerned by the  representative action;

(b) the representative action is not brought against a defendant that  is a competitor of the funding provider or against a defendant on which  the funding provider is dependent.

3.   Member States shall ensure that courts or administrative  authorities in representative actions for redress measures are empowered  to assess compliance with paragraphs 1 and 2 in cases where any  justified doubts arise with respect to such compliance. To that end, qualified entities shall disclose to the court or administrative  authority a financial overview that lists sources of funds used to support the representative action.

1.   Member  States shall take measures aiming to ensure that the costs of the  proceedings related to representative actions do not prevent qualified  entities from effectively exercising their right to seek the measures  referred to in Article 7.

2.   The  measures referred to in paragraph 1 may, for example, take the form of  public funding, including structural support for qualified entities,  limitation of applicable court or administrative fees, or access to  legal aid.

3.   Member  States may lay down rules to allow qualified entities to require  consumers who have expressed their wish to be represented by a qualified  entity in a specific representative action for redress measures to pay a  modest entry fee or similar charge in order to participate in that  representative action.

4.   Member  States and the Commission shall support and facilitate cooperation  between qualified entities and the exchange and dissemination of their  best practices and experience as regards dealing with domestic  infringements and cross-border infringements as referred to in Article  2(1).

According to Article 3(10) of Directive No 2020/1828, "redress measure’" means a measure that requires a trader to provide consumers concerned with remedies such as compensation, repair,  replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate and as available under Union or national law.

1.   Member States shall ensure that representative actions as provided  for by this Directive can be brought by qualified entities designated by  the Member States for this purpose.

2.   Member States shall ensure that entities, in particular consumer organizations, including consumer organizations that represent members  from more than one Member State, are eligible to be designated as  qualified entities for the purpose of bringing domestic representative  actions, cross-border representative actions, or both.

3.   Member States shall designate an entity as referred to in paragraph  2 that has made a request for designation as a qualified entity for the  purpose of bringing cross-border representative actions if that entity  complies with all of the following criteria:

(a) it is a legal person  that is constituted in accordance with the national law of the Member  State of its designation and can demonstrate 12 months of actual public  activity in the protection of consumer interests prior to its request  for designation;

(b) its statutory purpose  demonstrates that it has a legitimate interest in protecting consumer  interests as provided for in the provisions of Union law referred to in  Annex I;

(c) it has a non-profit-making character;

(d) it is not the subject of insolvency proceedings and is not declared insolvent;

(e) it is independent and  not influenced by persons other than consumers, in particular by  traders, who have an economic interest in the bringing of any  representative action, including in the event of funding by third  parties, and, to that end, has established procedures to prevent such  influence as well as to prevent conflicts of interest between itself,  its funding providers and the interests of consumers;

(f) it makes publicly  available in plain and intelligible language by any appropriate means,  in particular on its website, information that demonstrates that the  entity complies with the criteria listed in points (a) to (e) and  information about the sources of its funding in general, its  organisational, management and membership structure, its statutory  purpose and its activities.

4.   Member States shall ensure that  the criteria they use to designate an entity as a qualified entity for  the purpose of bringing domestic representative actions are consistent  with the objectives of this Directive in order to make the functioning  of such representative actions effective and efficient.

5.   Member States may decide that  the criteria listed in paragraph 3 also apply to the designation of  qualified entities for the purpose of bringing domestic representative  actions.

6.   Member States may designate an  entity as a qualified entity on an ad hoc basis for the purpose of  bringing a particular domestic representative action, at the request of  that entity if it complies with the criteria for designation as a  qualified entity as provided for in national law.

7.   Notwithstanding paragraphs 3  and 4, Member States may designate public bodies as qualified entities  for the purpose of bringing representative actions. Member States may  provide that public bodies already designated as qualified entities  within the meaning of Article 3 of Directive 2009/22/EC are to remain  designated as qualified entities for the purposes of this Directive.

The directive excludes the opt-in system for injunctive measures (Art. 8(3): "In order for a qualified entity to seek an injunctive measure,  individual consumers shall not be required to express their wish to be  represented by that qualified entity") while imposing it on non-residents of the State of the representative action (Art. 9(3): "Member States shall ensure that individual consumers who are not  habitually resident in the Member State of the court or administrative  authority before which a representative action has been brought have to  explicitly express their wish to be represented in that representative  action in order for those consumers to be bound by the outcome of that  representative action").

Article 9(2) : "Member States shall lay down rules on how and at which stage of a  representative action for redress measures the individual consumers  concerned by that representative action explicitly or tacitly express  their wish within an appropriate time limit after that representative  action has been brought, to be represented or not by the qualified  entity in that representative action and to be bound or not by the  outcome of the representative action".

"Allocation of costs of a representative action for redress measures"

1.   Member  States shall ensure that the unsuccessful party in a representative  action for redress measures is required to pay the costs of the  proceedings borne by the successful party, in accordance with conditions  and exceptions provided for in national law applicable to court  proceedings in general.

2.   Individual consumers concerned by a representative action for redress measures shall not pay the costs of the proceedings.

3.   By  way of derogation from paragraph 2, in exceptional circumstances, an  individual consumer concerned by a representative action for redress  measures may be ordered to pay the costs of proceedings that were  incurred as a result of the individual consumer’s intentional or  negligent conduct.

21. Action by consumer associations