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

The rules relating to action taken by consumer associations are for the time being  set out in European law in two instruments: Directive No 93/13 of 5 April 1993 on unfair terms in consumer contracts, as an ancillary matter, and Directive No 2009/22 of 23 April 2009 on injunctions for the protection of consumers' interests, as the principal matter.
1) Directive No 93/13 of 5 April 1993 on unfair  …

EU law

The rules relating to action taken by consumer associations are for the time being  set out in European law in two instruments: Directive No 93/13 of 5 April 1993 on unfair terms in consumer contracts, as an ancillary matter, and Directive No 2009/22 of 23 April 2009 on injunctions for the protection of consumers' interests, as the principal matter.

1) Directive No 93/13 of 5 April 1993 on unfair terms in consumer contracts.

Article 7(1) of the directive requires Member States to ensure that adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. Under Article 7(2) such means must “include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, 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 terms”. Article 7(3) provides that the legal remedies of associations may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.

In a request for a preliminary ruling concerning the interpretation of the law, the Court of Justice has on several occasions highlighted the limited scope of the provisions. As the directive only expressly lays down a right of action for consumers, it does not govern intervention by consumer associations in the context of individual disputes concerning a consumer . Further, like Directives No 98/27 and 2009/22, Directive 93/13 does not contain any provision on territorial jurisdiction in actions for injunctions available to consumer protection associations, nor does it impose the principle of the right to an appeal for actions for an injunction brought by consumer associations against a decision rejecting jurisdiction . Thus, national legislation which provides that the actions for injunctions by consumer associations must be brought before the courts of the place of establishment or domicile of the trader and that the decision to territorial incompetence rendered by a court of first instance is not subject to appeal, is not in itself contrary to the law of the Union. The directive also contains no provision on the law applicable to actions against the use of unlawful terms in agreements by an undertaking established in one Member State within the context of contracts concluded electronically with consumers resident in other Member States. The Court of Justice has stated that said law must be determined in accordance with Article 6(1) of Regulation No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations . 

In addition, the rule referred to in Article 5 of the directive, according to which the interpretation most favorable to the consumer prevails, does not apply to actions taken by consumer associations, as is also stated in the article . According to the Court of Justice, such actions are not only of a repressive nature, but can also be preventive and can allow the prohibition both of the recommendation and the effective application of the terms : due to the deterrent objective which is not concerned by any specific individual conflict, such actions must be able to be brought even where clauses for which prohibition is sought have not been used in specific contracts but have merely been recommended by traders or their associations. The Court has drawn two conclusions from the preventive aspect of the action. Firstly, a declaration that unfair provisions in the terms and conditions of consumer contracts are null and void in the wake of an action for injunctions brought by an association may produce effects not only in respect of all consumers who have concluded a similar contract with the trader concerned, but also of consumers who were not party to the claim . Secondly, actions by consumer associations, being separate from any direct contractual relationship, pertain to matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels I Regulation .

2) Directive No 2009/22 of 23 April 2009 on injunctions for the protection of consumers' interests

On 19 May 1998, EU legislature harmonized the rules relating to actions for injunctions for practices harmful to the interests of consumers . Amended several times, the directive was repealed prior to being codified within Directive No 2009/22 of 23 April 2009 . The objective was to promote the exercise of cross-border actions, by putting an end to the distortions of competition and obstacles to the proper functioning of the internal market resulting from the differences between the laws of the Member States after the integration of the various directives on the protection of consumers. However, different provisions significantly reduce the scope of the text. Thus, under Article 1, the mechanism put in place only concerns the EU instruments listed in the Annex : consumer associations are therefore deprived of a right of action for the infringement of the collective interests of consumers not covered by a harmonization regulation or directive with those directives transposed into the internal legal order of the Member States . Finally, under Articles 5 and 7, the directive only carries out a minimum harmonization leaving the Member States the option of maintaining or adopting more restrictive provisions (Article 5) or providing at the national level the option to adopt or maintain in force provisions designed to grant qualified entities and any other person concerned more extensive rights to bring action (Article 7).

In substance Article 2 of the directive requires Member States: to put in place procedures allowing qualified entities to obtain an injunction with all due expedience for the cessation or prohibition of any infringement, where appropriate by way of summary procedure; to obtain measures such as the publication of the decision, in full or in part, in such form as deemed adequate and/or the publication of a corrective statement with a view to eliminating the continuing effects of the infringement and to obtain an order against the losing defendant in the event of failure to comply with the decision within a time-limit specified by the courts or administrative authorities, for payment of a fixed amount for each day’s delay with a view to ensuring compliance with the decisions. Article 3 defines qualified entity as any body or organization which, being properly constituted according to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in Article 1 are complied with. They can be independent public bodies, specifically responsible for protecting the interests of consumers and/or organizations whose purpose is to protect the interests referred to in Article 1, in accordance with the criteria laid down by the national law. The Member States are required to provide the Commission with the list of qualified entities, of which it ensures a regularly updated publication in the Journal of the European Union. The procedure for action in respect of “intra Community” infringements is laid down in Article 4, which establishes a principle of mutual recognition. Thus the Member States are required to take the necessary measures to ensure that, in the event of an infringement originating in that Member State, any qualified entity from another Member State where the interests protected by that qualified entity are affected by the infringement, may apply to the court or administrative authority subject to the sole obligation of presenting the list of qualified entities. They can also introduce or maintain in force provisions whereby the party that intends to seek an injunction can only start this procedure after it has tried to achieve the cessation of the infringement in consultation either with the defendant or with both the defendant and a qualified entity. If the cessation of the infringement is not achieved within two weeks after the request for consultation is received, the party concerned may bring an action for an injunction without any further delay (Article 5).

The French legislature transposed Directive No 98/27 through Ordinance 2001-741 of 23 August 2001, which thoroughly modified Article L. 421-6, re-codified as Articles L. 621-7 and L. 621-8. These texts provide, inter alia, that the organizations justifying their inclusion on the list published in the Official Journal in application of Article 4 of the Directive No 2009/22 may bring action before the civil courts for the cessation or prohibition of any unlawful conduct under the provisions transposing the directives referred to in Article 1 of the directive .

The proposed directive on collective actions, part of the 'New Deal for Consumers' package, should replace at least Directive No 2009/22.

Case C-470/12 Pohotovost, Judgment of 27 February 2014, LawLex201400001598JBJ.

Directive No 85/577 of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises; Directive No 87/102 of 22 December 1986 on consumer credit; Directive No 89/552 of 3 October 1989 on television broadcasting; Directive No 90/314 of 13 June 1990 on package travel, package holidays and package tours; Directive No 93/13 of 5 April 1993 on unfair terms in consumer contracts; Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts; Directive No 1999/44 of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (now repealed and replaced by Directive No 2019/771 of 29 May 2019); Directive No 2000/31 of 8 June 2000 on electronic commerce; Directive No 2001/83 of 6 November 2001 on the Community code relating to medicinal products for human use; Directive No 2002/65 of 23 September 2002 concerning the distance marketing of consumer financial services; Directive No 2005/29 of 11 May 2005 on unfair commercial practices; Directive No 2006/123 of 12 December 2006 on services in the internal market; Directive No 2008/122 of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts; Directive No 2013/11 of 21 May 2013 on alternative dispute resolution for consumer disputes, Art.13; Regulation No 524/2013 of 21 May 2013 of 21 May 2013 on online dispute resolution for consumer disputes, Art.14; Regulation No 2018/302 of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination  based on customers' nationality, place of residence or place of  establishment within the internal market and amending Regulations (EC)  No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC.

Cass. civ. 1re, 30 March 2022, LawLex202200001893JBJ, specifying that a consumer association that does not justify the existence of an infringement or the disregard of a provision resulting from the transposition of Union law is not entitled to bring an action for injunction, prohibition or reparation of an unlawful act on the basis of Articles L. 621-1, L. 621-2 and L. 621-7 of the Consumer Code.

Case C-413/12 Asociación de Consumidores Independientes de Castilla y León, Judgment of 5 December 2013, LawLex201300001744JBJ.

Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sàrl, Judgment of 28 July 2016, LawLex201600001334JBJ.

Case C-70/03 Commission v Spain, Judgment of 9 September 2004, LawLex200900002202JBJ.

Case C-372/99 Commission v Italy, Judgment of 24 January 2002, LawLex200900000575JBJ.

Case C-472/10 Nemzeti Fogyasztóvédelmi Hatóság, Judgment of 26 April 2012, LawLex201200001761JBJ.

Case C-167/00 Verein für Konsumenteninformation [2002] ECR I-8111, LawLex200900000666JBJ.

Directive No 98/27 of 18 May 1998, OJEC L 166 of 11 June 1998.

Directive No 2009/22 of 23 April 2009, OJEU L 110 of 1 May 2009.

French Consumer Law

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22. EU law

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