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 Law of 29 January 1993 (Sapin Law) does not define the concept of advertising, but the implementing Circular of 19 September 1994 provides useful clues in that regard as it states that the text only concerns commercial promotional operations going beyond a mere communication of information. The concept of advertising covered does not therefore extend to all paid ads: it excludes judicial and l …

Scope of application

The Law of 29 January 1993 (Sapin Law) does not define the concept of advertising, but the implementing Circular of 19 September 1994 provides useful clues in that regard as it states that the text only concerns commercial promotional operations going beyond a mere communication of information. The concept of advertising covered does not therefore extend to all paid ads: it excludes judicial and legal announcements which do not have a promotional aim and small ads/classified ads, irrespective of their object , plus mandatory publications. The case of financial advertising, which covers both mandatory publications intended to provide information to the market and commercial advertising, is subject of a circular published in the Official Journal on 23 November 1993. There is a mandate requirement for such ads only if that when they are purely voluntary . Advertising space is also not defined. According to the circular, the concept seems sufficiently clear, even if it can evolve depending on the techniques [used] (multimedia, electronic media) or if the same medium can be in various different forms . The Law applies where the purchase is made by an intermediary.

Article 20 distinguishes the purchasing of advertising space carried out by an intermediary for the account of an advertiser which must be the subject of a mandate from other services entrusted by the advertiser to the agency. Thus, the establishment of a circuit of payment between the advertiser and the agency which falls within the contractual freedom of the parties, constitutes a service separate from the provision of advertising space carried out by an intermediary . This is also true of advice given as to which media to prioritize .  Media sales companies responsible for selling the advertising spaces of various media are not covered by Article 20 of the Law of 29 January 1993 . Article 26 expressly equates them to sellers of advertising space. They can therefore act as commission agents . There is also no requirement for an advertising agency to establish a mandate contract where it distributes the message itself on its own media without acting as an intermediary . Similarly, the Law does not apply to billboard owners who act for their own account and cannot be classified as intermediaries of advertisers .

The applicability of the Sapin Law requires that the two cumulative conditions set out in Article 27 be fulfilled: the creation of the message for the account of a French advertiser and the publication of the message mainly on the French territory. According to the Circular of 19 September 1994, the fact that the intermediary is established abroad is irrelevant even if  it is essential to prevent intermediaries from circumventing the rules by having orders transit through other countries. The concept of “French undertaking” is not defined. The circular does however stipulate that in light of the objective of the text i.e. to avoid fraud, a French group which has its advertisements made in France by having orders placed by a subsidiary located abroad and by an intermediary also located abroad must be regarded as a French undertaking. On the other hand, a foreign group established in France which, for an international publicity campaign, has its advertising for France carried out abroad by an intermediary also located abroad would not be considered as a French undertaking. Thus, according to the Court of Appeal in Versailles, the formal requirements imposed by the 1993 Sapin Law do not apply when the advertiser is established in Liechtenstein .

CA Dijon, 6 December 2007, LawLex201200000755JBJ, considering that the publications made in execution of legal or regulatory obligations imposed on undertakings to ensure the market is properly informed do not fall within the scope of application of the Law of 29 January 1993.

Thus, the ad can be displayed on billboards in sports stadia or on shopping carts in supermarkets; the written press may or may not be free of charge, intended for the general public or for a specific readership e.g. business press or association publications.

CA Paris, 15 April 2010, LawLex201200000751JBJ.

CA Paris, 16 February 2018, LawLex201800000288JBJ.

CA Paris, 22 February 2001, LawLex200300002334JBJ; CA Aix-en-Provence, 16 January 2009, LawLex201200000856JBJ; 26 March 2010, LawLex201200000744JBJ; 12 September 2013, LawLex201500001055JBJ.

CA Paris, 9 June 2011, LawLex201100001268JBJ, ruling out the classification of commercial agent insofar as that the media sales company developed its own clientele and not that of its principal; Cass. 1re civ., 10 September 2014, LawLex201500001051JBJ.

CA Paris, 13 October 2017, LawLex201800000639JBJ.

CA Paris, 24 June 2011, LawLex201200000843JBJ.

For an application, see CA Versailles, 6 May 2003, LawLex200300004022JBJ.

A mandate concluded for the purchase of advertising space must be in written form and set out “the conditions of the remuneration of the agent, listing, where applicable, the various services which will be carried out in the context of this mandate agreement and the amount to be paid for those services respectively”. The mandate must also set out the other benefits rendered by the intermediary outside the mandate agreement and the overall amount to be paid for them. Pursuant  to the Circular of 19 September 1994, “Except for those obligations, the mandate may be in any form” and therefore there is nothing to prohibit it from including the intermediary's terms and conditions as long as they are in compliance with the provisions of the Sapin Law.

The provisions of Article 20 of the text are mandatory: non-compliance, such as the absence of a written agreement, gives rise to a fine of EUR 30,000 . The Court of Cassation has ruled that the parties may not fill the gaps in the contract with extrinsic elements . Only a single contractual document is therefore able to meet the requirements laid down by the legislature. The courts are particularly strict on the matter: a clause in an advertising contract under which terms the agency could act as agent for the account of the advertiser, without setting the terms of his remuneration has been held not to constitute a written mandate agreement within the meaning of the Sapin Law . Nevertheless, evidence of a mandate complying with the legislation may be a photocopy provided to the court of a certificate of mandate signed and bearing the corporate stamp of the principal .

Furthermore, no claim for payment can be based on contracts not meeting the requirements of Article 20 .

Cass. 1re civ., 24 February 1998, LawLex200300002896JBJ, rejecting CA Agen, 25 September 1995, LawLex200300001412JBJ.

CA Paris, 1 September 2005, LawLex200600001194JBJ.

CA Versailles, 1 July 2010, LawLex201200000831JBJ.

CA Orléans, 31 January 2008, LawLex201200000754JBJ; CA Aix-en-Provence, 7 May 2010, LawLex201200000753JBJ; CA Nancy, 16 February 2011, LawLex201200000842JBJ.

French Consumer Law

50. Scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

50. Scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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