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

To ensure legal certainty for businesses, Annex I of Directive No 2005/29, amended in 2019  and in 2024 , provides an exhaustive list of the  commercial practices considered unfair in all circumstances , and which are therefore prohibited. These are the only practices for which there is no need to carry out a case-by-case assessment against the criteria of Articles 6 to 9 , or to verify the materi …

Per se prohibited unfair commercial practices

To ensure legal certainty for businesses, Annex I of Directive No 2005/29, amended in 2019  and in 2024 , provides an exhaustive list of the  commercial practices considered unfair in all circumstances , and which are therefore prohibited. These are the only practices for which there is no need to carry out a case-by-case assessment against the criteria of Articles 6 to 9 , or to verify the material distortion of the economic behavior of the average consumer . The list includes 27 misleading commercial practices and 8 aggressive commercial practices.

Misleading commercial practices, per se, are:

1.  claiming to be a signatory to a code of conduct when the seller or supplier is not; on the other hand, according to the Court of Justice, the mere fact that a seller or supplier has not complied with a code of conduct after having adhered to it does not necessarily have to be sanctioned under Directive No 2005/29 ;

2.  displaying a trust mark, quality mark or equivalent without having obtained the necessary authorization;

2a. displaying a sustainability label that is not based on a certification scheme or not established by public authorities;

3.  claiming that a code of conduct has an endorsement from a public or other body which it does not have;

4.  claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorized by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorization; according to the Court of Justice, point 4 does not cover commercial practices, such as a clearance sale, which have not been subject to prior authorization granted by a competent body ;

4a. making a generic environmental claim for which the trader is not able to  demonstrate recognized excellent environmental performance relevant to  the claim;

4b. making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or  a specific activity of the trader’s business;

4c. claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions;

5.  making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising);

6.  making an invitation to purchase products at a specified price and then: (a) refusing to show the advertised item to consumers, or (b) refusing to take orders for it or deliver it within a reasonable time, or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch) ; according to the Commission, practices 5 (bait advertising) and 6 (bait and switch) allow in particular, in field of air transport, to prevent airlines from announcing conditions that they are only able to guarantee for a very limited number of consumers, given the scale of the advertising disseminated; 

7.  falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice ; the Court of Justice specified that the announcement of a clearance sale made without having the prior administrative authorization required by national law, does not fall within point 7  ;

8.  undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction; 

9.  stating or otherwise creating the impression that a product can legally be sold when it cannot ; the Commission distinguishes between goods or services whose sale is prohibited or illegal in all circumstances (drugs, child pornography, protected exotic animals, stolen goods, etc.) and those that can only be sold under certain conditions which are not specified by the advertiser (pharmaceuticals, weapons, etc.);

10.  presenting rights given to consumers in law as a distinctive feature of the trader's offer; point 10 serves in particular to punish the practice where a trader presents a legal warranty against non-conformities as an added value of its offer;

10a. presenting requirements imposed by law on all products within the  relevant product category on the Union market as a distinctive feature  of the trader’s offer;

11.  using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial);

11a. providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results;

12.  making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product;

13.  promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not;

14.  establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products; according to the Court of Justice, the amount of the financial participation is immaterial ; likewise, it is not necessary for there to be a direct link between the contributions paid by new members of the scheme and the compensation paid to existing members ;

15.  claiming that the trader is about to cease trading or move premises when he is not;

16.  claiming that products are able to facilitate winning in games of chance;

17.  falsely claiming that a product is able to cure illnesses, dysfunction or malformations; point 17 supplements the existing provisions of EU law on claims relating to health and well-being  and will therefore mainly apply to well-being products other than cosmetics and to false claims which do not fall under specific rules, such as the claim that products can cause hair to grow back or that detoxifying foot patches improve kidney function;

18. passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favorable than normal market conditions;

19.  claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;

20.  describing a product as “gratis”, “free”, “without charge” and other similar terms if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item ; point 20 serves to combat the practices of websites which sell mobile phone ringtones which are supposedly free although they result in the purchase of a paid subscription or those which consist in offering a free product or gift to a consumer who must then call a premium rate number to obtain it ;

21.  including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not;

22.  falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer;

23.  creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold;

23a. reselling events tickets to consumers if the trader acquired them by using automated means to circumvent any limit imposed on the number of tickets that a person can buy or any other rules applicable to the purchase of tickets;

23b. stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers;

23c. submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products;

23d. withholding  information from the consumer about the fact that a software update will  negatively impact the functioning of goods with digital elements or the  use of digital content or digital services;

23e. presenting a software update as necessary when it only enhances functionality features;

23f. any commercial  communication in relation to a good containing a feature introduced to  limit its durability despite information on the feature and its effects  on the durability of the good being available to the trader;

23g. falsely claiming that under normal conditions of use a good has a certain durability in terms of usage time or intensity.

23h. presenting a good as allowing repair when it does not.

23i. inducing the consumer to replace or replenish the consumables of a good earlier than necessary for technical reasons.

23j. withholding  information concerning the impairment of the functionality of a good  when consumables, spare parts or accessories not supplied by the  original producer are used, or falsely claiming that such impairment  will happen.

Aggressive commercial practices, per se, are:

24.  creating the impression that the consumer cannot leave the premises until a contract is formed;

25.  conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation;

26.  making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation;

27.  requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights;

28.  including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them;

29.  demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader,but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive No 97/7/EC (inertia selling) ;

30.  explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy;

31.  creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either, there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost; point 31 allows to sanction practices that lead consumers to pay considerable sums to receive a prize which either does not exist, or has a lower value than the amount disbursed; questioned on whether the obligation imposed on the consumer to make a call at the standard local rate or to buy a postage stamp to claim a prize is covered by the annex, the Court of Justice replied that such practices were prohibited, even when the cost imposed on the consumer is minimal (as in the case of a stamp) compared with the value of the prize, and regardless of whether the payment of such costs procures any benefits to the trader .

Annex I now includes four new per se unfair practices (points 11a, 23a, 23b and 23c) adopted by virtue of Directive No 2019-2161 of 27 November 2019.

Directive No 2024/825 of 2 February 2024 amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and through better information has added five greenwashing practices (pts 2a, 4a, 4b, 4c and 10a) and seven practices associated with the early obsolescence of goods (23d, 23e, 23f, 23g, 23h, 23i, and 23j) to the blacklist in Annex I.

 Case C-515/12 4finance UAB, Judgment of 3 April 2014, LawLex201400000569JBJ.

 Case C-667/15 Loterie Nationale - Nationale Loterij NV van publiek recht, Judgment of 15 December 2016, LawLex201600002083JBJ.

 Directive No 2000/13 of 20 March 2000 on the labeling, presentation and advertising of foodstuffs and No 76/768 of 27 July 1976 on cosmetic products.

 According to the Commission, this provision implies that the seller refrains from charging the packaging, processing or administration of the product.

  In its guidance document, the Commission specifically refers to the difficulties presented by combined offers and provides its interpretation principles with respect to the use of the word “free”. It thus considers contrary to point 20 practices consisting, for traders, in: i) trying to recover their costs by reducing the quality or composition, or by inflating the price of any product that must be bought as a pre-condition for obtaining the free item, or ii) describing an individual element of a package as “free” if the cost of that element is included in the package price. The Commission provides several examples of valid information: “free wall-chart when you buy Thursday's paper”, if the paper is sold without a wall-chart on other days for the same price; or “25% extra free” on a bottle of shampoo, if the bottle contains 25% more than is usually supplied at that price; “Free travel insurance for customers who book their holiday online”, if customers who book the same journey by telephone are offered the same price but are not offered free insurance or if internet customers who choose to buy their insurance from a different provider pay the same for their holiday as those who choose to take advantage of the marketer's insurance offer.

The concept of “inertia selling”, within the  meaning of point 29 of Annex I to Directive No 2005/29 does not cover a commercial practice of a drinking water supply company consisting in maintaining the connection to the public water supply network when a consumer moves into a previously occupied dwelling, since that consumer does not have the choice of the supplier of that service, that supplier charges cost-covering, transparent and  non-discriminatory rates that are proportionate to the water consumption, and the consumer knows that that dwelling is connected to the public water supply network and that water is supplied against payment, Case C-922/19 Stichting Waternet, Judgment of 3 February 2021, LawLex202100003973JBJ.

 Case C-428/11 Purely Creative Ltd, Judgment of 18 October 2012, LawLex201200002226JBJ.

Case C-646-22 Compass Banca SpA, Judgment of 14 November 2024, LawLex202400008877JBJ: the commercial practice of simultaneously proposing to the consumer an offer of a personal loan and an offer of an insurance product unrelated to that loan does not constitute either an aggressive commercial practice or a commercial practice deemed unfair in all circumstances, within the meaning of Directive No 2005/29.

 Guidance of 3 December 2009 for the implementation and application of Directive No 2005/29/EC on unfair commercial practices, SEC (2009) 1666, pt. 3.1.

Case C-109/07 Bankia (SA), Judgment of 19 September 2018, LawLex201800001351JBJ.

 Case C-206/11 Köck, Judgment of 17 January 2013, LawLex201300000099JBJ.

 See report of 14 March 2013 on the implementation of Directive 2005/29 (COM (2013) 139 final), pt. 3.3.6.

French Consumer Law

115. Per se prohibited unfair commercial practices

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115. Per se prohibited unfair commercial practices

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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