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

After laying down a general prohibition of unfair trade practices, Article 5 of Directive No 2005/29 on unfair business-to-consumer commercial practices holds as unfair trade practices that, cumulatively , are contrary to the requirements of professional diligence  and which materially distort or are likely to materially distort the economic behavior, with regard to the product, of the average con …

 General scheme of the directive

After laying down a general prohibition of unfair trade practices, Article 5 of Directive No 2005/29 on unfair business-to-consumer commercial practices holds as unfair trade practices that, cumulatively , are contrary to the requirements of professional diligence  and which materially distort or are likely to materially distort the economic behavior, with regard to the product, of the average consumer . The text specifically covers the two most common cases of unfair trade practices: misleading commercial practices within the meaning of Articles 6 and 7 and aggressive commercial practices within the meaning of Articles 8 and 9. Finally, Article 5 refers to Annex I of the directive, which lists the commercial practices deemed unfair in all circumstances, i.e. without it being necessary to assess their misleading or aggressive nature in view of the criteria laid down in Articles 6 to 9.

In its Guidance for the implementation of the directive , the Commission established an analytical grid which describes the different stages of the assessment of the unfair nature of a commercial practice. The national court must first check whether the practice concerned is contained in the list of Annex I. If this is the case, it is prohibited per se, without any other condition. Otherwise, the court must consider whether the practice meets the criteria for the classification as misleading or aggressive practice laid down in Articles 6 to 9 and whether it materially distorts or is likely to materially distort the economic behavior of the consumer. Under this principle, a commercial practice which is not covered by Annex I cannot be subject to a general prohibition: National legislation must allow the court to specifically check if it is of a misleading or aggressive nature. Thus, the Court of Justice declared contrary to the directive the general prohibition of:

-  tie-in sales provided for by the laws of Belgium  and Poland  ;

-  some forms of lotteries enacted by German law ;

-  sales with bonuses laid down by Austrian law ; 

-  announcements of price reductions during periods preceding the seasonal sales  or when the advertised prices are not a real reduction compared to the usual price charged during a continuous period of one month immediately preceding the start date of the promotion  imposed by Belgian law;

-  clearance sales conducted without prior authorization under Austrian law ;

-  resale below cost established by Belgian   and Spanish  law

However, Article 3(9) of the directive provides for an exception in favor of financial services and real property for which Member States are free to impose more restrictive requirements. Therefore, the Belgian provision which provides for a general prohibition of combined offers in which one of the elements is a financial service, was not considered contrary to EU law .

If the criteria of Articles 6 to 9 are not met, the court, to qualify the practice as unfair, must ensure that it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the consumer's economic behavior. The question arose as to whether, when the practice is assessed against the criteria of Articles 6 to 9, the court should also verify its compliance with the requirements of professional diligence and the possible distortion of the consumer's economic behavior. According to the Commission, there is no need to conduct this verification since professional diligence is automatically violated in the event of a misleading action or omission or aggressive commercial practices . The Court of Justice enshrined this interpretation it considers the only way of preserving the usefulness of Articles 6 to 9 . However, proof of the distortion of the consumer's economic behavior is required in all cases, as this condition is expressly reiterated in Articles 6, 7 and 8 . 

According to the Court of Justice, the sale of a computer equipped with pre-installed software without any option for the consumer to purchase the same model of computer not equipped with pre-installed software does not constitute an unfair commercial practice within the meaning of Article 5(2) of Directive No 2005/29, unless such a practice is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behavior of the average consumer with regard to the product . To ascertain whether such a sale meets the requirements of professional diligence, the court must ensure that the consumer was correctly informed, the combined offer met the expectations of a significant proportion of consumers and that it was possible for the consumer to accept all the elements of that offer or to cancel the sale . The Court found that where a consumer has been duly informed, prior to the purchase, that the model of computer was not marketed without pre-installed software and that he was therefore, in principle, free to choose another model of computer, or another brand, with similar technical specifications, sold without software or used with different software, the ability of that consumer to make an informed transactional decision was not appreciably impaired .

Before the amendments resulting from Directive No 2019/2161 of 27 November 2019 , the Court of Justice   had stated that Article 5 (1) of the directive merely provided that unfair commercial practices were prohibited and left the Member States a margin of discretion with regard to national measures to adopt in order to combat such practices. It follows that, contrary to a contract containing an unfair term, a contract containing terms that are contrary to the general prohibition of unfair commercial practices is not necessarily invalid. This solution could be called into question by the 2019 directive, which adding new  Article 11a to Directive No 2005-29 introduces a new type of sanction: compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract. The objective is to ensure the complete elimination of the effects of practice for consumers. In addition, for “widespread infringements” within the meaning of Directive No 2017-2394, Directive No 2019-2161 has introduced a fine  a level of not less than 4% of the trader’s annual turnover in the Member State(s) concerned and where information on annual turnover is not available, a fine, the maximum amount of which is EUR 2 million. Member States are authorized to impose heavier penalties.

 Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Judgment of 9 November 2010, LawLex201100000274JBJ.

 Article 2(h), defines the concept of professional diligence as "the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity".

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

 Case C-343/12 Euronics Belgium CVBA, Judgment of 7 March 2013, LawLex201300001556JBJ.

 Case C-295/16 Europamur Alimentación SA, Judgment of 19 Ooctober 2017, LawLex201700001687JBJ. 

 Case C-265/12 Citroën Belux NVJudgment of 18 July 2013, LawLex201300001169JBJ.

 Case C-435/11 CHS Tour Services GmbH, Judgment of 19 September 2013, LawLex201300001334JBJ.

 Case C-281/12 Trento Sviluppo srl, Judgment of 19 December 2013, LawLex201300001863JBJ, pt 30: "Since the misleading commercial practices referred to in Article 6 of Directive 2005/29 constitute a specific category of unfair commercial practices, referred to in Article 5(2) of that directive, they must necessarily combine all the constituent elements of such unfairness, including, in consequence, the element relating to the ability of the practice to materially distort the economic behavior of the consumer by causing him to take a transactional decision that he would not have taken otherwise".

 Case C-310/15 Deroo-Blanquart, Judgment of 7 September 2016, LawLex201600001382JBJ.

 Case C-310/15 Deroo-Blanquart, cited above.

 Article 2(e), defines the material distortion of the economic behavior of consumers as "using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise". The concept of transactional decision is defined, in Article 2(k), as "any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting".

Directive No 2019/2161 of 27 November 2019 on the modernization of Union consumer protection rules, OJEU 18 December 2019.

Case C-109/17 Bankia SA v Marí Merino, Judgment of 19 September 2018, LawLex201800001351JBJ.

 Guidance of 3 December 2009 for the implementation and application of Directive 2005/29/EC on unfair commercial practices, SEC (2009) 1666, 69.

 Case C-261/07 VTB-VAB NV, Judgment of 23 April 2009, LawLex200900002352JBJ.

 Case C-522/08 Telekomunikacja Polska SA w Warszawie, Judgment of 11 March 2010, LawLex201100000252JBJ.

  Case C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs eV, Judgment of 14 January 2010, LawLex201100000479JBJ.

  Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Judgment of 9 November 2010, LawLex201100000274JBJ

 Case C-288/10 Wamo BVBA, Judgment of 30 June 2011, LawLex201200000101JBJ; Case C-126/11 Inno NV Judgment of 15 December 2011, not available in English.

 C-421/12 Commission v Belgium, Judgment of 10 July 2014, LawLex201400002220JBJ.

French Consumer Law

114. General scheme of the directive

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114. General scheme of the directive

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Les décisions de justice citées dans ce paragraphe :

Sous parties

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