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 material distortion of the economic behavior of the consumer, the central pivot of the control mechanism , is established when the seller  communicates information that is incomplete , ambiguous  or not readily accessible  on the various elements of its offer or its main characteristics. The transferee of a trademark who takes advantage of the long-standing heritage and know-how of the three-hundred-year-old company from which the trademark takes its name, even though the luxury leather goods business is far removed from the sale of arms in which the undertaking was engaged, misleads the consumer as to a factor that is likely to materially distort his or her economic behavior by inducing him or her to make a commercial judgment that they would not otherwise have made . Conversely, when the information given or omitted only focuses on an incidental characteristic of the product or service, the commercial practice is not regarded as unfair . Information that is not updated may constitute an unfair practice, unless there is a possibility for the consumer to readily obtain updated information . The consumer's freedom of choice is another criterion for assessing the distortion of his behavior. Thus, when the author of a practice is not in a position as offeror on the market, he escapes the prohibition . The existence of an offer that competes with that of the author of the practice also enables to exclude any distortion of the behavior of consumers . Finally, the assessment of materiality is not based on a quantitative criterion. According to the Court of Cassation, the material distortion of the economic behavior of the consumer is not assessed in the light of the impact of the practice on the market , but of the transactional decision of the average consumer . Thus, the fact that the Administration bases its decision on a very limited number of complaints does not mean that the practice in question does not substantially distort the economic behavior of consumers .

The material distortion of economic behavior is assessed in relation to the capacity of discernment of the recipients of the practice and their ability to verify the assertions of the professional .

The criteria for lack of compliance with professional diligence and material distortion of the economic behavior of the average consumer are cumulative: it is sufficient that one of the conditions is not met for the qualification of unfair commercial practice to be rejected . However, in the presence of a misleading commercial practice, it is not necessary to characterize an alteration in the economic behavior of the consumer .

Cass. crim. 29 January 2019, LawLex201900000169JBJ: a professional trader cannot be convicted of a misleading commercial practice if the court has not established in concrete terms that the allegations in question were likely to materially distort the economic behavior of the reasonably well informed and reasonably observant and circumspect consumer; Cass. com, 7 May 2019, LawLex201900000623JBJ: the court cannot consider that a commercial practice is unfair without explaining, on the basis of specific factors, how the inadequacy of the information communicated by the trader is likely to materially distort the economic behavior of the consumer.  

  CA Lyon, 24 July 2014, LawLex201400000795JBJ: the comparison site that fails to correctly inform the consumer on the warranties, total price or even the updated price of the referenced products, or on the period of validity of the offers, cannot materially distort his economic behavior as the transaction is only definitively performed on the commercial website of the referenced partner, which is required to provide such information. See also Cass. 1re civ., 1 July 2015, LawLex201500000891JBJ, specifying that the obligation of information on the price of software when buying a computer lies not with the manufacturer, but with the seller.

Cass. com., 11 March 2014, LawLex201400000489JBJ; 8 June 2017, LawLex201700001024JBJ overturning on this point CA Paris, 22 May 2015, LawLex201500000666JBJ. Cf. CA Paris, 6 February 2019, LawLex201900000193JBJ, which, while holding that the material nature of the distortion in the economic behavior of the consumer is assessed primarily in terms of its impact on the commercial decision of the average consumer and not in terms of its effect on the relevant market, points out that the success of a product - sales of more than 100,000 units in 10 months, demonstrates that the advertising message has in fact altered the economic behavior of the consumers; CA Paris, 15 January 2019, LawLex201900000086JBJ, the use by two companies of the term “rent a car” in their trade names does not lead to a “material'” distortion of the economic behavior of consumers where it is not established that consumers would have massively stopped visiting the agencies of the first of the two companies to have used it, which, moreover, did not suffer any reduction in turnover or market share during the reference period.

CA Douai, 3 October 2019, LawLex201900001188JBJ, a consumer does not demonstrate that the lottery entry documents sent to him have materially distorted his economic behavior if he cannot justify having placed orders that he would not have placed if the documents had not been sent; CA Angers, 24 September 2024, LawLex202400006999JBJ and LawLex202400007000JBJ: the practice, which consists, for a company for the bulk purchase of bad debts at a low cost, of deliberately soliciting the payment of interest that it knows to be time-barred for the most part, characterizes conduct constituting a breach of professional diligence, likely to materially alter the economic behavior of an average consumer, by definition placed in a position of inferiority and who cannot reasonably be expected to know the subtleties of case law regarding the statute of limitations on part of his debt, since it forces him to pay the sums claimed under the threat of a writ of execution to seize his property served on him by a judicial commissioner, leading him to believe that the procedure is serious.

  TGI Créteil, 11 June, 2010, LawLex201000001098JBJ.

Cass. crim., 12 June 2019, LawLex201900000795JBJ, finding that use of the term “Petrus” to describe a wine is not liable to distort the economic behavior of reasonably well informed and reasonably observant and circumspect wine consumer, insofar as it is easy to ascertain whether a Bordeaux wine is entitled to use that name, and if the words “second wine”, used by the professional, exist for the wine from the Château Petrus vineyard and the low prices charged by it are likely to avoid any risk of confusion. CA Bordeaux, 21 December 2017, LawLex201800000056JBJ, which takes the view that the untrue statement that a model of stopper is registered is not such as to alter the purchasing decision of the professionals to whom it is addressed, since they are more sensitive to the aesthetic appearance of the product than to its protection by intellectual property rights; CA Paris, 26 September 2017, LawLex201700001540JBJ, holding that advertising for a filter flask does not constitute an unfair commercial practice vis-à-vis suppliers of bottled water where the latter do not demonstrate any actual or even potential material distortion  in the economic behaviour of the normally well-informed consumer leading him to believe that the filtered water would be of the same quality as water marketed in bottles.

  CA Versailles, 22 January 2015, LawLex201500000124JBJ.

Cass. crim., 28 January 2020, LawLex202000000126JBJ.

  CA Versailles, 5 May 2011; Cass. 1re civ., October 6, 2011, LawLex201100001658JBJ, quashing on this point CA Paris, 26 November 2009, LawLex201000000011JBJ; Cass. 1re civ., 20 December 2012, LawLex201300000005JBJ. Cf. Cass. 1re civ., 4 June 2014, LawLex201400000747JBJ, holding that the fact that a consumer had been fully informed that he was buying a computer with a pre-installed operating system is insufficient to exclude the existence of an unfair commercial practice, and a conflicting ruling rendered subsequently: Cass. 1re civ., 26 April 2017, LawLex201700000832JBJ.

Cass. com., 4 December 2012, LawLex201200002444JBJ: price comparison site that does not clearly indicate the existence of a priority referencing system of traders who have subscribed to a paid offer. Cf. where the ambiguity is removed by statements contradicting the principal assertions, Cass. com., 1 March 2017, LawLex201700000388JBJ.

  CA Lyon, 24 July 2014, LawLex201400000795JBJ: a price comparison site is likely to distort the economic behavior of the consumer if he can only understand the offers of the participating traders presented to him after several clicks and reading several separate pages.

CA Paris, 23 November 2021, LawLex202100006039JBJ.

  T. com. Paris, 31 January 2012, LawLex201300001398JBJ; CA Grenoble, 14 March 2013, LawLex201300000485JBJ; CA Paris, 24 May 2013, LawLex201300000855JBJ; CA Paris, 14 January 2015, LawLex201500000040JBJ: the fact that a radio has availed itself of possibly non-existent partnerships with the organizers of concerts given by world-renowned signers is not a misleading commercial practice when this allegation is not likely to distort the economic behavior of the listeners, whose decisive motivation, for listening to the station, is its musical programming and not its ability to conclude partnerships; CA Bordeaux, 21 December 2017, LawLex201800000056JBJ, holding that the untrue statement according to which a model of cork is trademarked is not of a nature to affect the decision to purchase by professionals to which it is directed, insofar as they are more attuned to the aesthetic aspect of the product than to its protection by intellectual property rights.

 CA Paris, 22 January 2013, LawLex201300000102JBJ.

 CA Colmar, 30 March 2010, LawLex201000000413JBJ, approved by theCass. com., 17 April 2011, LawLex201100000860JBJ: opinion campaign disseminated by an operator who complains of not being able to market a product as the legislation currently stands.

  Cass. com., 13 July 2010, LawLex201000000838JBJ; Cass. 1re civ., 12 July  2012, LawLex201200001320JBJ; 5 February 2014, cited above; 14 December 2016, LawLex201600002055JBJ, no distortion where the duly informed consumer is in a position to make the choice of purchasing from other professionals by selecting another appliance sold with or without software.

123. Material distortion of the economic behavior of the consumer