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

When the message is directed at a specific audience, there is a clear trend in the case law to carry out an assessment of its misleading nature in concreto. Sometimes, the in concreto assessment reinforces the severity of the control. This is the case when the court is confronted with the legibility of information shown on advertising displays on the roadside targeting an audience of motorists tra …

In concreto assessment

Under Article L. 121-1 (former Article L. 120-1) of the Consumer Code, to be qualified as unfair, the practice must distort or be likely to distort “the economic behavior of the reasonably well-informed and reasonably observant and circumspect consumer”. This definition incorporates the terms used by recital 18 of Directive No 2005/29 of 11 May 2005 on unfair commercial practices  which states: “[…] this directive takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice […]. The average consumer test is not a statistical test. National courts and authorities will have to exercise their own faculty of judgment, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case” . The European Union judicature recognizes that national courts can use an opinion poll or an expert appraisal if it experiences difficulties in assessing the misleading nature of a message based on the presumed expectations of an average consumer who is normally informed and reasonably observant and circumspect . The French courts are usually reluctant to seek external advice .

 Directive No 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.

 The concept of "average consumer, reasonably well-informed and reasonably observant and circumspect" was established by the case law of the EU; see, on misleading advertising, , Case C-210/96 Gut Springenheide GmbH, Judgment of 16 July 1998, LawLex200900001130JBJ; see also on sales descriptions: , Case C-220/98 Estée Lauder Cosmetics GmbH, Judgment of 13 January 2000, LawLex200700001612JBJ; , Case C-99/01 Judgment of 24 October 2002, LawLex200900001220JBJ.

  See, on misleading advertising, Case C-210/96 cited above.

 CA Paris, 18 April 2013, LawLex201300000658JBJ.

Definition

Directive No 2005/29 refers to a new category of consumers: consumers “particularly vulnerable to unfair commercial practices” (Recital 19) . These are people whose characteristics, such as age, physical or mental infirmity or credulity make them particularly vulnerable to an unfair commercial practice or the product to which it relates.

The Law of 3 January 2008 did not transpose the concept of “vulnerable consumers” into French law. For these people, the misleading nature of the commercial practice, according to the directive, should be assessed based on the “the perspective of the average member of that group” , which amounts to extending the “average consumer” standard to a particular group of people. The shortcoming of the French legislator was due to the fact that national case law, by way of exception to the principle of in abstracto analysis, favored an in concreto analysis whenever the advertising was directed at a particular audience. This was mainly the case when the practice was aimed at people who are ill or facing economic difficulties . In the light of the Commission's criticisms, the legislator decided to introduce into Law No 2008-776 of 4 August 2008 on the modernization of the economy, a definition of the concept of “particularly vulnerable consumers”, in line with the directive. Thus, Article L. 121-1, I, paragraph 2 (former Article L. 120-1, I, paragraph 2), now states that “the unfair nature of a commercial practice aimed at a particular category of consumers or group of consumers who are vulnerable due to their mental or physical infirmity, age or credulity, is assessed in view of the average capacity of discernment of the category or group”.

See Cass. crim., 5 February 1997, LawLex200300003392JBJ: advertisements directed at people suffering from serious or incurable diseases; Cass. crim., 22 November 1990, LawLex200300003395JBJ, advertisement directed at craftsmen, a category often faced with economic difficulties; TGI Paris, 11 December 1996, LawLex200300002218JBJ, advertiser targeting overweight people.

 Concept of vulnerable consumer

Under Article L. 121-1 (now Articles L. 121-2, L. 121-3 and L. 121-5), in its version prior to 2008, the court was asked if the assessment of the misleading nature of the advertising should be conducted in abstracto, by reference to the average consumer standard, or in concreto, taking the advertising target into account. Case law finally opted for the reference to the average consumer in accordance with a circular of the Minister of Justice of 1 October 1974 pursuant to which “with regard to misleading advertising […] the assessment must be made in the light of the psychology of the average consumer” . The solution also appears to be in line with the EU case law, which, in order to determine whether an advertising indication is likely to mislead the consumer within the meaning of Directive No 84/450 of 10 September 1984, considers “the presumed expectations of an average consumer, normally informed and reasonably observant and circumspect” . In practice, decisions have used different formulas, such as “the averagely informed consumer” , the consumer who is “averagely”  or even “non-informed” , the “consumer in a state of normal vigilance” , or the “consumer displaying average attention” . The most recent case law refers to “an average consumer, normally informed and reasonably observant and circumspect” .

The in abstracto assessment conducted taking into account the degree of discernment and critical thinking of the average consumer led to the acquittal of an advertiser who had disseminated an advertisement with a strong emphatic character to demonstrate the strength of a suitcase . Regarding loan offers, the Paris Court of Appeal considers that the average consumer, who is able to distinguish between the verbs “to ask” and “to obtain”, cannot be misled as to the automatic nature of obtaining a loan, when the loan offer clearly states that obtaining the loan is subject to acceptance of the application . Similarly, the average consumer cannot believe that lowering the cost of the monthly repayments of a revolving loan is likely to result in a reduction of the total cost of the loan . Case law is sometimes more stringent when it comes to financial products. The fact that an advertisement is directed at “the public” in the broad sense does not exclude the qualification of misleading advertising, to the extent that the public is not necessarily aware of the risks of financial investments. For example, the words “earn 27% with no risk” was found to be misleading, to the extent that the average consumer, by nature uninformed on financial matters, could think that the interest percentage advanced could be paid to him annually, even if a rate of 27% is hardly conceivable . More recently, the Court of Cassation held that the existence of a misleading omission within the meaning of Article 7 of Directive No 2005/29, assessed in the light of the average consumer, may be penalized even when the dispute concerns the sale of a computer and the buyer in question is an active member of an association that fights against tied sales of software and manages a company that operates in the field of computer systems and products .

The in abstracto assessment is justified when the practice is directed at all consumers . In such cases, the Court of Cassation considers that account should not be taken of the particular interest of the complainant for the product concerned on the grounds that he had already purchased it in the past or is able to instantly compare the prices charged by other online sellers . However, when the advertising is specifically aimed at an informed public, the discernment specific to this particular category of consumers should be taken into account.

 See Case C-210/96 Gut Springenheide GmbH, Judgment of 16 July 1998, LawLex200300003902JBJ.

 See CA Paris, 18 June 2002, cited above.

  Cass. crim., 12 October 1994, LawLex200300003390JBJ, upholding CA Versailles, 8 July 1993, LawLex200300001607JBJ; T. com. of Paris, 10 February 2006, LawLex200600001788JBJ: concerning an advertisement for a financial investment directed at uninformed consumers declared misleading due to the lack of full information on the financial risks. Cf. TGI Paris, 14 April 1999, LawLex200300001968JBJ, considering that in the area of financial investments, the advertiser is not required to specify all the risks and disadvantages of the investment; CA Paris, 15 January 2007, LawLex200700001997JBJ, approved by the Cass. crim., 16 October 2007, LawLex200700001922JBJ.

 Cass. 1re civ., 22 January 2014, LawLex201400000141JBJ.

  See also Court of Cassation, 22 August 1994, LawLex200300003378JBJ, approving CA Versailles, 13 May 1993, LawLex200300002343JBJ, which, concerning an advertisement for a dietary product misrepresented as a meal substitute, considered that when the advertisement is visible to a broad audience, the offence is constituted regardless of the unknown and variable perception of the targeted citizens, such as discerning sportsmen or health professionals.

 Cass. crim., 11 July 2017, LawLex201700001245JBJ.

 Cass. crim., 5 September 1981, LawLex201400000382JBJ.

 CA Paris, 1 March 1993, LawLex200400000009JBJ.

 T. com. Paris, 10 February 2006, LawLex200600001788JBJ.

 CA Paris, 24 September 2003, LawLex200400000426JBJ.

 CA  Versailles, 10 February 2004, LawLex200400001040JBJ.

  TGI Paris, 13 June 2006, LawLex200700000207JBJ; CA Paris, 18 April 2013, LawLex200300002343JBJ.

 Cass. crim., 21 May 1984, LawLex200300003863JBJ: depiction of a suitcase resistant to crushing by a bulldozer; Paris, November 16, 2007, LawLex200700001992JBJ, approving TGI Paris, 13 June 2006, which holds that an average, normally informed and circumspect consumer, cannot believe the consumption of the products advertised alone is likely to cause a significant reduction in his cholesterol.

 See CA Paris, 18 June 2002, LawLex200300002248JBJ.

In abstracto assessment

When the message is directed at a specific audience, there is a clear trend in the case law to carry out an assessment of its misleading nature in concreto. Sometimes, the in concreto assessment reinforces the severity of the control. This is the case when the court is confronted with the legibility of information shown on advertising displays on the roadside targeting an audience of motorists travelling at high speed  or when the advertisement targets an extremely vulnerable public such as people with severe or incurable diseases. In this case, the courts refuse to retain emphasis, considering that these persons do not have the necessary objectivity to assess the exaggerated nature of the slogans .

In other cases, the in concreto assessment allows to reduce the rigor of the control. For example, instead of assessing the substantive qualities of a product, the courts can take into account the expectations of the specifically targeted users . The assessment in concreto is also illustrated in cases where advertising is aimed at professionals or specialists. Case law takes account of the fact that they are a more informed public, less vulnerable than the average consumer . When an advertisement is published in a publication reserved for an audience of specialists, the appreciation of its misleading nature is carried out in the light of this public . However, this case law applies only if the professionals are able to exercise their critical judgment . This is not the case for advertising relating to computer equipment intended for the medical profession  or an advertisement which artificially inflates the sales of a magazine to mislead professionals receiving the message on the effectiveness of the publication . In addition, after the 2008 transposition legislation, professionals could no longer claim to be victims of misleading omissions, as Article L. 121-5 (former Article L. 121-1, III), specified that they could only rely on the commission of misleading actions  or the misleading commercial practices per se of Article L. 121-4 (former Article L. 121-1-1) of the Consumer Code . Finally, the legislation ratifying the Ordinance of 14 March 2016  overturned that solution extending the protection granted by Articles L. 121-2 to L. 121-4 , i.e. including in case of misleading omissions, to both professionals and non-professionals. Some courts, however, continue to consider that the Consumer Code is not applicable when no consumer is involved and the claims reported are only addressed to professionals .

However, some decisions refuse to conduct an in concreto assessment even when the advertisement targets a particular public and prefer to sanction the misleading nature of the allegations rather than to examine whether the advertisement was likely to mislead .

 See Cass. crim., 27 November 1990, LawLex200300003451JBJ, upholding CA Orléans, 5 March 1990, LawLex200300001611JBJ; Cass. crim., 12 October 1994, LawLex200300003390JBJ, upholding CA Versailles, 8 July 1993, LawLex200300001607JBJ; CA Amiens, 30 September, 2009, LawLex201200001319JBJ.

 Cass. crim., 5 February 1997, LawLex200300003392JBJ, upholding CA Paris, 20 November 1995, LawLex200300001698JBJ.

Law No 2017-203 of 21 February 2017 ratifying Ordinances 2016-301 of 14 March 2016 relating to the legislative part of the Consumer Code and No 2016-351 of 25 March 2016 on credit agreements for consumers relating to immovable property for residential use and simplifying the system of implementation of the obligations in the area of compliance and safety of products and services, OJ of 22 February 2017.

Versailles, 12e ch., 30 January 2020, LawLex202000000203JBJ, the fact that a financial lease agreement has been entered into by a self-employed doctor for the purchase of equipment necessary for the operation of his professional activity does not prevent him from invoking the provisions on misleading commercial practices; CA Aix-en-Provence, 1 February2018, LawLex201800000264JBJ,  holding that the commission of an  Article L. 121-4 per se unfair commercial practice may be invoked by a professional. 

CA Colmar, 5 December 2018, LawLex201900002057JBJ.

 See, in particular, Cass. crim., 26 March 1992, LawLex200300003611JBJ, holding that the fact that the advertisement at issue is intended for a discerning public of hunters is not such as to set aside its criminal nature.

  Cass. crim., 2 October 1996, LawLex200300003664JBJ, upholding CA Pau, March 14, 1995, LawLex200300001686JBJ, taking into account the expectations of housewives, users of the detergent product in question; CA Rouen, 12 September 1995, LawLex200300001694JBJ, retaining as a reference consumer the potential user of the product or, in this case, users of septic tanks.

 Cass. crim., 31 May 1995, LawLex200300003862JBJ, upholding CA Dijon, 1 July 1994, LawLex200300001701JBJ, holding that an advertisement which does not specify that the use of the good sold is subject to approval is not misleading since it lies with the specialist consumer to inquire about the administrative formalities related to the type of device in question; Cass. crim., 25 September 2001, LawLex200300004456JBJ, approving CA Rennes, 16 November 2000, LawLex200300004548JBJ, considering that the brochure of a building contractor is not likely to mislead its readers as to the quality of its intervention, when these readers, professionals in this sector, must read the advertising document, that contains all the useful information, in its entirety; TGI Paris, 19 May 2005, LawLex200500010357JBJ, considering that an advertisement cannot mislead the professionals for whom it is intended, when it associates the mention of an ISO certification with a sales pitch that contradicts it; CA Paris, 16 December 2015, LawLex201500001835JBJ; 28 October 2016, LawLex201600001784JBJ; 27 January 2017, LawLex201700000198JBJ, ad aimed at professionals who are familiar with the proposed solutions and the undertakings present on the market; CA Nîmes, 15 March 2018, LawLex201800000471JBJ.

 CA Bordeaux, 14 January 1992, LawLex200400001193JBJ: advertisement published in a specialized magazine aimed at a public of dog lovers and breeders; CA Versailles, 29 March 2001, LawLex200200000653JBJ: advertisement published in magazines reserved for firms distributing flyers, advertising documents and free newspapers mentioning the inaccessibility of mailboxes of residential buildings. The courts consider that it cannot be understood by its recipients, informed professionals, as meaning that the advertiser is the only firm distributing flyers that can access premises. See also CA Rennes, 28 June 2011, LawLex201200001097JBJ; CA Nîmes, 15 March 2018, LawLex201800000471JBJ.

 See Cass. crim., 22 November 2016, LawLex201600001927JBJ; 17 January 2018, LawLex201800000145JBJ; CA Paris, 19 January 2018, LawLex201800000185JBJ; CA Aix-en-Provence, 10 April 2018, LawLex201800000591JBJ.

 Cass. crim., January 26, 1988, LawLex200300003573JBJ.

 CA Paris, 26 September 1991, LawLex200200001789JBJ.

  For an example, see CA Lyon, 28 September 2012, LawLex201200002224JBJ.

 CA Paris, 5 February 2016, LawLex201600000303JBJ; CA Aix-en-Provence, 1 February 2018, LawLex201800000264JBJ.

French Consumer Law

127. In concreto assessment

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Les notions juridiques connexes

127. In concreto assessment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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