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 gradual bringing into compliance of French law with Directive No 2005/29 of 11 May 2005 and the inconsistency of the transposition measures have inevitably led to difficulties of interpretation of Article L. 121-1. Several provisions of French law remained non-compliant with EU law after its transposition via the Law of 4 August 2008. Most of the difficulties focused on former Article L. 122-1 …

Role of the French courts

The gradual bringing into compliance of French law with Directive No 2005/29 of 11 May 2005 and the inconsistency of the transposition measures have inevitably led to difficulties of interpretation of Article L. 121-1. Several provisions of French law remained non-compliant with EU law after its transposition via the Law of 4 August 2008. Most of the difficulties focused on former Article L. 122-1 of the Consumer Code (now Article L. 121-11), which outright prohibited tied sales and bundling . However, according to the principles of EU law, the national court must, in all cases, interpret any conflicting national law in the light of the provision of the directive to give it its full effect : noting that the offense did not appear in Annex I of the directive , it was considered that French law could not prohibit tied sales per se without assessing on a case-by-case basis whether they are misleading or aggressive . The question has also arisen as to the conformity of the French resale below cost regulations with the directive. The Court of Cassation avoided the difficulty ruling that the disputes before it concerned sales between professionals and therefore fell outside of the scope of application of the directive . This solution is likely to be inconsistent with Union law: the Court of Justice considered that the Spanish resale below cost rules were contrary to the directive even though the question referred concerned a dispute between professionals, insofar as the national legislation pursued the aim of protecting consumers .

Furthermore, when assessing the lawfulness of a practice qualified as misleading, the court, pursuant to the hierarchy of standards established by the LME Law of 4 August 2008, must first check whether it is included in the list of per se  misleading practices of Article L. 121-4 of the Consumer Code; if this is not the case, it must determine whether it is misleading in the light of the criteria laid down in Articles L. 121-2 and L. 121-3; finally, if the response is still negative, it must check whether it is unfair within the meaning of Article L. 120-1 . However, some courts considered that they retained their discretionary power even though the practice is included in the black list under Article L. 121-4. For example, in a case where a network of opticians announced free frames although they were subject to the concurrent purchase of lenses, a practice expressly prohibited by point 19 of Article L. 121-4, the Court of Appeal in Reims nevertheless ruled against the plaintiff, holding that the consumer was clearly informed of the conditions of the offer, even by the method of reference by asterisk . There are several arguments in favor of the solution adopted by the court. Firstly, the 17th recital of the directive states that the Annex contains the full list of “the only commercial practices which can be deemed to be unfair without a case-by-case assessment […]”. The fact that the text uses the verb “can” and not “must” seems to allow the courts some room for maneuver. However, this was not the view of the Court of Cassation, which, in another case, considered that the mere fact of asserting that a product or service increases the likelihood of winning in games of chance constituted a misleading commercial practice irrespective of the reality of the claim and without the need to characterize a distortion of the economic behavior of the consumer .

The fact that a practice such as electronic couponing is not covered by the directive is insufficient to set aside the grievance of unfair competition, since Article 1382 (now Article 1240) of the Civil Code does not pursue a consumer protection objective .  Similarly, while the organization of online poker tournaments is not covered by the directive, this commercial practice may nevertheless be prohibited under the rules on games of chance, without the court having to verify its unfairness .

 But see Cass. com., 14 February 2012, LawLex201200000743JBJ, declaring compliant with the directive the Decree of 14 March 1986 on the furniture trade.

 Cass. com., 13 July 2010, LawLex201000000838JBJ; Cass. 1re civ., 15cNovember 2010, LawLex201000001240JBJ; 22 January 2014, LawLex201400000141JBJ.

Cass. com., 29 January 2020, LawLex202000000164JBJ.

 CA  Paris, 14 May 2009, LawLex200900001726JBJ; CA Versailles, 5 May 2011, LawLex201100001021JBJ.

 Contrary to the sales pitch of some manufacturers, the concept of legitimate grounds used by the former Article L. 22-1 (currently Article L. 121-11) was not considered as implying an assessment of the practice comparable with the one provided for by the directive: TGI Nanterre, 30 October 2009, LawLex201000000338JBJ.

Cass. com., 22 November 2017, LawLex201700001961JBJ; Cass. crim., 19 December 2017, LawLex201800000050JBJ; 16 January 2018, LawLex201800000217JBJ.

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

 CA Reims, 13 November 2012, LawLex201200002364JBJ.

 CA Reims, 13 November 2012, cited above.

Cass. crim., 28 January 2020, LawLex202000000126JBJ.

CA Colmar, 2 February 2010, LawLex201200000820JBJ.

French Consumer Law

128. Role of the French courts

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128. Role of the French courts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise