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

Before the transposition of Directive No 2005/29 of 11 May 2005 , the commercial practices of traders vis-à-vis consumers were governed by different texts: the articles of the Civil Code on the validity of consent  and contractual good faith ; those of the Commercial Code on closing-down sales, sales on temporary premises, seasonal sales and factory outlets ; those of the Consumer Code on consumer …

Transposition of Directive No 2005/29 into French law

Before the transposition of Directive No 2005/29 of 11 May 2005 , the commercial practices of traders vis-à-vis consumers were governed by different texts: the articles of the Civil Code on the validity of consent  and contractual good faith ; those of the Commercial Code on closing-down sales, sales on temporary premises, seasonal sales and factory outlets ; those of the Consumer Code on consumer information , deceptive or misleading advertising , on solicitation , sales with bonuses , sweepstakes , bundling , inertia selling , pyramid selling , abuse of weakness , the legal guarantee of compliance and its relationship with the commercial warranty , fraud and counterfeiting  and some non-codified texts such as the Order on price reduction announcements . The entry into force of Directive No 2005/29 changes the situation as its horizontal approach to business practices and its maximum harmonization effect deprives Member States of the possibility to maintain more restrictive provisions. Forced to revise certain national provisions, the French legislator proceeded by a succession of changes.

Law No 2008-3 of 3 January 2008 for the development of competition serving consumers' interests is the first attempt to transpose Directive No 2005/29. The text amends the titles of Title II of Book I of the Consumer Code to faithfully reproduce the structure of the directive. It introduces a preliminary chapter with a single article, Article L. 120-1 (current Article L. 121-1), which lays down the principle of a general prohibition of unfair commercial practices. Without defining the concept of commercial practice, the new offense concerns unfair behavior “contrary to the requirements of professional diligence and materially distorting or likely to distort the economic behavior of the consumer who is reasonably well informed and reasonably observant and circumspect, in respect of a good or service”. Like the directive, the law enshrines the concept of diligent professional and that of average consumer. Professional diligence, which is not defined, appears to cover the level of specialized skill and care which any professional is reasonably expected to exercise vis-à-vis the consumer. It thus refers to the concept of good faith and the duty of professionals to comply with ethical rules or practices.

The assessment of the unfair nature of the practice is based on an in abstracto analysis of the consumer, already established by case law with respect to misleading advertising .

Law No 2008-3 also amends former Article L. 121-1 , previously devoted only to misleading advertising, extending it to unfair commercial practices, which are not solely confined to advertising practices. The offense of misleading advertising becomes a misleading commercial practice, which can be carried out by an action or omission. According to the criminal chamber of the Court of Cassation, the application of the text in its version resulting from the Law of 3 January 2008 to offenses committed when the previous version was in force, does not infringe the principle of non-retroactivity of criminal law when the elements of the offense are the same, regardless of their designation . Finally, in the chapter devoted to unlawful commercial practices, it introduces an additional section on aggressive commercial practices, which are not only a criminal offense, but also a new cause of invalidity of contracts .

However, the transposition carried out by the Law of 3 January 2008 was incomplete as it did not provide for any provisions relating to the assessment of unfair commercial practices against vulnerable consumers, did not address the concept of invitation to purchase and did not reproduce the black list of Annex I of the directive . The Commission, after having strongly criticized these shortcomings and summarized all its grievances, directed the French legislator to comply with Union law. Law No 2008-776 of August 4, 2008 on the modernization of the economy , remedied the shortcomings of the earlier transposition. It introduced in paragraph 1 of Article L. 120-1 (current Article L. 121-1) a paragraph which 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” and inserted two new Articles L. 121-1-1 (now Article L. 121-4) and L. 122-11-1 that reproduce the content of the Annex for each offense. It added a second paragraph to Article L. 120-1 (current Article L. 121-1) pursuant to which constitute unfair commercial practices, in particular, the misleading commercial practices defined in Articles L. 121-1 (now Articles L. 121-2, L. 121-3 and L. 121-5) and L. 121-1-1 (now Article L. 121-4) and the aggressive commercial practices defined in Articles L. 122-11 and L. 122-11-1 (current Articles L. 121-6 and L. 121-7). Finally, it incorporates the concept of invitation to purchase in Article L. 121-1, II (now Article L. 121-3).

The adjustments made by the Law of 4 August 2008 did not satisfy the Commission, which gave notice to France to remove the per se prohibitions contained in the texts relating to tied selling, sales with bonuses and sweepstakes. Law No 2011-525 of 17 May 2011 on the simplification of the law  amended these different texts accordingly. However, it introduced an unfortunate confusion by maintaining the previous definition of the offenses and merely specifying, at the end, that the practices in question must not be of an unfair nature within the meaning of Article L. 120-1 (current Article L. 121-1) of the Consumer Code. In a press release of 29 September 2011, the Commission indicated its intention to issue a new reasoned opinion against France for incorrect transposition of the directive, which never materialized.

Directive No 2019/2161 of 27 November 2019 for the better enforcement and modernization of Union consumer protection rules has significantly modified Directive No 2005/29, which will require adaptations to the French law. A new sanctions regime has been introduced, which provides for compensation for damage suffered by the consumer and, where appropriate, a reduction of price or the termination of the contract, as well as extremely high fines for widespread infringements, whereas French law provided for criminal sanctions alone. Since its entry into force on 28 May 2022, new Article L. 132-1 A, created by transposition ordinance No 2021-1734, imposes a civil fine on any professional who engages continuously in a significant unfair commercial practice other than a misleading or aggressive practice. The 2019 directive has also introduced a new type of misleading action and new information deemed to be material and four new commercial practices which are prohibited per se. As a result of the transposition, Article L. 121-4, in its latest version, now counts twenty-eight commercial practices that are deemed prohibited .

  Directive No 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, OJEU L 149 of 11 June 11 2005.

  Civil Code, current Articles 1130 et seq., in their version following Ordinance No 2016-131 on the reform of contract law of 10 February 2016.

  Consumer Code, former articles Articles L. 122-2 et seq., now Articles L. 121-12 to L. 121-14 and L. 132-16 to L. 132-18.

 Consumer Code, former Articles L. 122-6 and L.  121-7, now Articles L. 121-35 and L.  132-19 and L. 132-20, also qualified as "snowball sales".

 Consumer Code, former articles Articles L. 122-8 et seq., now Articles L. 121-8 to L. 121-10 and L. 132-13 to L. 132-15.

  Consumer Code, former Articles L. 211-4 et seq., now Articles L. 217-4 et seq.

  Consumer Code, former Articles L. 213-1 et seq., now Articles  L. 441-1 et seq. and L. 451-1 et seq.

 judgment of December 31, 2008, OJ of 13 January 2009, 689.

 CJEU Case C-210/96 Gut Springenheide GmbH, Judgment of 17 July 1998;, LawLex200900001130JBJ; Cass. crim., 22 August 1994, LawLex200300003378JBJ.

  Split into several texts since recodification Ordinance No 2016-301 of 14 March 2016, Articles L. 121-2 to L. 121-5.

  Cass. crim., 27 January 2015, LawLex201500000162JBJ.

 Civil Code, Article 1104 (former Article 1134, para. 3).

  Consumer Code, Article L. 132-10 (former Article L. 122-15), which provides that "when an aggressive commercial practice leads to the conclusion of a contract, it is null and void".

 The legislator did not consider it necessary to reproduce the list, considering that the practices covered by the directive were already covered either by the text of former Articles L. 121-1 and L. 121-11 (current Articles L. 121-2 et seq. and L. 122-4), or by other existing texts. For example, practice 14 of the Annex covering snowball sales was the subject of a specific offense in Article L. 122-16 (now Article L. 121-35) of the Consumer Code. Similarly, the allocation of a falsely free product is already covered under Articles L. 121-19 (former Article L. 121-35) et seq. which govern sales with bonuses.

Following the adoption of Ordinance No 2019-1015 of 2 October 2019 reforming the regulation of gambling and games of chance, Law No 2020-105 of 10 February 2020 on the fight against waste and the circular economy, and Ordinance No 2021-1734 of 22 December 2001 transposing the Omnibus Directive, five new automatic misleading commercial practices have been added: 

- creating the impression in an advertisement, through nationwide promotional operations, that the consumer benefits from a price reduction comparable to that a sales, as defined in Article L. 310-3 of the Commercial Code, outside their legal period;

- displaying a French flag, a map of France or any symbol representative of France on food packaging when the primary ingredients as defined by the law of the Union are not of French origin;

- providing search results in response to a consumer's online query without clearly informing the consumer of any payment made specifically by a third party for or in order to obtain a higher ranking for one or more of the products appearing in the search results;

- reselling event tickets to consumers where the trader has acquired them using an automated means to circumvent any limitations or prohibitions on ticket purchases;

- claiming that reviews of a product are posted by consumers who have actually used or purchased the product without having verified it;

- posting or modifying fake consumer reviews or recommendations to promote products.

 Commercial Code, Articles L. 310-1 to L. 310-7.

 Consumer Code, current Articles L. 111-1 to L. 114-1.

  Consumer Code, former Articles L. 121-1 et seq.

  Consumer Code, former Articles L. 121-21 et seq., now Articles L. 221-1 et seq.

  Consumer Code, former Article L. 121-35, now Article L. 121-19.

  Consumer Code, former Article L. 121-36, now Article L. 121-20. See also Internal Security Code, Articles L. 322-1 et seq.

  Consumer Code, former Article L. 122-1, now Article L. 121-11.

In the interests of rationalization, Recodification Ordinance No 2016-301 of 14 March 2016, which entered into force on July 1, 2016, amended the architecture of the Consumer Code. Title II of Book I, formerly relating to “business practices”, is now devoted to “prohibited commercial practices” (Chapter I) and to “regulated commercial practices” (Chapter II). Chapter I now brings together under the heading “prohibited commercial practices” unfair commercial practices (misleading and aggressive) and commercial practices, previously scattered in the Code, likely to fall within the scope of Directive No 2005/29 of May 11, 2005 on unfair commercial practices, such as the abuse of weakness, the refusal to sell and bundling, forced sales, snowball selling and more recent offenses such as those relating to premium rate telephone numbers sale or pre-checked boxes, sales with bonuses and sweepstakes.

Former Article L. 120-1 relating to unfair commercial practices becomes Article L. 121-1. The new code brings together the substantive provisions on misleading and aggressive commercial practices, somewhat amending the sequence, and places the procedural provisions in a Title III, on sanctions. The former Article L. 121-1 on misleading commercial practices is thus split into several Articles: Article L. 121-2 concerns practices that are misleading by action, Article L. 121-3 practices misleading by omission and Article L. 121-5 specifies that professionals can only invoke misleading practices by action and misleading practices per se . These are contained in Article L. 121-4. Former Article L. 122-11 on aggressive commercial practices becomes Article L. 121-6 and former Article L. 122-11-1, which provided the list of aggressive practices per se, Article L. 121-7.

The provisions relating to the prosecution and punishment of misleading commercial practices are reorganized. The power of officials to request proof of the allegations of the misleading message, formerly provided for in Article L. 121-2, is moved to Article L. 512-15. Former Article L. 121-3, on the power of the investigating judge to order the discontinuation of the dissemination of the message, is split into two provisions, Articles L. 132-8 and L. 132-9. Article L. 121-4, on the power of the judge to impose the display of his decision and the dissemination of rectifying announcements, is also split into two: Article L. 132-4 and Article L. 132-5, which imposes new penalties for non-compliance with the time limits granted for the dissemination of the rectifying announcement. Article L. 121-5, on the territorial nature of the offense of misleading commercial practices, becomes Article L. 132-1. Article L. 121-6, which laid down the penalties for the offense of misleading commercial practice, is split into two articles, one covering the main penalties (Article L. 132-2), the other the additional penalties applicable to individuals and those applicable to legal entities (L. 132-3). Article L. 121-7, which allowed the court to order the disclosure of useful documents, is also divided into two, Article L. 132-6 and Article L. 132-7, which establishes a new penalty.

The sanctions for aggressive commercial practices have also been moved. Former Article L. 122-12, on the penalties of imprisonment and fines, becomes Article L. 132-11. Articles L. 122-13 and L. 122-14, relating to additional penalties applicable to individuals and those applicable to legal entities, are combined in Article L. 132-12. Finally, Article L. 122-15, which provided for the sanction of the nullity of the contract concluded as a result of the implementation of an aggressive practice, becomes Article L. 132-10.

The ordinance was ratified by the Law of 21 February 2017 . In the field of unfair commercial practices, two adjustments were made. Article L. 121-3 reinstates the concept of “invitation to purchase” that the ordinance had improperley renamed “commercial invitation”. Also, and more significantly, the law amends Article L. 121-5 extending to traders and non-traders, the possibility of claimining under misleading omissions, which until now was only open to consumers.

 Article L. 121-5 brings together the provisions of former II of former Article L. 121-1 and of the last paragraph of former Article L. 121-1-1.

Law No 2017-203 of 21 February 2017 ratifying Ordinance 2016-301 of 14 March 2016 relating to the legislative part of the Consumer Code of 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 No 45 of 22 February 2017.

French Consumer Law

119. Transposition of Directive No 2005/29 into French law

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119. Transposition of Directive No 2005/29 into French law

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