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

To punish a misleading commercial practice, its perpetrator must be identified. Initially, the legislation provided that the “advertiser” for whom the advertisement was broadcast was responsible for the offense committed. As it initially only covered misleading advertising, it was logical that only the advertiser was targeted. Following the extension of the scope of former Article L. 121-1 to all misleading commercial practices, Law No 2008-3 of 3 January 2008 amended the wording of the old Article L. 121-5 of the Consumer Code, to specify that “the person on whose behalf the misleading commercial practice is implemented is responsible, primarily, for the offense committed”. The Hamon Law of 17 March 2014 simply deleted the paragraph considering that it was redundant with the provisions of ordinary law relating to accountability for criminal liability.

Although current Articles L. 121-2 et seq. of the Consumer Code do not appear to exclude the conviction of an individual, Article 3 of Directive No 2005-29 of 11 May 2005 limits the scope of its provisions to unfair commercial practices of businesses toward consumers. Before the entry into force of this text, the Court of Cassation held that individuals could be found guilty of misleading advertising . Since the transposition of the directive, case law is divided: some courts refuse to sanction private individuals  while others have no hesitation in handing down a sentence, even if the service in question is offered free of charge . The criminal chamber of the Court of Cassation has settled the matter: unlike the former offense of misleading advertising, only the actions of professionals, not those of private individuals, are sanctioned under misleading commercial practices .

In its Guidance , the Commission does indeed consider the specific case of the consumer-seller, but only in order to extend to him the benefit of the protection when he contracts with a professional. It also provides for situations where individuals who appear to be consumers selling products to other consumers could in fact be professionals themselves. The Commission recommends a re-classification of the consumer as a professional carrying out “non declared” sales further to a case-by-case assessment based on the following criteria: whether the seller has a profit-seeking motive, including the fact that he/she might have received remuneration or other compensation for acting on behalf of a professional; the number, amount and frequency of transactions; the seller's sales turnover; whether the seller purchases products in order to resell them. Thus, persons whose main activity is to sell products online on a very frequent basis, purchasing products to resell them at a higher price, could for example fall within the definition of professional. Later, in answer to a reference for a preliminary ruling, the Court of Justice held that the fact that the sale by a natural person intended to generate profit or the simultaneous publication on a website of a number of advertisements offering new and second-hand goods for sale  does not in itself suffice for that person to be classified as a “trader”.  The Court stated that the assessment of whether a person is a trader within the meaning of Article 2 of the directive is based on a set of criteria which require a case-by-case examination of whether the sale on the online platform was carried out in an organized  manner, was intended to generate profit, whether the seller had technical information and expertise relating to the products which she offered for sale which the consumer did not necessarily have, whether the seller had a legal status which enabled her  to engage in commercial activities, whether the seller was subject to VAT, whether the seller, acting on  behalf of a particular trader or on her own behalf or through another  person acting in her name and on her behalf, received remuneration or an  incentive; whether the seller purchased new or second-hand goods in  order to resell them, whether the goods for sale were all of the same type or of the same value, and, in particular, whether the offer was  concentrated on a small number of goods .

The identification of the originator of the message has raised difficulties within the framework of distribution networks. In principle, the supplier of the product or service is responsible when the advertising that it broadcasts or has broadcast proves to be misleading. In addition, the courts can convict not only the author of the advertising message, but also the person who indirectly benefits from it. This is the case, for example, of a dealer who does not deny the words “can only be sold by an authorized distributor” affixed to products although it does not actually have such status . Indeed, regardless of the author of the message, consumers are misled about the dealer's status as an authorized distributor. However, the mandate given by the seller to a third party does not cause it to lose its status as advertiser .

The lucrative nature of the advertiser's business is not a condition for the application of Articles L. 121-2 et seq. of the Consumer Code. Accordingly, non-profit associations can be convicted of misleading commercial practices when they offer a product or service on the market .

Similarly, an undertaking selling information to consumers to promote its application is subject to the prohibition of unfair commercial practices, from which it cannot exonerate itself by claiming a philosophy, an objective, or any kind of militancy . 

 See Cass. crim., 24 March 1987, LawLex200300003226JBJ; 13 June 1991, LawLex200300003227JBJ; 27 March 1996, LawLex200300003571JBJ, on the basis of Directive No 84/450.

 CA Amiens, 20 November 2012, LawLex201200002376JBJ.

 CA Paris, 4 July 2014, LawLex201400002223JBJ.

Cass. crim., 19 March 2019, LawLex201900000392JBJ.

Guidance of 25 May 2016 (replacing that of 3 December 2009) for the implementation and application of Directive No 2005/29/EC on unfair commercial practices, SWD(2016) 163 final

Case C-105/17 Komisia za zashtita na potrebitelite, Judgment of 4 October 2018, LawLex201800001459JBJ.

 Cass. com., 27 October 1992, LawLex200200001700JBJ and LawLex200400000124JBJ; 24 November 1992, LawLex200200005956JBJ; 9 March 1993, LawLex200200005985JBJ; 21 June 1994, LawLex200200004355JBJ; 10 January 1995, LawLex200200005430JBJ; 9 April 1996, LawLex200200001367JBJ. But see CA Dijon, 19 September 1989, LawLex200200001900JBJ, LawLex200200001902JBJ, LawLex200200001901JBJ; CA Bourges, 3 July 1989, LawLex200200001905JBJ; Cass. crim., 15 March 1990, LawLex200200005773JBJ.

 Cass. crim., 27 March 1996, LawLex200300003571JBJ.

 Cass. Ass. plén., 8 July 2005, LawLex200500007247JBJ; See in the same case,Cass. com., 6 May 1998, LawLex200300003807JBJ, upholding CA Bordeaux, 29 April 1997, LawLex200300002167JBJ. See also CA Paris, 24 March 1982, LawLex200400000851JBJ; CA Paris, 9 July 1984, LawLex200400000939JBJ. But see CA Paris, 14 November 2014, LawLex201400001324JBJ, holding that even if an association provides services, it cannot be classified as a professional or a seller within the meaning of the provisions of the Consumer Code relating to misleading marketing practices.

CA Limoges, 13 April 2023, LawLex202300005833JBJ, stating that an undertaking cannot claim that the legal regime governing misleading and unfair commercial practices does not apply to it insofar as the messages it broadcasts are intended to express an opinion or a position in favor of a change in regulations, and its activity consists in providing users with information via its app on the composition of food products by deciphering labels, it acts like any other commercial undertaking selling information to consumers, in order to promote its application.

130. Scope ratione personae