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 Law of 3 January 2008, which transposed Directive No 2005/29, had defined the commercial practice misleading by omission as the concealing from the consumer of material information, of which a series of examples were given. This transposition was debatable as it extended to all practices the obligation to provide the information specifically covered by the directive, although it expressly limits it to invitations to purchase . The LME Law of 4 August 2008 remedied this defective transposition and introduced a distinction, in new Article L. 121-3, between commercial practices which omit material information, without any further details, and commercial communications which constitute an “invitation to purchase” , for which a list of information considered material is specifically provided. Nevertheless, although the directive precisely defines the concept of invitation to purchase as “a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase” , French law covers commercial communications intended for the consumer “mentioning the price and characteristics of the proposed good or service”, without referring to the final objective of the purchase.

The Commission's guidance document on the implementation of Directive No 2005/29 provides useful indications to determine the status of invitations to purchase . To consider that the commercial communication indicates the “characteristics of the product”, it is sufficient that there is a verbal or visual reference to the product. The Court of Justice approved this interpretation . Indeed, according to the Commission, “a different interpretation could incite traders to provide vague product descriptions or omit information in their commercial offers in order to circumvent the information requirements provided for by Article 7(4)”. However, advertising that promotes the brand of a professional rather than a particular product does not constitute an invitation to purchase. Similarly, because the conditions are cumulative, the promotion of a specific product or service by an exhaustive description of its nature, characteristics and benefits, without any reference to the price, does not fall within the category of invitations to purchase. According to the Commission, when the price and characteristics of the product are communicated, the following may fall inter alia within the scope of the text:  the website of an airline displaying flight offers and their price or  a supermarket brochure announcing price reductions on certain products.

Furthermore, according to the Commission, the condition that the communication must enable the consumer to make a purchase, included in the directive and not contained in Article L. 121-3, requires not only the provision to the consumer of a means to purchase, such as a telephone number or coupon. It means that the information provided within the framework of the marketing of the product must be sufficient to enable the consumer to make a purchase decision. The Court of Justice has recognized this interpretation .

The information deemed material in the case of an invitation to purchase is:

1° The main characteristics of the good or service ; 

2° The address and identity of the professional;

3° The price including all taxes and delivery charges to the consumer, or their method of calculation, if they cannot be established in advance;

4° The terms of payment, delivery, execution and processing of consumer complaints, if they are different from those usually practiced in the field of professional activity concerned;

5° The existence of a right of withdrawal, if it is provided for by law .

Directive No 2019/2161 of 27 November 2019 on the modernization of EU consumer protection rules amends the list of information regarded to be material, which will require an amendment to Article L. 121-3. Under the directive, the complaint handling procedures are no longer regarded as material in the context of invitations to purchase. However, it also adds new information to the list: whether or not the seller of a product offered on a market place is a professional; the parameters which determine the ranking of the products presented to the consumer in response to the search query on a website, and the order of importance of these parameters as opposed to other parameters;  information on the existence of a guarantee that the reviews posted on the trader's website have been submitted by consumers who have actually bought or used the product, and, if so, on the conditions of that guarantee. Since the adoption of Ordinance No 2021-1734, French domestic law is perfectly aligned with European law. The procedures for handling consumer complaints no longer constitute substantial information, the omission of which characterizes a misleading commercial practice. The following information is now regarded as material:

- the professional or non-professional status of the seller who markets products on a marketplace, as declared to the marketplace;

- the information made available to the consumer concerning the main parameters determining ranking of the offers and their relative importance , when seeking products offered by sellers, suppliers or private individuals on the basis of a search query;

- the guarantee by the consumer that the product reviews he publishes come from consumers who have actually used or purchased the product.

The Court of Justice does not require that the information relating to the main characteristics of a product have to be communicated in the invitation to purchase itself. The seller or supplier can refer to only certain of a product's main characteristics if he refers in addition to his website, on condition that on that site there is essential information on the product's main characteristics, price and other terms in accordance with the obligations regarding material information .

 In recital 14, the European legislator states that "in respect of omissions, this Directive sets out a limited number of key items of information which the consumer needs to make an informed transactional decision. Such information will not have to be disclosed in all advertisements, but only where the trader makes an invitation to purchase."

The expression "commercial invitation" (invitation commerciale), introduced by the re-codification ordinance, No 2016-301 of 14 March 2013, was discarded in the Ratification Law of 21 February 2017, which returns to the expression "invitation to purchase", more consistent with Directive No 2005-29

 Directive No 2005/29 of 11 May 2005, Article 2(i).

 Guidance of 25 May 2016, updating and repealing the guidance of 3 December 2009 for the implementation and application of Directive 2005/29/EC on unfair commercial practices, SWD(2016) 163 final.

 Case C-122/10 Konsumentombudsmannen v Ving Sverige AB, Judgment of 12 May 2011, LawLex201100001092JBJ.

 CA Paris, 7 December 2015, LawLex201600000324JBJ, holding that the absence of information to consumers on the fact that no appropriate insurance guarantees their compensation in the event of an accident, the main feature of the proposed transport service, constitutes a misleading practice by omission.

 For an illustration, see Cass. crim., 13 January 2016, LawLex201600000081JBJ.

According to Article L. 121-3, in its latest version, "This information must appear in a specific section of the online interface, directly and easily accessible from the page on which the results of the query are presented".

Case C-122/10 Konsumentombudsmannen, Judgment of 12 May 2011, LawLex201100001092JBJ, cited above.

171. Invitations to purchase