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

In many cases, advertisers, in an attempt to exempt themselves from criminal liability, argue that they had disseminated rectifications. The criminal chamber of the Court of Cassation objected to their arguments and pointed out that the offense of misleading advertising was an instant offense, constituted from the first communication of the message to the public . Accordingly, the provision to consumers, after the dissemination of the message and before the conclusion of any contract , of additional information clarifying the scope, does not remove the offense, whether this provision is spontaneous  or responds to a customer request . The solution is based on the idea that the message must be assessed itself and contain all the elements necessary for its comprehension: only the first impression created in the minds of consumers is of interest to the courts . In this regard, the fact that at the time of conclusion of the sale, the commitments made by the advertiser are respected , that the customer must necessarily be advised by a competent person  or that external information restores the truth, has no impact on the materiality of the offense . Similarly, written observations on the final contract do not call into question the professional's liability with regard to the contrary and deliberately misleading allegations made in order to have the other party sign the contract . Furthermore, the offense is not limited to the message disseminated, but extends to the use made of it by the professional: it is therefore constituted when the professional ceases to comply with the terms of the offer during the promotion period without informing consumers .

This rule was tempered by the transposition of Directive No 2005/29 of 11 May 2005. Indeed, in case of misleading omissions, Article L. 121-3 (former Article L. 121-1, II) of the Consumer Code specifies that “where the medium of communication used imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether material information has been omitted”. The Court of Justice accepts, in the case of an invitation to purchase, that additional information to an advertisement published in a magazine is made available on a website . Similarly, the Paris Court of Appeal considers that the incompleteness of the information published on a price comparison site on the essential characteristics of the products in question does not make the practice misleading, when the Internet user can obtain all useful information on the merchant websites of the referenced traders .

 Cass. crim., 30 May 1989, LawLex200300003796JBJ and LawLex200300003864JBJ; Cass. crim., October 4, 1990, LawLex200300003793JBJ.

 CA Lyon, 7 March 2007, LawLex200700000441JBJ: since the offense of misleading advertising is instantaneous, subsequent rectification carried out in an order acknowledgement email is ineffective to exclude incrimination.

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

 CA Paris, 22 January 2013, LawLex201300000102JBJ.

 CA Toulouse, 11 October 1990, LawLex200300001630JBJ; Cass. crim., 5 January 1994, LawLex200300003381JBJ; CA Grenoble, 14 February 1997, LawLex200400000859JBJ; CA Paris, 19 January 2000, LawLex200300002319JBJ.

 CA Rouen, 18 March 1982, LawLex200300001624JBJ; CA Paris, 9 June 1993, LawLex200400000008JBJ, ruling that the misleading advertising offence is constituted when the consumer is able to perceive the advertising by its very publication, even if he can subsequently obtain from the agency all additional information of a nature to enlighten him.

 TGI Paris, 14 April 1999, LawLex200300001968JBJ; TGI Nanterre, 15 October 2001, LawLex200300002680JBJ, upheld by CA Versailles, 16 May 2002, LawLex200300000978JBJ; Cass. crim., 17 September 2002, LawLex200300000986JBJ, upholding CA Rennes, 18 October 2001, LawLex200400000183JBJ: impression created by a photograph not corresponding to the reality; TGI Évry, 26 June  2007, LawLex200700001158JBJ and LawLex200700001162JBJ, upheld by CA Paris, 26 November 2008, LawLex200900000936JBJ and LawLex200900000937JBJ: in-store display of an erratum to a catalog.

 Cass. crim., 8 December 1987, LawLex200300003463JBJ; CA Versailles, 16 May 2002, LawLex200300000978JBJ, in the same case TGI Nanterre, 15 October 2001, LawLex200300002680JBJ: holding that the argument must be rejected that the advertising is not misleading when the conditions of the offer, i.e. free and lifelong communications, have been met by SFR. See also CA Paris, 24 September 2003,  LawLex200400000426JBJ: advertising promising gifts to store visitors although they were unavailable at the point of sale, considered misleading even if they were subsequently sent to customers.

Cass. com., 19 November 1991, LawLex200300003727JBJ: concerning the purchase of computers.

 TGI Nanterre, 22 May 2002, LawLex200200000536JBJ and LawLex200300001369JBJ; CA Aix-en-Provence, 30 October 2002, LawLex200300004104JBJ, holding that the posting of a correction to a widely circulated catalog in certain points of sale is insufficient for the non-commission of the offence; Paris T. com. 15 September 2006, LawLex200600002372JBJ: holding that the dissemination of a correction to misleading advertising does not affect the punishment of the offense.

Cass. crim., 22 November 2016, LawLex201600001927JBJ.

 Cass. crim., 13 January 2016, LawLex201600000074JBJ.

173. Instantaneous offense