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

After the entry into force of the new Criminal Code, some courts, in holding that the crime was constituted, have found that the advertiser had acted in full knowledge of the facts. Such a solution does not refer to the unintentional nature of the offense, but rather characterizes a fraud or a conscious fault in the event that the professional, who has foreseen or ought to have foreseen that its a …

Awareness of committing the offense

The abolition of the condition of bad faith has sparked controversy in case law. A first movement advocated the removal of the moral element of the offense, which became purely material ; the second was in favor of the qualification of offense of recklessness, requiring the advertiser to verify the accuracy of the allegations of its message . The new Criminal Code which entered into force on 1 March 1994, abolished material offenses  and thus put an end to these hesitations. Paragraphs 2 and 3 of Article 121-3 of the Criminal Code, however, provide for two exceptions: in the event of deliberate endangerment of others or recklessness or negligence. These provisions must be combined with Article 339 of Law No 92-1226 of 16 December 1992 on the entry into force of the new Criminal Code, according to which “all unintentional offenses punished by texts prior to the entry into force of this Law shall remain constituted in case of recklessness, negligence or deliberate endangerment of others, even when not expressly provided for by law”. This text directly concerns misleading advertising, an unintentional offense since Law No 73-1193 of 27 December 1973. Now, the judge who intends to hold an advertising message false or likely to mislead must necessarily characterize the recklessness or negligence of the accused. Regarding a question of interpretation of Directive No 2005/29 of 11 May 2005, the Court of Justice appeared to call into question the concept of recklessness or negligence. It considered that a professional could be held liable for a misleading commercial practice if the allegations of its message had become false due to the act of a third party, even if it had taken every precaution to ensure that its message is correct . According to the court, judges are not required to check, when applying Article 6 of the directive, and by extension the texts transposing it, if the person who has implemented a misleading practice has complied with the requirements of professional diligence. Is the court's decision in favor of the purely material nature of the offense, since it deprives the professional of the possibility to establish that it has exercised caution and/or diligence?

 Cass. crim., 4 December 1978, LawLex201400000577JBJ; 8 May 1979, LawLex200400000511JBJ; 5 April 1995, LawLex200300001705JBJ

 Cass. crim., 29 November 1983, LawLex200400000512JBJ.

 Under Article 121-3, paragraph 1, "there is no crime or offense without the intention to commit it".

 Case C-435/11 CHS Tour Services GmbH, Judgment of 19 September 2013, LawLex201300001334JBJ. 

Material offense or offense of recklessness

Recklessness or negligence is characterized when the advertiser disregards a warning from the Administration. Of course, the DGCCRF memoranda are not binding in principle. However, when the attention of the advertiser is drawn to an irregularity without it remedying the situation, negligence or recklessness is constituted. For example, it is unlawful for an advertiser to extol the dietary qualities of products despite objections of the Administration as to their effectiveness , to continue to affix a misleading statement on the packaging of its products despite a letter of prohibition from the consumer service  or warning from the Administration  or to disregard a reminder of the regulations by the body responsible for monitoring their application . The intentional element is also met by the renewal of the operation despite warnings sent by the Administration  or by a repeated offense after the person has been the subject of a procedure for similar acts .

In addition, many judgments retain the existence of an intentional element when the advertiser failed to personally ensure, prior to its dissemination, the veracity of the claims of the message  or that it cannot be falsely interpreted by the consumer . The offense is especially established when the failure to verify the veracity of the information disseminated can be found at all stages of the development of a promotional catalogue . This is the case when the advertiser peremptorily attributes a false origin to products whose origin it is unaware of  or an incorrect surface area to an apartment, without having verified its accuracy . The advertiser cannot be released from its liability by invoking a simple material error  or the provision of incorrect information by the manufacturer .

Finally, the courts verify that the advertiser has taken all necessary precautions to ensure that the advertisement is not misleading. This is not the case when it fails to order enough products , does not verify, before its dissemination to the public, the compliance with the law of the advertising operations carried out under its responsibility  or that of its descriptions with the reality , fails to implement a label control system , or does not ensure the proper execution of its instructions . The distributor who merely exchanges non-conforming equipment of buyers who contact it, while continuing to market the products that do not correspond to its advertisement, is guilty of a misleading commercial practice . It is a different matter when the courts note that the advertiser has taken all necessary precautions to ensure that the advertisement is not misleading . Similarly, the fact that some consumers were abused by a member of eBay does not reflect a failure of the platform to monitor the offers it disseminates, when it withdrew the contested advertisements as soon as it was informed of their fraudulent nature and the victims failed to heed the warnings they had received against payments made otherwise than by Paypal .

 CA Paris, 4 March 1996, LawLex200300002165JBJ.

 CA Angers, 15 March 2001, LawLex200300001298JBJ; Cass. crim., 25 September 2001, LawLex200300004454JBJ upholding CA Dijon, 6 December 2000, LawLex200300004543JBJ: misleading use of the qualification "mountain" for a cured meat product.

 CA Paris, 16 November 1999, LawLex200300003269JBJ.

 CA Aix-en-Provence, 30 October 2002, LawLex200300004104JBJ: for the attribution of a false origin. 

 Cass. crim., 18 May 2004, LawLex200400001598JBJ, holding that the person acting as purchaser in a store cannot, without committing the offense of misleading advertising, present belts in split leather as being made of leather, merely relying on the manufacturer's claims.

 CA Aix-en-Provence, 26 January 1994, LawLex200300001651JBJ; CA Rennes, 5 September 1996, LawLex200300003273JBJ; CA Chambéry, 13 March 2008, LawLex201200001051JBJ: the advertiser who fails to ensure that it will be able to supply consumers with the products referred to in its offer, while implementing considerable advertising resources, is guilty of recklessness; CA Paris, 26 November 2008, LawLex200900000914JBJ: the distributor who launches a large-scale promotional operation without carrying out an impact study or ensuring that it has enough quantities to meet the demand, is guilty of serious negligence; CA Angers, 16 December 2010, LawLex201200001322JBJ.

  CA Colmar, 19 July 1995, LawLex200300001692JBJ; Cass. crim., 26 June 2001, LawLex200300004446JBJ, for similar facts TGI Paris, 18 December 1997, LawLex200400000485JBJ.

 CA Paris, 5 May 2008, LawLex201200001330JBJ; 20 September 2010, LawLex201200001339JBJ.

 CA Douai, 26 March 1998, LawLex200300003729JBJ; CA Limoges, 15 February 2002, LawLex200300002128JBJ, concerning the origin of meat offered to customers. See also TGI Rouen, 27 April 2012, LawLex201200001730JBJ, LawLex201200001731JBJ: the store that does not have a system to link the price of each product with a promotion to that of a product without a reduction cannot claim that the moral element of the misleading commercial practice is lacking.

 CA Rennes, 6 February 2003, LawLex200300003832JBJ, holding that the director of a central purchasing office, responsible for the dissemination of misleading advertising, although having sent out a rectifying fax to all stores of the brand, is responsible for the offense of misleading advertising when it failed to ensure that its instructions were properly executed by its subordinates.

 CA Paris, 26 November 2008, LawLex200900000913JBJ, upholding TGI Évry, 26 June 2007, LawLex200700001160JBJ.

 CA Paris, 6 March 1997, LawLex200300002225JBJ, regarding an offer limited in time, the advertiser had instructed distributors to withdraw the advertising medium on the date of expiry of the offer, so that no negligence could be attributed to it. 

 Cass. crim., 18 May 2004, LawLex200400001598JBJ.

 TGI Paris, 5 February 2013, LawLex201300000168JBJ.

  CA Bordeaux, 19 October 2004, LawLex200500010359JBJ; CA Rennes, 19 December 2002, LawLex200300003827JBJ; CA Toulouse, 11 May 2006, LawLex200700000483JBJ.

 CA Rennes, 12 February 2004, LawLex200400001183JBJ, holding that the advertiser who had already been controlled for identical operations (successive promotional operations in a short period of time) could no longer be unaware of the unlawfulness of its practices; TGI Marseille, 27 January 1998, LawLex200300004223JBJ; Cass. crim., 29

 CA  Rouen, 23 January 2014, LawLex201400000376JBJ.

 Cass. crim., 14 December 1994, LawLex200300003866JBJ; Cass. crim., 12 November 1997, LawLex200300003865JBJ, overturning CA Caen, 6 September 1996, LawLex200300002214JBJ; Cass. crim., 11 November 1998, LawLex200300003589JBJ, upholding CA Nîmes, 11 September 1997, LawLex200300002178JBJ; Cass. crim., 2 December 1998, LawLex200300003587JBJ, upholding CA Paris, 17 June 1997, LawLex200300002174JBJ; CA Toulouse, 19 December 2002, LawLex200300001793JBJ; CA Paris, 5 October 2005, LawLex200600001167JBJ; Cass. crim., 3 May  2006, LawLex200600001274JBJ: packaging of egg boxes falsely advertising them as eggs from free-range chickens.

 CA Besançon, 28 May 1996, LawLex200300002551JBJ: for a contest falsely suggesting to the recipient of a letter that he had won a prize; CA Paris, 31 January 2003, LawLex200300004547JBJ: for a CD cover falsely indicating that the music recorded had been played by pan flute players; CA Douai, 4 February 2003, LawLex200300002306JBJ: for an advertisement claiming that the products advertised have the same qualities as high-end perfumes; CA Paris, June 24, 2008, LawLex201200001031JBJ: failure to ensure that there is no element likely to mislead the consumer is sufficient to characterize the intentional element of the offense of misleading advertising.

 CA Paris, 26 November 2008, LawLex200900000936JBJ.

 CA Limoges, 20 March 1998, LawLex200300001787JBJ. See also CA Rennes, 5 September 2002, LawLex200300001628JBJ: for affixing a purely fanciful domain name on a wine label.

 Characterization of negligence or recklessness.

After the entry into force of the new Criminal Code, some courts, in holding that the crime was constituted, have found that the advertiser had acted in full knowledge of the facts. Such a solution does not refer to the unintentional nature of the offense, but rather characterizes a fraud or a conscious fault in the event that the professional, who has foreseen or ought to have foreseen that its action might lead to an injurious result, nevertheless implemented the commercial practice.

This is the case where the advertiser is fully aware that the information provided to the consumer is inaccurate . The fraudulent intent then arises from the degree of knowledge of the accused or its status as a professional. The holder of a Master's degree in law is necessarily aware that it is impossible for him to respect the commitments of his advertisement and that he causes prejudice to the clients misled as to the expected service . A professional cannot place on the shelves of a store a table wine alongside wines of a superior quality, when he is presumed to be competent with respect to their classification , or sell wines under an incorrect appellation of origin, when he is a specialist in the field . Similarly, a producer of products made using truffles is deemed to be familiar with the application regulations . A fortiori, a professional cannot claim to have been unaware of the existence of problems of conformity between the prices announced and those charged when he received numerous complaints and the error rate amounts to 19.51 % . The courts have sometimes even admitted “the characterized intention to defraud” when the advertiser has “knowingly sought the limits of what […] seemed reasonable” and “played with the advice of a lawyer on the ambiguity of legal and jurisprudential possibilities” . Finally, the criminal chamber of the Court of Cassation has held that knowledge of the violation of the legal provisions is sufficient to characterize the intentional element of the offense of misleading commercial practice, without it being necessary to establish the intention to deceive or mislead  .

 CA Grenoble, 23 January 1991, LawLex200400001202JBJ; Cass. crim., 8 November 1995, LawLex200300003663JBJ, upholding CA Rennes, 19 January 1995, LawLex200300001683JBJ; Cass. crim., 4 February 1998, LawLex200300003572JBJ, upholding CA Rennes, 20 February 1997, LawLex200300002223JBJ; Cass. crim., 6 October 1999, LawLex200300003776JBJ, upholding CA Versailles, 22 January 1998, LawLex200300001960JBJ; Cass. crim., 14 November  2000, LawLex200300003245JBJ, upholding CA Rouen, 2 December 1999, LawLex200300000975JBJ; CA Paris, 14 March  2001, LawLex200300001265JBJ; Cass. crim., 9 October 2001, LawLex200300003255JBJ, upholding CA Nîmes, 21 September 2000, LawLex200300001582JBJ; Cass. crim., 4 May 2004, LawLex200400001169JBJ.

 Cass. crim., 4 March 2003, LawLex200300001308JBJ: convicting a list broker.

  CA Rennes, 5 September 1996, LawLex200300002212JBJ.

 CA Rennes, 4 April 1996, LawLex200300002173JBJ.

  Cass. crim., 23 March 2004, LawLex200400000808JBJ, upholding CA Lyon, March 26, 2003, LawLex200400001082JBJ.

 TGI Melun, 4 March 2009, LawLex200900001100JBJ.

 Cass. crim., 17 September 2002, LawLex200300000986JBJ.

Cass.crim.,19 November 2019, LawLex201900001421JBJ.

French Consumer Law

177. Awareness of committing the offense

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Les notions juridiques connexes

177. Awareness of committing the offense

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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