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 question arose as to whether the role of the Administration was limited to recording offenses and transmitting their minutes to the public prosecutor or whether they could also intervene before the trial court. The Court of Cassation gave preference to the first interpretation; it considered that during the trial, the DGCCRF could only be heard as a witness, with the corollary of the obligatio …

 Intervention in the proceedings

The Law of 1963 provided that enforcement officers could require communication by advertisers of all documents to support their investigation. The Law of 1973 further strengthened the powers of the Administration by authorizing it to require the advertiser to make available to it any evidence to justify the allegations, indications or presentations of the advertisement. The text, now Article L. 121-2 of the Consumer Code, was amended by the Law of 3 January 2008 which transposed Directive No 2005/29 of May 11, 2005. Re-codified by the Ordinance of 14 March 2016 in Article L. 512-15, it now provides that officials “may require the person responsible for the practice to make available to them or to disclose all evidence necessary to substantiate the allegations, indications or presentations”.

What is the exact scope of this provision? According to some commentators, the law has reversed the burden of proof by requiring the advertiser to justify the content of the message, since in criminal law it lies, in principle, with the prosecuting party to prove the elements of the offense. In addition, refusal to comply with requests for documents from officials of the Administration constitutes the specific offense of refusal of communication sanctioned by Articles L. 132-6 and L. 132-7 of the Consumer Code . Accordingly, the criminal chamber of the Court of Cassation established the principle that an accused can only be convicted for a misleading practice if the prosecuting party succeeds in demonstrating that the offense is constituted . However, there was a divergence of interpretation between the criminal chamber and the commercial chamber of the Court of Cassation. For the latter, it is for the advertiser to prove the veracity of the advertising message  because the principles of the criminal procedure preclude the accused being required to prove the existence of the constituent elements of the offense. However, in civil matters, when a competitor brings an action for unfair competition against an advertiser, it must establish the fault  and the advertiser may, for its defense, prove the accuracy of the statements contained in its advertisement . Thus, in a case where, on the grounds of unfair competition, an advertisement was criticized for having claimed the superiority of the fluoride contained in a toothpaste compared to another type of fluoride contained in a competing product, the Court of Appeal of Paris held that it was for the plaintiff, pursuant to the ordinary law of evidence, to establish that the advertisement was misleading, while stating that this rule of evidence did not deprive the advertiser of the right to justify its assertions. The commercial chamber approved the judgment as the plaintiff had provided evidence of the existence of a fierce debate within the scientific community on this issue, while the author of the message did not provide any evidence in support of this argument . More recently it reiterated that position, stating that although Directive No 2005/29 of 11 May 2005 provides that it is for the national court to assess whether false information should be classified as a misleading commercial practice, it does not require any investigative measure to be taken by the court nor does it discharge the parties from proving the facts on which their claim is based . A company nevertheless has a legitimate interest in requesting an expert appraisal “in futurum” i.e. before any action is brought for misleading commercial practice, when as a result of the dissemination of a television advertisement by a competing chain, it finds that the stocks of the products concerned are rapidly sold out in stores . The claimant may make use of expert appraisals on condition that they are carried out according to the established rules for the products at issue and do not neglect decisive elements which may affect its outcome . Although the criminal chamber subsequently reaffirmed its position , the solution does not seem to be as firmly established as one might think. Some criminal judges continue to require that the advertiser justifies its claims . Their decisions are sometimes even approved by the Court of Cassation, without it clearly responding to the argument of the accused invoking a reversal of the burden of proof . In cases where the application of Article L. 121-2 was combined with the provisions of the former Order of 2 September 1977 on price reduction announcements , it was held that the advertiser who does not demonstrate the actual application of the alleged reference price or of the recommended price incurs its liability since, under the Order, the burden of proof lies with it . 

Article L. 512-16 of the Consumer Code empowers authorized agents to use an assumed identity to monitor the sale of goods and provision of services online. In accordance with those provisions, the Court of Cassation has ruled that investigators' use of the mystery shopper method is not unfair, as long as it is used without provoking the offense itself, and without circumventing or abusing the procedure in such a way as to vitiate the search for evidence by infringing one of the essential rights or fundamental guarantees of the accused party .

Finally, Article L. 121-4 which lists twenty-two practices deemed misleading in any circumstances, also leads to a reversal of the burden of proof. The provision condemns a series of behaviors or clauses which are qualified a priori as misleading, without it being necessary to make an assessment based on the criteria laid down in Articles L. 121-2 and L. 121-3. For these practices, the prosecuting party is exempt from proving that they are misleading.

For an example of its application see Cass. crim., 29 January 2019, LawLex201900000169JBJ.

  Cass. crim., 28 October 1992, LawLex200300003861JBJ, upholding CA Douai, 7 February 1990, LawLex200300001595JBJ.

 See inter alia. CA Paris, 4 March  1996, LawLex200300002165JBJ; TGI Paris, 23 April  1997, LawLex200300002233JBJ; CA Paris, 8 October 1997, LawLex200300003281JBJ; CA Paris, 5 December 1997, LawLex200300002189JBJ; CA Grenoble, 22 July 1998, LawLex200300001978JBJ.

  See inter alia. Cass. crim., 4 May 1999, LawLex200300003400JBJ; 17 May 2011, LawLex201200001082JBJ; 21 January 2014, LawLex201400000171JBJ.

  Cass. crim., 6 February 2001, LawLex200300003254JBJ; 20 March 2001, LawLex200300004461JBJ.

Cass. crim., 27 July 2023, LawLex202300011307JBJ.

  Cass. com., 18 May 1993, LawLex200200001642JBJ.

 See CA Colmar, 19 February 2014, LawLex201400001568JBJ: whoever relies on the misleading nature of an advertisement in an action for unfair competition must prove the inaccuracy of the advertiser's allegations.

 See CA Versailles, 17 May 2016, LawLex201600001005JBJ.

Cass. com., 25 April 2001, LawLex200200000479JBJ, upholding CA Paris, 14 January 1998, LawLex200200000486JBJ and, in the same case T. com., Paris, 21 June 1994, LawLex200200000481JBJ; CA Paris, 10 November 1995, LawLex200200000487JBJ, upheld by Cass. com., 24 February 1998, LawLex200200000485JBJ: there is no reason to order the cessation of the disorder allegedly caused by the dissemination of an advertisement when the advertiser has provided evidence to establish the truth of its claims.

Cass. com., 6 December 2016, LawLex201600002032JBJ.

 CA Paris, 12 January 2018, LawLex201800000111JBJ.

CA Versailles, 10 January 2017, LawLex201700000110JBJ.

  Cass. crim., 18 March 2008, LawLex200800000527JBJ.

Proof of the offense

According to Article L. 512-15 (former Article L. 121-2) of the Consumer Code, misleading commercial practices are documented by officials of the Directorate General for Competition, Consumer Affairs and the Prevention of Fraud (DGCCRF). The officials of the Ministry of Agriculture and sworn agents of the State responsible for the control of measuring instruments are also empowered to record misleading commercial practices (Article L. 511-20). These officials enjoy broad powers of investigation and may require the trader to make available or disclose all the evidence necessary to substantiate the allegations, indications or presentations inherent in the commercial practice concerned. The advertiser, the advertising agency or the media manager must also communicate the advertising messages to them. These obligations are sanctioned by Articles L. 132-6 and L. 132-7 of the Consumer Code, which extend the penalties applicable to misleading commercial practices to the refusal to disclose .

Prior to the codification Ordinance of 14 March 2016, misleading commercial practices were investigated and recorded under the conditions laid down in Articles L. 450-1, L. 450-3, L. 450-4, L. 450-7 and L. 450-8 of the Commercial Code, which excluded professional secrecy being used against authorized agents and provided that the minutes recording the offense were authentic until proven otherwise . Since 1 July 2016, the investigation and recording of the offenses and breaches mentioned in the Consumer Code are carried out in accordance with the authorizations and investigative powers defined in Book V of this code (Article L. 511-1), and no longer by reference to the provisions of the Commercial Code.

Where the texts are silent on the matter, the question was raised regarding the conformity to the requirements of a fair trial of minutes drawn up and transmitted to the prosecutor's office nine months after the findings had been made. The Court of Cassation, which distinguishes the investigation phase from that of the judgment, considered that Article 6 ECHR was not intended to apply at the stage of the recording of the offenses by the officials of the Administration . In fact, in the area of misleading commercial practices, the drawing up of the minutes recording the offense was not expressly subject to any time limit since the text did not refer to the provisions of Article R. 450-2 of the Commercial Code, pursuant to which minutes are drawn up on the spot . Under Article R. 512-40 of the Consumer Code, resulting from Decree No 2016-884 of 29 June 2016 recodifying the regulatory part, the drawing up of minutes on the spot is now required in the case of visits and seizures. Similarly, in the framework of consignments and seizures, minutes must be transmitted to the public prosecutor within 24 hours (see Article L. 512-28).

In addition, in the absence of specific rules, case law considered that minutes only had to be signed by their author . The new Article R. 512-1 of the Consumer Code, introduced by Decree No 2016-884, expressly enshrines this solution. According to the administrative court, they do not have to address the observations made by the party responsible for the infringements . Any irregularities in the minutes are sanctioned by nullity. However, this does not entail that of the subsequent proceedings, when the findings recorded in the subsequent minutes are not based on the statements of the criticized document . However, if the prosecution if based exclusively on the disputed minutes, the accused must be acquitted . Similarly, minutes and a court summons that do not allow to identify the criticized advertisements or the products concerned, cannot be used as a basis for prosecution for unfair commercial practices . The minutes are transmitted to the public prosecutor, whether they contain evidence for the prosecution or for the defense . Minutes and reports prepared in the course of investigations into breaches of the Consumer Code also constitute administrative documents that may be communicated by the Administration when requested  .

The authorized officials are obliged to report to the public prosecutor all offenses found during their investigation. Indeed, according to paragraph 2 of Article 40 of the Code of Criminal Procedure, “any public authority, any public officer or official who, in the performance of his duties, has knowledge of a crime or offense, is required to report it without delay to the public prosecutor and to transmit to said magistrate all information, minutes and deeds related to it”. The obligation naturally extends to officials responsible for investigating offenses relating to misleading commercial practices, who are obliged to report to the public prosecutor the other offenses found during their investigations , without being blamed for any abuse of process . In addition, as the public prosecutor is not bound by the classification given by the investigators of the facts recorded in their minutes, it is irrelevant whether the person accused of misleading advertising has been heard on the basis of an investigation carried out in respect of the conformity of products .

 Cass. crim., 11 June 1985, LawLex200400000634JBJ; 28 October 1992, LawLex200300003861JBJ.

  Now, Article L. 512-2 of the Consumer Code attributes such a scope to reports.

CAA Versailles, 10 July 2018, LawLex201800001109JBJ.

 Cass. crim., 16 January 1992, LawLex200300002434JBJ, upholding CA Versailles, 14 February 1991, LawLex200300001634JBJ.

  Cass. crim., 5 October 1992, LawLex200300002436JBJ, upholding CA Versailles, 20 September 1991, LawLex200300002528JBJ.

  Cass. crim., 23 January 2001, LawLex200300004453JBJ, overturning CA Metz, 12 May 2000, LawLex200300004544JBJ.

  Cass. crim., 29 March 1995, LawLex200300003867JBJ, upholding CA Rouen, 24 February 1994, LawLex200300001653JBJ.

  CA Lyon, 1 December 1993, LawLex200300001649JBJ.

  Cass. crim., 20 July 1993, LawLex200300003868JBJ ; 25September 1995, LawLex200300003468JBJ, upholding CA Paris, 21 September 1994, LawLex200300001662JBJ. See also CA Nancy, 28 January 1999, LawLex200300001803JBJ; TGI Rennes, 4 March 1999, LawLex200300003847JBJ; CA Angers, 16 December 2010, LawLex201200001322JBJ.

  Cass. crim., 1 June 1999, LawLex200300003659JBJ, upholding CA Reims, 14 January 1998 LawLex200300001935JBJ.

  CA Paris, 3 February 2000, LawLex200300002398JBJ: the trial courts note the irregularity due to the absence of a date in the deed drawn up.

  Cass. crim., 23 October 2012, LawLex201300000013JBJ.

  CA Douai, 5 November 2002, LawLex200300001782JBJ, cancelling the procedure for non-transmission to the public prosecutor of minutes containing elements allowing the advertiser to be released from any liability.

Minutes

Pursuant to Article L. 521-1 (former Article L. 141-1, VII) of the Consumer Code, officials authorized to record breaches of the rules governing misleading commercial practices may, after an adversarial procedure, require the professional to comply with the breached provisions or to cease all unlawful acts within a reasonable period of time . The Hamon Law of 17 March 2014 strengthened the effectiveness of the system, by allowing the Administration to impose an administrative fine on the professional who has not complied with the injunction within the allotted time (current Article L. 522-1). In the area of misleading commercial practices, the amount of the administrative fine cannot exceed EUR 3,000 for an individual and EUR 15,000 for a legal entity.

Article L. 522-2 lays down the limitation period for the action of the Administration at one full year from the date on which the breach was committed if, within this period, there has been no action taken to seek, record or sanction this breach. The breach is recorded in minutes, which are authentic unless proven otherwise and a copy of which is transmitted to the person accused (Article L. 522-4). Before any decision, the Administration is obliged to inform the accused in writing of the sanction envisaged against him, informing him that he can examine the documents of the file and be assisted by any counsel of his choice and inviting him to present, within sixty days, his written observations and any oral observations. After this period, the administrative authority may, by reasoned decision, impose the fine (Article L. 522-5). The decision handed down by the administrative authority may be published (Article L. 522-6).

For an application, see Cons. d'Et., 2 October 2017, LawLex201700001636JBJ, the making by a professional of nutritional and health claims in violation of the requirements of Regulation No 1924/2006 of 20 December 2006 and the assertion, in conditions contrary to Regulation No 834/2007 of 28 June 2007, of the organic production of certain ingredients of the products in question constitutes a misleading commercial practice which justifies the implementation by the administration of its power of injunction on the basis of Article L. 521-1 [former Article. L. 141-1] of the Consumer Code.

Injunction and administrative fine

The Law of 3 January 2008 gave the DGCCRF the power to settle out of court for breaches of the current Articles L. 121-2 to L. 121-5 of the Consumer Code. The procedure is currently governed by Articles L. 523-1 to L. 523-4 (former Article L. 141-2) and R. 523-1 to R. 523-4 (former Article R. 141-3) of the Consumer Code. A settlement can be proposed to the perpetrator as long as the public action has not been put in motion. The Hamon Law of 17 March 2014 strengthened the rights of defense by requiring the Administration to attach a copy of the minutes recording the offense to the proposal addressed to the offender. The offender then has one month from the date of the notification to respond. In case of acceptance, the offender returns a signed copy of the proposal to the administrative authority.

In its memorandum on unfair commercial practices, the Administration indicates that it has waived providing for a minimum amount to propose as a settlement to the offender . According to it, misleading commercial practices can “have extremely varied realities and also a very variable seriousness, which makes the setting of a threshold irrelevant”. The amount of the settlement is therefore assessed based on the context of the offense  and the criminal prosecution policy of the public prosecutors' offices in this area. An agreement will therefore have to be sought in priority with the public prosecutor(s). However, the DGCCRF recommends that the criminal settlement should be used only for cases with a limited scope, with no national dimension and where there are no declared victims likely to bring civil proceedings. Conversely, it recommends that criminal prosecutions should always be favored for significant offenses, in particular those causing serious disturbance to public order, those which have caused injury to one or more consumers or those for which publicity of the proceedings seems necessary. However, the DGCCRF seems to have deviated from this approach since then as in June 2019 it announced that it had negotiated a large  settlement with an insurer (fine of EUR 10 million) for misleading commercial practices, together with an obligation to compensate consumers who had made a claim in connection with the procedure in question.

 Memorandum No 2009/07 of 29 January 2009.

  For example, depending on the local or wider impact of the practice, the size of the company, the extent of the injury.

Settlement

The question arose as to whether the role of the Administration was limited to recording offenses and transmitting their minutes to the public prosecutor or whether they could also intervene before the trial court. The Court of Cassation gave preference to the first interpretation; it considered that during the trial, the DGCCRF could only be heard as a witness, with the corollary of the obligation to take the oath, provided for by Article 446 of the Code of Criminal Procedure . It subsequently stated that failure to comply with the latter requirement could not result in the proceedings being null and void if it had not been established that it had infringed the interests of the accused .

The legislator has since intervened to strengthen the powers of the Administration. The Law of 3 January 2008 first amended former Article L. 141-1 of the Consumer Code to extend the application of Articles L. 450-1 to L. 450-4, L. 450-7, L. 450-8, L. 470-1 and L. 470-5 of the Commercial Code to the investigation and recording of breaches of Article L. 121-1. Since Article L. 470-5 allows the Minister for the Economy or its representative to file submissions and develop them orally at the hearing, and to produce the investigation minutes and reports, the Court of Cassation considered that a court of appeal could, without violating Article L. 141-1 of the Consumer Code, hear an inspector of the DGCCRF, representative of the Minister for the Economy, without oath and decide in the light of the submissions filed by him as an intervening party . Then, the Hamon Law of 17 March 2014 expressly conferred a power of intervention on the Administration. It abolished the reference to Article L. 470-5 in Article L. 141-1 but added a paragraph authorizing the administrative authority responsible for competition and consumer affairs, after having notified the public prosecutor, to request the civil court to order any measure to put an end to the unlawful conduct. Within this framework, the authority can intervene, file submissions and present them at the hearing and produce investigative minutes and reports. Before the criminal courts, it also has the opportunity, at the request of the court, to submit its observations at the hearing. Ordinance No 2016-301 of 14 March 2016 completes this movement: it totally disconnects the powers of the Administration in consumer matters from the requirements of the Commercial Code and confers specific powers on its officials. Now, the power of the administrative authority to request the civil court to order any measure to put an end to breaches of Articles L. 121-2 et seq., after having notified the public prosecutor, appears in Article L. 524-2.

 Cass. crim., 30 March 1994, LawLex200300003791JBJ.

  Cass. crim., 3 January 1996, LawLex200300003900JBJ, upholding CA Paris, 4 July 1994, LawLex200300001659JBJ: in this case it was not established that the judges relied on the statements made by the officials to establish the guilt of the accused; Cass. crim., 17 September 1997, LawLex200300003469JBJ, upholding CA Paris, 30 May 1996, LawLex200300002207JBJ.

 Cass. crim., 15 June 2010, LawLex201200001084JBJ.

French Consumer Law

182. Intervention in the proceedings

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

182. Intervention in the proceedings

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise