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

Before 2008, the first paragraph of former Article L. 121-5 of the Consumer Code stipulated that “if the offender is a legal entity, the liability lies with its directors” . The enshrinement of the criminal liability of legal entities remained without effect on the application of the text. In 2008, the legislator, after deleting the first paragraph of Article L. 121-5, reintroduced the principle o …

Main perpetrator: liability of corporate officers

Before 2008, “the advertiser on whose behalf the advertisement is disseminated” was, according to former Article L. 121-5, paragraph 1, of the Consumer Code, principally responsible for the offense. Law No 2008-3 of 3 January 2008 amended the text, unsuited to the more comprehensive offence of misleading commercial practice which it introduced into French law, to refer to “the person on whose behalf the misleading commercial practice is implemented”.

Although the incrimination undoubtedly refers to the one who benefits from the implementation of the misleading practice , even when he is not the initiator , it does not appear to exclude the liability of those who, along with the latter, participate in the commission of the offense: advertising agencies, advertising media, intermediaries  etc. The Court of Cassation recently reiterated this principle, stating that the fact that an undertaking is not the advertiser of a campaign which it knew to be contrary to its own practice, does not prevent it from being found guilty of misleading commercial practice if it participated in the development of such a campaign .

Article 138 of the Hamon Law of 17 March 2014 simply abolished the first paragraph of Article L. 121-5 (current Article L. 132-1). During the parliamentary debates, the Government justified this abolition by the fact that “this provision which, in its initial version concerning advertising that its misleading or likely to mislead, was intended to establish a presumption of liability against the advertiser in relation to the advertising agency or any other third party responsible for the design and dissemination of the advertising message, now appears irrelevant in the version extended to misleading commercial practices resulting from the transposition of the EU directive on unfair commercial practices and redundant with the provisions of ordinary law relating to the imputability of criminal liability” . Liability is now determined in accordance with the provisions of Articles 121-1 to 121-7 of the Criminal Code. This change will have little impact, since case law on misleading advertising already applied these texts extensively.

 Cass. crim., 22 March 1982, LawLex201400000620JBJ: the advertiser on whose behalf the advertisement is disseminated is responsible for the offence committed, even if it has given its agent the power to draft the advertisement and give the order to publish it.

 Cass. crim., 3 September 1992, LawLex200300003472JBJ, considering that the fact that advertising material was designed by a third party cannot exempt the person who uses it for his own account from the criminal liability he incurs when such use makes the content misleading.

 Cass. crim., 5 May 1977, LawLex201400000607JBJ: holding that the principal perpetrator of the offense is the one who gives the order to disseminate an advertisement and not the advertising agent, even when the accused, a real estate agency, acts as the seller's agent; 20 October 2020, LawLex202000002857JBJ: the person responsible for a misleading commercial practice is the person on whose behalf that practice is carried out, or who is bound to ultimately profit from the error induced and to benefit from the undertakings that may be made as a result of the deception, as the criminal conviction of other participants in a “secondary” capacity cannot be ruled out.

Cass. crim., 21 May 2023, LawLex202300007526JBJ.

 Report No 1574 by Mr. Razzy Hammadi and Ms. Annick Le Loch, on behalf of the Commission for Economic Affairs, submitted on 21 November 2013.

Imputability

Although incurring the civil liability of the legal entity at the origin of a misleading commercial practice does not give rise to any particular difficulty , the question of its criminal liability has been answered differently over time.

In 1992, the legislator laid down a principle of specialty. Article 121-2 of the Criminal Code provided that legal entities were only criminally liable “in the cases provided for by law or by the regulations”. However, misleading advertising was not one of the offenses that could entail the criminal liability of legal entities . Therefore, in the absence of a specific text, the courts attributed the offense only to the leaders of the company . Law No 2001-504 of 12 June 2001 remedied this absence and added a paragraph to former Article L. 121-6 of the Consumer Code, providing for the possibility of incurring the criminal liability of the legal entity itself. These new provisions, which came into force in the year of adoption of the Law, were immediately implemented . Legal entities have thus been sanctioned for misleading consumers on delivery times  or the alleged beneficial effects of a product , due to the breach of the particular duty of care incumbent on them concerning compliance with the regulations . A legal entity has even been held liable for the offense of misleading advertising committed by one of its sales staff . Nevertheless, to be able to attribute a misleading commercial practice to a legal entity, the judge must ascertain by which of its bodies or representatives it was committed on its behalf . In the majority of cases, however, the courts do not waive the concurrent criminal liability of the director .

Subsequently, Law No 2004-204 of 9 March 2004 adapting justice to the evolutions of criminality, abandoned the principle of specialty and generalized the criminal liability of legal entities. The paragraph of former Article L. 121-6 specifically devoted to the criminal liability of legal entities was first abolished by Law No 2008-3 of 3 January 2008, since it no longer seemed justified, then reintroduced by Law No 2008-776 of 4 August 2008. Finally, former Article L. 121-6 was amended by the Hamon Law of 17 March 2014 to specify that legal entities found criminally liable for the offense of misleading commercial practice incurred, in addition to a fine, the additional penalties provided for in 2° to 9° of Article 131-39 of the Criminal Code. The recodification Ordinance of 14 March 2016 moved the liability of legal entities to the current Article L. 132-3 of the Consumer Code.

 It is sufficient to prove the fault, prejudice and the existence of a causal link between them: Cass. crim., 1 March 1994, LawLex200300003884JBJ, upholding TI Paris, 13 June 1991, LawLex200300001599JBJ.

  As the Court of Cassation pointed out in a case in which the accused sought to exonerate himself by invoking the criminal liability of the legal entity he was managing, although this liability was not incurred, in the absence of special provisions, for offenses under the Consumer Code: Cass. crim., 30 October 1995, LawLex200300003610JBJ. For a similar decision, see CA Paris, 5 March 1999, LawLex200300001805JBJ.

 CA Poitiers, 27 February 1997, LawLex200300002224JBJ; Cass. crim., 30 October 2000, LawLex200300003246JBJ.

  CA Rennes, 18 October 2001, LawLex200400000183JBJ.

  TGI Saint-Etienne, 19 November 2003, LawLex200400000214JBJ.

 CA  Paris, 22 April 2005, LawLex200700000193JBJ.

 CA Paris, 15 December 2003, LawLex200700000197JBJ; TGI Lille, 11 June 2004, LawLex200700000198JBJ.

  Cass. crim., 23 February  2010, LawLex201200001115JBJ;  Cass. crim., 23 February 2010, LawLex201200001115JBJ.

  Cass. crim., 2 December 2014, LawLex201400001489JBJ; 10 November 2015, LawLex201500001442JBJ; 19 April 2017, LawLex201700000739JBJ.

 CA Paris, 1 June 2005, LawLex200700000194JBJ; 9 May 2006, LawLex200700000196JBJ.

Main perpetrator: legal entities

Before 2008, the first paragraph of former Article L. 121-5 of the Consumer Code stipulated that “if the offender is a legal entity, the liability lies with its directors” . The enshrinement of the criminal liability of legal entities remained without effect on the application of the text. In 2008, the legislator, after deleting the first paragraph of Article L. 121-5, reintroduced the principle of the criminal liability of “individuals” in Article L. 121-6 (current Article L. 132-3). The solutions adopted prior to these changes remain theoretically applicable, although the new text no longer refers to the status of director, but to that of individual: it is unlikely that a person with no decision-making power is declared criminally liable.

Case law had also adopted an extensive conception of the text. According to it, the concept of director should not be limited to the legal representatives of the legal entity, but extend to any person in a managerial position: the general manager of a public limited company , manager of a limited liability company , to the exclusion, however, of the chairman of the supervisory board  or the majority shareholder  who do not carry out a managerial role.More recently, the Court of Cassation has held liable the CEO of an undertaking at the time of the practices complained of, insofar as he was the person who defined the commercial strategy of the company and initiated its implementation .

Unfair commercial practices incur the criminal liability of both de jure and de facto directors. When they exercise a positive activity of management and leadership of the company, with full sovereignty and independence, de facto directors can be found guilty of the charges when the de jure director does not actually exercise any of the functions which are theoretically his . Thus, the implementation of a misleading practice incurs the liability of the person who, without being a de jure director, is presented as the author of the message, responds to the officials of the Administration, and assumes responsibility throughout the procedure, thus assuming the de facto management of the company . A principal shareholder who solicited customers at home  and a person responsible for the commercial policy at the origin of the contentious publication  have been deemed to be de facto directors. When the de jure and de facto directors exercise the management functions jointly, their joint liability may be incurred .

Difficulties may arise when the effects of a practice implemented at the initiative of a director persist until his replacement by another. Should the new director take responsibility for the acts committed by his predecessor? Case law responds in the affirmative: as the offense of misleading commercial practice is a complex offense that is committed on each communication of the message to the public, the new director must take all necessary precautions so that it does not continue to produce its effects after his entry into office . Thus, the new manager who re-uses a misleading campaign initiated before taking up his duties  or who does not take the decision to cease the dissemination of a misleading advertisement  must assume liability for it, in the same way as his predecessor.

Finally, when the liability of the individual director is sought, he cannot use the collective proceedings which affect the company on whose behalf the practice was implemented to escape liability, if he is not subject himself to personal liquidation .

 For examples subsequent to the Law of 3 January 2008, but applying Article L. 121-5, see CA Saint-Denis, La Réunion, 6 November 2008, LawLex201200001331JBJ: the manager of a company may be held personally liable for the offense of misleading advertising even if it was committed on behalf of the legal entity; CA Angers, 16 December 2010, LawLex201200001322JBJ: the store manager may be held liable for the offense of misleading advertising even if it has been committed on behalf of the legal entity, when he was responsible for implementing the promotional offer in question in his store and managing its stocks; Cass. crim., May 22, 2013, LawLex201300000975JBJ: the company manager may be held personally liable instead of the legal entity when a body of concordant evidence establishes his full participation in the development and implementation of the advertisements in question.

  Cass. crim., 15 February 1995, LawLex200300003591JBJ, upholding CA Lyon, 1 December 1993, LawLex200300001649JBJ: the criminal liability incurred in respect of misleading advertising on the composition of products sold lies not only, in the case of a public limited company, with the CEO, but also with the general manager: See also Cass. crim., 27 March 2007, LawLex200700000479JBJ.

 Cass. crim., 4 December 1998, LawLex200300003587JBJ; CA Paris, 17 September 1997, LawLex200300003852JBJ; TGI Paris, 21 February 2001, LawLex200300003043JBJ; Cass. crim., 4 March 2003, LawLex200300001308JBJ.

  Cass. crim., 14 December 1994, LawLex200300003866JBJ, upjolding CA Paris, 30 September 1992, LawLex200300001618JBJ. See CA Versailles, 16 March 1989, LawLex200300001667JBJ, holding that the criminal liability for misleading advertising lies with the director who, after taking office, maintained the advertising panel put in place by his predecessor.

 CA Douai, 10 March 2005, LawLex200600001200JBJ.

 Cass. crim., 27 March 1997, LawLex200300003879JBJ, upholding CA Angers, 7 December 1995, LawLex200300001691JBJ, holding that the liability of a corporate officer is incurred as a result of misleading advertising designed prior to his taking office, but whose dissemination he has not stopped; Cass. crim., 11 December 2007, LawLex200900001398JBJ.

 Cass. crim., 11 December 2007, LawLex200900001398JBJ; 27 May 2008, LawLex201200001052JBJ.

 Cass. crim., 14 June 2005, LawLex200500009787JBJ, convicting the co-managers of a limited liability company.

 CA Chambéry, 30 November 2001, LawLex200300003599JBJ.

 CA Rennes, 5 June 1990, LawLex200300001629JBJ.

Cass.crim.,19 November 2019, LawLex201900001421JBJ.

 CA Rennes, 6 October 1989, LawLex200300003859JBJ; CA Paris, 1 March 1996, LawLex200300002163JBJ.

 Cass. crim., 12 May 1993, LawLex200300003877JBJ, upholding CA Paris, 4 December 1991;LawLex200300001600JBJ; TGI Pontoise, 26 January 1993, LawLex200400000186JBJ: during the first visit of the Administration, the defendant introduced himself as the person in charge of the company, before claiming that he was merely an employee; CA Rennes, 17 February 1997, LawLex200300002431JBJ: in his declarations to the gendarmerie and before the trial courts, the accused, acting as co-manager, declared that he was solely responsible for the offenses found; CA Aix-en-Provence, 3 December 1998, LawLex200300001975JBJ: during the site visit by the controllers, the defendant behaved as the owner of the restaurant, taking responsibility for all purchases, giving the order to her daughter, who theoretically exercised the functions of manager, not to sign the report and answering the requests for information of the investigating officials in her place.

  CA Paris, 9 June 1999, LawLex200300001969JBJ.

 Cass. crim., 7 April 1999, LawLex200300003890JBJ, upholding CA Poitiers, 17 February 1997, LawLex200300002224JBJ.

When legal entities are large firms, the leaders often delegate some of their powers to their subordinates. Under what conditions do these delegations exonerate the manager? The answer depends on a set of factors.

The existence of the delegation must be established. Although no particular form is required, evidence of the delegation of powers cannot be based on mere allegations  or on an unsigned document from the delegate . The delegation must first strictly define its field of application, hence the usefulness of a written document . It is difficult for the head of a company to be released from his liability for a misleading practice when the delegations of powers given to employees does not empower them to act in the field of advertising .

According to the criminal chamber of the Court of Cassation, “the head of the undertaking, who has not personally taken part in the commission of the offense, may be released from his criminal liability if he proves that he has delegated his powers to a person with the necessary competence, authority and means” . This is not the case for the delegation granted to a trainee , to a delegate who is required to report to the delegator, several times a year, on the management of his budget , to an employee who carries out the delegated activity and uses means which belong to a legal entity separate from the one managed by the delegator , or who does not have the financial means necessary for the exercise of his function , has no control over the design of advertisements and promotions, the choice of their timing, the definition of their terms , who was dismissed shortly before the contentious promotional operation, for professional inadequacy , or whose competence, not supported and reinforced by appropriate training, is insufficient to allow him to effectively ensure compliance with the regulations . The actual working conditions of the subordinate, despite the vagueness of his employment contract, must make it possible to establish the existence of a valid delegation of powers, in particular due to the exercise of a supervisory, managerial, command and decision-making power .

Even if the scope of the delegation is properly defined and concerns an employee fit to exercise the functions it lists, its exemptive effect may in some cases be paralyzed. For example, a campaign of a certain magnitude cannot escape the control of the head of the company: he remains responsible for it despite the delegation granted . The control or supervision exercised over the activity of the delegate amounts to a revocation of the delegation . Indeed, for the delegation of powers to remain effective, the head of the company must not have personally taken part in the commission of the offense . Similarly, the leader commits a personal fault by delegating his powers to a floor manager on vacation .

Finally, the Court of Cassation acknowledges the effectiveness of sub-delegations, when they are made by sector and to persons who have the necessary powers and authority to carry out the mission .

However, the sub-delegation of powers does not release the sub-delegator from his criminal liability, when it is accompanied by very specific instructions and leaves no decision-making power to the sub-delegates .

 Cass. crim., 11 March 1993, LawLex200300003871JBJ; Cass. crim., 14 January 2020, LawLex202000000081JBJ.

  Cass. crim., 8 September 1998, LawLex200300003874JBJ.

  CA Paris, 4 July 1994, LawLex200300001659JBJ.

  CA Grenoble, March 29, 2000, LawLex200300004182JBJ.

 CA Nîmes, 7 September 2004, LawLex200500005814JBJ.

  Cass. crim., 30 October 1990, LawLex200300002433JBJ, upholding CA Douai, 17 May 1989, LawLex200300001626JBJ; Cass. crim., 3 April 1996, LawLex200300003875JBJ.

  Cass. crim., 3 May 2006, LawLex200600001274JBJ: leader retaining a power of intervention in the commercial and general policy of the group. 

 Cass. crim., 9 November 1994, LawLex200300003896JBJ, upholding CA Paris, 8 November 1993, LawLex200300004293JBJ; Cass. crim., 13 May 1996, LawLex200300003712JBJ, upholding CA Lyon, 3 March 1995, LawLex200300002250JBJ; Cass. crim., 6 February 2001, LawLex200300004350JBJ, partial quashing of CA Bastia, 17 May 2000, LawLex200300004473JBJ; Cass. crim., 17 September  2002, LawLex200300001028JBJ, upholding CA Rennes, 21 June 2001, LawLex200400000149JBJ; Cass. crim., 21 January 2012, LawLex201200001231JBJ.

 Cass. crim., 26 June 2001, LawLex200300003261JBJ, upholding CA Rouen, 30 October 2000, LawLex200300003275JBJ.

 Cass. crim., 18 October 1995, LawLex200300001015JBJ, CA Rennes, 7 April 1994, LawLex200300001655JBJ: a sub-delegation only releases its author from the criminal liability incurred for misleading advertising when it expressly confers on the sub-delegate prerogatives in the area of advertising; CA Limoges, 15 February 2002, LawLex200300002128JBJ: ruling that the head of a department holding a sub-delegation of powers is liable for the offense of misleading advertising on the origin of the meat offered for sale when his sub-delegated powers concern the supply and control of the traceability of the cuts.

 CA Chambéry, 13 March 2008, LawLex201200001051JBJ.

 CA Aix-en-Provence, 27 October 1998, LawLex200300001801JBJ: the contents of delegations specifically mentioned the marketing of products, compliance with price regulations, labeling and fraud, thus exempting the CEO from liability.

  Cass. crim., 6 October 1993, LawLex200300003585JBJ; CA Paris, 20 September 1999, LawLex200300003903JBJ: delegation of powers only covering compliance with hygiene rules. See also Cass. crim., 18 October 1995, LawLex200300001015JBJ, for a sub-delegation.

  Cass. crim., 11 March 1993, LawLex200300003876JBJ, upholding CA Montpellier, 17 December 1990, LawLex200300001631JBJ. See CA Angers, 2 June 1998, LawLex200300001980JBJ: delegation of powers granted to a floor manager with the necessary powers and competences to perform his mission; CA Aix-en-Provence, 21 January 1999, LawLex200300001974JBJ: delegation of powers to a floor manager with sufficient competence and authority to perform his mission; CA Amiens, 30September 2009, LawLex201200001319JBJ.

 CA  Paris, 26 November 2008, LawLex201200001281JBJ.

  Cass. crim., 24 March 1993, LawLex200300003880JBJ, upholding CA Lyon, 26 February 1992, LawLex200300001638JBJ.

  CA Grenoble, 23 February 2009, LawLex201200001315JBJ.

  Cass. crim.,29  March 1995, LawLex200300002439JBJ and LawLex200300003470JBJ.

  CA Bordeaux, 31 May 1994, LawLex200300002285JBJ.

 Delegations of powers

Most of the time, distribution contracts provide that the advertising campaigns intended to promote the network, its products or its services, will be organized at national level by its coordinator. The packaging of the contractual products delivered to the distributor may also mention promotions. Who should bear the criminal liability when the promises of the message are not kept?

In principle, case law holds the supplier responsible for the practices implemented by its distributors, as designer of the message . The same applies when the distributor does not have control over the products on which the misleading information is shown  or its role is limited to providing the means of access to the service in question promoted by the supplier .

Nevertheless, some decisions retain the criminal liability of the distributor, although it is not the designer of the campaign, when it uses the advertising in question for its own account without verifying the special conditions of sale promised  and impose on it the obligation to adapt its offer to the information communicated by the supplier . The attribution of criminal liability to the distributor is based on the margin of freedom it has to follow the campaigns or not . It must be considered as the advertiser, even if the promotional message offering free products comes from the supplier, when the use made of it makes the content misleading , or when it has failed to verify that the message corresponds to reliable reference products or has not intervened in store on the sale prices or product presentation method . Finally, the franchisee who took the initiative to disseminate an advertisement independently of any instruction from his franchisor must be considered the advertiser . The courts consider the parties to be co-authors when the supplier has organized the campaign and the distributor was involved in its financing .

In the case of groupings of distributors, responsibility for a campaign ordered by the manager of a central purchasing office is incumbent on him, even if it is not used for his exclusive account . A central purchasing office also assumes liability for the offense when it selects products that it presents on a website in a manner likely to mislead the consumer . However, the offense of misleading commercial practice is attributable to the managers of a store when they have control over the prices of the products concerned by the procedure, which are not included in the advertising catalogues produced by the central purchasing office .

 Cass. crim., 16 April 1992, LawLex200200005911JBJ, upholding CA Bordeaux, 5 February 1991, LawLex200200005823JBJ, holding that a franchisor incurs criminal liability for misleading advertisements in the windows of its franchisees; CA Paris, 14 May 1993, LawLex200200006002JBJ, holding that the accused, as a franchisor who designs all the advertising campaigns of the group, is personally liable for the offense; Rennes, 18 October  2001, LawLex200400000183JBJ, upheld by Cass. crim., 17 September 2002, LawLex200300000986JBJ and, in the same case: TGI Quimper, 6 September  2000, LawLex200200004660JBJ.

 CA Paris, 10 May 2012, LawLex201200000761JBJ.

  Cass. crim., 8 December 1993, LawLex200300003613JBJ, upholding CA Paris, 16 May 1991, LawLex200300001759JBJ. For a similar decision: CA Aix-en-Provence, 30 October  2002, LawLex200300004104JBJ, holding that the dissemination of a catalogue containing misleading information incurs the criminal liability of the head of the central purchasing office.

 CA Paris, 12 February 2016, LawLex201600000325JBJ.

 CA Rouen, 23 January 2014, LawLex201400000376JBJ.

 TGI Nanterre, 15 October 2001, LawLex200300002680JBJ; TGI Nanterre, 22 May 2002, LawLex200200000536JBJ, holding that the true contractor is the supplier, even if the advertisement has been disseminated by distributors.

 Cass. crim., 27 November 1990, LawLex200200005811JBJ, 13 March 2008, LawLex201200001051JBJ: the franchisee, even if he is not the originator of the commercial transaction, must be considered the advertiser when the advertisement has been disseminated on his behalf and attracted consumers to his store.

 TGI Poitiers, 20 February 1991, LawLex200300001635JBJ: according to the judges, it is up to the dealer to verify the statements of the advertising made on behalf of his store and, if he is unable to make the necessary changes, to modify the characteristics of the operation or abandon it.

 Cass. crim., 18 October 1995, LawLex200200004347JBJ.

 Cass. crim., 3 September 1992 LawLex200300003472JBJ, upholding CA Colmar, 26 September 1991, LawLex200300001614JBJ.

 CA Rouen, 7 March 2013, LawLex201300000718JBJ, upheld by Cass. crim., 1 April 2014, LawLex201400000597JBJ.

 CA Limoges, 27 May 1998, LawLex200300001790JBJ.

 CA Paris, 31 May 999, LawLex200400000136JBJ; CA Grenoble, 17 May 2000, LawLex200300004034JBJ, upholding TGI Valence, 23 March 1999, LawLex200300004236JBJ.

Distribution networks

The status of primary perpetrator of a misleading commercial practice can be shared between several parties when their involvement in its design is sufficiently significant.

The liability of an employee of the company may be incurred for his authority or involvement in the creation of the advertising campaign. For example, the employee who provided the advertising agency with the documents necessary to create the message, controlled the creation of the message and approved it , has the status of co-perpetrator.

It is also possible to retain the liability of those who performed, along with the directors, the material acts of the offense. Any intermediary who, by his material participation in the conception of the misleading practice, has played an effective role, can be considered as a co-perpetrator . Any partner of the company, such as the real estate agent involved in the creation of an advertisement, is concerned .

 Cass. crim., 18 May 1994, LawLex200300003792JBJ, upholding CA Rennes, 21 January 1993, LawLex200300001646JBJ, which overturned the decision of the trial courts acquitting the employee: TGI Quimper, 28 July 1992, LawLex200300001642JBJ. See also CA Chambéry, 30 November 2001, LawLex200300003599JBJ, upheld by Cass. crim., 15 October 2002, LawLex200300000987JBJ.

 CA Rennes, 7 May 2002, LawLex200300002098JBJ: the author of an advertisement and the leader of the company are guilty of misleading advertising by inserting it in the section "license-free cars", although it was not this type of vehicle; Cass. crim., 4 March 2003, LawLex200300001308JBJ: the person responsible for the design of a company's commercial policy, in particular with regard to the decision to disseminate classified ads, is a co-perpetrator with the leader in the infringement of the regulations on advertising.

 Cass. crim., 5 May 1977, LawLex201400000607JBJ.

Co-perpetrators

Under former Article L. 121-5 of the Consumer Code, complicity in the offense of misleading advertising was punishable under the conditions of ordinary law. Following the deletion of the reference to complicity by Law No 2008-3 of 3 January 2008, the Hamon Law of 17 March 2014 deleted the paragraph on primary liability, and referred to the general principles of criminal liability.

According to ordinary law, “the person who knowingly, by aid or assistance, facilitates its preparation or commission, is an accomplice to a crime or offense” . Complicity assumes the meeting of three elements: a principal punishable act, an act of participation or wrongful omission, as well as a moral element. However, case law does not require a moral element for the constitution of the offense of misleading advertising. Under the old text, the Court of Cassation held that it is necessary and sufficient, to retain complicity, to establish that the accomplice gave the advertiser instructions or provided it with the means to create the advertisement in full knowledge of their misleading nature .

The assumption of complicity applies to any person who collaborates in the design of the advertising. The advertising agency appears as the first accomplice that comes naturally to mind. The advertising agency incurs its liability in this respect when the deception relates to the elements it is supposed to control. The agency may be found guilty of complicity in the offense by the provision of means . The employee of the professional who drafted the disputed text, when he was fully aware of its misleading nature , the sales director who gave the instructions or provided the means for the implementation of the misleading practice , the sales director, responsible for training and the dissemination of practices defined by the CEO of the company, who himself took part in some of the sales  and, more generally, any employee who knowingly assists in the commission of the offense , may be declared an accomplice due to his contribution to the conception of the advertising operation. The leader of a company offering domiciliary services who encourages repair companies to show in directories advertisements referring to several addresses of fictional secondary establishments, is an accomplice to the offense of misleading advertising , in the same way as the chairman of a purchasing group, who provides its members with inaccurate information to create their advertisements  or the famous personality who lends his image to give the consumer the idea that the products sold have been selected by him .

The phase of dissemination of the message involves several professionals, whose involvement can be sanctioned as complicity. This is the case for agencies selling advertising space, whose role is to market advertising space on one or more media to advertisers and advertising agencies. When the agent accepts insertion orders whose misleading nature cannot escape him, he becomes an accomplice of the principal perpetrator . Similarly, the publication director of the advertising medium is bound by an enhanced duty of vigilance with regard to the advertising it disseminates . He must verify the truth of a message with unproven allegations  and not knowingly print a brochure that misleadingly suggests that the praiseworthy evaluations of schools are the result of an objective journalistic study, and not a purely advertising product . In order to retain complicity, judges may take into consideration an earlier conviction for misleading advertising by the same director .

 Cass. crim., 23 April 1997, LawLex200300003882JBJ.

 CA  Paris, 15 May 1998, LawLex200300002521JBJ: conviction of the advertising agent operating on behalf of a directory for having accepted the publication of advertisements of repairers accompanied by names of major brands, suggesting that they were approved by these brands. For the same facts: Cass. crim., 17 October 2000, LawLex200300003244JBJ, upholding CA Paris, 26 May 1999, LawLex200300002318JBJ.

 Cass. crim., 20 October 1999, LawLex200300003260JBJ, upholding CA Paris, 5 December 1997, LawLex200300004343JBJ, in the same case TGI Paris, 23 April 1997, LawLex200300002233JBJ. For a similar decision, TGI Paris, 11 December 1996, LawLex200300002218JBJ.

 CA Paris, 25 March 1999, LawLex200300001967JBJ.

 CA Paris, 11 October 1994, LawLex200300001714JBJ.

 Cass. crim., 11 March 1998, LawLex200300003883JBJ, upholding CA Grenoble, 27 September 1996, LawLex200300002215JBJ.

 Cass. crim., 23 April 1997, LawLex200300003882JBJ; upholding CA Paris, 1 March 1996, LawLex200300002163JBJ; Cass. crim., 8 December 1993, LawLex200300003613JBJ, upholding CA Paris, 16 May 1991, LawLex200300001759JBJ: holding that the manager of an advertising agency is an accomplice in the offense of misleading advertising when he conducts an advertising campaign with misleading claims, without having verified its accuracy with his client.

 CA Lyon, 13 November 1991, LawLex200300001615JBJ.

  Cass. crim., 7 July 1993, LawLex200300003881JBJ, upholding CA Angers, 24 September 1992, LawLex200300001643JBJ; CA Bordeaux, 12 January 1999, LawLex200400000011JBJ.

  Cass. crim., 24 March 1993, LawLex200300003880JBJ: employee who, knowingly, disseminates the advertising, in particular by signing the documents sent to consumers under an assumed name; CA Riom, 24 September 1994, LawLex200200005410JBJ: employee who, knowingly, does not order the necessary quantities so that the advertising he disseminates is not misleading; CA Bordeaux, 12 January 1999, LawLex200400000011JBJ: sales representatives. 

 CA Paris, 22 November 2000, LawLex200300002353JBJ, LawLex200300002363JBJ, LawLex200300002364JBJ and LawLex200300002365JBJ.

 Cass. crim., 15 February 1982, LawLex200300003446JBJ.

  Cass. crim., 27 June 2006, LawLex200600001785JBJ, upholding CA Aix-en-Provence, 19 October 2005, LawLex200600001951JBJ.

French Consumer Law

188. Main perpetrator: liability of corporate officers

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Les notions juridiques connexes

188. Main perpetrator: liability of corporate officers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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