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

Pursuant to the former Article L. 121-4 (current Articles L. 132-4 and L. 132-5) of the Consumer Code, in its version prior to the Hamon Law, “in case of conviction, the Court orders publication of the judgment”. The constitutionality of the text, which did not present the publication measure as an option but as an obligation, was challenged on the grounds that it would undermine the principles of …

Publication of judgment

According to Article L. 132-3 (former Article 121-6) of the Consumer Code, in its version resulting from the Hamon Law of 17 March 2014, individuals found guilty of the offense of misleading commercial practice incur, as additional penalties, the prohibition either to carry out a public function or professional or social activity in the exercise or in the course of the exercise of which the offense was committed, or from exercising a commercial or industrial profession, from directing, administering, managing or controlling in any capacity whatsoever, directly or indirectly, for their own account or on behalf of others, a commercial or industrial undertaking or a commercial company. The prohibitions of exercise, which may be imposed cumulatively, may not exceed a duration of five years.  According to the criminal chamber of the Court of Cassation, a ban on running a business may be imposed under misleading commercial practices even for facts having occurred prior to the entry into force of the Hamon Law provided that it does not constitute an additional penalty but replaces a prison sentence in accordance with Article 131-6, 15° of the Criminal Code .

Legal persons found responsible for the offense are liable to the penalties provided for in paragraphs 2 to 9 of Article 131-39 of the Criminal Code. The prohibition mentioned in 2° of this text concerns the activity in the exercise or in the course of the exercise of which the offense was committed. Since the Hamon Law, the penalties provided for in 2° to 7° of Article 131-9 can be pronounced only for a duration of five years at the most .

The additional penalties provided for in points 2° to 9° of Article 131-39 of the Criminal Code are:

"2° Prohibition to exercise, on a permanent basis or for a period not exceeding five years, directly or indirectly, one or more professional or social activities;

3° Placement under judicial supervision for a maximum period of five years;

4° The definitive closure or for a period of not more than five years of the establishments or of one or more of the establishments of the undertaking used to commit the offenses in question;

5° Disqualification from public tenders, either permanently or for a maximum period of five years;

6° Prohibition, permanently or for a maximum period of five years, to make a public offering of securities or to have its securities admitted to trading on a regulated market;

7° Prohibition, for a maximum period of five years, to issue checks other than those allowing the withdrawal of funds by the drawer from the drawee or those which are certified or to use payment cards;

8° The penalty of confiscation, under the conditions and according to the procedures laid down in Article 131-21;

9° Display of the decision handed down or its dissemination either through the written press, or using any form of communication to the public by electronic means".

Although Article L. 132-3 of the Consumer Code excludes the additional penalty provided for in 1° of Article 131-9 of the Criminal Code , it should be specified that Article 1 of Law No 2001-504 of 12 June 2001, amended by Law No 2007-1787 of 20 December 2007, provides that “the dissolution of any legal entity may be ordered, in accordance with the provisions of this Article, whatever its legal form or corporate purpose […]”. This dissolution must meet two conditions. Firstly, the legal entity must carry out activities aimed at, or likely to create, maintain or exploit psychological or physical dependence on the part of people taking part in these activities. Secondly, final criminal convictions for at least one of the offenses contained in the list must have been pronounced against the legal entity itself or its de facto or de jure leaders. Misleading advertising is third place on the list .

Moreover, the Plenary Assembly of the Court of Cassation stated that the loss of civic, civil and family rights did not constitute an additional penalty for the offense of misleading advertising . The solution seems to be transposable to the offense of misleading commercial practice.

Cass. crim., 3 May 2017, LawLex201700000840JBJ. 

 Unnecessary clarification since Article 131-9 already provides for this.

 Criminal Code, Article 131-39, 1°: "Dissolution, where the legal entity has been created or, in the case of a crime or offense punishable with respect to natural persons by a term of imprisonment of three years or more, diverted from its corporate purpose to commit the acts in question".

 Article 1 of Law No 2001-504 of 12 June 2001: "3°: Offenses of misleading advertising, fraud or falsification provided for in Articles L. 121-6 and L. 213-1 to L. 213-4 of the Consumer Code".

 Cass. crim., 24 October 2003, LawLex200300003980JBJ.

Professional prohibitions and loss of civic rights

Pursuant to the former Article L. 121-4 (current Articles L. 132-4 and L. 132-5) of the Consumer Code, in its version prior to the Hamon Law, “in case of conviction, the Court orders publication of the judgment”. The constitutionality of the text, which did not present the publication measure as an option but as an obligation, was challenged on the grounds that it would undermine the principles of necessity and individualization of penalties guaranteed by Article 8 of the Declaration of the Rights of Man and the Citizen of 1789. This was not the opinion of the Constitutional Council, which held that "by imposing a mandatory penalty directly linked to criminal behavior committed by means of advertising, Article L. 121-4 of the Consumer Code intends to strengthen the repression of misleading advertising offenses and to ensure that the public is informed of the commission of such offenses and that it does not deprive the judge of his power to individualize the sentence since he may vary its significance and duration .

To counter any criticism, the Hamon Law of 17 March 2014 reformulated the text specifying that the court “could”, in the event of conviction, order the display or dissemination of all or part of the decision or a press release informing the public of the reasons and verdict by any appropriate means. However, the solution has evolved again with the rise of name and shame. In effect, the EGalim law of 30 October 2018  has once again amended Article L. 132-4 to clearly impose on the courts the obligation and no longer the simple power to order, by all appropriate means, the displaying or dissemination of all or part of the decision or a press release informing the public of the reasons and the operative part of it.

The additional penalty of displaying the decision was introduced by the legislator to put an end to the long-standing conflict between many trial courts and the criminal chamber of the Court of Cassation. Under the old text, some trial judges had ordered advertisers to display the decision at the entrance of their store , or even on each checkout in all the stores of the chain . Strictly applying the principle of the legality of penalties, the criminal chamber constantly overturned such decisions, recalling that the display of the decision at the doors of the store was not an additional penalty for misleading advertising . The Hamon and EGalim laws which refer expressly to the displaying of judgments confirm the view of the trial courts.

In most cases, the publication is ordered in the newspapers that were the medium of the practice or in the national daily newspapers , but it can also be made in periodicals aimed specifically at consumers. The current text, which refers to the “dissemination” of the decision “by all appropriate means” also makes it possible to validate the decision-making practice of ordering the publication of a press release on the website of the perpetrator of the practice  or to reconsider decisions prohibiting the radio broadcast of the decision .

Finally, considering that the impact on the consumer of the conviction judgment is, in the vast majority of cases, far less than that of a misleading commercial practice, the legislator has provided for an optional additional penalty: the corrective advertisement. The purpose of this counter-advertisement is to correct the impression created. It is disseminated in the manner and within the time limit set by the judge hearing the case. However, the application of this measure remains very marginal. To reinforce its effectiveness, and no doubt attractiveness for the court, the recodification Ordinance of 14 March 2016 added an Article L. 132-5 to the Consumer Code, pursuant to which “the non-execution within the allotted time of the corrective advertisements provided for in Article L. 132-4 is punished by two years' imprisonment and a fine of EUR 300,000”.

 Cons. constit., 29 September 2010, LawLex201400000614JBJ.

Law No 2018-938 of 30 October 2018, OJ 1 November 2018.

 CA Rouen, 18 March 1982, LawLex200300001624JBJ; CA Angers, 3 May 1990, LawLex200300001596JBJ; CA Riom, 29 September 1994, LawLex200200005410JBJ; 7 September 1995, LawLex200300001693JBJ; TGI Annecy, 2 May 1997, LawLex200300002169JBJ; CA Bastia, 17 May 2000, LawLex200300004473JBJ.

 TGI Évry, 26 June 2007, LawLex200700000479JBJ, LawLex200700001161JBJ, but the Court of Appeal overturned this decision, CA Paris, 26 November 2008, LawLex200900000936JBJ.

 Cass. crim., 1 March 1983, LawLex200300003898JBJ; 9 November 1993, LawLex200300003473JBJ ; 18 October 1995, LawLex200200004347JBJ; 5 December 1995, LawLex200300003886JBJ; 6 February 2001, LawLex200300004350JBJ ; 27 March  2007, LawLex200700000479JBJ.

 CA Paris, 26 November 2008, LawLex200900000936JBJ; TGI Rouen, 27 April 2012, LawLex201200001728JBJ, LawLex201200001730JBJ and LawLex201200001731JBJ.

 Cass. crim., 15 May 2012, LawLex201200001959JBJ. See also, in civil matters, Cass. 1re civ., 9 March 2004, LawLex200400000603JBJ.

 CA Grenoble, 29 March 2000, LawLex200300004182JBJ.

French Consumer Law

196. Publication of judgment

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

196. Publication of judgment

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