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

Directive No 2005/29 of 11 May 2005 classifies as unfair not only misleading commercial practices, but also aggressive commercial practices, governed by Articles 8 and 9, which were transposed by the Laws of 3 January and 4 August 2008, then the Law of 17 May 2011 and are set out in current Articles L. 121-6, L. 121-7 and L. 132-10 to L. 132-12) of the Consumer Code. Pursuant to Article L. 121-6,  …

Aggressive commercial practices

Directive No 2005/29 of 11 May 2005 classifies as unfair not only misleading commercial practices, but also aggressive commercial practices, governed by Articles 8 and 9, which were transposed by the Laws of 3 January and 4 August 2008, then the Law of 17 May 2011 and are set out in current Articles L. 121-6, L. 121-7 and L. 132-10 to L. 132-12) of the Consumer Code. Pursuant to Article L. 121-6, “a commercial practice is aggressive when, due to repeated and insistent solicitations or the use of physical or moral coercion, and taking into account the circumstances surrounding it: it alters or is likely to significantly alter the freedom of choice of a consumer; it vitiates or is likely to vitiate the consent of a consumer; it impedes the exercise of the contractual rights of a consumer”. As the DGCCRF pointed out in its memorandum of 29 January 2009 , the offense is defined by its means and its effects.

The implementation of an aggressive commercial practice implies the exertion of pressure   on the consumer , but not necessarily that this has led him to buy or place an order with the professional . The offense is distinguished from the abuse of weakness provided for in Article L. 121-8 of the Consumer Code insofar as, contrary to what is required for abuse of weakness, the pressure does not have to be exerted on persons who are vulnerable, in a state of weakness or ignorance . This pressure can take the form of telephone solicitations, home visits, emails, letters or the successive intervention in a store of several sellers to clinch the sale. According to the Administration, they must be personalized solicitations, made individually to one or more consumers. However, according to the DGCCRF, simple advertising harassment does not constitute a real pressure on the future customer and cannot characterize an aggressive practice within the meaning of Article L. 121-6. Such was not the view of the Court of Appeal in Aix-en-Provence, which held that the sending of fifty letters in five months inviting the consumer to take part in two promotional competitions games and inciting him to place an order constitutes an aggressive commercial practice by its excessively repeated and insistent nature . Regarding physical coercion, the memorandum gives examples of sales methods which consist in making the process of negotiating the price or sales conditions last several hours, to “keep” the customer in the store until he makes the sale. Moral coercion can occur through blackmail, the use of the customer's fear, intimidation, threats, the exploitation of certain circumstances. According to the first decisions handed down on the basis of the text, the fact of having to purchase an Internet subscription from a given operator to be able to access specialized audiovisual content, does not constitute reprehensible coercion . Article L. 121-6, supplemented by the Law of 4 August 2008, contains a list criteria that will enable the judge to assess the exercise of coercion. The following elements may therefore be taken into consideration: the time and place where the practice is implemented, its nature and persistence ; the use of physical or verbal threat; the exploitation by the professional, in full knowledge of the facts, of any misfortune or special circumstances of a gravity capable of altering the judgment of the consumer, with a view to influencing his decision with regard to the product ; any material or disproportionate non-contractual barriers imposed by the professional when the consumer wishes to assert his contractual rights, and in particular the right to terminate the contract or change products or suppliers; or any threat of action when such action is not legally possible.

Do the constraints imposed by social security bodies for the recovery of payments and contributions that contribute to financing social schemes fall under these provisions? A ruling by the Court of Justice cast doubt on the matter. In this decision, the Union judge held that a body entrusted with the management of a statutory health insurance scheme fell within the personal scope of Directive No 2005/29, although its public or private nature or the fact that it carries out a mission of general interest can be taken into account, and concluded that the persons covered by the scheme must, like any other consumer, be protected against misleading information disseminated by such a body . Based on this judgment and the double meaning of the term “constraint”, many taxpayers now try, unsuccessfully, to call into question the constraints issued by the social security funds , the URSSAF  or the RSI  by qualifying them as aggressive commercial practices within the meaning of Article L. 121-6 of the Consumer Code .

While the first two effects of the practice - the significant distortion of the consumer's choice and the vitiation of his consent - may be only potential, as the use of the expression “or is likely to” shows, the third - impediment of the exercise of his contractual rights - must be proven, in the absence of clarification. According to case law, it is thus an aggressive commercial practice to dispatch direct sellers posing as EDF agents to consumers, in order to obtain the information necessary to perform a change in the point of delivery of the electricity, sign false requests to change operators, terminate EDF contracts and invoice them without their consent . In its memorandum, the DGCCRF specifies that the impediment of the exercise of contractual rights must be demonstrated on the basis of material elements such as letters, requirements of the professional complicating or prohibiting the consumer from exercising his rights, etc. When the consumer has been subject to pressure, all practices aimed at speeding up the sales process, although he normally has a period of reflection , may be characterized as aggressive commercial practices.

Article L. 121-7 of the Commercial Code, inserted by the Law of August 4, 2008, initially reproduced the list of the eight aggressive commercial practices per se of Annex I of Directive No 2005/29. However, the Law of 17 May 2011 abolished the sixth, which duplicated the prohibition of the forced sale referred to in Article L. 121-12 of the Consumer Code , accordingly reworded. Pursuant to Article L. 121-7, the practices deemed to be aggressive, without it being necessary to verify the presence of the criteria set out in Article L. 121-6, are as follows:

1 -  giving the consumer the impression that he cannot leave the premises until a contract is formed;

2 -  conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return unless authorized by national law to enforce a contractual obligation;

3 -  engaging in repeated and unwanted solicitations by telephone, fax, e-mail or any other remote communication tool ;

4 -  requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant to establish the validity of the claim, or systematically failing to respond to relevant correspondence, in order to dissuade a consumer from exercising his contractual rights; 

5 -  including in an advertisement a direct incitement to children to buy the advertised products or persuade their parents or other adults to buy the advertised products for them;

6 -  explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy;

7 -  giving the impression that the consumer has already won, will win or will win by performing an action a prize or other equivalent benefit, whereas, in fact: - either there is no prize or another equivalent benefit ; - or the performance of an action in relation to the claim of the prize or other equivalent benefit is subject to the obligation for the consumer to pay money or bear a cost. The trial courts have ruled that the negotiation of a contract for the design, manufacture and delivery of a kitchen does not constitute an aggressive commercial practice, since the concept of “price” or “advantage”, within the meaning of Art. L. 121-7, 7° (formerly Art. 122-11, 8°) of the Consumer Code, does not include a discount on the price of a contract for sales and works . On the other hand, a service provider engages in an aggressive commercial practice, when on the basis of a previous contract that was performed without difficulty, it leads the tenant to believe that the rental cost of its new photocopier will amount to EUR 6.67 per month, thanks to a commercial contribution of EUR 7000, even though the rent is EUR 396, and that this financial assistance, which is not based on the duration of the rental contract, but for a shorter period, and representing 30% of the price of the machine, led the tenant to make a commitment under the four disputed contracts (order, maintenance, participation in the installation and rental), believing  that she would benefit from a machine and its maintenance at an attractive price, when this is not the case if the service provider ceases its participation . 

For the Court of Justice, the practice is constituted where, to obtain information on the nature or claim of the prize, the consumer must pay a sum of money or bear any cost, however negligible, even if several methods are available to him to perform these actions, at least one of which is free . 

Contrary to misleading commercial practices, aggressive practices can be subject to both criminal and civil penalties. Article L. 132-11 of the Consumer Code punishes the implementation of an aggressive commercial practice with two years' imprisonment and a fine of up to EUR 300,000 . This amount may be increased, in proportion to the benefits derived from the breach, to 10% of the annual average turnover, calculated on the last three turnovers known on the date of the events. Under Article L. 132-12, legal entities are liable, in addition to the fine in accordance with Article 131-38 of the Criminal Code (i.e. EUR 1.5 million), for the penalties provided for in paragraphs 2° to 9° of Article 131-39 of the same Code. As the DGCCRF memorandum notes, settlement is not possible for aggressive commercial practices. Finally, Article L. 132-10 (former Article L. 122-15) of the Consumer Code provides for the invalidity of any contract concluded as the result of an aggressive commercial practice, which can, according to the case law, also extend to the credit agreement attached to it . According to the criminal chamber of the Court of Cassation, the criminal court may, even after characterizing the commercial practices as aggressive, rather than the restitution of the money paid due to the contract being void by operation of law, order the payment of damages in compensation for the harm suffered .

The law on purchasing power  introduced two new aggravating circumstances with respect to aggressive commercial practices. In the case of aggressive commercial practices followed by the conclusion of one or more contracts, the two-year prison sentence is now increased to three years (new Article L. 132-11-1). If the offense was committed through an organized gang, seven years' imprisonment is now incurred (new Article L. 132-11-2).

 Memorandum No 2009-07 of 29 January 2009 on unfair commercial practices.

 CA Versailles, 5 November 2013, LawLex201300001590JBJ: the marketing of computers with pre-installed software does not constitute an aggressive commercial practice in the absence of harassment, coercion or threat exerted on the consumer; CA Paris, 1 March 2018, LawLex201800000414JBJ, considering that the customer who wishes to withdraw from the subscribed contract not because of any pressure exerted by the seller, whom he regards as a friendly person, but due to financial difficulties arising after the sale, may not claim that an aggressive commercial practice has been implemented.

 CA Paris, 23 October 2014, LawLex201400001194JBJ; Cass. 2e civ., 18 June 2015, LawLex201500000839JBJ.

 CA Caen, 20 March 2015, LawLex201500000859JBJ.

 CA Rennes, 4 March 2015, LawLex201500000333JBJ; Chambéry, 28 April 2015, LawLex201500000854JBJ.

CA Aix-en-Provence, 12 September 2024, LawLex202400006462JBJ: the late recovery of a debt pursued within the statutory time-limit for an enforceable claim cannot give rise to any aggressive commercial practice.

 CA Paris, 7 February 2014, LawLex201400000218JBJ.

 E.g. receipt of a deposit on the day of the order and delivery the same day for a sale made at home.

 For applications, see CA Versailles, 5 November 2013, LawLex201300001590JBJ, holding that the sale of computers with pre-installed software does not correspond to the practice of forced sale described in point 29 of Annex I of Directive No 2005/29 and in Article L. (121-12) of the Consumer Code, when the very specific information provided by the manufacturer excludes the consumer's good faith from being misled as to the conditions of the offer; Cass. 1re civ., 5 February  2014, LawLex201400000181JBJ: a consumer who deliberately purchases a computer on which an operating system has been pre-installed cannot claim to have been the victim of a forced sale within the meaning of point 29 of Annex I of Directive No 2005/29.

Cass. crim. 10 September 2019, LawLex201900001047JBJ, which holds that an aggressive commercial practice is constituted by the repeated solicitation of customers in order to give them the illusion of having won a prize to be picked up at the store and, once they come to collect, by the harassment implemented to make them order products at artificially reduced prices to be delivered the same day; CJEU Case C-102/20 StWL Städtische Werke Lauf a.d. Pegnitz GmbH, Judgment of 25 November 2021, LawLex202200007182JBJ: holding that an activity  consisting of the display in the inbox of an email service user of advertising messages in a form similar to that of real emails, and  placed in the same position as those emails, falls within the concept of  ‘persistent and unwanted solicitations’ of users of email services,  within the meaning of Annex I, point 26, to Directive No 2005/29, if the display of those  advertising messages is, first, sufficiently frequent and regular to be  classified as “persistent solicitations” and, second, may be classified  as “unwanted solicitations” in the absence of consent having been given by that user prior to that display.

 CA Douai, 19 May 2014, LawLex201400002071JBJ: the gift operation implemented by a mail-order company that requires the consumer to return a participation form does not fall under the prohibition of aggressive commercial practices, when a prize is necessarily awarded to him, with a description of its characteristics and the costs necessary for its shipment.

CA Colmar, 5 June 2023, LawLex202300007745JBJ.

 CA Poitiers, 20 March 2012, LawLex201200001109JBJ: the rules concerning aggressive commercial practices cannot be invoked by a professional who contracts to make its establishment known; Versailles, 23 June 2016, LawLex201600001281JBJ: inapplicability to the contract for the creation of a website purchased by a chiropodist.

TJ Bordeaux, 21 March 2024, LawLex202400002791JBJ, adding that if being subjected to an aggressive commercial practice, like any violation of an essential right, causes psychological (moral) damage to others consisting of a disturbance in the enjoyment of the feeling of legal certainty, and, where applicable, an attack on the honor of the co-contractor, it is up to the person who relies on it to provide the evidence that will enable the court to assess the imputability and exact nature as well as the quantum of the resulting harm.

Case C-428/11 Purely Creative Ltd, Judgment of 18 October 2012, LawLex201200002226JBJ.

 See, for a six-month suspended sentence and a 10,000 Euro fine, Cass. crim., 1 April 2014, LawLex201400000643JBJ.

CA Poitiers, 31 October 2017, LawLex201700001786JBJ, holding that the implementation of an aggressive commercial practice leads to the cancellation of contracts, including related credit agreements.

Cass. crim., 29 January 2019, LawLex201900000204JBJ.

Law No 2022-1158 of 16 August 2022 on urgent measures to protect purchasing power, OJ 189 of 17 August 2022.

 CA Toulouse, 25 May 2016, LawLex201600001043JBJ, concerning an advertising lottery. Contra: CA Paris, 8 April 2016, LawLex201600000840JBJ. But see CA Paris, 8 April 2016, LawLex201600000840JBJ and CA Chambéry, 1 March 2018, LawLex201800000412JBJ, according to which an aggressive commercial practice is not characterized by the organization of a lottery in which participation is free of charge and where no consideration is required.

 The DGCCRF specifies, however, that such elements may constitute an aggravating circumstance of the offense. Thus see CA Poitiers, 31 October 2017, LawLex201700001786JBJ, finding that the existence of an aggressive commercial practice is established when, through repeated and insistent solicitation of and pressure on a suggestible individual over a five-month period, a trader has obtained the signature on a dozen orders and amendments, including two relating to the same goods, which are not adapted to the income-level or the needs of that person.

CA Aix-en-Provence, 21 November2018, LawLex201800001841JBJ.

 CA Paris, 14 May 2009, LawLex200900001726JBJ, upheld by Cass. com., 13 July 2010, LawLex201000000838JBJ.

 CA Poitiers, 20 May 2011, LawLex201200001176JBJ: individuals who ordered kitchen elements in the store cannot claim to be victims of aggressive commercial practices when they do not establish that they were not free to end the discussions and leave the premises.

 See, for an illustration, CA Paris, 26 November 2015, LawLex201500001626JBJ and 22 March 2016, LawLex201600000668JBJ, declaring that imposing on bereaved families, through their funeral undertakings, a single global offer in the form of a forced sale without prior information on the separate cost of each service, constitutes an unfair and aggressive commercial practice within the meaning of Articles (L. 121-1 and L. 121-6) of the Consumer Code.

 Case C-59/12 BKK Mobil Oil Körperschaft des öffentlichen Rechts, Judgment of 3 October 2013, LawLex201300001442JBJ.

French Consumer Law

205. Aggressive commercial practices

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205. Aggressive commercial practices

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Les notions juridiques connexes

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