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 criminalization of the abusive exploitation of weakness ("abus de faiblesse") was introduced by Article 7 of Law No 72-1137 of 22 December 1972 on the protection of consumers with respect to direct selling and door-to-door sales . The legislator pointed out that unscrupulous salespersons may be tempted to benefit not only from the surprise of people in full possession of their faculties solicited at home, in a context where they do not expect to consume, but also, possibly, the particular vulnerability of certain people, caused by their “weakness” or “ignorance”. Article 7 thus protected these people when the circumstances showed that they were not in a position to assess the scope of the commitments made or to detect the tricks or artifices used to convince them, or showed that they had been subject to coercion. Subsequently  , the legislator extended the scope of the offense, which was originally restricted to door-step selling, to other forms of prospecting: solicitation by telephone or fax, personalized invitation to visit a place of sale, with the granting of special benefits, the organization of meetings or excursions by the offender or for his benefit, solicitations made in places not intended for the marketing of the goods or services offered or at trade fairs and exhibitions and, finally, those made within the framework of an urgent situation having made it impossible for the victim of the offense to consult one or more qualified professionals, third parties to the contract. The texts relating to the abuse of weakness were subsequently codified in Articles L. 122-8 to L. 122-10 of the Consumer Code . The system was supplemented by Law No 2008-776 of 4 August  2008  to inlcude additional penalties to the penalties incurred by individuals . The Hamon Law of 17 March 2014   then substantially modified the penalties incurred by aligning the penalties of fines and imprisonment laid down in the Consumer Code with those imposed by the Criminal Code, adding that “the amount of the fine may be increased, in proportion to the benefits derived from the breach, to 10% of the annual average turnover, calculated on the last three annual turnovers known on the date of the events”, laying down the principle of the criminal liability of legal entities for the offense of abuse of weakness and formally establishing the civil sanction of nullity for contracts concluded as a result of an abuse of weakness. Finally, Ordinance No 2016-301 of 14 March 2016 recodified the texts relating to abuse of weakness in Articles L. 121-8 to L. 121-10 with regard to criminalization and in Articles L. 132-13 to L. 132-15 with regard to penalties.

At the same time, Law No 92-685 of 22 July 1992  introduced new offenses to the Criminal Code which are “similar to fraud”, such as Article 313-4, which sanctioned by a three-year prison sentence and a fine or approximately EUR 475,000  “the fraudulent abuse of the state of ignorance or situation of weakness either of a minor, or of a person whose particular vulnerability, due to age, illness, physical or psychological disability or pregnancy, is apparent or known to its perpetrator, to oblige such minor or person to perform an act or abstention that is seriously prejudicial to them”. Law No 2001-504 of June 12, 2001  repealed Article 313-4 and replaced it by Articles 223-15-2 to 223-15-4, enriched to take account of the pressure exerted by sectarian movements.

Finally, Law No 2008-3 of 3 January 2008  and No 2008-776 of 4 August 2008, which partly transposed the provisions of Directive No 2005/29 of May 11, 2005 on unfair commercial practices , introduced the punishment of aggressive commercial practices in France. Article L. 121-6 (former Article L. 122-11) of the Consumer Code thus refers to “repeated and insistent solicitations”, “the use of physical or moral coercion” and “ the exploitation by the trader, in full knowledge of the facts, of any misfortune or special circumstance of a gravity capable of altering the judgment of the consumer, with a view to influencing the consumer's decision with regard to the product.”

These three offenses have several points in common, even if their definitions contain differences. In each case, there is a weakness or vulnerability, the exertion of pressure or coercion, and an act that would certainly not have been possible without the exertion of this pressure or coercion. Several authors criticize the coexistence of these legal foundations and suggest that only  criminal sanctions should be retained, thus extending their scope of application. In practice, however, the violations of Articles L. 121-8 of the Consumer Code and 223-15-2 of the Criminal Code apply with the same frequency. As some of the solutions adopted on one of these bases may be extended to the other, they will be presented together: this is particularly the case of the definition of the state of weakness, the maneuvers used and the characterization of the intentional element. However, the specific features of the criminal offense will be described in the section on criminal sanctions.

 Law No 72-1137 of 22 December 1972, OJ 23 December 1972, 13348.

 Law No 92-60 of 18 January 1992 strengthening consumer protection, OJ 21 January 1992, 968.

 Directive No 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, OJEU L 149 of 11 June 2005.

 Codification performed by Law No 93-949 of 26 July 1993 relating to the Consumer Code, OJ July 27, 1993, 10538.

 Law No 2008-776 of 4 August 2008 on the modernization of the economy, OJ 5 August 2008, 12471.

 Consumer Code, Article L. 132-15: "Individuals found guilty of the offense of misleading commercial practice punished in Article L. 132-14 incur, as additional penalties, as provided for in Article 131-27 of the Criminal Code, the prohibition either to from carrying 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".

 Law No 2014-344 of 17 March 2014 on consumer affairs, OJ 18 March 2014, 5400. 

 Law No 92-685 of 22 July 1992 reforming the provisions of the Criminal Code on the punishment of crimes and offenses against property, OJ 23 July 1992, 9887.

 Law No 2001-504 of 12 June 2001 to strengthen the prevention and punishment of sectarian movements infringing human rights and fundamental freedoms, OJ 13 June 2001, 9337.

206. A three-faceted offense