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

Article 34 TFEU prohibits measures with an effect equivalent to a quantitative restriction on the free movement of goods. In the absence of common rules on marketing, obstacles to free movement resulting from disparities in national rules must be accepted insofar as such rules, indiscriminately applicable to domestic and imported products, can be justified in order to satisfy imperative requiremen …

 Free movement of goods and unfair commercial practices

Article 34 TFEU prohibits measures with an effect equivalent to a quantitative restriction on the free movement of goods. In the absence of common rules on marketing, obstacles to free movement resulting from disparities in national rules must be accepted insofar as such rules, indiscriminately applicable to domestic and imported products, can be justified in order to satisfy imperative requirements relating, among others, to the defense of consumers and the fairness of commercial transactions. Regarding the validity of the prohibition on the sale with a bonus in kind, the Court of Justice held that it was justified when it pursued “a twofold objective which is, in the first place, to prevent the disruption of normal competition by undertakings which offer products as free gifts or at very low prices with a view to promoting the sale of their own range of goods and, secondly, to protect consumers by the attainment of greater market transparency” .

Since then, the Union has adopted Directive No 2005/29 of 11 May 2005 on unfair business-to-consumer commercial practices in the internal market . A maximum harmonization text , the directive lists, in Annex I, thirty-one unfair commercial practices per se, which do not include sales with bonuses. Taking the view that sales with bonuses constitute commercial practices and as such fall within the scope of Directive No 2005/29, the Court of Justice sanctioned national legislation which provided for a general prohibition of sales with bonuses, even with exceptions, as the directive imposes a prior check on the unfair nature of the practice .

To bring its legislation into conformity with the unfair commercial practices Directive, and following the Commission's letter of formal notice to France , on 17 May 2011, the French parliament adopted Law No 2011-525 on the simplification of the law. The consequent amendment of the Consumer Code put an end to the per se prohibition of sales with bonuses. However, it was strongly criticized by legal commentators for its lack of coherence and legal uncertainty. The apparent maintenance of a principle of prohibition was immediately negated by the requirement that the sale be of an unfair nature, in accordance with the European text. The survival of certain regulated bonuses  and exceptions  to the principle of prohibition added to the confusion. Harmonization with European law seemed in reality to be to the detriment of the consumer, whose protection appeared to be limited rather than increased. The European institutions themselves have found this harmonization to be insufficient: in a press release dated 29 September 2011 , the Commission ordered France to comply with Union rules applicable to unfair practices and decided to issue a reasoned opinion to that effect.

Since the Hamon Law, Article L. 121-19 (former Article L. 121-35) of the Consumer Code no longer provides for exceptions relating to identical goods and services and to articles or services of low value. In addition, the Ordinance recodifying the Consumer Code of 14 March 2016 abolished the provisions governing bonuses consisting of items distributed to meet environmental requirements or tobacco products (former Article L. 121 -35, paragraphs 2 and 3). However, Article L. 121-19 does not remedy the inconsistency of the sales with a bonus regime.

 Case C-286/81 Criminal proceedings against Oosthoek's Uitgeversmaatschappij BV Judgment of 15 December 1982, recitals 17 and 18. However, on 2 October 2001 the Commission published a Communication on a draft regulation (MEMO/01/306) to eliminate barriers to promotional sales by Member States in the area of discounts, sales, bonuses, gifts, contests and promotional games. This regulation was never adopted.

 Directive No 2005/29 amends Council Directive No 84-450/EEC and Directives No 97-7/EC, 98-27/EC and 2002-65/EC of the European Parliament and of the Council and Regulation (EC) 2006/2004 of the European Parliament and of the Council, OJEU L 419 of May 11, 2005, 22.

This type of directive requires Member States to adopt the same level of consumer protection as the European standard without being able to provide for or maintain national provisions beyond or below it.

,Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Judgment of 9 November 2010, LawLex201100000274JBJ.

Before the Law of 17 May 2011, advertising lotteries with a compulsory purchase and tied selling were also prohibited per se in French law, contrary to the provisions of the Directive of 11 May 2005, which does not classify them among unfair practices per se. The Court recently considered as an aggressive commercial practice per se a lottery by which the professional gives the false impression to the consumer that he has won a prize, although the performance of an action in relation to the claim of this prize is subject to the obligation, for the consumer, to pay money or bear any cost: Case C-428/11 Purely Creative Ltd,  Judgment of 18 October 2012 LawLex201200002226JBJ.

 Former Article L. 121-35, paragraphs 2 and 3: "Where such bonuses consist of items distributed to meet environmental requirements, they must be fully recyclable, whether they are fire-proofed recyclable cardboard or food-grade inks. If these items belong to the category of products and ingredients, defined in Article L. 3511-1 of the Public Health Code, they must not contain any reference, graphics, presentation or any other distinctive sign recalling a product or ingredient, defined in this same Article. In this case, health warnings relating to the dangers of tobacco must be mentioned. References to the person concerned by the advertising operation, the name of the brand, symbol or logo may be affixed to the items, provided that they comply with the provisions restricting or regulating advertising concerning alcohol, tobacco and online gambling or betting, provided for in particular in Articles L. 3511-3, L. 3511-4 and L. 3323-2 to L. 3323-5 of the Public Health Code. The conditions for affixing references are defined by decree."

 Before the adoption of the Hamon Law, the prohibition of sales with bonuses did not apply to small items, services of low value and to samples, as well as to products (Article R. 121-8, now repealed), goods or services identical to those which are the subject of the sale or main service (former Article L. 121-35, para. 1). Similarly, pursuant to Article R. 121-9 (now repealed), were not considered as bonuses: "1° The usual packaging of the product, goods, products or services which are essential for the normal use of the product, good or service being sold; 2° The after-sales services and parking facilities offered by traders to their customers; 3° Services rendered free of charge if these services are not usually the subject of a paid contract and are devoid of market value".

French Consumer Law

217. Free movement of goods and unfair commercial practices

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Les notions juridiques connexes

217. Free movement of goods and unfair commercial practices

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise