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 L. 121-19 (former Article L. 121-35) of the Consumer Code lays down a principle prohibiting the sale and offer for sale with a bonus . However, this prohibition is subject to the condition that the sale or offer for sale is of an unfair nature within the meaning of Article L. 121-1 (former Article L. 120-1). In other words, the sale or offer for sale with a bonus is no longer prohibited pe …

Principle of a soft ban

Article L. 121-19 (former Article L. 121-35) of the Consumer Code lays down a principle prohibiting the sale and offer for sale with a bonus . However, this prohibition is subject to the condition that the sale or offer for sale is of an unfair nature within the meaning of Article L. 121-1 (former Article L. 120-1). In other words, the sale or offer for sale with a bonus is no longer prohibited per se. It is only unlawful, in addition to the conditions laid down in the text, if it is contrary to the requirements of professional diligence  and materially distorts, or is likely to materially distort, the economic behavior of the consumer (or if this is not the case, if it is misleading or aggressive).

Article L. 121-19 prohibits sales or offers of sale “which give entitlement, free of charge […] to a bonus consisting of products, goods or services”. A contrario, paragraph 1 of Article L. 121-19 authorizes bonuses which are not free or are self-paying which consist, at the time of the principal purchase, to offering for sale another good or service at an attractive price. Bonuses consisting in the delivery of a sum of money or in a price reduction equivalent to the delivery of a sum of money are also lawful. Therefore, the prohibition on sales with a bonus does not apply to cash discounts or rebates , which may be granted either at the time of sale or provision of the service, or deferred according to a system of cumulation, with the possible use of stamps, coupons, purchase vouchers or other similar systems, with the buyer having to prove that he has made a certain number of purchases for a given product.

Until the Hamon Law of March 17, 2014 , the prohibition of sales with bonuses did not apply to small items or services of low value or to samples (former Article L. 121-35, paragraph 2). According to former Article R. 121-8 of the Consumer Code, the maximum value of these samples, “small items and services of low value” was determined according to the net selling price, including tax, of the products, goods or services that are the subject of the sale. If the sale price, including VAT, was less than or equal to EUR 80, the maximum value of the bonus or samples was fixed at 7%. If it was above EUR 80, the maximum value of the bonus or sample was limited to EUR 5, plus 1% of the net price, it being noted that the value of the bonus should in no case exceed EUR 60. This amount included all taxes, ex-production for goods produced in France, and free of duty and cleared at the French border for imported objects. Small objects had to be marked in an apparent and indelible manner with the name, brand name, sign or logo of the person concerned by the advertising operation and the samples had to be marked “free sample - not for sale” legibly, indelibly and visibly on the presentation (former Article R. 121-10). As the Hamon Law abolished the exception relating to small items and services of low value as well as to samples of the legislative part of the Consumer Code, Decree 2014-1061 of 17 September 2014 repealed Articles R. 121-8 and R. 121-10 of the same code.

Moreover, according to former Article R. 121-9 of the Consumer Code, bonuses did not include the usual packaging of the product  and goods, products or services which are essential for the normal use of the product , good or service which is the subject of the sale, after-sales services and parking facilities , and services provided free of charge if these services were not usually covered by a paying contract and were devoid of market value . Decree No 2014-1061 of 17 September 2014 repealed this provision.

The prohibition of sales with bonuses concerns “all production, distribution and service activities, including those carried out by public bodies, in particular under public service delegation agreements”, with the exception of credit institutions for their banking operations, governed by Article L. 312-1-2, I, 2° of the Monetary and Financial Code . This provision prohibits “any sale or offer of sale of goods or services made to the customer and giving entitlement free of charge, immediately or in the future, to a financial or in-kind bonus of products, goods or services whose value is higher than a threshold fixed depending on the type of product or service offered to customer, by order of the Minister of the Economy, taken after consulting the Advisory Committee established in Article L. 614-1”. The maximum value of the bonus is set by an Order of 11 August 2003 . Determined on the basis of the net price, including taxes, of the product or service sold or offered for sale, and which the customers benefits or may benefit from within the framework of the management of an account, the maximum value is fixed at 15% of the price, if it is less than or equal to EUR 100, and at EUR 15 plus 1% of the price, if it is more than EUR 100. In any event, the value of the bonus is capped at EUR 80. When the contract is for a sequential performance service, the bonus may be offered to the customer each year.

Ultimately, the scope of the prohibition of sales with bonuses is now mainly limited by the obligation to control its unfair nature.

 To fall under the prohibition, it is sufficient that an offer has been issued, whether or not it has been accepted: Cass. crim., 12 July 1961 ; CA Paris, 25 February 1982.

 i.e., according to the DGCCRF, contrary to the legitimate expectations of the consumer vis-à-vis the professional.

 See CA Rennes, 24 June 1998, LawLex200200001106JBJ, upheld by Cass. com., 24 October 2000, LawLex200200000721JBJ. Nevertheless, announcements of discounts are subject to the provisions of the Order of 31December 31, 2008 on price reduction announcements vis-à-vis the consumer. 

 Law No 2014-344 of 17 March 2014 on consumption.

 See CA Lyon, 17 December 1999, LawLex200300003047JBJ and CA Paris, 28 November 2008, LawLex201000001222JBJ: the free offer of a voodoo doll of Nicolas Sarkozy with 12 pins, accompanying a satirical bibliography, is not contrary to Article L. 121-19, when the book, doll and pins marketed in a cardboard box, form an inseparable whole.

 Regarding the free shipping of books sold on the Internet, see CA Paris, 23 May 2007, LawLex200700000860JBJ: as the shipping costs are normally borne by the buyer, the sole fact for the buyer, to promote and encourage its purchase, to announce to the customer to whom it is bound by a contract against payment that it pays the delivery itself, and to make it a free service, characterizes the bonus. The Court of Cassation did not validate this analysis (seeCass. com., 6 May 2008, LawLex200800000748JBJ) and the referring court confirmed this position: the free shipping or delivery of a product "does not constitute a service that is distinct and separable from its sale" and therefore cannot be qualified as a bonus, "when the shipping or delivery of a product has no autonomous merchant nature" (CA Paris, 9 April 2009, LawLex201000001086JBJ. Cf., TGI Versailles, 11 December 2007, LawLex200800000001JBJ: the free delivery of books cannot seriously be assimilated to a service essential for the use of the product, good or service that is the subject of the sale within the meaning of Article R. 121-9 [repealed] of the Consumer Code which "obviously refers [referred] to products, goods and services of a certain technicality requiring commissioning, explanations and advice prior to their use").

 For example, the provision of a parking space in a company-owned car park or the reimbursement of the costs of using a public car park.

 For example, the control of tire pressure or the washing of a windscreen carried out at the time of sale of gasoline at a service station.

 Inserted by Article 13 of Law 2001-1168 of 11 December 2001 on urgent economic and financial reform measures, known as the "MURCEF Law" and amended by Ordinance No 2009-866 of July 15, 2009.

 Order of 11 August 2003, implementing I of Article L. 312-1-2 of the Monetary and Financial Code fixing the threshold for the value of the bonuses referred to in I of Article L. 312-1-2 of the Monetary and Financial Code, OJ of 26 August 2003.

French Consumer Law

218. Principle of a soft ban

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218. Principle of a soft ban

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Les notions juridiques connexes

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