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

Since the Law of 17 May 2011, the condition of unfairness laid down in Article L. 121-1 (former Article L. 120-1) was contiguous with the general prohibition of sales with a bonus, in a way that was clearly contrary to the spirit of the directive. The unfair sale with a bonus was thus subject to a double sanction: it was punishable per se on the basis of Article R. 121-13 of the Consumer Code, whi …

 Decriminalization of the offense of sales with bonuses

Since the Law of 17 May 2011, the condition of unfairness laid down in Article L. 121-1 (former Article L. 120-1) was contiguous with the general prohibition of sales with a bonus, in a way that was clearly contrary to the spirit of the directive. The unfair sale with a bonus was thus subject to a double sanction: it was punishable per se on the basis of Article R. 121-13 of the Consumer Code, which provided for a 5th class infringement  and also fell under Articles L. 132-2 (former Article L. 121-6) and L. 132-11 (former Article L. 122-12), which penalize unfair commercial practices considered misleading or aggressive.

The Hamon Law resolved the question of the articulation of the rules criminally applicable and their possible cumulation, by removing any reference to sales with a bonus within Article R. 121-13, which disappeared with the recodification. Now, the sale with a bonus is no longer criminally punishable as such. Only its unfair nature exposes it to a criminal sanction. It is therefore legitimate to question the value of maintaining provisions specific to sales with a bonus.

Previously, breaches of the regulations on the sale with a bonus were liable to a fine of EUR 1,500, which could be increased to EUR 3,000 in the event of a repeat offense . The judge could impose as many fines as there were offenses, as the non-cumulation rule does not apply to infringements . Individuals were liable to the additional penalty of display or dissemination of the decision pronounced under the conditions laid down in Article 131-35 of the Criminal Code. Violations of the prohibition of sales with bonuses could be found on the initiative of the agents of the DGCCRF who carried out the necessary investigations and prepared the minutes. Failure to comply with the rules governing sales with a bonus also incurred the liability of any producer or manufacturer who offered the consumer a product, good or service giving entitlement to the allocation of a bonus under the conditions laid down by the former Article L. 121-35 of the Consumer Code. The fact that the product was offered for sale through a distributor did exempt the producer from liability . Similarly, the criminal liability of legal entities could be incurred in the event of a sale with an unlawful bonus . The legal representatives of a company could thus be prosecuted personally, unless they could establish the existence of a lawful delegation of authority, provided that the delegate has the necessary means to carry out his mission .

Infringements of Law No 51-536 of 20 March 1951 were treated as an illegal price practice within the meaning of Article 37 f) of Ordinance No 45-1483 of 30 June 1945. They were then under the jurisdiction of the Criminal Court, which could impose a prison sentence of two months to two years and a fine of between 60 and 200,000 francs or one of these penalties.

Cass. com., 11 March 2003, LawLex200300001197JBJ.   Furthermore, the reseller/retailer cannot be sanctioned on the basis of complicity within the meaning of Article 121-7 of the Penal Code, which applies only to crimes and misdemeanors, since the offense of sales with an unlawful bonus constitutes a breach (R. 121-13)

 Article 121-2 Criminal Code. Since the entry into force of Law No 2004-204 of 9 March 2004, the criminal liability of legal entities may be incurred without the need for a specific text.

 CA Agen, 17 February 1994, LawLex200300001746JBJ: in this case, a hypermarket advertised an offer consisting in the free delivery of a cooker hood for the purchase of a set of kitchen appliances. The Court of Appeal retained the liability not of the head of the company operating the supermarket, but of the department manager, on the grounds that he had been given a lawful delegation of powers, entrusting him with the management of the after-sales service to customers, which included the drafting of advertising leaflets.

The perpetrators of a sale with an unlawful bonus are also liable to civil prosecution. Consumers may request not only compensation for the damage they have suffered but also the cessation of the illegal practice subject to a penalty payment . The action for compensation may be implemented individually or by an approved consumer association, authorized under Article L. 621-1 (former Article 421-1) of the Consumer Code, to bring a civil action to obtain damages, when the acts directly or indirectly harm the collective interest of consumers. It can also, since the Hamon Law, implement a class action.

Civil proceedings may also be instituted by aggrieved traders or competitors acting either individually or through trade unions or professional or inter-branch groups . Like consumers, they can obtain the cessation of the unlawful promotion from the president of the T. com. ruling on interim measures . 

Lastly, the breach of the prohibition laid down in Article L. 121-19 (former Article L. 121-35) of the Consumer Code may lead to an action for unfair competition on the basis of Articles 1240 and 1241 of the Civil Code. The infringement of the mandatory rules in force characterizes an unfair act of market disruption, since it entails a breach of equality among competitors by conferring a competitive advantage on whoever evades the regulations. Thus, it was held that the producer and the reseller who offer the consumer a product giving entitlement to the award of a bonus without complying with the legal requirements, commit an act of unfair competition . This was the case in the absence of any identicality between the thing sold and the proposed bonus (sanctioned before the adoption of the Hamon Law) of the offer of a bouquet of five roses, for any purchase of uncut flowers, vases, pots, fertilizers or miscellaneous products  or the offer of a holiday for the purchase of a vehicle . However, the trader who offers to distribute certain products to any consumer free of charge does not commit any act of unfair competition, when the operation is unique and is not subject to the conclusion of any main contract of sale .

 TGI Rennes, 23 September 1992, LawLex200300001848JBJ, upheld by CA Rennes, 14 January 1993, LawLex200300001725JBJ, qualification of sale with a bonus for the allocation by drawing lots of air tickets at the initiative of a furniture seller with the obligation for the "winner" to bear costs of the holiday. The consumer claimed in summary proceedings the allocation of air tickets without being subject to the holiday obligations.

 Unions enjoy civil personality and derive their right to act from Article L. 2132-3 of the Labor Court, pursuant to which they are entitled to "exercise all the rights reserved for the civil party in respect of acts directly or indirectly harming the collective interest of the profession they represent". Trade unions are therefore admissible in their civil action when criminal acts cause to the collective interest of the profession they represent a moral and material prejudice separate from the social prejudice for which the public prosecutor can pursue compensation.

 TGI Lyon, 2 March 1999, LawLex200300001844JBJ: withdrawal measure on all cans of syrup containing the unlawful bonus within a period of 10 days and subject to a penalty payment of 500 francs per breach noted, decision upheld by CA Lyon, 17 December 1999, LawLex200300003047JBJ; T. com. Nanterre, 10 April 1992: withdrawal of all bonuses ordered by the interim relief judge subject to a penalty payment of 1,000 francs for each breach noted;Cass. com., 21 March 1995.

 Cass. crim., 11 March 2003, LawLex200300001197JBJ; Cf.Cass. com., 24 October 2000, LawLex200200000721JBJ: concerning an action for unfair competition brought by two trade unions of energy professionals following the issue by EDF-GDF of an offer of four months free heating subject to the installation of a gas boiler before a certain date. This offer was declared lawful, as it amounts to a price reduction.

 CA Agen, 18 May 2009, LawLex201100001001JBJ.

Cass. com., 25 January 2000, LawLex200200000851JBJ.

 CA Riom, 6 June 1990, LawLex200200001869JBJ, free distribution by a supermarket of 5,000 loaves to any consumer.

French Consumer Law

227. Decriminalization of the offense of sales with bonuses

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

227. Decriminalization of the offense of sales with bonuses

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