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 entry into force of Directive No 2005/29, national rules can no longer adopt or maintain provisions laying down a general prohibition when the commercial practice in question does not fall under Annex I, which provides an exhaustive list of thirty-one unfair practices per se. Article L. 121-11 (former Article L. 122-1) of the Consumer Code, which was brought into line with the European t …

Unfair commercial practices

Since the entry into force of Directive No 2005/29, national rules can no longer adopt or maintain provisions laying down a general prohibition when the commercial practice in question does not fall under Annex I, which provides an exhaustive list of thirty-one unfair practices per se. Article L. 121-11 (former Article L. 122-1) of the Consumer Code, which was brought into line with the European text by Law No 2011-525 of 17 May 2011 for the simplification of the law, provides that tied sales or services are only prohibited “when they constitute an unfair commercial practice within the meaning of Article L. 121-1 (former Article L. 120-1)” .

To be unfair, a commercial practice must cumulatively meet the two conditions laid down in Article L. 121-1 of the Consumer Code: be contrary to the requirements of professional diligence and materially distort, or be likely to materially distort, the economic behavior of the reasonably well-informed and reasonably observant and circumspect consumer, in respect of a good or service. When the commercial practice is neither a misleading commercial practice defined in Articles L. 121-2 to L. 121-4 (former Articles L. 121-1 and L. 121-1-1), nor an aggressive commercial practice  within the meaning of Articles L. 121-6 and L. 121-7 (former Articles L. 122-11 and L. 122-11-1), the control of fairness is a matter for the sovereign assessment of the trial judges. Referring to the VTB-VAB judgment , the Court of Cassation  recently restated that an analysis of the unfair nature of a commercial practice must necessarily be conducted, in view of the factual context of each case, in the light of the criteria set out in Articles 5 to 9 of Directive No 2005/29, in the presence of a practice not referred to in Annex I of the directive. The Paris Court of Appeal thus considered that the fact that the incumbent telecom operator requires football fans to purchase an internet subscription from its subsidiary to view Orange Foot, does not characterize an unfair practice of tied selling, when it is neither contrary to the requirements of professional diligence, nor likely to materially distort the economic behavior of the average consumer, in particular because it is neither misleading within the meaning of Articles 6 and 7, nor aggressive within the meaning of Articles 8 and 9 of the directive . Having stated the principle according to which Article L. 121-11 must be applied in accordance with the criteria of Directive No 2005/29 of 11 May 2005 to qualify the unfairness of a practice , the Court of Cassation approved this solution, considering that such a sale is not unfair if the consumer generally decides in consideration of the services associated with the offer and, consequently, the differentiation capacities of the various competitors . 

The assessment of the unfair nature of the tied sale has given rise to differences of opinion in case law, regarding the sale of computers with pre-installed software. The Bobigny Tribunal de grande instance ruled out that such a practice is misleading, aggressive or likely to material distort the behavior of the average consumer to whom it is directed, provided that evidence of a strong and majority demand of customers of a large generalist store in favor of the offer of bare computers is not established, whereas the difficulties of installing software acquired separately by a user who is not particularly qualified in the field of computer equipment are patent . The Versailles Court of Appeal considered, on the contrary, that the sale of computers with pre-installed operating software, without adequate information on the value of the components of the computer and in particular the price of the pre-installed software, characterizes a misleading omission constituting an unfair commercial practice within the meaning of Article 7 of the directive of May 11, 2005 and a breach by the seller of the professional diligence requirement laid down in Article 5 of the directive . On appeal, the Court of Cassation tried to put an end to this opposition. First, it pointed out that the tied sale of the computer and its operating software is not unlawful since it is not established that such a sale has the character of an unfair commercial practice . It went on to state that the coupled sale of a computer and its operating software in a retail space open to the general public, while the whole consists of two intrinsically distinct elements, constitutes a commercial practice which is only unfair if the consumer is unable to purchase an identical bare computer from the manufacturer . Then, appearing to go back on this position, the Court considered that the sale of a pre-installed computer constitutes an unfair commercial practice, even if the consumer buys a pre-installed computer in full knowledge of the facts . Finally, in order to remove the doubts arising from these divergent interpretations, the Court of Cassation preferred to question the Court of Justice on the unfair commercial practice nature of the joint offer of a computer with pre-installed software when the manufacturer does not specify the cost of each component, leaves the consumer no choice but to accept the software or obtain the cancellation of the sale or does not offer computers without software . The Court of Justice has settled the matter: the sale of a computer equipped with pre-installed software does not in itself constitute an unfair commercial practice. Furthermore, the absence of any indication of the price of each of these software packages is also not a misleading commercial practice when the price of these elements does not represent material information such as to prevent the consumer from making a commercial decision in full knowledge of the facts, or lead him to take a commercial decision which he would not otherwise have taken . 

See CA Versailles, 22 January 2015, LawLex201500000124JBJ: Tied selling is now prohibited only if it constitutes an unfair commercial practice as defined by Articles L. 120-1 and L. 121-1 of the Consumer Code.

See in particular CA Paris, 22 March 2016, LawLex201600000668JBJ and 7 December 2016, LawLex201600002104JBJ, on the global offer for the publication of death notices online and in paper format.

Cass. 1re civ., 5 February 2014, LawLex201400000181JBJ.

Cass. 1re civ., 4 June 2014, LawLex201400000747JBJ.

Cass. 1re civ., 17 June 2015, LawLex201500000803JBJ.

Case C-310/15 Deroo-Blanquart, Judgment of 7 September 2016, LawLex201600001382JBJ. The Court of Cassation has ruled in line with this solution - same case Cass. civ. 1re, 14 December 2016, LawLex201600002055JBJ. See also Cass. com., 29 March 2017, LawLex201700000698JBJ.

Case C-261/07 and C-299/07 VTB-VAB NV, Galatea BVBA v Total Belgium NV, Sanoma Magazines Belgium NV Judgment of 23 April 2009, LawLex200900001482JBJ. See also Case C-522/08 Telekomunikacja Polska SA w Warszawie, Judgment of 11 March 2010, LawLex201100000252JBJ.

CA Paris, 14 May 2009, LawLex200900001726JBJ.

Cass. com., 13 July 2010, LawLex201000000838JBJ. See also Cass. 1re civ., 15 November 2010, LawLex201000001240JBJ, recalling that the agreement of the parties was made on a type of computer complete and ready to use and that the consumer, after the purchase, had the possibility of being reimbursed for the goods in their entirety, did not exempt the judge from examining the lawfulness of the sale of pre-equipped computers in the light of the general conditions of fairness laid down the directive.

TGI Bobigny, 15 May 2009, LawLex201200001344JBJ.

CA Versailles, 5 May 2011, LawLex201100001021JBJ.

Cass. 1re civ., 12 July 2012, LawLex201200001320JBJ; 20 December 2012, LawLex201300000005JBJ; CA Paris, 5 June 2014, LawLex201400002053JBJ.

French Consumer Law

235. 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

235. 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

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