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 R. 635-2 of the Criminal Code imposes the fine for 5th category infringements  for the sending to a person, without prior request, any item accompanied by correspondence which informs him that he may either accept the item against payment of the price or refuse it by returning it to its sender. The offense requires the meeting of three constituent elements: the sending of an object, the ab …

 Forced sale by mail order

The forced sale consists, as a rule, of addressing an object to a person who has not ordered it by proposing to him either to acquire it, or to send it back. According to more modern processes, favored by the development of e-commerce, it can also be characterized by the surreptitious addition to the consumer's shopping basket of products or services which he has not selected himself. Such sales methods are based on the expected passivity of the consumer, or even on his inattention. 

While the application of the civil law principle that silence does not constitute consent  is sufficient to absolve victims of such practices from any non-consensual commitment, the legislator felt the need to intervene specifically to protect consumers who are unaware of their rights. A first prohibition was enacted in Decree 61-138 of 9 February 1961, now Article R. 40-12° of the Criminal Code and which constitutes the present Article R. 635-2 of the same code. The Law of 18 January 1992  subsequently provided provisions protecting consumers more widely, incorporated in Article L. 122-3 of the Consumer Code, which became, since the recodification Ordinance of 14 March 2016, Article L. 121-12. The two texts of the Criminal Code and of the Consumer Code are distinguished both by their respective scope and by the severity of the sanctions they provide.

Union law is equally hostile to forced selling practices. Article 9 of Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts required Member States to combat the supply of goods or services to a consumer without his prior control, when it is accompanied by a request for payment. Subsequently, Directive No 2005/29 of 11 May 2005 established as an aggressive commercial practice in all circumstances “demanding immediate or deferred payment for or the return or safekeeping of products supplied by the professional, but not solicited by the consumer” . The French legislator first transposed this text to Article L. 122-11-1, 6° of the Consumer Code (now Article L. 121-7), before considering that it duplicated the prohibition in Article L. 122-3. It therefore preferred to repeal Article L. 122-11-1, 6° and to reformulate Article L. 122-3 so that it corresponds exactly to the European text. Finally, Directive No 2011/83 of 25 October 2011 on consumer rights  , which repealed Directive No 97/7, maintained in its Article 27 the prohibition of forced sales . In Article 22, the directive also prohibits a close practice of obtaining additional payments without the express consent of the consumer by resorting to the pre-checked option technique .

 The principle was also laid down at European level in Directive 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts (Article 9) and Directive No 2011/83 of 25 October 2011 on consumer rights that replaces it (Article 27).

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

 Directive No 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices, OJEU L 29 of 11 June 2005, 22, pt 29 of Annex 1.

 "The consumer is exempt from the obligation to pay any consideration in the case of an unsolicited supply of goods, water, gas, electricity, district heating or digital content, or the unsolicited provision of services, in breach of Article 5(5) and point 29 of Annex I of Directive No 2005/29. In such cases, the absence of a response from the consumer in case of an unsolicited supply or service does not constitute consent".

 This text has been transposed to Article L. 121-17 (former Article L. 114-1) of the Consumer Code.

Definition

Article R. 635-2 of the Criminal Code imposes the fine for 5th category infringements  for the sending to a person, without prior request, any item accompanied by correspondence which informs him that he may either accept the item against payment of the price or refuse it by returning it to its sender. The offense requires the meeting of three constituent elements: the sending of an object, the absence of a prior order and an explanatory letter accompanying it. On the other hand, contrary to the Consumer Code, the status of the addressee is not decisive: by its generality, the term “person” refers to both natural persons and legal persons .

The object may take various forms, as suggested by the use of the expression “any object”. It may therefore be tangible property, a subscription card for a magazine , a membership form for an association , or the clauses of a contract . However, contrary to the Consumer Code, Article R. 635-2 excludes the provision of services. The material element of the offense lies in the sending of the object under the conditions described by the text , without taking account of the exercise of the option by the recipient . Finally, it is not required that the letter accompanies the package containing the element stricto sensu: it is sufficient that it has been announced . The sending of a letter is not even necessary: the postal documents completed by the sender for a delivery against payment, presented to the addressee to enable him to exercise his choice, are sufficient .

Under the principle of the cumulation of penalties for infringements, there may be as many fines as there are objects sent . Additional penalties may be imposed on offenders: a three-year prohibition on issuing checks other than those permitting the withdrawal of funds or confiscation of the thing used or intended to commit the offense or the thing which is its product. The criminal liability of legal entities may also be incurred under the conditions of Article 121-2 of the Criminal Code. They are liable to a fine equal to five times that provided for natural persons , as well as the same additional penalties.

 A fine of up to EUR 1,500 which may be increased to EUR 3,000 in case of recidivism. 

 Cass. crim., 5 November 1985, LawLex201300000172JBJ.

 EUR 7,500 and EUR 30,000 in case of recidivism.

 See Cass. crim., 14 April 1972, LawLex201500001496JBJ.

 Limoges Tribunal de police (petty offenses), 27 September 1990, LawLex201400001818JBJ: main clauses of a death insurance policy on the back of a letter sent by a bank to its customers.

 It is therefore irrelevant that "the object" and the accompanying letter are inseparable ; Limoges Tribunal de police, 27 September 1990, LawLex201400001818JBJ.

 Cass. crim., 25 October 1972, LawLex201500001498JBJ.

 Cass. crim., 25 October 1972, cited above., emphasizing that the text does not require that the letter and the dispatch are concurrent.

 Cass. crim., 5 November 1985, cited above.

 Limoges Tribunal de police, 27 September 1990, LawLex201400001818JBJ, imposing 20,11 fines of approximately EUR 4.50. See Cass. crim., 25 October 1972, cited above: 8,762 fines of approximately EUR 0.45.

Article L. 121-12 (formerly Article L. 122-3) of the Consumer Code prohibits professionals from requiring the immediate or deferred payment of goods or services, or, in the case of goods, from requiring their return or their conservation, without them being the subject of a prior order from the consumer. In accordance with Annex I of Directive No 2005/29 of 11 May 2005  , the sale or service without a prior order constitutes an aggressive commercial practice in all circumstances, which presupposes that the consent of the consumer has been fraudulently obtained. This is not the case when the consumer knowingly buys a computer pre-equipped with operating software, whose reimbursement he later requests .

The offense is constituted when, without a prior order, a professional requires from a consumer the immediate or deferred payment  of a good or services or the return or conservation of a good it has supplied . There can be no requirement for payment without the prior express consent of the consumer . Although the commitment must be express, it does not have to take the written form . When a purchase order is produced, it must be signed by the consumer and not by the professional or its agents . The consumer's order is established when he has gone to the seller's shop and has chosen a piece of furniture whose decoration he has modified .

Unlike the forced sale, punished by the Criminal Code, the prohibition of the Consumer Code covers both goods and services . The courts consider that work which follows on from work previously ordered, and which has been rendered necessary by urgency, must be regarded as having been ordered within the meaning of Article L. 121-12 of the Consumer Code . On the other hand, when the execution of additional work was expressly conditional on the submission of a new estimate, which was not provided, the offense is constituted .

Article L. 121-12 also differs from Article R. 635-2 of the Criminal Code in that its benefit can be claimed only by consumers and not by persons acting directly in connection with a professional activity . Consumers as patients also cannot rely on it in their dealings with health professionals . In principle, inapplicable to professionals, such as real estate companies , the violation of Article L. 121-12 could be successfully invoked as a basis for an act of unfair competition in proceedings between publishers of funeral announcements .

The practice of forced sale finds a new expression in e-commerce, even if it is not reserved for cases of distance selling . Thus, Article L. 121-12 is breached by the retail website which systematically adds to the consumer's basket products preselected according to his initial purchases, when the information relating to these products is not clearly defined and leaves a doubt about the consumer's desire to buy these products .

Until recently, violations of Article L. 121-12 were sanctioned only by the obligation for the professional to reimburse the sums unduly collected  and the fact that they are interest-bearing. The law of May 17, 2011 introduced the sanction of nullity of the contract concluded as a result of the implementation of the practice of forced sale . Moreover, as an aggressive commercial practice, the offense is also punishable, since the Law of 2011, by penalties which are considerably more dissuasive than those incurred under Article R. 635-2 of the Criminal Code, reinforced by the Ordinance of 14 March 2016: new Article L. 132-17 of the Consumer Code provides for a penalty of two years' imprisonment and a fine of EUR 300,000. The amount of the fine can also be increased, in proportion to the benefits derived from the breach, to 10% of the annual average turnover, calculated on the last three turnovers known on the date of the events. Individuals are also subject to an additional penalty prohibiting the direct or indirect exercise of a commercial activity for a period of up to five years and legal entities are subject to the penalties referred to in Article 131-9 of the Criminal Code.

 Point 29 qualifies as an aggressive commercial practice "Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer".

 CA Versailles, 5 November 2013, LawLex201300001590JBJ.

 CA Douai, 17 December 2014, LawLex201500001165JBJ.

 CA Rouen, 2 February 2006, LawLex201400000516JBJ; CA Pau, 6 April 2010, LawLex201400000563JBJ; CA Caen, 26 May 2011, LawLex201400000525JBJ.

 CA Paris, 21 March 2013, LawLex201400000512JBJ.

 CA Aix-en-Provence, 28 April 2016, LawLex201600001148JBJ.

 CA Paris, 22 March 2016, LawLex201600000668JBJ.

 CA Douai, 17 December 2014, cited above.

 TGI Bordeaux, 11 March 2008, LawLex200800000346JBJ. The solution also applies to services, as shown by a judgment of the Court of Justice which, incidentally, refers to Directive No 2011/83 in order to condemn the practice of an air travel agency, consisting in the association of cancellation insurance provided by a third party with the reservation of the flight without obtaining the express agreement of the buyer, ,  Case C-112/11 ebookers.com Deutschland GmbH, Judgment of 19 July 2012, LawLex201700002007JBJ. 

 For an application, see CA Douai, 17 December 2014, cited above. See also, stating that the reimbursement procedure must not require the consumer to perform excessive steps at his expense, Saint-Denis Local Court, 10 January 2012, LawLex201200001345JBJ.

 Prior to the reform carried out by Law 2011-525 of 17 May 2011, former Article L. 122-3 prohibited the supply of goods or services without a prior order from the consumer when it was the subject of a request for payment. The Court of Appeal in Toulouse concluded that the text applied only to the supply of a product or service accompanied by a simultaneous request for payment and not when an invoice was issued for work carried out three months earlier, See CA Toulouse, 26 October 2009, LawLex201400000564JBJ.

 On the other hand, the sole stipulation of an exclusive supply clause cannot be assimilated to a forced sale if the consumer is not obliged to pay the price for supplies he does not need, CA Grenoble, 12 January 2016, LawLex201600000082JBJ.

 Cons. d'Ét., 15 October 2003, LawLex200500005758JBJ, RFDA 2003, 1259, which overturned the decision of the Telecommunications Regulatory Authority (now the ARCEP) allowing mobile telephone operators to extend their contracts to a new local call service, without obtaining the subscribers' consent, whose silence after two information procedures is considered to be an acceptance; CA Riom, 18 November 2015, LawLex201500001711JBJ.

 CA Paris, 12 October 2006, LawLex201200001863JBJ.

 CA Paris, 26 March 2010, LawLex201200001862JBJ; 7 February 2014, LawLex201400000218JBJ; CA Riom, 18 November 2015, LawLex201500001711JBJ, cited above.

 CA Paris, 22 May 2001, LawLex200800001637JBJ.

 See, inter alia, CA Paris, 22 March 2016, LawLex201600000668JBJ, on the global offer of publication of death notices on the internet and on paper format.

 CA Aix-en-Provence, 23 May 2013, LawLex201500001493JBJ. Cf. CA Amiens, 5 October 2006, LawLex201400001896JBJ, holding that Article (L. 121-12 of the Commercial Code) does not apply when it is the consumer who has taken the initiative to contact the professional, which he accuses of having exceeded his requests.

French Consumer Law

238. Forced sale by mail order

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

238. Forced sale by mail order

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