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French Consumer Law

Article L. 322-1 of the Internal Security Code prohibits “lotteries of any kind”. According to Article L. 322-2 prohibited lotteries are “sales of real property, furniture or goods carried out by way of chance, or to which have been added bonuses or other benefits due, even partially, to chance and, generally, all operations offered to the public, under any name whatsoever, to give rise to the hop …

Conditions for prohibition

Article L. 322-1 of the Internal Security Code prohibits “lotteries of any kind”. According to Article L. 322-2 prohibited lotteries are “sales of real property, furniture or goods carried out by way of chance, or to which have been added bonuses or other benefits due, even partially, to chance and, generally, all operations offered to the public, under any name whatsoever, to give rise to the hope of a gain due, even partially, to chance and for which a financial sacrifice is demanded by the operator from participants”.

Under Article L. 322-2, the offense of organizing a prohibited lottery assumes the meeting of four elements:

-  The expectation of a gain: the operation must give rise to the hope of a gain, no matter how small, which is characterized whatever the nature or size of the prizes involved . Since the prohibition applies irrespective of the result of the lottery, the fact that there is no risk of pecuniary loss for the participant is irrelevant .

-  An offer made to the public: the lottery must be advertised, as private lotteries do not fall within the scope of the prohibition.

-  A gain acquired by the drawing of lots: although the result is of little importance, the acquisition of the gain must be uncertain. Only operations where the drawing of lots is the condition for the acquisition of a gain are prohibited; those where the gain is already contractually determined, fate only intervening to fix the date of its award, do not fall under the prohibition . The lottery is thus distinguished from the competition rewarded by the delivery of prizes. For a game to be a lottery, it is necessary and sufficient that chance presides over the designation of the winner and weighs on the nature and value of the gain . On the contrary, the game becomes a competition when the prizes are awarded at the end of a contest, usually in the form of questions , which involves the candidate's intelligence and knowledge. The fact that Article L. 322-2-1 of the Internal Security Code now specifies that the prohibition of lotteries applies to “games whose operation is based on the player's know-how”, does not challenge the validity of free competitions which are not based on chance. In fact, this new text targets skill games, i.e. paying games which, in various forms (card games, solitaire, puzzles, sudoku, jigsaw puzzles, letter games or quiz games), appeal to the intelligence or skill of players more than to chance. Finally, the Hamon Law, by adopting a very broad concept of the prohibited lottery to include all operations related to chance and the expectation of a gain, with the exception of advertising lotteries where they are not of an unfair nature, has considerably broadened the scope of Article L. 322-2. This extension resulted correlatively in the amendment of Article 2 of Law No 2010-476  which now assimilates gambling and games of chance to the operations referred to in Articles L. 322-2 and L. 322-2- 1 of the Internal Security Code .

-  A financial participation: free lotteries are not prohibited. Article L. 322-2 prohibits only sales and transactions for which a financial sacrifice is required. The requirement of a pecuniary sacrifice, even very small , is sufficient. The financial participation of the player can take various forms: payment of a sum of money, sending of stamps, cost of a telephone call, of a connection to the Internet or an SMS, payment of a service or purchase of a product, even at a normal price , paid entry to a trade fair or any event. For example, the commercial lottery is unlawful when participants are asked to pay, as a shipping charge, a sum which actually finances the major part of the advertising campaign  or when the financial participation requested from the participant for the provision of his prize exceeds its cost price . On the other hand, even if the winners are designated by the drawing of lots, a contribution from the participant is accepted by the Court of Cassation, when it is not a condition of participation in the game. Such is the case of the postage cost of the letter or delivery costs of a prize already won . Therefore, lotteries involving purchase vouchers for subsequent purchases are not contrary to the regulations on lotteries, when they involve no expense for the beneficiary who remains free not to use them . In accordance with the principles laid down by case law, Article L. 322-2-1 of the Internal Security Code now provides that “the financial sacrifice is established in cases where the organizer requires a financial advance from participants, even if a subsequent refund is made possible by the rules of the game”. Article L. 322-7 stipulates that a financial sacrifice is not constituted by postage costs, or communication or connection costs “premium-rate or not, incurred for the participation in games and contests organized within the framework of television and radio programs and in press publications [...] when the possibility for participants to obtain reimbursement of the costs incurred is provided for by the game rules and participants are informed of this in advance”.

 Cass. crim., 26 February 1964, LawLex200300002426JBJ, holding that the sale of packets of coffee, some of which contain a Louis d'Or coin, characterize a hope of a gain, as the packages are illustrated with gold coins.

 Cass. crim., 18 April 1969, LawLex200300002711JBJ, upholding CA Douai, 22 May 1968, LawLex200300002692JBJ.

 Cass. crim., 16 January 1992, LawLex200300002434JBJ.

 Cass. crim., 21 November 1989, LawLex200300002428JBJ: sending of the sum of 11 francs (EUR 1.68).

 CA Rennes, 8 October 1992, LawLex200300002524JBJ: offer of 1,000 purchase vouchers of 6,000 francs for the purchase of a 30,000 franc kitchen.

 Cass. crim., 13 October 1993, LawLex201200002199JBJ.

 Cass. crim., 26 February 1964, LawLex200300002426JBJ: in this case, one packet of coffee in 400 contained a gold coin.

 For an example of a contest, see TGI Paris, 31 January 1996, LawLex200300002535JBJ.

 Law No 2010-476 of 12 May 2010 on the opening to competition and regulation of the gambling and games of chance sector, OJ of 13 May 2010, 8881.

 Law No 2010-476, Article 2: "The concept of gambling and games of chance in this Law extend to the operations referred to in Articles L. 322-2 and L. 322-2-1 of the Internal Security Code". 

 For example, the postage cost of an envelope.

 Cass. crim., 18 July 1985, LawLex200300002427JBJ, retaining the qualification of lottery for the introduction by a pastry chef of a Louis d'or coin as a charm in some of his Epiphany king cakes, as the customer cannot simply deposit a free entry form in the box provided for this purpose. 

 Cass. crim., 5 October 1992, LawLex200300002436JBJ. - Comp. Aix-en-Provence, 12 March 2008, LawLex200900000322JBJ, which, on the basis of Article L. 121-36, considered that the lottery which imposes costly telecommunications on participants to discover the prize they have won, and from which the organizer has derived considerable profits, is unlawful.

French Consumer Law

241. Conditions for prohibition

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241. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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