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

In the past, case law distinguished  between two situations: that in which the consumer had to make a financial sacrifice to participate in the lottery, when it was unlawful, and the one where, to take possession of the prize won, a financial consideration was required, lawful under certain conditions.
The Court of Cassation tolerated the payment of “provision costs” of prizes  provided that the c …

Participation costs

In the past, case law distinguished  between two situations: that in which the consumer had to make a financial sacrifice to participate in the lottery, when it was unlawful, and the one where, to take possession of the prize won, a financial consideration was required, lawful under certain conditions.

The Court of Cassation tolerated the payment of “provision costs” of prizes  provided that the consumer is not obliged, to know his gain, to incur excessive expenses. In particular, the lottery was unlawful when the lottery participant, attracted by the advertising material announcing the win of a large prize, had to incur expensive telephone costs to know the nature of his gain, on which the organizer made a considerable profit, as the profit of the operation came from the billing of these calls , or when the financial participation requested from the consumer for the award of his prize covered its cost price  or when he was asked to pay, for shipping costs, a sum which in fact financed most of the advertising campaign .

The Court of Cassation's analysis remains relevant, particularly in the light of the directive on unfair commercial practices, which aims to protect the consumer against the artifices which lead him to make a purchase “unwittingly”. Point 20 of Annex I of the directive  provides that it is a misleading commercial practice to describe a product as “free”, “free of charge” or “without charge” or similar terms if the consumer must pay for anything other than the inevitable costs of responding to the commercial practice and taking possession or delivery of the item.

In the Purely Creative ruling , the Court of Justice seems to adopt a more restrictive position than the Court of Cassation. However, the scope of this decision should be limited to those lotteries in which all participants win a prize - which do not constitute promotional lotteries in the traditional sense of the term - and which, by reference to a price, exploit the psychological effect created in the mind of the consumer by the prospect of a gain. In that case, ruling in the light of Directive No 2005/29 on the practice of imposing a financial sacrifice after the drawing of lots within the framework of such a lottery, which while being multi-channel, primarily emphasized the call to a premium-rate number, the Union judge considered that it is an aggressive commercial practice per se   for a professional to give the false impression that the consumer has already won a prize, “whereas the performance of an action in connection with the claim of the prize, whether it is a request for information relating to the nature of the prize or taking possession thereof, is subject to the obligation for the consumer to pay money or to bear any cost”. The finding is identical, according to the Court, even if the cost imposed on the consumer, such as the cost of a postage stamp, is negligible compared to the value of the prize or does not confer any benefit on the professional, and even if the actions relating to the request for a prize can be carried out using several methods proposed to the consumer by the professional, at least one of which is free, when one or more methods proposed imply that the consumer bears a cost to inquire about the prize or how to obtain it . 

The Hamon Law, to put an end to the controversy arising from the use of premium-rate telephone numbers as a means of financing lotteries, had authorized, under strict conditions, the imposition on consumers of non-surcharged participation costs . Although the repeal of Article L. 121-36-1 by the Law of 20 December 2014 now unconditionally validates the consumer's contribution to the cost of participating in lotteries, there is still some vagueness with regard to the imposition of surcharged costs, which may fall within the scope of Article L. 121-7, 7° (former Article L. 122-11-1, 8 °) of the Consumer Code, as an aggressive commercial practice .

 This difference in treatment was explained by the fact that, after the draw, chance no longer has a role to play: the participant is assured of the nature and value of his prize. 

 Cass. crim., 12 October 1999, LawLex200300002447JBJ; CA Paris, 9 March 1995, LawLex200600001812JBJ: Expenses incurred in order to take possession of what is merely a gift do not fall within the scope of Article L. 121-20 (former Article L. 121-36) of the Consumer Code, provided that they are not required to participate in the draw, but disbursed voluntarily and after the draw; CA Douai, 26 June 1988, LawLex200300002492JBJ and 19 July 1990, LawLex200300002493JBJ: a lottery is free of charge when the financial sacrifice required of the participant subsequent to the draw has no other purpose than to allow him to take possession of the prize already won .

 Article L. 121-7, 7°, qualifies as an aggressive commercial practice the fact of "giving the impression that the consumer has already won, will win or will win by performing such act a prize or other equivalent benefit, whereas, in fact: either there is no prize or another equivalent benefit, or the performance of an action in relation to the claim of the prize or other equivalent benefit is subject to the obligation for the consumer to pay money or bear a cost".

 CA Aix-en-Provence, 12 March 2008, LawLex200900000322JBJ.

 Cass. crim., 16 January 1992, LawLex200300002434JBJ.

 Cass. crim., 5 October 1992, LawLex200300002436JBJ.

 See also, incorporating the requirements of the European text, Article L. 121-4, 19° (former Article L.  121-1-1, 19°).

 Case C-428/11 Purely Creative Ltd, Judgment of 18 October 2012 LawLex201200002226JBJ.

 Annex I of the Directive on unfair commercial practices describes the practices deemed misleading in all cases in points 1 to 23 and the aggressive commercial practices in points 24 to 31. Point 31 refers to the fact of "creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost".

 Actions in relation to claiming the prize, carried out according to several methods, at least one of which is free, are distinguished from so-called "dual-entry" lotteries, which offer the consumer both a paying means of participation and another that is free. See also CA Aix-en-Provence, 12 March 2008, LawLex200900000322JBJ.

 Article L. 121-36-1, paragraph 1, of the Consumer Code provided that "for participation in the operations referred to in Article L. 121-36, postage and non-premium communication or connection costs, which may be charged to consumers, are authorized provided that the possibility for participants to obtain their reimbursement is provided by the rules of the operation and that they are previously informed".

French Consumer Law

251. Participation costs

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251. Participation costs

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise