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 Hamon Law, the absence of a “financial consideration” or “expenditure in any form whatsoever” is no longer a condition of the lawfulness of advertising lotteries governed by the Consumer Code. Previously, the last paragraph of Article L. 121-36-1, now repealed, provided that advertising lotteries subject to an obligation to purchase were unlawful only on condition that they were unfair w …

Obligation to purchase

Since the Hamon Law, the absence of a “financial consideration” or “expenditure in any form whatsoever” is no longer a condition of the lawfulness of advertising lotteries governed by the Consumer Code. Previously, the last paragraph of Article L. 121-36-1, now repealed, provided that advertising lotteries subject to an obligation to purchase were unlawful only on condition that they were unfair within the meaning of Article L. 120-1 (now Article L. 121-1), distinguishing between free lotteries and those subject to an obligation to purchase. Now, whether or not they are subject to a purchase obligation, advertising lotteries are lawful, provided they are not unfair.

The Union judicature recognizes the lawfulness of lotteries subject to a purchase obligation. In interpreting Directive No 2005/29, the Court of Justice held that a promotional campaign which subjects the free participation of the consumer in a lottery to the purchase of a certain quantity of goods or services does not constitute an unfair commercial practice per se, but requires a case-by-case assessment by the national court . In another case, the Court stated that “the possibility of participating in a competition with a prize, linked to the purchase of a newspaper, does not constitute an unfair commercial practice within the meaning of Article 5(2) of the directive, merely because this possibility of participating in a game represents, at least for some of the consumers concerned, the decisive reason which motivated them to buy this newspaper” .

After having prohibited, then provided a strict framework for lotteries with an obligation to purchase, French law now accepts their lawfulness in principle provided they are not unfair within the meaning of current Article L. 121-1 of the Consumer Code. Case law illustrates this development. In the past, the existence of a financial sacrifice was established when the participant in the lottery was obliged to place an order to obtain his prize . This was the case in particular when the order was fraudulently presented in the form of a second win, the receipt of which was subject to the payment of a mandatory sum, even if modest, for the “award of prizes” . The mention “free game with no obligation to purchase” was not always sufficient to exempt the organizer. To make their decision, the judges assessed the degree of incentive to place an order resulting from the documents of the advertising game as a whole . The trial judges then showed greater flexibility with respect to lotteries with purchase obligations. First, they considered that a pressing invitation to the recipient to place several orders was unlawful, despite the inclusion of the words “free game with no obligation to purchase” on the entry form , to then hold that an action based on the provisions of the Consumer Code should be dismissed, when the acceptance of the prize was not clearly subject to an order, even if the wording of the document constituted a strong incentive to place an order .

Now, it is only from the point of view of unfairness that lotteries with an obligation to purchase must be assessed. Some courts have based their ruling on the ambiguous presentation of the disputed documents  , which could constitute an unfair commercial strategy to convince participants to place an order so as not to lose the prize . The abolition by the Law of 20 December 2014 of the formality to which advertising lotteries were subject does not detract from the relevance of such an analysis which is fully compliant with the European law on commercial practices.

 Case C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs eV  Judgment of 14 January 2010, LawLex201100000479JBJ.

 Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Judgment of 9 November 2010, LawLex201100000274JBJ.

 TGI Cherbourg, 29 October 1991, LawLex200300002532JBJ, holding that the need to buy a piece of furniture to qualify for a discount whose amount is determined by a double chance, by means of scratch cards.

 CA Aix-en-Provence, 29 April 1999, LawLex200400000241JBJ, upheld by Cass. crim., November 14, 2000, LawLex200300003848JBJ, in this case a sum of EUR 18.

 See for example, Cass. crim., 20 November 2012, considering that the prohibited lottery offense is established by the entry form, which appears on the same sheet as the purchase order, informs the consumer that he should, for greater security, return the entire page.

CA Paris, 20 April 2000, LawLex200400000380JBJ.

CA Aix-en-Provence, 13 October 2011, LawLex201200001256JBJ.

 CA Dijon, 16 December 2004, LawLex200600001497JBJ, holding that even if the revelation of the randomness prevents the recipient of the advertising lottery from claiming the award of the prize, the unfair nature of the advertising which creates confusion between the participation in a game, the chance of a large prize and the need for an order, constitutes misconduct justifying the payment of damages.

 CA Angers, 1 March 2012, LawLex201200001043JBJ.

French Consumer Law

250. Obligation to purchase

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

250. Obligation to purchase

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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