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

The substitution of the offense of misleading commercial practice for the offense of misleading advertising did not alter the assessment of the moral element. A commercial practice may be misleading by a simple fault of negligence or carelessness , without the judge having to find the deliberate violation of an obligation of care or security or the deliberate endangerment of another . The sanction …

 Intentional element

An advertising lottery can only be subject to a criminal sanction if it constitutes a misleading commercial practice (Article L. 132-2, former Article L. 121-6) or an aggressive commercial practice (Article L. 132-11, former art L. 122-12). The organization of a “merely unfair” lottery is liable only to an administrative fine in case of non-compliance with an injunction to comply with the regulations, pursuant to Article L. 522-1 of the Consumer Code, or a civil sanction.

The charge of misleading advertising was often one of the means of criminalizing an illegal lottery outside the scope of the specific provisions of former Articles L. 121-36 et seq. of the Consumer Code. Prior to the entry into force of Law No 89-421 of June 23, 1989 on consumer information and protection , the provisions on misleading advertising made it possible to sanction the organizers of lotteries with a pre-draw which escaped the offense of organizing a prohibited lottery of the Law of 21 May 1836 . The Court of Cassation admitted, however, that the offense of advertising that is misleading or likely to mislead within the meaining of Article L. 121-1 (now Articles L. 121-2 and L. 121-3), resulting from Article 44 of Law No 73-1193 of 27 December 1973, could be sanctioned when the message contained in the advertising documents was sufficiently ambiguous to make the recipients wrongly believe that they have won a prize of great value . The substitution by Law No 2008-3 of 3 January 2008  of the offense of misleading commercial practice for that of misleading advertising had no effect on the solution. The current Articles L. 121-2 and L. 121-3 include the former concept of misleading advertising while extending it to cases already addressed by case law, such as after-sales service as regards goods or services and the processing of claims as regards the advertiser or the service provider. The solutions rendered with regard to advertising lotteries under the former Article L. 121-1, thus retain all their value. According to the Court of Cassation , the pecuniary nature of the operation does not constitute a condition of application of the offense of misleading advertising. The texts relating to misleading commercial practices apply to sales and services free of charge, such as an advertising lottery operation which consists of awarding prizes free of charge to the participants after drawing lots .

An advertising lottery may therefore be punished if it characterizes a misleading commercial practice within the meaning of Article L. 121-2, in particular “2° If it is based on false or misleading allegations, indications, or presentations pertaining to one or several of the following elements: a) the existence, availability, or nature of the good or service; b) the essential characteristics of the good or service, i.e.: its substantial qualities, its composition, its accessories, its origin, its quantity, its means and date of manufacture, its terms of use and its destination, its properties and the results expected from its use, as wells as the results and main specifications of the tests and controls carried out on the good or service; c) the price or method of calculating the price, the promotional nature of the price and the terms of sale, payment, and delivery of the good or service; d) the after-sales service, the necessity of a service, spare part, replacement, or repairs; e) the scope of the advertiser's undertakings, the nature of, method or reason for the sale of the good or the provision of the service; f) the identity, qualities, qualifications, and rights of the professional; g) the processing of claims and the consumer's rights; 3° if the person on behalf of which it is being carried out cannot be clearly identified”. 

It may also be punished if it falls within the scope of Article L. 121-4 (former Article L. 121-1-1), which draws up a list of commercial practices deemed misleading and which provides, inter alia, that commercial practices are deemed misleading when they: […] 15° Claim that a product or service is able to increase the chances of winning games of chance; [...] 18° Declare, within the framework of a commercial practice, that a competition is organized or that a prize can be won without awarding the prizes described or a reasonable equivalent; 19° Describe a product or service as “free”, “free of charge”, “without charge” or other similar terms if the consumer has to pay anything other than the inevitable costs of responding to the commercial practice and taking possession or delivery of the article; 20° Include in an advertising medium an invoice or similar document requesting payment which gives the consumer the impression that he has already ordered the product or service marketed when that is not the case [...]".

 Codified in Articles L. 121-36 et seq. of the Consumer Code, most of the provisions of which have been repealed and of which only the text of incrimination appears in the current Article L. 121-20.

 Codified in Articles L. 321-1 et seq. of the Internal Security Code.

 Cass. crim., 8 March 1990, LawLex200300002430JBJ; 30 October 1990, LawLex200300002433JBJ.

 Law No 2008-3 of 3 January  2008, for the development of competition in favor of consumers, which transposes into the Consumer Code Directive No 2005/29 EC of 11 May 2005 on unfair business-to-consumer commercial practices.

 Cass. crim., 28 May 1997, LawLex200300002441JBJ.

 CA Douai, 17 May 1989, LawLex200300001626JBJ; 22 June 1968, LawLex200300002492JBJ. Contra: CA Colmar, 16 January 1987, LawLex200300004132JBJ, overturned by Cass. crim., 8 March 1990, LawLex200300002430JBJ; Cass. crim., 28 May  1997, LawLex200300002441JBJ.

Scope

In the area of advertising lotteries, the misleading nature of the message lies in the ambiguous wording of the prospectuses which give rise to the expectation of a purely hypothetical significant prize, for commercial and advertising purposes. The presentation of documents (use of facsimiles of checks, newspaper articles, etc.) plays a decisive role in encouraging the consumer to contact the organizer of the lottery and to acquire another item to collect the prize won.

The current Article L. 121-2, e) (former Article L. 121-1, I, e) of the Consumer Code provides that a commercial practice is misleading, in particular where it is based on allegations, indications or presentations that are false or likely to mislead, relating to the “scope of the advertiser's commitments, the nature, the method or reason of the sale or provision of services ”. The staging of advertising lottery operations intended to give the impression of a substantial win through the use of ambiguous rules, the concealment of contradictory rules on the back of the dispatch envelope, confusion created between several rules or the use of an envelope bearing a seal, all characterize offenses constituting a misleading commercial practice .

The offense of misleading commercial practice is constituted when documents indicate to their recipients that they have a high probability of winning a lottery in order to induce them to place an order , when the advertising lottery operation leads the recipient to believe in a significant prize, although he has only earned the right to participate in a second draw , or where the deception relates to the possibility of receiving the expected prize  or a consolation prize if he loses . Only a complete reading of the game rules allows the consumer to be informed of the scope of the commitments made by the organizer of the lottery. The presence of the rules in the advertising letter is insufficient to exclude deception ; they also must not be written in invisible characters, be concealed, or have an unreadable nature . The misleading nature of advertising is also established when, despite an invitation to read the rules of the game and the words “potential winner”, the terms used in the advertising material are purely informative and addressed to a nominatively designated consumer . However, there is no misleading commercial practice when the documents relating to the advertising lottery enable the average consumer, normally attentive and intelligent, to understand that he is not necessarily the winner of a prize .

The consumer may be misled as to the nature, composition or, more generally, the value of the prize won. When, following a favorable draw, a prize is awarded to the consumer, it often turns out to be a consolation prize , with no value , or, once the distribution between the different participants has been carried out, a small amount of money which does not correspond to the amount announced . However, presenting a prize as having a certain value cannot mislead the consumer when its purchase price is the price at which the product in question is sold by the advertiser . In assessing the misleading nature of the practice, the courts take into consideration the manner of presentation, as well as the substantive and formal elements of the advertising documents. Deception can result from deliberately ambiguous wording concerning the value of the promised prize , from the search for a catchy effect , an individualization of the advertisement , a misleading visual presentation , or even from the surge of letters announcing prizes followed by several reminder letters .

The false indication of the presence of a bailiff in an advertising lottery was also sanctioned as an offense of misleading advertising, when it was an artifice likely to mislead the participants . In principle, the presence of a bailiff is a pledge of the serious nature of the draw, likely to increase the hope of a prize for any reasonably well-informed and diligent consumer.

Cass. crim., 10 September 2019, LawLex201900001047JBJ: the operation which consists in announcing by telephone to future customers that they have won a gift, followed by a personalized letter with the letterhead of the Européenne des jeux informing  them that they gained a "superb camcorder" and "a magnificent toothbrush" in a free contest, whereas the camcorder is only a simple camera and the gifts are worthless or do not work, the lottery organized by the store to win reduction coupons did not provide a list of winners, the store did not appear as a participant in the "Européenne des jeux" draw for the year 2009, and only eleven draws were made by bailiff , which did not have the stake of additional coupons as advertised, constitutes a misleading commercial practice.

Cass. crim., 14 September 1999, LawLex200300002446JBJ.

Cass. crim., 11 March 1993, LawLex200300003871JBJ: misleading nature of the message which implies to its recipients that they have won the first prize, whereas they will only receive consolation prizes.

CA Rennes, 18 October  2001, LawLex200400000183JBJ, upholding TGI Quimper, 6 September 2000, LawLex200200004660JBJ: misleading nature of an advertisement announcing the possibility to win a kitchen or bathroom, whereas only the furniture is offered, excluding the sanitary facilities; Cass. crim., 14 November  2000, LawLex200300003848JBJ, upholding CA Aix-en-Provence, 29 April 1999, LawLex200400000241JBJ: lottery organizer also convicted on the grounds of fraud for the award of a check of 5 francs (EUR 0.76); CA Paris, 16 November 1998, LawLex200400000156JBJ, upheld by Cass. crim., 7 December 1999, LawLex200300002451JBJ: recipient of the dispatch receiving the reproduction in a scaled-down model of a weight, whereas the documents designated him to receive his weight in 18-carat gold; CA Paris, 8 October 1997, LawLex200300002243JBJ: award of a consolation prize corresponding to a check of 100 francs (EUR 15) instead of a sum of 35,000 francs (EUR 5,335); CA Versailles, 20 September 1991, LawLex200300002528JBJ, upheld by Cass. crim., 5 October 1992, LawLex200300002436JBJ: award of a piece of costume jewelry although the prospectuses suggested that their recipients would win a large prize (car, valuable piece of jewelry, television).

CA Pau, 17 November 1998, LawLex200300002495JBJ; CA Paris, 8 October 1997, LawLex200300002243JBJ.

Cass. crim., 21 November 1989, LawLex200300002428JBJ, upholding CA Douai, 22 June 1988, LawLex200300002492JBJ: presenting a consolation prize as having a value of 90 francs does not constitute a false allegation when this price was indeed the one indicated at the time in the company's sales catalogue, even if the advertiser had purchased it at a lower price.

Cass. crim., 11 March 1993, cited above: in this case, the courts deduced the misleading nature of the advertisement from the contrast between a first sentence written in an affirmative manner and the interrogative presentation of the sentence referring to the promised prize; For a double lottery: see Cass. crim., 7 December 1999, LawLex200300002449JBJ, upholding CA Paris, 29 October 1998, LawLex200400000129JBJ; Cass. crim., 7 December 1999, LawLex200300002450JBJ, upholding CA Bastia, 18 November 1998, LawLex200300003619JBJ, holding that the simultaneous organization of two advertising lotteries on a single document with an identical overall amount and a draw under the supervision of a bailiff was likely to mislead the consumer of the value of the prize, the clever drafting and formatting of the documents preventing an average consumer from easily and unambiguously detecting the existence of these two separate games.

Cass. crim., 29 June 1999, LawLex200300002445JBJ, on the ambiguity created by the expression "your weight in gold", which is open to two interpretations, with the customer being encouraged to understand that he has won "his weight in gold" and not "a weight in gold" of little value.

Cass. crim., 29 March 1995, LawLex200300003470JBJ, concerning a document selectively and repeatedly associating the name of the person concerned, the status of winner and the mention of a prize consisting of a vehicle.

Cass. crim., 17 September 2002, LawLex200300000986JBJ, upholding CA Rennes, 18 October 2001, op. cit., which held that the consumer could believe in the award of a kitchen or bathroom due to the insertion in the advertising documents of photographs of a kitchen showing a extractor hood and hob, and a photograph of a bathroom showing a mirror and washbasin; CA Colmar, 19 July 1995, LawLex200300001692JBJ, which finds the lack of presentation of prizes by value decisive in assessing the misleading nature of the advertising.

Cass. crim., 9 November 1999, LawLex200300002448JBJ, upholding CA Paris, 13 February 1998, LawLex200400000409JBJ: letters likely to mislead their recipients on the value of the prize awarded because of their multiplicity, layout, font size, use of color, etc.

 CA Paris, 24 March 1999, LawLex200300001807JBJ, which also validates the civil action of a chamber of bailiffs against a misleading advertisement insofar as the offense undermines the image of the profession.

CA Grenoble, 20 January 1999, LawLex200300002478JBJ.

Cass. crim., 28 May 1997, LawLex200300002441JBJ; 29 March 1995, LawLex200300003470JBJ: amalgam between three lottery games; CA Versailles, 14 February 1991, LawLex200300001634JBJ.

Cass. crim., 29 March 1995, LawLex200300003470JBJ.

Cass. crim., 16 January 1992, LawLex200300002434JBJ.

CA Besançon, 23 November 2000, LawLex200400004628JBJ: addition to the advertising documents of the words "game rules and warning to be read carefully" insufficient to exclude the incrimination of advertising that is misleading or likely to mislead.

Cass. crim., 14 September 1999, LawLex200300002446JBJ; CA Grenoble, 2 September 1998, LawLex200300002477JBJ, holding that the reference in small print, vertically and from bottom to top on the edge of the page of the advertising document, while the rules were printed on the back of the dispatch envelope; CA Grenoble, 20 January 1999, LawLex200300002478JBJ, noting the incentive nature of the advertising letter: rules printed in small blue letters on the plastic film around the letter, illegible for a consumer with average sight; Cass. crim., 28 May 1997, LawLex200300002441JBJ: rules reproduced in small print on the back of the plastic pouch of the closed envelope.

Cass. crim., 20 November 2012, LawLex201300000016JBJ, holding that the lottery organizer who repeatedly sends letters to the complainant peremptorily confirming that she has won large sums, is guilty of a misleading commercial practice when these letters, of such a nature as to convince the average consumer of the absence of chance without him feeling the need to refer to the rules printed in small characters in a barely accessible language, prompted her to place an order; Cass. crim., 26 June 2001, LawLex200300004446JBJ; 4 December 2001, LawLex200300004440JBJ, upholding CA Rennes, 18 January 2001, LawLex200300004599JBJ: advertising documents deemed misleading because they imply to their recipient that he is the winner, naming him in very large type, whereas the mention of a pre-draw with a winner and losers is shown on a separate sheet, on the front in letters one millimeter high, in a confusing text on several lines.

Cass. com., 1 October 1997, LawLex200300002661JBJ.

Material element

The substitution of the offense of misleading commercial practice for the offense of misleading advertising did not alter the assessment of the moral element. A commercial practice may be misleading by a simple fault of negligence or carelessness , without the judge having to find the deliberate violation of an obligation of care or security or the deliberate endangerment of another . The sanction of a misleading advertising lottery within the meaning of Articles L. 121-2 and L. 121-3 (former Article L. 121-1) of the Consumer Code does not require evidence of an intention to mislead as to the status of winner or the value of the prize on the part of the organizer of the competition .

Where the organizer of the lottery also has the status of mail-order seller, the moral element of the offense lies in the absence of verification of the conformity of the advertisements disseminated to the public under its responsibility, its status as an informed professional assuming knowledge of the breach of the regulations, and therefore its negligence or carelessness . The use of the advice of a consulting agency to take advantage of the ambiguity of the legal possibilities can also characterize the moral element of the offense .

 The offense of misleading commercial practice, referred to in Articles L. 121-2 and L. 121-3 (Article L. 121-1) of the Consumer Code, is an unintentional offense within the meaning of Article 121-3, paragraph 3, of the Criminal Code, which is constituted "in the event of carelessness, negligence [...], if it is established that the perpetrator has failed to perform due diligence, taking into account, where appropriate, the nature of his duties or functions, his capacities and the powers and means he had".

 The entry into force of the Criminal Code in 1992 resulted in the disappearance of unintentional offenses. Following the abolition of the requirement of bad faith by Law No 73-1193 of 27 December 1973, known as the "Royer Law", the offence of misleading advertising had become an objective offence which punished less the perpetrator's dishonest behavior than the existence of an advertisement misleading the public, whatever the intention of its author, the absence of a lie having been deemed immaterial to its constitution (Cass. crim., 8 May LawLex200400000511JBJ). The Court of Cassation took the view that since damage was not a constituent element of the offense of misleading advertising, the offense, when committed by carelessness or negligence, was not subject to the provisions of Article 121-3, paragraph 4, of the Criminal Code (making the finding of an offense conditional upon a deliberate violation of an obligation of care or security or the deliberate endangerment of another): Cass. crim., 26 June 2001, LawLex200300003261JBJ.

 Cass. crim., 29 June 1999, LawLex200300002445JBJ.

 CA Colmar, 19 July 1995, LawLex200300001692JBJ.

 See Cass. crim., 17 September 2002, LawLex200300000986JBJ.

Pursuant to Article L. 132-2 (former Article L. 121-6) of the Consumer Code, the organizer of an advertising lottery found guilty of misleading commercial practices incurs, since the Hamon Law, a penalty of two years' imprisonment and/or a fine of EUR 300,000. The amount of the fine may be increased, in proportion to the benefits derived from the breach, to 10% of the average annual turnover, calculated on the last three annual turnovers known on the date of the offense, or 50% of the expenditure incurred for the advertising or practice constituting the offense.

Individuals found guilty also incur, as additional penalties, as provided for in Article 131-27 of the Criminal Code, the prohibition either to carry out a public function or professional or social activity in the exercise or in the course of the exercise of which the offense was committed, or from exercising a commercial or industrial profession, from directing, administering, managing or controlling in any capacity whatsoever, directly or indirectly, for their own account or on behalf of others, a commercial or industrial undertaking or a commercial company. These prohibitions of exercise, which cannot exceed a period of five years, may be pronounced cumulatively (Article L. 132-3).

Legal entities are liable under the conditions laid down in Article 121-2 of the Criminal Code .

The person on whose behalf the misleading commercial practice is carried out is primarily liable for the offense committed. The manager of a company organizing an advertising lottery may, however, relieve himself of liability, if he provides proof of a lawful delegation of authority and if the delegate has taken an active part in the commission of the offense . A delegation of authority is lawful if its scope of application is strictly defined  and if it benefits an employee with the competence, authority  and means necessary to perform his mission. In practice, the delegate must be able to decide whether or not to use an advertising lottery . The decision to organize games using the pre-draw system cannot constitute a simple act of execution, but falls under the policy-making authority of the company . Similarly, the document which includes in the duties of the sales director the responsibility for planning, preparing, organizing and carrying out the various promotional games of the company within the framework of the existing laws, regulations and professional ethics, constitutes a definition of duties and not a delegation of powers, since it does not establish that the alleged delegate has the means, in particular financial means, useful for the performance of his mission .

The lottery organizer also cannot be exempted from its liability by invoking the non bis in idem principle according to which no one can be criminally prosecuted or punished for the same facts. In fact, a conviction for misleading commercial practices does not prevent further prosecution on the same grounds . The organizer of an advertising lottery may be prosecuted several times for the same advertising campaign without being able to raise the authority of res judicata in the event that each advertisement is individualized by the citation and representation of each person to whom they are addressed . As a result, the offense of misleading commercial practice is repeated each time the personalized entry form is received by a new recipient . On the other hand, the organizer of a lottery cannot be prosecuted for misleading claims contained in a single advertising message disseminated simultaneously to several consumers, for which it has already been convicted .

 Legal entities are liable, in addition to the fine in accordance with Article 131-38 of the Criminal Code, for the penalties provided for in 2° to 9° of Article 131-39 of the same code. The prohibition mentioned in 2° of Article 131-39 concerns the activity in the exercise or in the course of the exercise of which the offense was committed". The penalties provided in 2° to 7° of said Article can be pronounced only for a duration of five years at the most.

 Cass. crim., 11 March 1993, LawLex200300003876JBJ, overturning CA Montpellier, 17 December 1990, LawLex200300001631JBJ, which wrongly refused to examine the value and extent of the delegation of powers invoked by the officer of the company.

 CA Aix-en-Provence, 18 March 1998, LawLex200300003301JBJ. On the other hand, identical allegations, but contained in separate advertisements that have not been simultaneously disseminated, may result in further prosecution, see Cass. crim., 29 March 1995, LawLex200300002439JBJ, upholding CA Douai, 21 October 1993, LawLex200300002472JBJ.

 CA Douai, 17 May 1989, LawLex200300001626JBJ: a delegation of powers is not exempt from any liability when the advertisement concerned, because of its magnitude, could not entirely escape the delegator's control.

 CA Lyon, 26 February 1992, LawLex200300001638JBJ, which holds that the obligation for the delegate to report to the delegator several times a year on the management of his budget is insufficient to exempt the manager of a company having disseminated an advertising lottery from liability. 

 Cass. crim., 29 March 1995, LawLex200300002439JBJ: lack of financial means of the alleged delegate.

 See Cass. crim., 29 March 1995, LawLex200300003470JBJ; 4 April 2006, LawLex200300001626JBJ, holding that the company leader who approved, or even signed alone or jointly with the games director, advertisements in the form of a lottery to promote food supplements, is personally liable to the extent that he expressed a determined willingness in the presentation and choice of vocabulary of the advertising documents.

 Cass. crim., 29 March 1995, LawLex200300003467JBJ.

 Cass. crim., 25 June 1997, LawLex200300002442JBJ.

 Cass. crim., 30 January 1992, LawLex200300002435JBJ, overturning CA Poitiers, 28 February 1991, LawLex200300001597JBJ; Cass. crim., 29 June 1999, LawLex200300002445JBJ, upholding CA Paris, 22 June 1998, LawLex200300002555JBJ.

 Cass. crim., 14 March 2000, LawLex200300002421JBJ, upholding CA Paris, 22 June 1998, LawLex200300002555JBJ, holding that there are as many offenses of misleading advertising as individual entry forms sent to consumers.

French Consumer Law

259. Intentional element

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259. Intentional element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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