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

An unfair lottery may characterize an aggressive commercial practice defined by Article L. 121-6 (former Article L. 122-11) of the Consumer Code as a practice which, because of repeated and insistent solicitations  or the use of physical or moral coercion, and taking into account the circumstances surrounding it:
-  significantly alters or is likely to significantly alter the freedom of choice of  …

Concept of aggressive lottery

An unfair lottery may characterize an aggressive commercial practice defined by Article L. 121-6 (former Article L. 122-11) of the Consumer Code as a practice which, because of repeated and insistent solicitations  or the use of physical or moral coercion, and taking into account the circumstances surrounding it:

-  significantly alters or is likely to significantly alter the freedom of choice of a consumer;

-  vitiates or is likely to vitiate the consent of a consumer;

-  impedes the exercise of a consumer's contractual rights.

To the extent that promotional lotteries can take the form of personalized solicitations, implemented against one or more consumers, they are liable to fall within the scope of Article L. 121-6 .

Moreover, Article L. 121-6, 7°, which incorporates in substance the elements of point 31 of Annex I of Directive No 2005/29, qualifies as an aggressive commercial practice per se, 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".

In the context of a referral for a preliminary ruling concerning several lotteries announcing 100% winners who, while providing three means of participation (calling a premium-rate number, SMS or post), encouraged the use of the most expensive means of access (the use of the premium-rate telephone number), the Court of Justice issued its interpretation of point 31 of Annex I of Directive No 2005/29 in a judgment rich in lessons . It thus clarified that the practice by which a professional creates 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, constitutes an aggressive commercial practice, even if the cost imposed on the consumer, such as the cost of a postage stamp, is negligible in relation to the value of the prize or does not confer any benefit on the professional. It is of little importance in this respect that actions relating to the claim of the prize can be carried out using several methods proposed by the professional to the consumer, at least one of which is free of charge, provided that these methods imply that the consumer bears a cost to inquire about the prize or how to obtain it. In this case, the lottery, which announced the award of a prize to all participants, sought to exploit the psychological effect created in the mind of the consumer by the prospect of a prize and to induce him to take a decision which is not always rational and which he would not have taken otherwise. According to the Court of Justice, the national court must assess the unfairness of the practice and in particular the information on the price, in the light of the typical reaction of the average consumer, taking account of the fact that this consumer belongs to a vulnerable group, target of the 100% winners lottery: this evaluation must be carried out from the point of view of an average member of the group in question and concern “both the availability of information and its medium, the legibility of the texts, the clarity and comprehensibility of the texts”. Finally, the Court considers that although the consumer may be required to pay “the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item”, such as the cost of a postage stamp or ordinary telephone call , no cost can be borne by a consumer who has won a prize in the framework of an aggressive commercial practice.

In domestic law, taking into account the case law of the Court and the legal uncertainty resulting from the abolition of Article L. 121-36-1 , the imposition of surcharged costs on the consumer therefore appears likely either to constitute an aggressive commercial practice, or to fall within the scope of the law on misleading commercial practices, which only allows the cost of “ordinary telephone calls”.

Aggressive commercial practices are punished under Article L. 132-11 (former Article L. 122-12), by two years' imprisonment and a maximum fine of EUR 300,000 .

Les sollicitations répétées des clients par des vendeurs de magasins de meubles, constitutives d'une véritable contrainte, qui leur donnent l'impression, de façon répétitive, qu'ils ont ou vont gagner un prix ou un avantage et bénéficier de réductions de prix importantes et personnalisées, alors qu'il ne s'agit que d'un argument de vente repris de façon systématique par les vendeurs, avec des baisses artificielles de prix donnant l'illusion de réaliser une bonne opération, caractérisent une pratique commerciale agressive, Cass. crim., 10 septembre 2019, LawLex201900001047JBJ

 CA Chambéry, 1 March 2018, LawLex201800000412JBJ: the organization of a lottery in which participation is free of charge and where no consideration is required since it is stated on the advertising documents that customers can return their entry coupon without ordering, and that they have an equal chance of winning in that case, is not an aggressive commercial practice. See also CA Toulouse, 26 September 2018, LawLex201800001444JBJ, holding that the sending of personalized advertising documents that highlight at first reading the existence of a random element relative to the main prize involved while specifying the conditions of participation and the fact that it is a promotional lottery with no obligation to buy, does not constitute an aggressive commercial practice. 

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

 Recital 42 of Case C-428/11 Purely Creative Ltd, cited above.

 Consumer Code, former Article L. 121-36-1: "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'.

 Consumer Code, Article L. 132-11, last paragraph: "The amount of the fine provided for in the first paragraph may 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".

French Consumer Law

261. Concept of aggressive lottery

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261. Concept of aggressive lottery

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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