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

Until the Hamon Law of 17 March 2014, unlawful advertising lotteries were specifically punished by a criminal sanction provided for in Article L. 121-41. The Law of 17 March 2014 decriminalized the offense and placed it under the administrative fines regime. Now, the Consumer Code no longer punishes the organization of an unfair lottery as such, but through the provisions sanctioning misleading or …

Successive modifications of the sanctions provided for in Article L. 121-20

Until the Hamon Law of 17 March 2014, unlawful advertising lotteries were specifically punished by a criminal sanction provided for in Article L. 121-41. The Law of 17 March 2014 decriminalized the offense and placed it under the administrative fines regime. Now, the Consumer Code no longer punishes the organization of an unfair lottery as such, but through the provisions sanctioning misleading or aggressive commercial practices.

Before the Hamon Law, the breach of Article L. 121-36 (now Article L. 121-20) constituted an offense, the finding of which required, under the first paragraph of Article 121-3, paragraph 1 of the Criminal Code, in addition to the material elements, the existence of a moral element, as “there is no crime or offense without intention to commit it”. The prohibited lottery offense was an offense of recklessness or negligence . The judge therefore had to characterize the moral element constituted by one of these two faults . Although the unlawful advertising lottery offense did not necessarily imply proof of the bad faith of the organizer of the advertising lottery, it could naturally be taken into consideration when it was evident . Failure to comply with the provisions of Article L. 121-41 was punishable, for natural persons, by a criminal fine of EUR 37,500 . Legal entities, initially not covered by the Law of 23 June 1989, could, since the entry into force of Law No 2004-204 of 9 March 2004, be held liable under the conditions laid down in Article 121-2 of the Criminal Code, the maximum amount of the fine incurred being equal to five times the amount provided for natural persons, i.e. EUR 187,500.

The Hamon Law having decriminalized the infringement and made it subject to administrative fines, Article L. 121-41 of the Consumer Code then stipulated that “any violation of Articles L. 121-36 to L. 121-38 is liable to an administrative fine the amount of which may not exceed EUR 15,000 for a natural person and EUR 75,000 for a legal entity”. Where an administrative fine was liable to be combined with a criminal fine imposed on the offender for the same acts, the overall fine imposed did not exceed the highest legal maximum.

The Law of 20 December 2014 removed this provision. However, the power of the Administration to issue an injunction to cease all unlawful acts was maintained. Originally governed by Article L. 141-1, VII, since the codification Ordinance of 14 March 2016, the Administration's power of injunction has been determined by Article L. 521-1, according to which, “when the authorized agents find a breach or an infringement with the powers provided for in this book, they may, after an adversarial proceeding, require a professional, giving him a reasonable period of time, to comply with its obligations”. Since the Hamon Law, a professional who has not complied with this injunction within the prescribed period may be subject to an administrative fine by the competition and consumer authority .

 Article 121-3, paragraph 3, of the Criminal Code provides: "An offense also exists, when the law so provides, in case of reckless misconduct, negligence or breach of an obligation of caution or safety provided by the law or regulations, if it is established that the perpetrator has not performed the normal procedures taking into account, where appropriate, the nature of his mission or tasks, his skills and the authority and means he disposes of."

 CA Colmar, 19 July 1995, LawLex200300001692JBJ, retaining the dual status of mail-order sales professional and habitual lottery organizer.

 CA Aix-en-Provence, 28 October 2010, LawLex201200001024JBJ: the mention in small print in a letter "Free competition. Award subject to chance" alongside other mentions in large print, which announces to its recipient that he is the winner and do not enable him to imagine that the gain announced with certainty is, in reality, subject to chance, shows the will of the lottery organizer to pretend to indicate the element of chance to escape the law and incur its quasi-contractual liability. On the basis of misleading marketing practices, see, for example, Toulouse, 4 May 2004, LawLex200600001494JBJ, holding that the organizer of the lottery has failed to fulfil its duty of loyalty in its commercial relations by the use of statements of such a nature as to mislead the consumer, cause him to place an order and give rise to the belief of obtaining of a gain.

 Article L. 121-41 of the Consumer Code, in its version prior to Law No 2014-344 of 17 March 2014. The text further specified that the court could order the publication of the conviction judgment by any appropriate means and, in the case of a particularly serious offense, the sending of the decision to all persons solicited by the advertising operation. He could also order that the decision be published in accordance with the provisions of Article 131-35 of the Criminal Code.

 Consumer Code, Article L. 522-1: "The administrative authority responsible for competition and consumer affairs shall be the competent authority for the imposition of administrative fines [...] for failure to comply with the measures of injunction relating to the breaches found [...]."

French Consumer Law

256. Successive modifications of the sanctions provided for in Article L. 121-20

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256. Successive modifications of the sanctions provided for in Article L. 121-20

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