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

Resulting from Law No 89-421 of 23 June 1989 on consumer information and protection, former Article L. 121-36 of the Consumer Code initially authorized, under strict conditions, advertising lotteries which were in written form and entirely free of charge before and during the operation . The lawfulness of “advertising operations carried out in written form which tend to give rise to the expectatio …

Developments

Resulting from Law No 89-421 of 23 June 1989 on consumer information and protection, former Article L. 121-36 of the Consumer Code initially authorized, under strict conditions, advertising lotteries which were in written form and entirely free of charge before and during the operation . The lawfulness of “advertising operations carried out in written form which tend to give rise to the expectation of a gain attributed to each of the participants, whatever the methods of the draw” was subject to the condition that they not require “any financial consideration or expense in any form whatsoever” of participants.

The adoption of maximum harmonization Directive No 2005/29 on unfair commercial practices forced France to limit the prohibition of lotteries carried out in written form with an obligation to purchase to those which are of an unfair nature within the meaning of Article L. 120-1 (now Article L. 121-1) . Nevertheless, French law retained all the requirements governing the lawfulness of lotteries. The Hamon Law of 17 March 2014 extended the scope of Article L. 121-36 to “commercial practices implemented by professionals in the form of promotional operations designed to give rise to the expectation of a gain, whatever the methods of drawing or intervention of a random element”. The text thus abandoned the condition of the written form and replaced the broader concept of “commercial practices” with that of advertising operations. The Hamon Law met the obligation of harmonization, since it enshrined the lawfulness of all advertising lotteries (including with an obligation to purchase, provided they were not unfair), but imposed, in an Article L. 121-36-1, new conditions relating to participation costs, which were inconsistent with the spirit of the directive. In order to avoid a more than probable conviction for incorrect transposition, the French legislator intervened again. Law No 2014-1545 of 20 December 2014 completely released advertising lotteries by repealing Articles L. 121-36-1 which subjected lotteries with purchase obligations to certain conditions regarding participation costs, L. 121- 37 to L. 121-40 which governed advertising lotteries carried out in writing, and L. 121-41 which sanctioned the offense of unlawful lottery by an administrative fine, substituted by the Hamon Law for the criminal sanction provided for previously.

The scope of Article L. 121-36, as amended and recodified in Article L. 121-20 by Ordinance No 2016-301 of 14 March 2016 , is now limited to commercial practices, in the form of promotional activities, carried out by professionals vis-à-vis “consumers”. The text prohibits such practices when they constitute unfair commercial practices. As the consumer is defined in the introductory article of the Consumer Code as “any natural person acting for a purpose which does not fall within the scope of his commercial, industrial, artisanal, liberal or agricultural activity”  even in the absence of a purchase or order , any advertising lottery intended for a person who does not have this status will be subject, not to the provisions of Article L. 121-20, but to those of the Internal Security Code.

 Consumer Code, former version of Article L. 121-36: “Written advertising operations which tend to give rise to the expectation of a gain attributed to each of the participants, whatever the methods of the draw, may be used only if they do not impose on the participants any financial consideration or expense in any form whatsoever. The entry form for these operations must be separate from any purchase order for goods or services”.

 Article L. 121-36, as amended by Law No 2011-525 of 17 May 2011 on the simplification and improvement of the quality of the law, which sought to improve the transposition of the Directive on unfair commercial practices, providing that: “Written advertising operations which tend to give rise to the expectation of a gain attributed to each of the participants, whatever the methods of the draw, may be used only if they do not impose on the participants any financial consideration or expense in any form whatsoever. When participation in this operation is subject to an obligation to purchase, the practice is unlawful only to the extent that it is unfair within the meaning of Article L. 120-1”.

 Consumer Code, Article L. 121-36 (as resulting from the Law of 20 December 2014): “the commercial practices implemented by professionals with regard to consumers, in the form of promotional operations for the award of a gain or benefit of any kind by means of a draw, whatever the terms, or by the intervention of a random element, are lawful when they are not unfair within the meaning of Article L. 120-1”; and currently, in its version resulting from the Ordinance of 14 March 2016: “When they are unfair within the meaning of Article 121-1, the commercial practices implemented by professionals with regard to consumers, in the form of promotional operations for the award of a gain or benefit of any kind by means of a draw, whatever the terms, or by the intervention of a random element, are prohibited.”

 Addition of Ordinance No 2016-301 of 14 March 2016.

 CA Toulouse, 25 May 2016, LawLex201600001043JBJ.

French Consumer Law

247. Developments

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247. Developments

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