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

Among the promotional practices aimed at encouraging consumer purchasing, lotteries have a prime position given the attraction of the public for advertising games. The concept is broadly defined: any operation open to the public, under any name, to give rise to the hope of a gain due, even partially, to chance, constitutes a lottery . Commercial lotteries represent a danger to the consumer because …

Commercial lotteries

Among the promotional practices aimed at encouraging consumer purchasing, lotteries have a prime position given the attraction of the public for advertising games. The concept is broadly defined: any operation open to the public, under any name, to give rise to the hope of a gain due, even partially, to chance, constitutes a lottery . Commercial lotteries represent a danger to the consumer because of their incentive nature. In fact, the frequent link between the entry form and the order form may lead the consumer to make unnecessary or unreasonable purchases for the benefit of the expected gain. Lotteries are therefore often penalized, due to their misleading nature . Such a practice also presents risks to competition which is no longer exercised based on the quality of the goods and services sold or their price, but on the expected prize or gain.

Advertising lotteries have long been strictly regulated since the first text governing them was adopted on 21 May 1836. These provisions are now contained in the Internal Security Code. The adoption of Law No 2010-476 of 12 May 2010 relating to the opening up to competition and the regulation of the online gambling industry  has brought the rules on lotteries closer to those governing  of games of chance and casino games . The recent changes made to the Internal Security Code by Ordinance No 2019-1015 of 2 October 2019 reforming the regulation of gambling  go even further. Since 1 January 2020, the Internal Security Code no longer prohibits lotteries as such , but all gambling activities and games of chance which it defines according to the criteria previously used to prohibit lotteries per se (former Art. L. 322-2, Internal Security Code) . Under new Article L. 320-1, “are deemed to be gambling and prohibited as such, all transaction offered to the public, under any name whatsoever, giving rise to the hope of a win due, even partially, to chance and for which a financial sacrifice is required from participants”. The provisions governing lotteries in the Internal Security Code thus become the general law on gambling. New article L. 320-2 provides that games of chance and gambling, authorized as an exception, can only be exploited under a system of exclusive rights, authorization or approval, issued by the State. This provision states that games of chance which are “neither an ordinary trade nor an ordinary service” are subject to strict supervision in order to prevent the risk of breaches of public and social order, in particular as regards the protection of health and minors. In view thereof, Ordinance No 2019-2015 has introduced a number of provisions aimed at protecting minors by imposing new obligations on gambling operators (Art. L. 320-8  to L. 320-9 ), in particular on the provision of information (Art. L. 320-11  to L. 320-12 ). More generally, the ordinance reinforces the crackdown against operators by creating new offenses (Art. L. 324-5 , L. 324-6 , L. 324-7 , L. 324-8  and L. 324 -8-1 ) and by making the existing criminal sanctions tougher . The assimilation of gambling to lotteries  could lead to an increase in the harshness of the regime  on account of the State's aim of limiting the supply and consumption of gambling with a view to, inter alia, preventing excessive or pathological gambling  and fraudulent activities .

Lotteries are not governed by just the Internal Security Code. The text of 1836 was supplemented by Law No 89-421 of 23 June 1989 on consumer information and protection, which created specific regulations for lotteries carried out in writing, codified  in Articles L. 121-36 to L. 121-41 of the Consumer Code, in order to remedy the explosion of disputes arising out of the organization of lotteries by some mail-order companies. Initially, only ad hoc advertising lotteries carried out in written form were permitted under strict conditions before and during operation  . Then, in order to comply with Union law, and in particular with Directive No 2005/29 on unfair commercial practices , France limited the prohibition of lotteries with obligation to purchase, by means of new legislation in 2011, to those which are unfair within the meaning of Article L. 120-1 . The Hamon Law subsequently authorized all advertising lotteries, subject to their unfairness, whatever their terms and conditions , while maintaining a number of requirements for their implementation and adding others (Article L. 121- 36-1) . Law No 2014-1545 of 20 December 2014 on the simplification of business practices , which repealed Articles L. 121-36-1 to L. 121-41, substantially amended the law on advertising lotteries which is now reduced to a single provision: Article L. 121-36 of the Consumer Code . Lastly, re-codification Ordinance No 2016-301 of 14 March 2016 rewrote the text, moved to Article L. 121-20: lotteries that were formerly lawful, when they were not unfair, are now prohibited when they are unfair . The simplification of the advertising lottery rules is not without legal uncertainty however.

Concerning the relationship between the different rules applicable to lotteries , new Article L. 320-6, 2° (former L. 322-2-2) specifies that the general prohibition of lotteries does not cover the advertising operations mentioned in Article L. 121-20 of the Consumer Code which, since the adoption of the Law of 20 December 2014, only refers to “the commercial practices implemented by professionals with regard to consumers”. As a result, it can be deduced that advertising lotteries are not subject to the general prohibition, except when they are aimed at professionals. Paradoxically, professionals benefit, through Articles L. 320-1 et seq. of the Internal Security Code, from greater protection than that provided for consumers by the Consumer Code.

Cass. crim., 18 April 1969, LawLex200300002711JBJ.

 See, for example, CA Nîmes, 29 June 2010, LawLex201200001041JBJ, having held that letters reiterating in various forms the certainty of a gain, subject to the sending of an order, from which it is deduced that the uncertainty mentioned in small print in a long and dense text, printed tightly in capital letters and in black on a gray background exhausted its effects for the benefit of the complainant, incurring the quasi-contractual liability of the lottery organizer.

“Any commercial communication promoting an authorized gambling operator shall be: 1° accompanied by a message warning against excessive or pathological gambling as well as a message referring to the information system and assistance provided for in Article 29 of Law No 2010-476 of 12 May 2010 relating to the opening up to competition and the regulation of the online gambling industry; 2° Prohibited in any publication aimed at minors; 3° Prohibited on audiovisual communication services and in audiovisual communication programs presented as addressing minors within the meaning of Article 15 of Law No 86-1067 of 30 September 1986 relating to freedom of communications; 4°Prohibited in electronic communications services to the public intended for minors; 5° Prohibited in movie theaters during the broadcasting of works accessible to minors. The terms of application of 1°, 2°, 4° and 5° shall be specified by decree. Gambling and game of chance operators may not finance the organization or sponsor the holding of events specifically aimed at minors”.

Gambling operators of gambling and games of chance who:  1° Allow a person prohibited from gambling to participate in an online gambling activity which they offer; 2° send marketing communications to people prohibited from gambling  shall be fined EUR 10,000".

 “A fine of EUR 100,000 is incurred by gambling operators: 1 ° for establishing a new outlet operating a lottery or sports betting  registration station in violation of the perimeter referred to in Article L. 320-15; 2° allowing direct access to gambling devices without human intermediation to a player whose identity and date of birth have not been previously verified in accordance with the provisions of the last paragraph of Article L. 320-8”.

This provision provides that the violation of the prohibition on  gambling on credit laid down in Article L. 320-17 is punished with a fine of EUR 150,000.

Advertising for an undertaking likely to make loans to players or allow loans between players is punishable by a fine of EUR 75,000. Providing a link to an electronic communications service to the public of such an undertaking is punishable by the same penalty".

“Issuing or distributing, by any means, a commercial communication that does not comply with the provisions of Articles L. 320-12 and L. 320-14 is punishable by a fine of EUR 100,000. The amount of the fine may be increased to four times the amount of advertising expenditure devoted to the illegal operation”.

By way of illustration, Article L. 324-4, as amended by Ordinance No 2019-1015, now punishes the importation or manufacture of any device whose operation is based on chance and which allows, possibly by the apparition of signs, by means of a bet, a direct or indirect advantage of any kind whatsoever, even in the form of free games, by three years “imprisonment and a fine of EUR 90,000, compared to three years” imprisonment and EUR 45,000  under former Article L. 324-2.

Cons. d'Ét., 24 March 2021, LawLex202100000934JBJ: the French national gambling authority does not exceed its jurisdiction when it indicates to online gambling and betting operators that certain provisions of the Consumer Code, in particular those relating to unfair terms in contracts concluded between a professional and a consumer, or to unfair commercial practices, are likely to be applied to them, and that in the event of non-compliance with those provisions, it will be able to bring proceedings against them before the Sanctions Commission.

New Article L. 320-3 provides that: “The State policy on gambling and games of chance aims to limit and oversee the supply and consumption of games and to control the exploitation thereof in order to: 1° Prevent excessive or pathological gambling and protect minors;2° Ensure the integrity, reliability and transparency of gambling operations;3° Prevent fraudulent or criminal activities as well as money laundering and the financing of terrorism; 4° Ensure a balance in the exploitation of the different types of gambling in order to avoid any economic destabilization of the sectors concerned. In addition, new Article L. 320-4 specifies that "operators of gambling  and games of chance defined in Article L. 320-6 shall pursue the objectives mentioned in 1°, 2° and 3° of Article L. 320-3. Their supply of gambling shall contribute to channeling the demand for games into a circuit controlled by the public authorities and prevent the development of an illegal gambling supply”.

New Article L. 323-3 provides that: “I. - In order to prevent fraudulent or criminal activities as well as money laundering and the financing of terrorism, any change in the distribution of share capital and in direct or indirect control of the undertaking having obtained the authorization provided for in Article L. 321-1 is subject to prior authorization from the Minister of the Interior, where it would allow a person: 1° Either to acquire control of this company, within the meaning of Article L. 233-3 of the Commercial Code; 2° Or to cross one or more thresholds, fixed by decree, of direct or indirect holding of the capital or voting rights; 3° Or to carry out an operation involving the de facto takeover of the undertaking, in particular by granting loans or substantial guarantees. II. - Within the framework of the authorization procedure provided for in I of this article, the officials designated by the Ministry of the Interior may: 1° Carry out administrative inquiries which may give rise to the consultation of the processing of personal data subject to Article 31 of Law No 78-17 of 6 January 1978 relating to data processing, files and freedoms; 2° Ask the persons concerned, without being prevented on the grounds of professional secrecy , to disclose any document regardless of the medium and to obtain any copy necessary to justify the origin of the funds to be invested; 3° Ask the department referred to in Article L. 561-23 of the Monetary and Financial Code for information relevant for verifying the origin of the funds to be invested; 4° Have recourse to international cooperation to verify the accuracy of the information declared under this procedure”.

Law No 93-949 of 26 July 1993, OJ of 27 July 1993.

 Consumer Code, former 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”.

 Directive No 2005/29 of 11 May 2005 on unfair business-to-consumer commercial practices in the internal market and amending Council Directive No 84-450 EEC and Directives No 97-7 EC, 98-27 EC and 2002/65 EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council ("Unfair Commercial Practices Directive"), OJEU L 149 of 11 June 2005, 22.

 Consumer Code, Article L. 121-36 (in its version resulting from Law No 2011-525 of 17 May 2011 on the simplification and improvement of the quality of the law, which transposes the Directive on unfair business practices into national law): “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. The entry form for these operations must be separate from any purchase order for goods or services”.

 Consumer Code, Article L. 121-36 (as amended by Law No 2014-344 of 17 March 2014 on consumption): “The 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, are governed by this section”.

 Consumer Code, Article L. 121-36-1 (as resulting from Law No 2014-344 of 17 March 2014 on consumption): “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. When participation of consumers in the practices referred to in the first line of this Article is subject to an obligation to purchase, these commercial practices are unlawful only to the extent that they are unfair within the meaning of Article L. 120-1”.

 Consumer Code, Article L. 121-36 (as resulting from Law No 2014-1545 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.”

 Consumer Code, Article L. 121-20 (as resulting from Ordinance No 2016-301 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.”

Cass. crim., 29 January 2020, LawLex202000000164JBJ: Directive No 2005-29 applies without prejudice to European and national rules relating to authorization schemes, in particular, the rules relating to gambling activities, and therefore the overriding mandatory provisions of national laws and regulations which govern gambling and are included in the Internal Security Code cannot be ruled out solely on the grounds that the disputed poker tournament is not prohibited by said directive; in this case, the “Winamax Poker Tour” tournament, organized in rooms, met the four characteristics of a lottery prohibited by the Internal Security Code, and therefore the Court of Appeal, which was not required to find that this practice was unfair, rightly deduced that the organizer of the tournament did not respect the applicable regulations, which constituted a manifestly unlawful disturbance.

Lotteries were previously covered in Title II of Book III of the Internal Security Code, under the heading Games of Chance, Casinos, Lotteries.

Title II of Book III of the Internal Security Code is now entitled Gambling, Games of Chance, Casinos.

Before 1 January 2020, Article L. 322-2 prohibited lotteries, such as “sales of real property, furniture or goods carried out by way of chance, or to which have been added bonuses or other benefits due, even partially, to chance and, generally, all operations offered to the public, under any name whatsoever, to give rise to the hope of a gain due, even partially, to chance and for which a financial sacrifice is demanded by the operator from participants”. Article L. 322-2-1 of the Internal Security Code introduced by the Hamon Law of 17 March 2014 specified that “this prohibition includes games whose operation is based on the player's know-how”. Lotteries intended for charitable purposes, the encouragement of the arts or the financing of non-profit sporting activities were not subject to the prohibition (former Article L. 322-3). 

Legally authorized gambling operators are obliged to prevent the participation of minors, even if “emancipated”, in the gambling or betting activities they offer. It is forbidden to sell or offer free of charge  the gambling and games of chance referred to in 1°, 3°, 4°, 5° and 6° of Article L. 320-6 to minors. At racecourses and in the lottery, sports or horse racing betting premises mentioned in 3°, 4° and 5° of Article L. 320-6, the natural person who markets directly gambling with the client may require the client to show proof of age. Access to gaming terminals without human intermediaries allowing the participation in games falling under 3° or 4° of Article L. 320-6 is reserved for players whose identity and date of birth have been previously verified in order to ensure they have attained legal majority. 

“Operators of games of chance and gambling operated online or on physical recording terminals without human intermediaries by means of an account are required to prevent participation in the gambling activities which they offer by persons prohibited from gambling under the provisions of Article L. 320-9-1. The gambling operators mentioned in 3°, 4° and 5° of Article L. 320-6 must periodically ensure that the persons  gambling in premises authorized for gambling, lotteries, sports betting or betting on horse races through an account are not prohibited from gambling under Article L. 320-9-1. Any player account the holder of which is prohibited from gambling must be closed down. The operators mentioned in the two preceding paragraphs must close any player account the holder of which is subject to a ban or exclusion in accordance with the conditions set out in Article L. 320-10”.

“ Legally authorized gambling operators shall inform players of the risks associated with excessive or pathological gambling by means of a warning message. The operators mentioned in the first paragraph of Article L. 320-9 shall prevent excessive or pathological gambling behavior by the implementation of means for the moderation, self-exclusion, and self-limitation of deposits and bets. They must constantly provide any any player using their electronic communication service to the public with the instant balance of their account. They shall inform players of the faculty which is conferred on them under the terms of II of Article L. 320-9-1, to be the object of a voluntary gambling prohibition. They shall abstain from sending any commercial communications to holders of a player account or identified as benefiting from a self-exclusion measure. They also refrain from sending any commercial communication to former holders of a player account subject, pursuant to II of Article L. 320-9-1, to a voluntary ban measure”.

French Consumer Law

240. Commercial lotteries

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240. Commercial lotteries

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Les décisions de justice citées dans ce paragraphe :

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Les notions juridiques connexes

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