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

Comparative advertising, to avoid being misleading advertising or devoid of objectivity, must be based on accurate data . Under Article L. 122-5 of the Consumer Code, the advertiser on whose behalf advertising is disseminated must be able to prove at short notice the material accuracy of the statements, indications and presentations contained in the advertising. The legislature thus enshrined the  …

Burden of proof

Comparative advertising, to avoid being misleading advertising or devoid of objectivity, must be based on accurate data . Under Article L. 122-5 of the Consumer Code, the advertiser on whose behalf advertising is disseminated must be able to prove at short notice the material accuracy of the statements, indications and presentations contained in the advertising. The legislature thus enshrined the case law prior to the entry into force of the Law of 18 January 1992, placing the burden of proof of the veracity of the allegations contained in the advertising message on the advertiser .

The demonstration of the accuracy of the allegations  must take place within a “short period of time”. According to the trial courts, one month does not meet this condition , as the advertiser, when it takes the responsibility for comparative advertising, must necessarily have from that moment all the elements that have allowed its implementation and be able to communicate them to a competitor who so requests . A fortiori, a period of eight months is clearly incompatible with the requirement of promptness . By contrast, the condition is fulfilled when the advertiser provides its competitor with justifications of its advertisements less than a week after they were requested  or links to its website which is immediately accessible to consumers and competitors , unless the website merely contains a mass of unusable data with no indication as to the methods of calculation used . Evidence provided within a short period of time of the veracity of the allegations in the comparative advertising message may also be made by means of an Excel file of prices collected, even if it is provided in a modifiable format, where its content can be corroborated by statements from the independent third parties charged with carrying out the price surveys . An advertiser who is unable to demonstrate that the price of a product is the one announced in its advertisement, because of its unavailability on the shelves and in stock, is guilty of unlawful comparative advertising . However, when it demonstrates that the price surveys have been carried out by an independent body, it is up to the competitor concerned who disputes their accuracy in the advertisement to provide evidence of its own prices, without this requirement reflecting a reversal of the burden of proof . Moreover, the accuracy of the statements contained in the comparative advertisement need not be demonstrated by the advertiser when it is no longer used disseminated .

Even if it is not for the competitor concerned to prove the erroneous nature of the message, it may, on the basis of Article 145 of the Code of Civil Procedure , obtain by way of an interim order an expert appraisal in futurum to check the accuracy of the allegations of the advertising message . The expert appraisal is admitted when it is not demonstrated that there is a risk of disclosure of a trade secret . The in futurum expert appraisal is carried out upstream of the proceedings on the merits and allows the competitor concerned to check whether the advertising is lawful before incurring unnecessary costs. This option, however, presupposes that the competitor concerned is aware of the preparation of a comparative advertising campaign. Initially, French law required the advertiser “to communicate to the professionals concerned within a period at least equal to that required, according to the type of medium used, for the cancellation of an advertising order” the comparative advertising. The Ordinance of 23 August 2001 abolished the obligation of prior communication, as it is not required by Union law .

 CA Paris, 22 March 1991, LawLex200300001362JBJ: material error making the comparison inaccurate; CA Aix-en-Provence, 21 December 2001, LawLex200300001257JBJ:  error in the presentation of prices to the detriment of the competitor; CA Toulouse, 13 December 2011, LawLex201200001002JBJ: inaccurate information about the price of the products compared; CA Lyon, 18 February 2014, LawLex201400001584JBJ: comparison based on inaccurate or obsolete data. Cf. CAParis, 22 January 2013, LawLex201300000102JBJ, validating an advertisement when the alleged price different was real; CA Rouen, 24 September 2015, LawLex201500001196JBJ, holding that the competitor concerned cannot rely on the contradiction of the figures shown in a paper advertisement and on the advertiser's website when they do not refer to the same price surveys and do not concern the same product samples.

Cass. com., 18 May 1993, LawLex200200001642JBJ, upholding CA Lyon, 17 July 1991, LawLex200200001796JBJ, whose solution is based on the former provisions on misleading advertising and more particularly Article L. 512-15 (former Article L. 121-2) of the Consumer Code, which requires the advertiser to communicate to the DGCCRF agents any document justifying its allegations; CA Versailles, 20 November 1997, LawLex200200001205JBJ, upheld by Cass. com., 14 June 2000, LawLex200200000768JBJ; see also, in a more recent case, CA Orleans, 26 September 2019, LawLex201900001141JBJ, stressing that the competitor targeted by a comparative advertisement cannot be required to demonstrate that no price survey was carried out in its store on the date indicated, insofar as the burden of proof of the lawfulness of the message falls on the advertiser.

 CA Caen, 26 September 2013, LawLex201300001454JBJ. See also CA Douai, 29 January 2015, LawLex201500000282JBJ.

 Cass. com., 19 January 2010, LawLex201000000089JBJ.

 CA Paris, 22 January 2013, LawLex201300000102JBJ.

 These provisions provide for the possibility to order, at the request of any interested party, on application or in interlocutory proceedings, when "there is a legitimate reason to retain or establish before any trial evidence of facts on which the solution of a dispute might depend".

 CA Paris, 21 February 2013, LawLex201300000264JBJ, recognizing that the competitor referred to in an advertisement comparing the price of "standard" products can ask the judge, on the basis of Article 145 of the Code of Civil Procedure, to instruct the advertiser to justify the composition and characteristics of the products in question; Cass. 2e civ., 12 May 2016, LawLex201600000950JBJ, holding that the expert appraisal in futurum to analyze the prices charged by the author of comparative advertising for a period of one month, is based on a legitimate reason when it is to verify that it has not manipulated its prices during the period surrounding the date of dissemination of its message.

 CA Paris, 8 October 1997, LawLex200300001347JBJ.

 Neither Directive No 97/55 of 6 October 1997 nor Directive No 2006/114 of 12 December 2006 on comparative advertising, which replaced it, provide for this.

 CA Paris, 21 March 2007, LawLex200800000029JBJ; TGI Strasbourg, 11 October 1997, LawLex200700001639JBJ: inability of the advertiser to prove the relevance of the criteria selected to conduct its comparison and the veracity of its allegations; CA Paris, 6 December 2017, LawLex201700002072JBJ: inability to prove that distributors effectively charged the prices promised by the advertiser.

 CA Nancy, 19 March 2007, LawLex200800000199JBJ.

 CA Colmar, 13 May 2008, LawLex200900000375JBJ.

 CA Dijon, 26 March 2009, LawLex201200000726JBJ.

CA Paris,2 October 2018,LawLex201800001467JBJ; Cf. CA Orléans, 26 September 2019, LawLex201900001141JBJ, finding that a period of seven days to provide the competitor in question with the data on which the comparative advertising broadcast is based is excessive with regard to the requirements of Article L. 122-5 of the Consumer Code.

 CA Paris, 4 November 2016, LawLex201600001822JBJ.

 CA Paris, 21 June 2017, LawLex201700001111JBJ.

 CA Paris, 22 November 2017, LawLex201700001942JBJ.

French Consumer Law

304. Burden of proof

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304. Burden of proof

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