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

Competitors adversely affected by comparative advertising may bring a civil liability action on the basis of Article 1240 of the Civil Code, insofar as advertising contrary to the provisions of Articles L. 122-1 et seq. characterizes a fault which justifies compensation for the damage caused. The competitor most often brings an action for unfair competition since Article L. 122-2 expressly prohibi …

Action for unfair competition

The dissemination of unlawful comparative advertising may be sanctioned on the basis of Article 1240 (former Article 1382) of the Civil Code, to which the former Article L. 121-14 (now Article L. 122-35) of the Consumer Code expressly refers. Difficulties may arise when the message is shown in a medium published abroad but disseminated in France. Overturning the Paris Court of Appeal which held that the foreign law - in this case US law - applied, since, in its opinion, the fact giving rise to the message was the publication of a magazine, the medium of the unlawful comparative advertising, in the United States , the Court of Cassation, on the basis of Article 3 of the Civil Code, laid down the principle that the law applicable to non-contractual liability is in principle that of the State where the harmful event occurred, and that this place includes both that of the event giving rise to the damage and the place where it occurred . Contrary to the judgment which it quashes, the Court of Cassation locates the operative event in France, as well as the realization of the damage. The court of appeal ratified the solution and declared French law applicable to the dispute .

This solution does not seem to be called into question by the entry into force of EU Regulation No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations in civil and commercial matters (Rome II) . Admittedly, in the field of unfair competition, the new regulation refers not to the law of the place of the harmful event but to that of the country on whose territory the competitive relations or collective interests of consumers are affected or are likely to be . However, when the action exclusively affects the interests of a particular competitor, such as unlawful comparative advertising, Article 6 (2) refers to the general provisions of Article 4, pursuant to which “the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.

 CA Paris, 11 May 1994, LawLex200200001573JBJ.

 Cass. 1re civ., 14 January 1997, LawLex200200001309JBJ.

 CA Paris, 21 June 2000, LawLex200200000766JBJ.

 Regulation No 864/2007, which seeks to harmonize not the substantive law of the Member States, but their conflict rules, which entered into force on 11 January 2009 in all Member States of the Union, with the exception of Denmark.

Applicable law

Competitors adversely affected by comparative advertising may bring a civil liability action on the basis of Article 1240 of the Civil Code, insofar as advertising contrary to the provisions of Articles L. 122-1 et seq. characterizes a fault which justifies compensation for the damage caused. The competitor most often brings an action for unfair competition since Article L. 122-2 expressly prohibits parasitic, disparaging and confusing advertisements.

Thus, disparaging advertising may have the effect of diverting customers from the competitor and justifying the award of damages to it and, where applicable, to its advertising agency . Nevertheless, as specified by the Paris Court of Appeal, a grouping of distributors may not claim damages for the publication of an unlawful comparative advertisement if it cannot demonstrate the existence of a harm specific to it and separate from that of its members . The commercial disturbance caused by such advertising can be compensated , in addition to damages, by publication of the conviction decision in the same magazine where the original advertisement was published , the injunction to the advertiser to remove the disputed elements of its advertisements  or the outright prohibition to disseminate the message . The commercial disorder caused to the competitor concerned is especially significant when the advertiser is a particularly influential brand allowing it to reach many consumers . The publication of a communiqué may be a more adequate means of compensating the damage than just the award of damages when advertising has been widely disseminated, including on the internet .

Although the fault of unfair competition necessarily causes injury to the victim, the damages awarded will be of a moderate amount when it does not prove any loss of turnover , when its results have been in constant decline during the reference period , when the advertising has been disseminated in a limited catchment area  or has been drowned in other advertisements, in a free newspaper, which are given less attention by consumers, now distrustful of such claims . In fact, quantifying the loss claimed by a competitor targeted by a comparative advertisement may require it to produce its accounting documents, an economic overview of its market positioning before and after the publication of the advertisement, the communication expenses incurred to regain a share of the clientele and the profit margin achieved on its products . Furthermore, the award of the symbolic euro is sometimes deemed sufficient, when it is accompanied by measures of publication and display of the decision in the store , and sometimes insufficient to compensate the damage, given the duration of the disputed advertising operation, the geographical scope of its dissemination, the number of customers and turnover of the stores concerned and the damage to the reputation of the brand concerned . Harm to image caused by advertising, provided that it is direct harm, can also be repaired , sometimes by substantial damages .

 CA Paris, 10 September 1999, LawLex200200000918JBJ.

 CA Paris, 18 October 2017, LawLex201700001700JBJ.

 CA  Douai, 29 June 2015, LawLex201500000282JBJ.

 CA Montpellier, 12 May 2015, LawLex201500000655JBJ.

CA Saint-Denis de la Réunion, 12 February 2020, LawLex202000000265JBJ.

 CA  Dijon, 26 March 2009, LawLex201200000726JBJ.

 CA Nîmes, 5 March 2009, LawLex201200001036JBJ.

CA Paris,6 December 2017,LawLex201700002072JBJ, award of EUR 300,000 damages.

CA Paris, 2 October 2018, LawLex201800001467JBJ.

 CA Versailles, 20 November 1997, LawLex200200001205JBJ, upheld by Cass. com., 14 June 2000, LawLex200200000768JBJ; CA Paris, 7 May 1999, LawLex200200000950JBJ.

 T. com. Nanterre, 19 December 1997, LawLex200300001345JBJ.

 Cass. com., 23 April 2003, LawLex200300001665JBJ.

 CA Rennes, 24 February 2009, LawLex201200001037JBJ, in this case, the damage was estimated at EUR 60,000, even if the percentage of products concerned by the advertising was very low compared to the turnover made on the other products.

 CA Paris, 23 March 2012, LawLex201200000537JBJ.

 CA Bourges, 10 January 2013, LawLex201300000158JBJ: in this case, the court also rejects the request for publication or display of the decision, given the age of the facts and the change in the economic context since its dissemination.

 CA Bordeaux, 12 March 2013, LawLex201300000385JBJ.

Although Article L. 132-25 (former Article L. 121-14) of the Consumer Code does not cover this possibility, a competitor adversely affected by comparative advertising may bring an action for interim relief to obtain the cessation of the dissemination or the modification of the advertising message, if necessary subject to a penalty payment. In accordance with Articles 808 and 809 of the Code of Civil Procedure, it lies with the victim of comparative advertising to demonstrate to the President of the competent court either the urgency of the situation and the absence of serious challenge, or the existence of imminent harm  or a manifestly unlawful disorder.

The interim relief judge has a relatively narrow margin for maneuver. He cannot, in principle, assess the substantive conditions of the lawfulness of comparative advertising, such as its fairness or truthfulness , but must simply verify that the formal conditions for the application of Articles L. 122-1 et seq (former Articles L. 121-8 et seq.) of the Consumer Code are met. When French law was brought into line with Directive No 97/55 of 6 October 1997, by the Ordinance of 23 August 2001, this made his intervention more difficult to justify as it left none of the original formal conditions, such as communication of the advertisement prior to its dissemination to the competitor concerned  or the strict identicality of the products compared .

Nevertheless, many decisions grant interim relief in cases that involve an examination of the merits. Thus, a manifestly unlawful disorder is created by the misleading nature or lack of objectivity of the comparison , its disparaging content  or the excessive presentation of the professional incompetence of the advertiser's competitors , the advertiser's inability to justify its allegations  or a message containing inaccurate information . The manifestly unlawful disorder is also established where, in the case of sampling, the products included in the selection are not sufficiently defined  or when the assortment does not contain a sufficient number of articles to clearly and objectively inform consumers on the general level of prices . On the other hand, the interim relief judge refuses to find the unlawful nature of comparative advertising if the difference between the products compared is not perceptible to the average consumer  or if it does not identify a competitor, even implicitly .

In addition to the cessation of the dissemination of the advertising  or of its display , the interim relief judge may order measures of repatriation at the company's registered office of all stocks of promotional documents and their destruction , or even the deactivation of the website on which the advertising is shown . When the advertiser has relied on a misleading study, the judge may also prohibit it from using it or referring to it in any way and/or on any medium whatsoever , subject to a penalty payment. On the other hand, he cannot order the advertiser to immediately cease all advertising on any media, both material and virtual, since he cannot rule in advance on possible and future events .

  CA Bastia, 27 May 2015, LawLex201500000798JBJ: a comparative advertisement which has only been published in an edition of a daily newspaper does not justify the intervention of the interim relief judge, in the absence of imminent harm on the date of his ruling.

  CA Bordeaux, 3 December 1996, LawLex200300001353JBJ; CA Versailles, May 22, 1998, LawLex200300001340JBJ.

 CA Bourges, 6 March 1984, LawLex200300001367JBJ.

  CA Paris, 4 December 2002, LawLex200300001289JBJ.

 CA  Paris, 2 July 1997, LawLex200300001349JBJ: identification not of a competing brand but of a manufacturing process; Cass. com., 14 June 2000, LawLex200300002647JBJ, upholding CA Versailles, 21 November 1997, LawLex200300001346JBJ.

  CA Douai, 2 October 1995, op. cit.; CA Versailles, 18 February 1999, cited above; TGI Nanterre, 1 February 2010, cited above; T. com. Paris, 4 October 2013, LawLex201300001432JBJ.

 Cass. com., 18 May 1993, cited above and T. com. Lyon, 17 July 1991, cited above; T. com. of Salon-de- Provence, 21 April 1993, cited above.

 CA Versailles, 23 March 2011, LawLex201200001046JBJ.

  T. com. of Paris, 7 June 2006, cited above.

 CA  Versailles, 25 May 2011, LawLex201200001035JBJ.

 CA  Montpellier, 22 March 2016, LawLex201600000669JBJ.

  CA Nancy, 14 February 1996, LawLex200300001355JBJ.

  CA Douai, 2 October 1995, LawLex200200001425JBJ, upholding TGI Lille, 9 August 1995, LawLex200200001436JBJ; T. com. Paris, 29 November 1999, LawLex200300001702JBJ: advertising with many inaccuracies or ambiguities; CA Versailles, 18 February 1999, LawLex200300001970JBJ: comparison of two drugs failing to specify that the product being advertised must be combined with another, which increases the cost; CA Poitiers, 13 January 1998, LawLex200300001344JBJ: inaccuracy of the prices compared; CA Versailles, 25 May 2011, LawLex201200001035JBJ.

 CA Versailles, 26 March 1999, LawLex200300001338JBJ: advertising attributing to the competitor, in a mocking manner, an outdated pricing policy left over from a monopoly situation that no longer exists; CA Douai, 2 October 1995, cited above.

 TGI  Nanterre, 1 February 2010, LawLex201000000137JBJ.

 Cass. com., 18 May 1993, LawLex200200001642JBJ, upholding CA Lyon, 17 July 1991, LawLex200200001796JBJ; T. com. of Paris, 7 June 2006, cited above: website deactivated as it made unverifiable price comparisons.

  CA Aix-en-Provence, 21 December 2001, LawLex200300001257JBJ, noting two errors on the competitor's prices; CA Versailles, 26 March 1999, LawLex200300001338JBJ.

 T. com. Salon-de-Provence, 21 April 1993, LawLex200300001359JBJ; T. com. Paris, 7 June 2006, LawLex200600001372JBJ.

French Consumer Law

308. Action for unfair competition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

308. Action for unfair competition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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