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French Consumer Law

In the area of sales, Article L. 310-5 of the Commercial Code imposes a fine of EUR 15,000 in respect of two offenses: conducting sales on goods in stock for under one month at the start date of the sales period in question  and use of the word “sale(s) or its derivatives” in cases where such use does not relate to a sales operation.
The trader also incurs an additional penalty of display or disse …

The constituent elements

The regulations on sales have undergone successive legislative reforms which have raised questions on the application of the law over time.

Thus, under the Law of 30 December 1906 , there were two types of sales: occasional and seasonal sales, which took place twice a year, for a maximum period of two months fixed by municipal order, “the starting date being consistent with standard practices” . Any occasional sales operation organized without the consent of the mayor was liable to criminal sanctions . Law No 96-603 of 5 July 1996 only left the category of seasonal sales, which could only be carried out during two periods per calendar year, of a maximum duration of six weeks and whose dates were fixed in each department by the Prefect, according to terms laid down by decree in Council of State. As occasional sales had disappeared, disregard for the formalities hitherto imposed for their conduct was no longer criminalized. Pursuant to the principle of retroactivity of the more lenient criminal law, the criminal court applied the new law to acts committed before its entry into force, but not yet definitively tried, concluding that the occasional sales operation without special authorization could no longer, since the entry into force of the Law of 5 July 1996, be subject to prosecution .

Subsequently, Law No 2008-776 of 4 August 2008, whose provisions entered into force on 1 January 2009, abolished the offense of sales outside the authorized periods. Previously, in order to characterize the offense, the promotional operation had to cumulatively combine the characteristic elements of sales: a reduction in prices, an advertisement and the desire to rapidly dispose of the stock. The unlawfulness of the operation lay in its performance outside the authorized periods. This was the case for the trader who applied a 30% reduction on all items on sale in his store, outside the summer sales period , the operation whose purpose was to dispose of the stock of goods before the launch of a new catalogue and relating to out of fashion or out of season items to which a large reduction had been applied , the continued display of the indication “last days of the sale” outside the authorized period, to dispose of the stock , or the sale of items whose labels show the normal price, the reduced price and the percentage of the reduction, and concerning display models and goods that cannot be replenished, before the opening of the sales . As the offense was abolished, the criminal chamber of the Court of Cassation decided, pursuant to the rule of retroactivity in mitius, that the organization of sales outside those periods could no longer be sanctioned on the basis of Article L. 310-5 of the Commercial Code after this date, since it was the subject of proceedings not yet closed by a final decision tion.

Sales outside the periods provided for in Article L. 310-3 of the Commercial Code can now be prosecuted on the basis of Article L. 310-5 which prohibits the use of the word “sales” or its derivatives to designate any activity which does not relate to a sales operation, or under Article L. 121-22 (former Article L. 121-15) of the Commercial Code which prohibits advertising for unauthorized sales operations.

 Law of 30 December 1906, on sales on temporary premises, supplementing the Law of 25 June 1841.

 Article 1, 2 and 5 of Decree No 62-1463 of 26 November 1962.

 Article 2 of the Law of 30 December 1906: "Any breach of the foregoing provisions shall be punished by the confiscation of the goods offered for sale, and in addition by a fine of 25,000 F [*criminal sanctions*] without prejudice to damages, if any".

 Cass. crim., 18 June 1997, LawLex200300001708JBJ: under Article 112-1 of the Criminal Code, pursuant to which a new law which repeals a criminal offense applies to acts committed before its entry into force but not definitively tried, the conviction must be annulled, due to lack of a legal basis: 17 December 1997, LawLex200300001709JBJ.

 CA Toulouse, 13 April 2006, LawLex200600001514JBJ.

 CA Douai, 10 November 2005, LawLex200600001519JBJ.

 CA Riom, 16 March 2005, LawLex200600001512JBJ.

 CA Grenoble, 6 September 2000, LawLex200300004373JBJ.

 Cass. crim., 24 January 2012, LawLex201200001231JBJ, holding that the more lenient criminal law applies to acts committed prior to its entry into force, subject to proceedings that are not yet concluded by a final decision, and that accordingly, a trader cannot be sanctioned for sales conducted outside the authorized periods after 1 January 2009, the offense having disappeared.

Application of the law over time

In the area of sales, Article L. 310-5 of the Commercial Code imposes a fine of EUR 15,000 in respect of two offenses: conducting sales on goods in stock for under one month at the start date of the sales period in question  and use of the word “sale(s) or its derivatives” in cases where such use does not relate to a sales operation.

The trader also incurs an additional penalty of display or dissemination of the decision pronounced, under the conditions laid down in Article 131-35 of the Criminal Code. The maximum amount  of the penalty is increased to EUR 75,000 for legal entities , which may also be ordered to display the decision pronounced or publish it in the written press, or by any electronic means of communication to the public. Moreover, since Law No 2011-1862 of 13 December 2011, the administrative authority responsible for competition and consumer affairs can settle, as long as a public prosecution has not been set in motion, with the consent of the public prosecutor, under the conditions laid down in Article L. 470-4-1 of the Commercial Code .

 See for an example of application: TGI Paris, 8 October 1997, LawLex200300004202JBJ.

 Article 138-6, Criminal Code: "The maximum rate of the fine applicable to legal entities is equal to five times that provided for individuals by the law which punishes the offence [...]".

According to Article 121-3 of the Criminal Code, there is no crime or offense without intent except where provided for by law. The penalty therefore implies that the intention of the offender to commit a breach of the regulations governing sales is established.

In the event of a sale of goods present in the store for less than one month or the unlawful use of the word sale(s) or its derivatives, the intention may result from the status of the offender. Traders, as professionals, are required, according to the courts, to know the legal provisions . They cannot, to exonerate themselves from liability, rely on an error of interpretation of the regulations . The courts consider that the offense naturally and necessarily results from the voluntary nature of the operation. The intentional element results from the mere knowledge of the unlawfulness of the process .

 TGI Paris, 8 October 1997, LawLex200300004202JBJ.

 CA Paris, 8 June 1998, LawLex200300004283JBJ; CA Paris, 2 September 1998, LawLex200300004197JBJ; TGI Paris, 8 October 1997, LawLex200300004202JBJ.

 TGI Bordeaux, 9 January 2006, LawLex200600001993JBJ, for an Internet sales company which engages in a sales operation in full knowledge of the unlawfulness of the operation conducted outside the authorized period and specifies on its site, to exempt itself, that customers living in a department where the sales period is not yet open, can only be delivered from its opening according to their place of residence.

Intentional element

In order to protect the consumer but also to prevent the concept of sales from losing its exceptional and occasional nature, the use of the term is limited to operations which correspond to the legal definition. Article L. 310-3, II of the Commercial Code thus stipulates that “in any advertising, corporate name, registered company name or trade name, use of the word sale(s) or derivatives thereof is prohibited to designate any activity, registered company name, trade name, corporate name or feature which does not relate to a sales operation”.

This text reflects the desire of the legislator to limit the activity of professional discounters. These undertakings, whose purpose and main activity are to sell out of fashion, shabby and end-of-series products, came into being following the adoption of Decree No 62-1463 of 26 November 1962, which provided in Article 2, b), that “sales made in the premises or place where they carry out their trade, by professional discounters whose usual activity is, in view of selling them, to buy from traders or manufacturers new goods that are mismatched, out of fashion, shabby or factory seconds” were not subject to prior authorization, normally required to organize sales. Decree No 96-1097 of 16 December 1996, which repealed the 1962 Decree, put an end to this exception. Since then, outside the legal sales periods, any advertising for a destocking operation is prohibited if it mentions the word “sales”. It must therefore be considered that professional discounters must not carry out any advertising or carry out their activities only during the sales periods set out in Article L. 310-3 of the Commercial Code.

The prohibition on the use of the word sales or its derivatives concerns both its permanent use, such as a company name or trade name , as well as its occasional use. It is not possible for a promotional operation to use the word sales if it does not meet the legal definition . The use of the trade name “Palette de solderie” (discount store pallets) to describe an activity which does not relate to a sales operation, where the word “solderie” is derived from the word “soldes” meaning “sales”, constitutes an offense as  referred to in Article L. 310-5 of the Commercial Code .

It was thus held that the promotion of discounted travel does not fall within the definition of sales in the absence of a rapid disposal of stocks of goods in the case of a provision of services . However, the scope of this solution must be mitigated to the extent that the DGCCRF  considers that Article L. 310-3, by referring to goods and not property, does not exclude the provision of services from its scope when they are resold by a trader who has firmly and definitively acquired a specific and non-renewable quantity of these services from a supplier. However, sales that are organized outside the legal periods could also be sanctioned on this basis, as the word “sales” or its derivatives cannot be used to designate an activity which does not relate to sales, but which meets the legal definition.

 CA Angers, 9 November 1993, LawLex200300004204JBJ: in this case, using the word "Le Soldeur" (the discounter) as a store name; CA Limoges, 24 February 1995, LawLex200300001716JBJ: store called "Guerrisold"; CA Paris, 20 May 1996, LawLex200300004196JBJ: store bearing the sign "Miss Soldes".

 CA Grenoble, 29 April 1998, LawLex200300002710JBJ.

 Cass. com., 17 January 2018, LawLex201800000145JBJ.

 TGI Pontoise, 19 May 2004, LawLex200400002197JBJ.

Prohibition of the use of the word "sales"

Article L. 310-3 of the Commercial Code stipulates that “products advertised as discounted must have been offered for sale and paid for at least one month before the start date of the sales period concerned”. Thus, any person engaging in sales must keep at the disposal of the officials authorized to carry out inspections any documents justifying that the goods sold in the sales have been offered sale. When the seller is neither the producer nor its agent, it must also establish that their purchase price has been paid for at least one month on the start date of the sales period concerned . Evidence can be provided by accounting documents and invoices.

The inspections are carried out by DGCCRF officials  who establish reports which, pursuant to Article R. 450-1, paragraph 1, of the Commercial Code, must indicate the nature, date and place of said inspections and be signed by an authorized official and person concerned by the investigations. Should the latter refuse to sign, this must be stated in the minutes. Such mentions are not made under penalty of nullity. According to the criminal chamber of the Court of Cassation, the signing of the minutes by the person criminally responsible is not required under penalty of nullity, but only to enable the accused to make observations when the offense is found . The Limoges Court of Appeal has reviously held that it was a substantial procedural requirement, the absence of which rendered the deed invalid, but not the subsequent procedure .

 Article R. 310-16 of the Commercial Code.

 According to the DGCCRF, during the 2012 sales period (summer and winter), nearly 23,843 control actions were carried out by its agents in approximately 8,286 establishments. These investigations resulted in 479 reports, 2,792 reminders of the regulations and 44 injunctions.

 Cass. crim., 26 September 2001, LawLex200300004210JBJ, upholding CA Pau, 4 April 2001, LawLex200300004416JBJ.

 CA Limoges, 22 February 1995, LawLex200200002691JBJ.

French Consumer Law

323. The constituent elements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

323. The constituent elements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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