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

Since Law No 2008-3 of 3 January 2008 for the development of competition serving consumers' interests, which transposed Directive No 2005/29 of 11 May 2005, Article L. 121-1 (now Articles L. 121-2 and L. 121-3) of the Consumer Code, which had hitherto been limited to misleading advertising, prohibits misleading commercial practices, an offense that encompasses and exceeds misleading advertising. U …

Misleading commercial practices

Since Law No 2008-3 of 3 January 2008 for the development of competition serving consumers' interests, which transposed Directive No 2005/29 of 11 May 2005, Article L. 121-1 (now Articles L. 121-2 and L. 121-3) of the Consumer Code, which had hitherto been limited to misleading advertising, prohibits misleading commercial practices, an offense that encompasses and exceeds misleading advertising. Under this provision, a misleading commercial practice is the practice which is based on allegations, indications or presentations that are false or likely to mislead, which relate in particular to the price or price calculation method, promotional nature or scope of the advertiser's commitments, the nature, process or reason for the sale or the provision of services. In other words, whenever it is likely to mislead customers on one of the elements of the text, a sales operation may fall under the prohibition of misleading commercial practices.

Case law is particularly abundant in this area. The Court of Cassation considers that advertising which falsely suggests that the 70% sales practiced in the store are at least quantitatively as important as those at 30 and 50%, is misleading . This is also the case when a reduction announcement presents it as exceptional, although the prices announced are those charged by the advertiser on a permanent basis , or when the advertisement indicates as sale items products whose prices have not changed since the last promotion . The reference to “sales” is also misleading when the reference prices indicated, artificially increased, have never been charged, owing to the practice by the store in question of a policy of systematic discounts , or when the advertiser claims to sell hundreds of articles at cost price, although the promotion actually concerns only a limited number of products and, for some of them, the price shown is higher than the cost price .

The scope of these solutions must be assessed in the light of Directive No 2005/29 of 11 May 2005 on unfair commercial practices. Intended to achieve full harmonization, the text prohibits the adoption by Member States of measures more restrictive than those it defines . On several occasions, the Court of Justice has held that a national provision which generally prohibits price reduction announcements and those which suggest such a reduction in the period preceding the sales period is contrary to the Directive on unfair commercial practices . The national courts will therefore have to establish, on a case-by-case basis, the misleading nature of the sales advertisement, unless the operation characterizes one of the unfair commercial practices per se listed in Annex I of the directive .

Article L. 132-2 (former Article L. 121-6) of the Consumer Code punishes misleading commercial practices by up to two years' imprisonment and a fine of EUR 300,000. The amount of the fine may be increased, in proportion to the benefits derived from the breach, to 10% of the annual average turnover, calculated on the last three turnovers known on the date of the events, or 50% of the expenditure incurred for the advertising or practice constituting the offense.

Individuals found guilty also incur, as additional penalties, as provided for in Article 131-27 of the Criminal Code, the prohibition either to carry out a public function or professional or social activity in the exercise or in the course of the exercise of which the offense was committed, or from exercising a commercial or industrial profession, from directing, administering, managing or controlling in any capacity whatsoever, directly or indirectly, for their own account or on behalf of others, a commercial or industrial undertaking or a commercial company. These prohibitions of exercise, which cannot exceed a period of five years, may be pronounced cumulatively.

Legal entities held criminally liable under the conditions laid down in Article 121-2 of the Criminal Code also incur the penalties provided for in 2° to 9° of Article 131-39 of the Criminal Code  in addition to a fine of EUR 1.5 million.

 Cass. crim., 3 May 2006, LawLex200600001504JBJ.

 CA Paris, 23 September 1998, LawLex200300001800JBJ; 26 April 2000, LawLex200300003252JBJ, upholding CA Rennes, 20 May 1999, LawLex200300002348JBJ.

 CA Pau, 21 October 1992, LawLex200300001726JBJ.

 Cass. crim., 6 March 2001, LawLex200300004458JBJ, upholding CA Grenoble, 17 December 1999, LawLex200300004546JBJ.

 Cass. crim., 17 December 1997, LawLex200300001709JBJ upholding CA Rennes, 31 October 1996, LawLex200300002332JBJ.

 See for example Case C-228/10 Wamo BVBA, Judgment of 30 June 2011, LawLex201200000101JBJ.

 Case C-288/10 Wamo BVBA, Judgment of 30 June 2011, cited above ; Case C-126/11 INNO NV, Judgment of 15 December 2011, not available in English; Case C-13/15 Cdiscount SA, Judgment of 8 September 2015, LawLex201500001102JBJ, holding that subject to its provisions aimed at protecting consumers, the French Decree of 31 December 2008 [now replaced by the Order of 11 March 2015] is contrary to Directive No 2005/29 since it lays down a general prohibition, without a case-by-case assessment of their unfair nature, of price reduction announcements which do not show the reference price when marking or displaying prices.

 In this respect, point 7 of Annex I considers unfair in all circumstances "falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice", a situation which could correspond to a false sales operation, which would also be of a misleading nature.

 The prohibition mentioned in 2°concerns the activity in the exercise or in the course of the exercise of which the offense was committed. The penalties provided in 2° to 7° can be pronounced only for a duration of five years at the most.

French Consumer Law

329. Misleading commercial practices

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329. Misleading commercial practices

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise