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

The closing-down sale in violation of the legal requirements constitutes a fault likely to cause damage to competitors, whose compensation can be obtained according to two different legal remedies.
The civil action can be brought by a professional and inter-professional body. Professional associations enjoy civil personality pursuant to Article L. 2132-3 of the Labor Code and derive their right to …

Civil sanction

Under Article L. 310-5, 1° of the Commercial Code, closing-down sales carried out without a prior declaration or in breach of the applicable legal provisions are punishable by a criminal fine of EUR 15,000 . Natural persons also incur the additional penalty of display or dissemination of the decision pronounced under the conditions laid down in Article 131-35 of the Criminal  Code.

Legal entities can also be held criminally liable in case of an unlawful closing-down sale. In this case, they incur a fine of EUR 75,000 , and the display or dissemination of the conviction decision, under the conditions laid down in 9° of Article 131-39 of the Criminal Code.

The conviction of the manager in his personal capacity does not prevent that of the company he represents, even in the absence of facts distinct from those alleged against its representative . Similarly, the actions of the legal representative of the legal entity, committed on its behalf, may be attributed to the company itself and incur its criminal liability .

In addition, natural and legal persons may be held liable for the fifth-category infringements of Article R. 310-19 of the Commercial Code for not having displayed the receipt of declaration under the conditions laid down in Article R. 310-4 of the Commercial Code  or not having mentioned, in any advertising relating to a closing-down sale, the information required by Article R. 310-7 . In this case, the administrative authority responsible for competition and consumer affairs may settle with the perpetrator(s) of the offense, as long as the public prosecution has not been set in motion and with the consent of the public prosecutor .

As non-intentional offenses have virtually disappeared from the Criminal Code , the question of whether the intentional element must exist no longer arises. It is necessarily constituted by the fact of not having performed the prior declaration formalities or having breached the obligations laid down in Article L. 310-1.

In 2010, the Court of Cassation, complying with the principle of strict interpretation of criminal law, refused to apply Article L. 121-15 (now Article L. 121-22) of the Consumer Code sanctioning advertisements relating to an unauthorized commercial operation or to an undeclared closing-down sale . The cumulation of the offenses of undeclared closing-down sale and unlawful advertising of this operation, admitted when closing-down sales were subject to authorization , is not excluded, as the legislator amended this Article, by Law No 2014-1545 of 20 December 2014, to prohibit any advertising for an operation “subject to authorization or declaration under […] Articles L. 310-1 to L. 310-4”.

Finally, the supplier's liability cannot be sought for complicity in an unlawful closing-down sale when it was unaware that its affiliate was going to resell the products supplied in breach of the prefectural authorization granted to it .

  Article L. 310-5 of the Commercial Code.

 Article 131-38 of the 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 offense."

 CA Paris, 31 May 2012, LawLex201200001240JBJ.

  CA Lyon, 3 June 1998, LawLex200400001489JBJ.

CA , 5 May 1999, LawLex200300001757JBJ; CA Paris, 3 April 2007, LawLex201200001348JBJ.

 "The receipt of the declaration shall be displayed on the place of the closing-down sale by the declarant throughout its duration"; the Order of 14 January 2009 specifies that this display must be legible from the public thoroughfare.

  "Advertising relating to a closing-down sale can only relate to the products listed in the inventory provided in the annex to the prior declaration", in the event that the closing-down sale concerns only part of the stock, the advertising must mention this, indicating the nature of the goods that are the subject of the operation.

 Article L. 310-6-1 of the Commercial Code.

  Article 121-3 of the Criminal Code as amended by Article 1 of Law No 2000-647 of 10 July 2000 provides: "There is no crime or offense without the intention of committing it. However, when the law so provides, an offense exists in the case of deliberately endangering another person. An offense also exists, when the law so provides, in case of reckless misconduct, negligence or breach of an obligation of caution or safety provided by the law or regulations, if it is established that the perpetrator has not performed the normal procedures taking into account, where appropriate, the nature of his mission or tasks, his skills and the authority and means he disposes of. In the case as referred to in the above paragraph, natural persons who have not directly contributed to causing the damage, but who have created or contributed to creating the situation which allowed the damage to happen, who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have breached a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or have committed a characterized fault which exposed another person to a particularly serious risk of which they must have been aware. There is no minor offense in the event of force majeure.

  Cass. crim., 3 November 2010, LawLex201200001245JBJ.

  See under the regime of prior authorization, Cass. crim., 25 January 2005, LawLex200500004451JBJ: the applicant has no grounds to criticize the court of appeal for having convicted him for the same acts under several criminal qualifications - with different constituent elements and no incompatibility between them - when in accordance with Article 132-3 of the Criminal Code, only one sentence was imposed.

Criminal sanction

The closing-down sale in violation of the legal requirements constitutes a fault likely to cause damage to competitors, whose compensation can be obtained according to two different legal remedies.

The civil action can be brought by a professional and inter-professional body. Professional associations enjoy civil personality pursuant to Article L. 2132-3 of the Labor Code and derive their right to act under Article 2132-3 of the same code, under which they are entitled to “exercise all the rights reserved for the civil party in respect of acts directly or indirectly harming the collective interest of the profession they represent”, which can either be material or moral. A professional association is entitled to take action against the organizer of an unlawful closing-down sale, when it harms the collective interests of the profession . The damage may be direct or indirect . The harm to the image of the profession represented constitutes an injury justifying the award of damages .

A trader who is the victim of an unlawful closing-down sale can also act on the grounds of unfair competition, which makes it possible to punish behavior contrary to the regulations, which disrupts the market. Indeed, holding an undeclared closing-down sale or selling goods during this sale which are not part of the inventory gives the person who has failed to comply with the regulations a competitive advantage .

 CA Angers, 1 March 1996, LawLex200300001747JBJ: conducting a stock replenishment to sell jewelry acquired within the framework of a closing-down sale, and to fix the date of this sale, to the detriment of the rules of commercial fairness, immediately before the Christmas period, traditionally favorable in this sector of activity, harms the collective interests of the profession whose defense is entrusted to the trade unions.

 CA Paris, 3 April 2007, LawLex201200001348JBJ.

 Cass. crim., 25 January 2005, LawLex200500004451JBJ: the acts committed by the accused altered the image of jewelers and infringed competition.

French Consumer Law

337. Civil sanction

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337. Civil sanction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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