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

Like the legislator before it , in order to ensure the conformity of the French regulatory framework with Directive No 2005/29 of 11 May 2005, the Government laid down, as a preamble, in Article 1 of the Order of 11 March 2015, the principle that “any price reduction announcement is lawful provided that it does not constitute an unfair commercial practice within the meaning of Article L. 120-1 (no …

General requirement of fairness

Like the legislator before it , in order to ensure the conformity of the French regulatory framework with Directive No 2005/29 of 11 May 2005, the Government laid down, as a preamble, in Article 1 of the Order of 11 March 2015, the principle that “any price reduction announcement is lawful provided that it does not constitute an unfair commercial practice within the meaning of Article L. 120-1 (now Article L. 121-1) of the Consumer Code and that it complies with the requirements of this Order”. The same criticisms as those faced by the Law of 2011 can be made against the Order of 2015: to correctly transpose the directive, it should have been limited to this provision. However, in Articles 2 to 4, it imposed a series of constraints, which, even if reduced compared to previous provisions, proved difficult to reconcile with the maximum harmonization desired by the European text and thus gave rise to the new regime created by Article L. 112-1-1.

Pursuant to Article L. 121-1 (former Article L. 120-1) of the Consumer Code, price reduction announcements must not be contrary to the requirements of professional diligence or distort or be likely to materially distort the economic behavior of the reasonably well-informed and reasonably observant and circumspect consumer in respect of the good or service concerned. Unfair commercial practices include, in particular, the misleading commercial practices defined in Articles L. 121-2 to L. 121-4 of the same Code (former Articles L. 121-1 and L. 121-1-1). Article 1 of the Order of 11 March  2015 remains without effect on the repression of price reduction announcements, as the Orders of 1977 or 2008 and Article L. 121-2 of the Consumer Code were often the subject of a combined application. Nevertheless, the old Orders differentiated between advertising made outside the places of sale  and that carried out in the places of sale . Taking into account the development of electronic commerce, the Order of 2008 equated advertising on non-commercial sites  with advertising outside places of sale, and that carried out on commercial websites to advertising in places of sale.

In the case of advertising carried out outside places of sale, the lawfulness of the advertisement depends on the presence of a series of information: size of the reduction either in absolute value , or as a percentage ; products or services concerned ; period during which the product or service was offered at a reduced price . The formal requirements were reduced for advertising carried out on places of sale. 

However, as the Order of 11 March 2015 only maintained the rules applicable to advertising carried out in places of sale only refers to advertising carried out “in a commercial establishment”, online sales no longer fall within the scope of the general obligation of fairness. 

Finally, the Order of 11 March 2015 no longer provides for the obligation to provide the goods or services concerned by the advertising at the price it states , nor the prohibition of advertisements for articles or services which are unavailable or which cannot be provided. This disappearance will have no impact, as price reduction announcements fall under Article L. 121-2, which prohibits misleading commercial practices, and in particular misleading claims concerning the availability of the goods or service and the price or method of calculation of the price, the promotional nature of the price and the conditions of sale. Case law handed down under the former Orders therefore retains all its interest. Accordingly, under the 1977 Order, convictions were handed down against announcements of discounts on goods not available in store  or offering products for sale in an insufficient number to meet the demand , maintaining a display announcing price reductions after exhaustion of the available stocks, without showing an erratum , or the use of price comparison sites, which announced on line price reductions on products not available on the sites to which they referred . The Court of Cassation had also originally considered that the availability of the products concerned by a price reduction announcement should be assessed store by store, rather than at the national level . According to the Circular of 7 July 2009, more liberal, the availability of products must be assessed in the light of the inventories held by the advertiser in all its premises and, where appropriate, the premises of the members of its network and its ability to check, at short notice, the availability in each of these stores of the products being advertised. Thus, availability may not be immediate when the advertiser holds the products in places and conditions allowing them to be delivered to the buyer within a reasonable timeframe in view of their nature.

 Law No 2011-525 of 17 May 2011 on the simplification of the law, OJ of 18 May 2011, 8537.

 According to the Circular of 7 July 2009, the terms “advertising outside places of sale” refers to that conducted outside the store, as well as that visible from outside the store, i.e. on the store windows, or in the immediate vicinity, particularly in car parks.

 CA Paris, 17 September 2003, LawLex200400000749JBJ.

 CA Chambéry, 9 January 1997, LawLex200400000708JBJ.

 CA Grenoble, 11 February 2009, LawLex201200001377JBJ.

 Cass. crim., 15 April 2008, LawLex201200000999JBJ.

 Advertising in places of sale was defined as the means of advertising used inside stores, in mail-order catalogues or on electronic sites allowing consumers to purchase items online.

 According to the Circular of 7 July 2009, non-commercial electronic sites covered electronic sites which do not allow consumers to directly order the items concerned online. In addition, advertisements placed online on a commercial site when they concern products only available on another commercial site or in a physical establishment were also assimilated to advertising disseminated on non-commercial sites.

 According to case law, the obligation to indicate the size of the reduction did not imply that to indicate the reference price, CA Douai, 7 February 1990, LawLex200300004263JBJ; CA Colmar, 27 October 2009, LawLex201200000727JBJ.

  Rouen Tribunal de police, 7 November 1996, LawLex200300003910JBJ, declaring unlawful the advertising displayed outside a store, on the windows and on a banner placed across the street, which announced a reduction in VAT on the disc from 18.6 to 5.5%, when the price reduction announced was not specified either in absolute value or as a percentage, but was the result of a complex mathematical calculation, which was not merely a simple subtraction between the two rates. Cf. CA Colmar, 27 October 2009, LawLex201200000727JBJ, holding that discount offers on the price of display items, expressed in variable percentage ranges, are valid.

 Cass. com., 14 February 2012, LawLex201200000743JBJ, upholding CA Colmar, 27 October 2009, LawLex201200000727JBJ, which considers that the distribution of advertising leaflets that announce price reductions without specifying the products or product categories concerned by such an offer, constitutes a manifestly unlawful disorder.

 This indication should be unambiguous, CA Paris, 3 March 1998, LawLex200300003926JBJ; CA Grenoble, 21 October 2010, LawLex201000001367JBJ, for an advertisement displayed on a non-commercial site. Under the Order of 31 December 2008, the indication of this period could, however, be replaced by the start date of the operation accompanied by the size of the quantities offered at the start of the promotion or the words “while stocks last”. In this case, the advertising had to cease when the stocks were exhausted.

 Applied to electronic commerce, these provisions made it possible to sanction, on the basis of the 1977 Order, a price comparison site showing offers that were not updated in real time and price reduction announcements that were inaccurate or no longer offered by the reference retail site, CA Grenoble, 11 February 2009, LawLex201200001377JBJ. However, the 2009 Circular acknowledged that the assessment of availability, for electronic retail sites, should take into account the reasonable period of time necessary for the correction of online data.

 CA Paris, 3 March 1998, LawLex200300003926JBJ; CA Aix-en-Provence, 24 March 1998, LawLex200300004242JBJ.

French Consumer Law

347. General requirement of fairness

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347. General requirement of fairness

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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