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

Until the transposition of Article 6a of Directive No 98/6, it will be possible to choose one of four different methods of determining the reference price provided for in the old Order of 31 December 2008 or use alternative criteria such as those exceptionally tolerated by case law, or even criteria which, until now, were strictly excluded.
Thus, under the 1977 Order, case law seemed to recognize  …

Other methods of determining the reference price

Until the transposition of Article 6a of Directive No 98/6, it will be possible to choose one of four different methods of determining the reference price provided for in the old Order of 31 December 2008 or use alternative criteria such as those exceptionally tolerated by case law, or even criteria which, until now, were strictly excluded.

Thus, under the 1977 Order, case law seemed to recognize the possibility of using other criteria in the area of sales of second-hand cars. The question was raised whether the Argus rating of a vehicle could be assimilated to the reference price. The Court of Cassation declared the order inapplicable to the sale of used goods and considers, in any event, that users could verify the veracity of the elements of the offer by referring to the rating in question, easily accessible and, where appropriate, had the possibility to take action on the grounds of misleading advertising . This decision therefore recognized the existence of an alternative method of determining the reference price, when it came from third parties to the advertiser and was readily available to consumers. 

Another exception to the rules laid down by the 1977 Order was allowed for the benefit of traders who usually engage in bargaining. In this case, the difficulty lay in the fact that the price displayed was not the price usually charged, but was only a basis for negotiation. When a price negotiation is possible, the Court of Cassation considered that the reference price was the minimum price that the sellers were authorized to accept .

In the field of perfume sales, many operators argued that it was possible to determine the reference price by applying a multiplier coefficient of 1.96, which is customary in the trade, to the purchase price before tax. Their attempts have never been successful. Case law has consistently held that such a coefficient, which is in fact unknown to the public, did not make it possible to provide the consumer with satisfactory information and systematically sanctioned advertisers both on the basis of the order and misleading commercial practices . The rules resulting from the Order of 11 March 2015 made it possible to overcome this difficulty: indeed, the advertiser only had to demonstrate the reality of the reference price. It was irrelevant whether the consumer was aware of the practices of the profession, if they were real and could be proven.

Henceforth, under the terms of new Article L. 112-1-1 of the Consumer Code, the lowest price actually charged during the last thirty days constitutes the sole criterion applicable to define the reference price.

 Cass. crim., 10 May 1989, LawLex200300003697JBJ.

 Cass. crim., 11 May 1995, LawLex200300003708JBJ, upholding CA Bordeaux, 31 May 1994, LawLex200300002285JBJ.

 Cass. crim., 24 April 1997, LawLex200300003715JBJ, upholding CA Paris, 21 March 1995, LawLex200300003908JBJ; 5 August 1997, LawLex200300003717JBJ; 17 September 1997, LawLex200300003469JBJ, upholding CA Paris, 30 May 1996, LawLex200300002207JBJ; CA Paris, 10 March 1998, LawLex200300001761JBJ; 18 January 1999, LawLex200300002328JBJ.

French Consumer Law

351. Other methods of determining the reference price

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

351. Other methods of determining the reference price

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise