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

This criterion, enshrined in new Article 6a of Directive No 98/6, incorporated into Directive No 2019/2161, and transposed in Article L. 112-1-1 of the Consumer Code by Ordinance No 2021-1734, has become the sole criterion for defining the reference price since 28 May 2022.
Previously, traders typically retained as the reference price the lowest price actually charged in the last thirty days. Unde …

Lowest price effectively charged in last thirty days

This criterion, enshrined in new Article 6a of Directive No 98/6, incorporated into Directive No 2019/2161, and transposed in Article L. 112-1-1 of the Consumer Code by Ordinance No 2021-1734, has become the sole criterion for defining the reference price since 28 May 2022.

Previously, traders typically retained as the reference price the lowest price actually charged in the last thirty days. Under the Order of 11 March 2015, this price could always be adopted as a reference price because, in view of the abundant case law it had generated and the valuable guidance provided by the Circular of 7 July 2009 implementing the Order of 31 December 2008, it offered the greatest legal certainty.

The 2009 circular defined the lowest price actually charged as the one charged to current customers, which excludes discounts granted exceptionally to a small number of customers, those subject to the purchase of several products in the same establishment, or the benefits associated with special conditions such as the recovery of used appliances. When the trader has adopted an introductory price policy for new products, it is this price and not the final price of the products in question which must be taken into consideration to determine the reference price . The reference price refers to the price of a product or service similar to those advertised. According to the circular, the concept of similar products or services covers not only strictly identical items or services but also items or services which differ from the item sold only by minor variations (slightly different name or presentation), without any real change in the design, use or intrinsic qualities of the product.

The circular provided an exception to the thirty-day rule for “uncommon sales items not displayed in stores or in the catalog at the disposal of buyers in the store": in this case, the advertiser can retain as a reference the last price charged or marked, "without limitation of time”. More recently, the Court of Cassation has held that articles from old collections, kept in storage and which have not been offered for sale in the thirty-day period preceding the operation, did not constitute uncommon sales articles within the meaning of the circular . From now on, these derogating rules no longer apply. Article L.112-1 now provides for only two exceptions to the 30-day rule: different rules may be adopted for goods which are likely to deteriorate or expire rapidly and a shorter period may be defined where the product has been on the market for less than 30 days.

The place where the lowest price is actually charged is the advertiser's principal place of business and not other stores of the group  or previous sales on temporary premises . According to the 2009 circular, an operator who operates both a store and a distance selling site may use the lowest price charged in the store in the last thirty days to announce a price reduction on its distance selling site, and vice versa. The fact that an item has not been sold previously on the distance selling site but only in the physical establishment does not prevent the operator from announcing a price reduction on its distance selling site.

The price indicated must be what the professional has actually charged and must not be overvalued. Also, the advertiser commits an offense when it artificially increases the reference price before the dissemination of the advertising . Such a practice is also a misleading commercial practice . Similarly, the reference price must not be fictitious. The price is fictitious when the advertiser has never charged it in its store  or on its website , when the price announced as discounted has not changed since the previous promotion  or when the announcement relates to products which have never been offered for sale . Finally, the operator who practices a policy of permanent and systematic discounts cannot, by assumption, refer to the price charged during the thirty days preceding its announcement. Thus, abundant case law considered that the announcement of discounts without interruption during long periods (from several months to several years) fell under Article L. 121-2  of the Consumer Code on misleading commercial practices .

 See CA Rouen, 26 March 1997, LawLex200300003911JBJ, upholding T.pol. Rouen, 7 November 1996, LawLex200300003910JBJ.

 Cass. crim., 1 December 2009, LawLex201200000998JBJ.

 CA Rennes, 16 November 1992, LawLex200400000030JBJ; Cass. crim., 24 April 1997, LawLex200300003714JBJ, an advertisement which presents the usual prices charged by the advertiser as exceptional offers is misleading; Cass. crim., 5 August 1997, LawLex200300003717JBJ, declaring misleading an advertisement announcing reductions as limited in time, although they are permanent; Cass. crim., 17 September 1997, LawLex200300003469JBJ; Cass. crim., 6 March 2001, LawLex200300004458JBJ: the mention "sales" is misleading when the reference prices indicated have never been applied, as the store in question practices a systematic discount policy; Cass. crim., 31 October 2006, LawLex200600002348JBJ, reductions announced without interruption for two years.

 CA Paris, 24 June 1998, LawLex200300004233JBJ.

 CA Limoges, 6 April 1994 LawLex200300004238JBJ, reversing the decision of the trial judges who, to convict the advertiser, considered that it was applying, during discount periods, higher prices than those offered during the sales on temporary premises carried out during the reference period, as sales on temporary premises are occasional operations and take place in spaces or premises not normally intended for trade.

 CA Paris, 14 September 1993, LawLex200300004335JBJ; CA Paris, 11 June 1999, LawLex200400000021JBJ.

 See CA Paris, 1 February 1994, LawLex200300002246JBJ; CA Dijon, 2 June 1999, LawLex200300003909JBJ; CA Aix-en- Provence, 23 February 1999, LawLex200300004244JBJ; Cass. crim., 1 October 1997, LawLex200300003718JBJ.  

 See Cass. crim., 6 February 2001, LawLex200300003254JBJ, upholding CA Grenoble, 19 January 2000, LawLex200300003755JBJ; TGI Paris, 22 March 2001, LawLex200300002457JBJ. In addition, the advertiser cannot avail himself of prices charged not by himself, but by large stores, TGI Paris, 20 January 1997, LawLex200300002358JBJ.

 CA Lyon, 2 October 2009, LawLex201200000997JBJ, concerning a company operating only on line.

 CA Pau, 21 October 1992, LawLex200300001726JBJ.

 Cass. crim., 21 March 2000, LawLex200300003243JBJ, upholding CA Paris, 21 January 1999, LawLex200300002394JBJ.

French Consumer Law

349. Lowest price effectively charged in last thirty days

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349. Lowest price effectively charged in last thirty days

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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