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

Traditionally, prosecution for violation of the order was based on the provisions of Article R. 113-1 of the Consumer Code, which punishes “by the fine for fifth category infringements the fact of selling, offering for sale or promoting goods, products or services at prices fixed in violation: of the regulatory texts [...] implementing Order No 45-1483 of 30 June 1945 and maintained as a transitional measure by Article 61 of Order No 86-1243 of December 1, 1986 (...)”, i.e. a fine of EUR 1,500 . Since the principle of non-cumulation of penalties was not applicable to minor offenses, as many fines could be imposed as there were offenses, i.e. as many minor offenses as items for which the accused produced no evidence of the practice of the reference price announced , or, when the practice was misleading, as many minor offenses as articles not available in the store  or for which the accused did not indicate the period of validity of the offer . In the case of multi-establishment businesses, the advertiser incurred as many fines as there were infringing establishments . As the text of Article R. 113-1 was not included in Decree No 2016-884 of 29 June 2016, which re-codifies the regulatory part of the Consumer Code, the violation of the regulations governing price reduction announcements has ceased to be punishable by a fine(s).

On the other hand, prosecution could be based on the provisions applicable to unfair commercial practices, to which the Order of 11 March 2015 expressly refers. Under the order, recourse to Article L. 121-2 of the Consumer Code allowed the prosecuting party to escape criticism based on the possible non-compliance of the provision with Union law . Indeed, Article L. 121-2 was very regularly invoked to incriminate price reduction announcements when they were misleading, although they are the subject of specific regulations , whether or not the conditions for its application were met . The courts did not hesitate in using the text to sanction the advertising of permanent discounts  or reductions on artificially increased prices  or fictitious prices . Non-compliance with the requirements of the order was even considered as a factor in assessing the misleading nature of price reduction announcements .

The referral to Article L. 121-2 is henceforth made by Article L. 112-1-1 of the Consumer Code. Where the practice can be characterized as misleading, the advertiser is liable to two years imprisonment and a fine of EUR 300,000, which may be increased, in proportion to the benefits derived from the breach, to 10% of the average annual turnover calculated on the basis of the last three annual turnovers known on the date of the facts, or 50% of the expenditure committed to create the advertisement .

Where the advertiser is the distributor of the product, the imputability of the offense does not give rise to any particular difficulties. However, the situation becomes more complicated when the advertiser is the producer or any other economic agent (central purchasing office, wholesaler, comparison site ), which does not control the prices charged at the final stage of the distribution. The Circular of 7 July 2009 warns such operators against announcements made without the assurance that they will be respected in all points of sale or in the points of sale mentioned in the advertisement . The operator at the head of a distribution network, integrated or not, is free to announce, if it clearly specifies to which products and where the price reductions apply, the price reduction it recommends, when this price is generally and effectively practiced. In this case, the circular stresses that the initiative taken by the advertiser cannot have the effect of subjecting distributors to the obligations of the Order, unless they take up this advertising for their own account .

Finally, even within sales establishments, a delegation of powers duly granted to the head of the department concerned by an advertising operation, from the managing director, exempts the manager of the hypermarket, who only has administrative prerogatives and no hierarchical power over the delegate employee .

Civil action may be brought by professional associations harmed by misleading advertising. Indeed, pursuant to Article L. 2132-1 of the Labor Code, professional associations enjoy a civil personality and derive their right to act under Article L. 2132-3 of the same code. Pursuant to this text, professional associations are entitled to “exercise all rights reserved to civil claimants concerning facts causing direct or indirect harm to the collective interest of the profession they represent”. For the civil action of such an association to be admissible, the object and the interest defended must be expressly set out in detail in its articles of association , so that it can avail itself of direct and personal harm under Article 2 of the Code of Criminal Procedure, which entitles any person who has personally suffered damage caused by the offense to bring a civil action. In the case of price reduction announcements, the damage may consist of harm to the brand image of the products when they are the subject of a selective distribution network , or in discrediting the commercial practices of the profession . A direct competitor of the advertiser can also bring a civil action when the advertiser disseminates misleading advertising on prices that causes it damage . However, the courts have refused to admit the civil action of a distributor in the event of an infringement of the order by its supplier when its violation is not of a nature to cause it direct and personal injury .

 CA Paris, 24 June 1998, LawLex200300004233JBJ; Cass. crim., 24 April 1997, LawLex200300003715JBJ; 6 February 2001, LawLex200300003254JBJ.

 CA Lyon, 3 March 1995, LawLex200300002250JBJ; CA Paris, 30 May 1996, LawLex200300002207JBJ; TGI Paris, 22 March 2001, LawLex200300002457JBJ.

 CA Paris, 19 March 1999, LawLex200300001972JBJ, holding that the misleading nature of an advertisement containing the announcement of a price reduction must be assessed in the light of the reference price defined by the order and not the one resulting from the allocation to the purchase price of an abnormally high multiplier coefficient.

Prior to the Hamon Law of 17 March 2014, the fine was capped at EUR 37,500.

 CA Versailles, 11 February 2009, LawLex201200001377JBJ, considering that a price comparison site cannot claim that the obligations imposed by the Order of 31 December 2008 concern only the commercial sites that it references and not itself.

 The circular allows the advertiser to specify in the advertisement the points of sale excluded from the offer, or, taking account of the space and/or time constraints of the advertising medium, to inform the consumer of the place where he can consult the list of participating stores, for example a website, telephone number, etc.

 Cass. crim., 21 October 1992, LawLex200300003701JBJ, holding that a store manager is liable for the offense, even if he is not the material author of the catalogue announcing price reductions, when he disseminated it knowing that the articles being promoted were not available for sale in his establishment.

 CA Aix-en-Provence, 24 March 1998, LawLex200300004242JBJ.

 T. pol., Rouen  7  November 1996, LawLex200300003910JBJ : the civil action of a trade union, whose statutory purpose is the defense of the moral interests of the profession, is admissible. See also Cass. crim., 28 March 2000, LawLex200300003243JBJ.

 Cass. crim., 24 April 1997, LawLex200300003714JBJ, LawLex200300003715JBJ, LawLex200300003716JBJ; 17 September 1997, LawLex200300003469JBJ.

 See, inter alia, CA Paris, 7 September 1992, LawLex200300001603JBJ; CA Paris, 21 January 1999, LawLex200300002394JBJ.

 Cass. crim., 2 March 1994, LawLex200300003705JBJ; CA Rennes, 3 March 1989, LawLex200300004262JBJ; CA Chambéry, 9 January 1997, LawLex200400000708JBJ; CA Paris, 3 March  1998, LawLex200300003926JBJ;

 CA Pau, 21 October 1992, LawLex200300001726JBJ; T. pol., Rouen, 7 November 1996, cited above; TGI Paris, 22 March 2001, cited above.

 CA Paris, 19 November 1997, LawLex200200000380JBJ.

 CA Paris, 17 September 1991, LawLex200300003897JBJ; 14 September 1993, LawLex200300004335JBJ.

 Cass. crim., 15 April 2008, LawLex201200000999JBJ.

 Cass. crim., 26 June 2012, LawLex201200001972JBJ.

 Cass. crim., 12 January 1994, LawLex200300003704JBJ.

 CA Paris, 30 April 1998, LawLex200300002432JBJ, holding that the inapplicability of the provisions of the order to a price reduction announcement reserved for holders of a charge card, does not exempt it from prosecution under Article L. 121-2 of the Consumer Code.

 CA Paris, 7 February 1996, LawLex200300002313JBJ;  18 January 1999, LawLex200300002328JBJ; Cass. crim., 20 March 2001, LawLex200300004461JBJ.

 CA Paris, 7 September 1992, LawLex200300001603JBJ ; 1February 1994, LawLex200300002246JBJ; CA Dijon, 2 June 1999, LawLex200300003909JBJ; Cass. crim., 13 May 1996, LawLex200300003712JBJ; 1 October 1997, LawLex200300003718JBJ.

353. Criminal sanctions