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 Civil Code recognizes contractual freedom based on the parties' contractual autonomy. Accordingly, agreements must be negotiated, formed and executed in good faith (Article 1104 of the Civil Code) and, as long as they are legally constituted, they have binding legal force for the parties (Article 1103 of the Civil Code), and the courts are required to apply them as such. Harmony in legal relations does not take into account the balance of economic power and the legislator soon intervened to protect the weaker party in the contractual relationship. The measures adopted with a view to protecting consumers are based largely on the principle of good faith and contractual fairness laid down in Article 1104. The regulation on unfair terms illustrates this in an exemplary manner. Similarly, Union law requires the national courts to assess the existence of a contractual imbalance with regard to the concepts of good faith, equity and contractual fairness .

The repression of unfair terms was introduced in French law  by Law No 78-23 of 10 January 1978 , known as the Scrivener Law, to remedy the shortcomings of civil legislation in the field of consumer protection and to combat the pitfalls of the standard form contracts proposed by some professionals. Article 35 of the Law thus stipulated that decrees adopted in Council of State after consulting the Commission on Unfair Terms could prohibit, restrict or regulate “in contracts concluded between professionals and non-professionals or consumers”, clauses which “appear to be imposed on non-professionals or consumers by an abuse of the economic power of the other party and give the latter an undue advantage”. The clauses in question had to relate to the determined or determinable nature of the price and to its payment, the consistency of the goods or their delivery, the burden of risk, the extent of the responsibilities and guarantees, the conditions of performance, termination, cancellation or renewal of agreements. Only one decree, dated 24 March 1978, was adopted . It declared that four types of clauses were expressly unfair: i) clauses whose purpose or effect is to attest to the agreement by the non-professional or consumer to contractual stipulations not contained in the written deed they have signed ; ii) clauses whose purpose or effect is to remove or reduce the right to compensation of the non-professional or consumer in the event of a breach by the professional of any of its obligations; iii) clauses whose purpose or effect reserves to the professional the right to unilaterally modify the characteristics of the good to be delivered or service to be rendered ; iv) contractual guarantee clauses which do not clearly mention that, in any event, the legal guarantee against defects or latent defects of the thing sold or service rendered is applicable. Under this mechanism, the court could, in principle, only sanction stipulations expressly covered by the decree. Nevertheless, in a noteworthy judgment, the Court of Cassation departed from the reference to the decree and declared its own autonomous power to characterize the unfair nature of terms even in cases not provided for by the regulatory power . The Law of 26 July 1993 subsequently codified the provisions of Article 35 in Articles L. 132-1 to L. 132-5 of the Consumer Code (current Articles L. 212-1 et seq.) .

At the same time, the Union legislator adopted, on 5 April 1993, Directive No 93/13 , whose objective is twofold: to protect the consumer and to avoid any distortion of competition between sellers or service providers when marketing their products or services in other Member States. By allowing Member States to adopt or maintain stricter provisions aimed at ensuring a higher level of consumer protection, the text only achieves minimal harmonization. Article 3 of the directive contains a definition of the unfair term different from that adopted at the time by French law. An unfair term is “a contractual term which has not been individually negotiated [...] if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract” The annex contains an indicative list of clauses which may be declared unfair. France transposed the directive with Law No 95-96 of 1 February 1995 , then Ordinance No 2001-741 of 23 August 2001 . The 1995 Law transposed the definition of Union law into Article L. 132-1 of the Consumer Code (current Article L. 212-1), and faithfully reproduces the annex to the directive.

Law No 2008-776 of 4 August 2008, known as the LME Law , also amended Article L. 132-1 and repealed the list of clauses annexed to that article, giving the regulatory authority the task of drawing up a new list. It has also introduced into the Commercial Code the sanction of unfair terms in relations between professionals. Decree No 2009-302 of 18 March 2009 , implementing the LME Law, defined a “black” and a “gray” list of terms deemed to be irrefutably or refutably unfair, codified in Articles R. 212-1 and R. 212-2 (former Articles R. 132-1 and R. 132-2) of the Consumer Code.

With a view to simplifying and harmonizing the applicable rules, the Government adopted Ordinance No 2016-301 of 14 March 2016, which is supposed to “improve the legal coherence of legal provisions, to the benefit of users”, which makes a recodification “on the basis of established law” of the Consumer Code. This “new” code came into force on 1 July 2016. However, careful reading of the text reveals significant changes. Thus, Article L. 212-1, which replaces Article L. 132-1, no longer mentions non-professionals and thus appears to be in line with EU law. In reality, this is not the case, since the new Article L. 212-2 declares the provisions of Article L. 212-1 applicable to contracts concluded between professionals and non-professionals. The same applies to the new Articles R. 212-1 and R. 212-2, resulting from Decree No 2016-884 of 29 June 2016: they repeat the provisions of former Articles R. 131-1 and R. 132-2 no longer referring to non-professionals, although the latter are reintegrated into the system by Article R. 212-5. For the rest, the provisions of former Article L. 132-1 remain, but are ordered differently.

The draft directive of 8 October 2008, which resulted in Directive No 2011/83 of 25 October 2011 , originally intended to strengthen the degree of harmonization of Union rules on unfair terms. In the absence of agreement between the Member States, unfair terms were removed from the final text. The proposal for a regulation on the common European sales Law , which is currently being reviewed, which would set out a supplementary and non-mandatory contractual framework, is once again attempting to revise the regulatory framework for unfair terms. Like French law, it provides for a black list and a gray list of clauses deemed unfair. However, European legislation has recently been adopted on unfair terms: Directive No 2019/2161 of 27 November 2019, which aims to guarantee the effectiveness of the consumer protection rules by strengthening the dissuasive nature of the applicable penalties . A new Article 8b is added to Directive No 93/13 which leaves Member States free to determine the system of penalties applicable, provided that they are effective, proportionate and dissuasive  . The penalty, which may take the form of a fine, comes therefore in addition to the “deemed unwritten” mechanism, which was the only one applicable until now. In compliance with EU law, Ordinance No 2021-1734 of 22 December 2021 increased the amount of the administrative fine set out in Article L. 241-2 from EUR 3,000 to EUR 15,000 for a natural person and from EUR 15,000 to EUR 75,000 for a legal person, and in the event of a large-scale infringement may be increased to 4% of annual turnover, up to a maximum of EUR 2 million, and introduced a civil fine in the event of a repeat infringement and a large-scale infringement (new Article L. 241-1-1).

 Finally, in France, Ordinance No 2016-131 of 10 February 2016 reforming contract law included the fight against unfair terms in the Civil Code . The repression of unfair terms will therefore now concern all standard form contracts, and not only those concluded between non-professionals or consumers and professionals. The introduction of the concept of unfair terms in the Civil Code raises the question of the coexistence of the various rules. Indeed, the creation of a significant imbalance is punished by the Consumer Code when it concerns a consumer or non-professional who contracts with a professional and is punished by the Commercial Code in contractual relations between professionals . This multiplication of rules risks undermining the predictability necessary for business life and goes against the requirements of flexibility in economic life and the evolution of foreign laws. 

 Case C-415/11 Aziz v Caixa d'Estalvis de Catalunya, Judgment of 14 March 2013, LawLex201300000362JBJ, in order to determine whether the significant imbalance is created "in spite of the good faith requirement", the national court must verify whether the trader, in fair and equitable dealings with the consumer, could reasonably expect that he accepts the clause as a result of individual negotiation.

 After the United States in 1962, Sweden in 1971, the United Kingdom in 1973, Denmark in 1974 and the Federal Republic of Germany in 1976.

 Ordinance 2001-741 of 23 August 2001 transposing Community directives and adaptation to Community law in the field of consumer law, OJ of 25 August 2001, 13645.

 Law No 2008-776 of 4 August 2008 on the modernization of the economy, OJ of 5 August 2008, 12471.

 Decree No 2009-302 of 18 March 2009 implementing Article L. 132-1 of the Consumer Code, OJ of 20 March 2009, 5030.

 Directive No 2011/83 of 25 October 2011 on consumer rights, OJEU L 304 of 22 November 2011, 64

 COM (2011) 635, final, of 11 October 2011.

Directive No 2019/2161 of 27 November 2019 amending Council Directive No 93/13/EEC of the European Directives 98/6/EC, 2005/29/EC and 2011/83-EU of the European Parliament and the Council with regard to better implementation and modernization of EU consumer protection rules, OJEU L 328, 18 December 2019, 7.

Member States may restrict the application of these sanctions to situations where such terms are expressly defined as unfair in all circumstances by national law (in France Article R.212-1 of the Consumer Code.) or to professionals who continue to use contractual terms found to be unfair in a final decision.

 Thus, Article 1170 provides that "any clause which deprives the essential obligation of the debtor of its substance, is deemed to be unwritten". Article 1171 adds that "in a contract of accession, any clause which creates a significant imbalance between the rights and obligations of the parties to the contract is deemed to be unwritten". 

 Article L. 442-6, I, 2º punishes the submission or attempting to submit a commercial partner to obligations creating a significant imbalance in the rights and obligations of the parties.

 Law No 78-23 of 10 January 1978 known as the Scrivener Law on the protection and information of consumers of products and services, OJ of 11 January  1978, 301.

 Decree No 78-464 of March 24, 1978, OJ of 1 April 1978, 1412.

  However, this article of the decree was annulled by the Council of State because of its excessive generality in a decision of 3 December 1980, LawLex201600000002JBJ.

 The text, however, reserved the right to make changes related to technical developments, provided that it does not lead to any price increase or alteration of quality and that the non-professional or consumer has the possibility of mentioning the characteristics to which it subjects his commitment.

 Cass. 1re civ., 14 May 1991, LawLex200300001213JBJ.

 Law No 93-949 of 26 July 1993 on the Consumer Code, OJ of 27 July, 1993, 10538.

 Directive No 93/13 of 5 April 1993, on unfair terms in contracts concluded with consumers, OJ L 95 of 29 April 1993.

 Law No 95-96 of 1 February 1995 on unfair terms and the presentation of contracts and governing various economic and commercial activities, OJ of 2 February 1995, 1755.

402. Legal mechanism