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French Consumer Law

Directive No 93/13 of 4 April 1993 expressly excludes from its scope contractual clauses which reflect mandatory legislative or regulatory provisions . The transposition law of 1 February 1995 did not include this exclusion, since the directive is only of minimum harmonization. The question has therefore arisen of the applicability of the rules of unfair terms to contracts between private undertak …

Regulated contract

Directive No 93/13 of 4 April 1993 expressly excludes from its scope contractual clauses which reflect mandatory legislative or regulatory provisions . The transposition law of 1 February 1995 did not include this exclusion, since the directive is only of minimum harmonization. The question has therefore arisen of the applicability of the rules of unfair terms to contracts between private undertakings operating the public water service, the content of which is defined in the regulations adopted by the local authorities and users. The Court of Cassation, putting an end to the hesitations of the trial courts , held that these contracts were of a regulatory nature falling under the jurisdiction of the administrative court pursuant to the principle of separation of powers .

Subsequently, the Council of State clearly ruled not only in favor of the jurisdiction of the administrative court but also of the applicability of Article L. 212-1 of the Consumer Code, provided that the particular characteristics of the public service are taken into account . In this case, the regulation of the water distribution service contained a limitation of liability clause which made users bear the consequences of damage not necessarily attributable to them. According to the Council of State, such a clause was a source of significant imbalance and could not be justified by the particular characteristics of the public service and was therefore unfair and unlawful. On the other hand, more recently, an administrative court of appeal held that, when assessed in light of all the stipulations of the contract and the particular characteristics of the service, a clause in a public drinking water service regulation under which the consumption for the common areas of a building corresponds to the difference between total consumption for the common areas of the building and total individual consumption is not unfair within the meaning of Article L. 212-1 .

 Directive No 93/13 of 5 April 1993, Article 1 (2).

 TGI Mâcon, 25 February 1991, LawLex200300001252JBJ, finding for the jurisdiction of the ordinary courts, reversed by CA Dijon, 2 July 1992, LawLex200300001235JBJ. See also, TI Belfort, 5 March 1992, LawLex200400000416JBJ.

 See Cass. 1re civ., 31 May 1988, LawLex200300001211JBJ; 22 November 1994, LawLex200300001219JBJ. See also, CA Montpellier, 4 September 2001, LawLex200400001577JBJ. Cf., concerning contracts concluded between a public industrial and commercial undertaking (EPIC) and users, in favor of the jurisdiction of the ordinary court, TGI Angers, 11 March 1986, LawLex200300001251JBJ, upheld by CA Angers, 16 December 1987, LawLex200300001233JBJ.

 See Cons. d'Ét., 11 July 2001, LawLex200400000446JBJ. See also Cons. d'Ét., 29 June 1994, LawLex200300001250JBJ, which, without citing Article L. 132-1, verified whether the regulations of a water distribution service contained any clauses of a nature to confer an excessive advantage on the service provider.

CAA Douai, 22 October 2019, LawLex201900001289JBJ.

French Consumer Law

407. Regulated contract

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407. Regulated contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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