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 Court of Justice enshrined the power of the national courts to raise of their own motion unfair terms in a contract brought before them , and subsequently to convert this mere option into an actual obligation in the presence of the required elements of law and fact . The solution is based on the need to compensate for inequality between parties to a consumer contract through positive outside i …

Grounds raised ex officio

The Court of Justice enshrined the power of the national courts to raise of their own motion unfair terms in a contract brought before them , and subsequently to convert this mere option into an actual obligation in the presence of the required elements of law and fact . The solution is based on the need to compensate for inequality between parties to a consumer contract through positive outside intervention. Conferring on the national court the duty to raise of its own motion the unfairness of a term may be a deterrent that contributes to putting an end to the use of unfair terms in contracts proposed by professionals. Law No 2008-3 of 3 January 2008 formally included the ex officio principle in the Consumer Code, but in a watered-down version. Article L. 141-4 of the Consumer Code thus provided that “the court may raise of its own motion all the provisions of this code in disputes arising from its application”. The recodification Ordinance of 14 March 2016 and the Decree of 29 June 2016 transferred the provisions of Article L. 141-4 to the regulatory part of the Consumer Code under Article R. 632-1, adding a second paragraph according to which “[the court] shall, of its own motion, after having heard the observations of the parties, set aside the application of a term the unfairness of which is apparent from the elements of the debate”.

After long hesitation, the French court no longer hesitates to play its regulatory role . The Court of Cassation thus requires the trial courts to rule on the unfairness of a clause which places the burden of proof of a fact on the consumer, whereas under ordinary law it should lie with the professional , a clause in a mortgage contract for the revision of the interest rate according to the variation in exchange rates, in order to ensure that the currency risk is not borne exclusively by the borrower  or a clause authorizing the bank to demand immediate payment of the totality of the sums due in the event of an inaccurate declaration by the borrower, since this stipulation may lead one to believe that the bank has discretionary power to assess the importance of the inaccuracy and that the borrower cannot have recourse to the court to contest the validity of the acceleration of the payment deadline  or in the event of non-payment by the due date, without prior formal notice or a reasonable period of notice . 

When a dispute relating to the claim is referred to it, the court responsible for the enforcement of judgments (juge de l'exécution) is also required, even in the presence of a judgment with the force of res judicata on the amount of the claim, to examine ex officio whether the terms included in the contract concluded between the professional and the non-professional or consumer are unfair, unless it is clear from the final and binding decision as a whole that such an examination has been carried out. In response to a request for an opinion on the consequences of the enforcement judge finding an unfair clause to be null and void (unwritten), where the enforcement order, the forcible execution of which is being pursued, is a judicial decision, the Court of Cassation has stated that it follows from the powers of the enforcing court and from EU law and the case law of the Court of Justice that the enforcing court, which deems an unfair term to be unwritten, may neither annul the enforcement order, nor amend it, nor rule on a claim for payment, except in the cases provided for by law; since the enforcement order is deprived of effect to the extent that it applies the unfair term deemed unwritten, the enforcement court must then recalculate the amount of the debt, according to the provisions specific to the enforcement measures referred to it, draw all the consequences of the valuation of this debt on the challenges to the enforcement measures referred to it, and order the release of the measure if it finds that the debtor no longer owes any sum .

Since the court is obliged to establish ex officio whether a contractual term is unfair, the fact that it is invoked for the first time in the appeal proceedings cannot result in the inadmissibility of the claim .  Similarly, the principle of the temporal consolidation of claims does not preclude the national court from examining the unfairness of a contractual term of its own motion . Moreover, even if an association relies on Article L. 442-6 of the Commercial Code to request that a clause in a lease contract be declared unfair, a court of appeal cannot reject its request on the grounds that it does not constitute a commercial partner within the meaning of this text, since pursuant to Article L. 212-1 of the Civil Code, the court is obliged to examine ex officio whether a contractual clause is unfair. 

The implementation of this option implies, however, that the national court has the elements of law and fact necessary to carry out the review . This is the case when the Court of Cassation has criticized a clause submitted for its consideration in an opinion rendered previously .  On the other hand, the court is not obliged to find, ex officio, that a term gives the professional an unequal opportunity if the latter has not made use of it .  Finally a court that has not been seized of any claim relating to a particular term of the contract is not required to raise the question of its unfairness of its own motion .

 See Case C-240/98 Océano Grupo Editorial, Judgment of 27 June 2000, LawLex200700001615JBJ.

 See Case C-243/08 Pannon GSM Zrt., Judgment of 4 June 2009, LawLex200900002359JBJ.

Cass. 1re civ., 31 August 2022, LawLex202200006436JBJ.

Cass. 2e civ., 11 July 2024, LawLex202400005290JBJ.

CA Besançon, 19 June 2018, LawLex201800000970JBJ.

Cass. 1re civ., 22 January 2020, LawLex202000000108JBJ.

Cass. 1re civ., 22 May 2019, LawLex201900000709JBJ.

 First retaining its power to raise the unfairness of a term ex officio, CA Amiens, 29 May 2008, LawLex201300000436JBJ; then the obligation to do so, Cass. 1re civ., 1 October 2014, LawLex201400000981JBJ.

 Cass. 1re civ., 12 May 2016, LawLex201600000987JBJ.

 Cass. civ. 1re, 29 March 2017, LawLex201700000633JBJ and LawLex201700000634JBJ; 16 May 2018, LawLex201800000755JBJ;  12 September 2018, LawLex201800001296JBJ; 10 April 2019, LawLex201900000538JBJ. Cf.CA Dijon, 28 November 2017, LawLex201700002032JBJ: finding that the applicant not having raised the unfairness of the clause before the initial court may not claim that Article L. 311-5 of the Code of Civil Enforcement Procedures, which prohibits him from doing so on appeal, is contrary to the law of the Union, when the latter only guarantees access to the court and not the principle of the right to review by a higher court.

Cass. 1re civ., 10 October 2018, LawLex201800001531JBJ.

Cass. 1re civ., 22 March 2023, LawLex202300004842JBJ.

Cass. 1re civ., 22 March 2023, LawLex202300004842JBJ,

CA Versailles, 6 June 2019, LawLex201900000775JBJ.

Cass., civ. 1re, 2 February 2022, LawLex202200001069JBJ.

French Consumer Law

437. Grounds raised ex officio

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437. Grounds raised ex officio

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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