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

Before re-codification Ordinance No 2016-301 of 14 March 2016, breaches of the rules on unfair terms were pursued and established under the conditions laid down in Articles L. 450-1, L. 450-3 to L. 450-4, L. 450-7 and L. 450-8 of the Commercial Code, within the exception of the investigation powers of Article L. 450-4 (former Article L. 141-1, II, 4° of the Consumer Code). Until the intervention o …

Administrative sanctions

Before re-codification Ordinance No 2016-301 of 14 March 2016, breaches of the rules on unfair terms were pursued and established under the conditions laid down in Articles L. 450-1, L. 450-3 to L. 450-4, L. 450-7 and L. 450-8 of the Commercial Code, within the exception of the investigation powers of Article L. 450-4 (former Article L. 141-1, II, 4° of the Consumer Code). Until the intervention of the Hamon Law of 17 March 2014, these powers were of little use since the system of repression of unfair terms only provided for civil sanctions. This system strengthened by the Hamon Law with the institution of administrative sanctions is consolidated by the re-codification ordinance: the powers of the Administration's agents are dissociated from the procedures provided for in the Commercial Code, the investigation and establishment of the offenses and breaches referred to in the Consumer Code are not covered by Book V of this code (Article L. 511-1 of the Consumer Code).

The Hamon Law introduced, into current Article L. 241-2 of the Consumer Code, a maximum administrative fine of EUR 3,000 for a natural person and EUR 15,000 for a legal person to sanction the presence of one or more unfair clauses covered by Articles R. 212-1, R. 212-2 and R. 212-5 in consumer contracts. This fine is imposed in accordance with the conditions laid down in Chapter II of Title II of Book V. Articles L. 522-1 et seq. of the Consumer Code therefore provide that the breaches are recorded in minutes, a copy of which is transmitted to the person concerned. Before any decision, the Administration is required to inform him in writing of the sanction envisaged against him, that he can examine the documents of the file and be assisted by a counsel of his choice and invite him to present, within sixty days, his written observations and any oral observations. After this period, it imposes the fine, by reasoned decision.

To increase the effectiveness of the injunction procedure of former Article L. 141-1 of the Consumer Code , the Law of 17 March 2014 amended the text to allow the Administration, after an adversarial procedure, to require any professional, giving it a reasonably period of time, to cease any unlawful act or to abolish any illegal or prohibited clause . It has thus been held that in the presence of unfair terms in a lease agreement, the Director of the department for undertakings, competition, consumer affairs, labor and employment may require the landlord to remove the provisions concerned from all standard form lease agreements and to refrain from attempting to impose them on current tenants . If the professional fails to comply with the injunction within the prescribed time, the administrative authority may impose an administrative fine of up to EUR 1,500 for a natural person and EUR 7,500 for a legal person. These provisions were re-codified in Articles L. 521-1 et seq. by the Ordinance of 14 March 2016. To increase the coercive nature of the injunction, Article L. 521-2 stipulates that it may be subject to a publication measure, at the professional's expense.

Finally, Articles L. 524-1 et seq. of the Consumer Code allows the administrative authority to apply to the civil or administrative court itself, to order, if appropriate subject to a penalty payment, the removal of an unlawful, prohibited or unfair clause inserted by a professional in any contract or type of contract, currently ongoing or not, proposed or intended for the consumer or non-professional, to declare that this clause is deemed unwritten  in all identical contracts concluded by the same professional with consumers or non-professionals and to order it to inform the consumers or non-professionals concerned, by any appropriate means, and at its expense. The Administration is not competent to demand the withdrawal of clauses proposed not to consumers, but to an association of property co-owners, a legal entity not able to claim the status of consumer .

Directive No 2019-2161 of 27 November 2019, which aims to strengthen consumer protection by introducing dissuasive sanctions, has brought significant amendments to Directive No 93-13, which will require adaptations to French law. A new Article 8b is inserted into Directive No 93/13, which leaves Member States free to determine the penalties applicable, provided that they are effective, proportionate and dissuasive. These penalties will be in addition to the “deemed unwritten” mechanism, which until now has been the only one applicable. Member States may limit its application to terms expressly defined as unfair in all circumstances by national law (in France Article R. 212-1 Consumer Code) or to professionals who continue to use terms deemed unfair by a final decision. In particular, Directive No 2019/2161 provides for an extremely high fine corresponding to at least 4% of the seller or supplier's annual turnover in the Member State(s) concerned for widespread infringements within the meaning of Directive No 2017/2394. In the absence of available information on annual turnover, the trader is liable to a fine of up to at least EUR 2 million (Article 1, points 4 and 5). Member States retain the option of introducing even heavier penalties.

Recital 14 of Directive No 2019/2161 provides that administrative authorities or national courts could impose penalties when establishing the unfair character of contractual terms, including on the basis of legal proceedings initiated by an administrative authority. Member States can decide that administrative authorities also have the right to establish the unfair character of contractual terms. The administrative authorities or national courts could also impose a penalty through the same decision by which unfairness of contractual terms is established. On these last points, French law  already appears to be in line with the objectives of the Union legislature.

The transposition ordinance No 2021-1734 amended Article L. 242-1 of the Consumer Code, not only to increase the upper limit of the sanction from EUR 3,000 to 15,000 for natural persons and from EUR 15,000 to 75,000 for legal persons, but also to stipulate that when the administrative fine is imposed following a request for mutual assistance provided for in Article L. 511-10 relating to a large-scale infringement, including EU-wide, its amount may be increased to 4% of average annual turnover . 

 This procedure was never used with respect to unfair terms.

 On 9 February 2016, the DGCCRF issued a press release in which it referred to the injunction on Facebook Ireland Ltd and Facebook Payments International Ltd to remove or amend a number of contractual terms it considered unfair vis-à-vis non-professional users of the social network. The DGCCRF indicated that the compliance measures must be carried out within sixty days, without prejudice to the remedies available to offenders to challenge this measure.

 CAA Bordeaux, 23 August 2016, LawLex201600001404JBJ.

CA Paris, 12 October 2018, LawLex201800001505JBJ, stressing that the departmental director of the protection of populations can ask the court to declare unwritten clauses in contracts concluded before the entry into force of the Hamon law but which take effect after it.

 CA Paris, 14 September 2016, LawLex201600001507JBJ, LawLex201600001508JBJ, and LawLex201600001509JBJ.

However, it may not exceed EUR 2 million if the information needed to calculate the amount on the basis of turnover is unavailable.

French Consumer Law

439. Administrative sanctions

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439. Administrative sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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