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

Under Directive No 2011/83, reiterated in Article L. 221-1 of the Consumer Code, a distance contract is “any contract concluded between the trader and the consumer under an organized distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time  …

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Under Directive No 2011/83, reiterated in Article L. 221-1 of the Consumer Code, a distance contract is “any contract concluded between the trader and the consumer under an organized distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded”. The text makes its application subject to various conditions.

First, the contract must be concluded without the simultaneous presence of the parties . Thus, a sale concluded on the stand of a fair, in the presence of the parties, does not constitute a distance sale . Where the payment and delivery of goods takes place at a physical meeting between the parties, the sale is deemed to have been formed at this meeting and is exempt from the regulations governing distance selling, even if the parties came into contact via a website dedicated to putting sellers and buyers into contact . On the other hand, a contract concluded by post is subject to the regulations on distance sales, and not door-to-door sales . The requirement to pay a fee online to become a member of an association is also a distance contract .

Secondly, the sale of the goods or the provision of services must take place between a professional and a consumer. Directive No 2011/83 defines the consumer as “any natural person who [...] is acting for purposes which are outside his trade, business, craft or profession” and the trader as “any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession” . Article 1 of the Consumer Code reproduces the terms of the directive adding added agricultural activities to the definition . Sales between individuals are thus excluded from the scope of both the directive and Article L. 221-1 . Similarly, the lease contract concluded by a trade union of railway workers for the needs of its professional activity does not give rise to the right of withdrawal, since the trade union cannot be assimilated to a consumer . It also applies to an association which in spite of its non-profit aim and the fact that it is not subject to VAT or corporation tax, when it offers services to its members for a fee . On the other hand, under the previous version of the text, the Court of Cassation held that the regulations on distance sales applied in the absence of a direct relationship between the contract in question and the professional activity, even future, of the buyer . This solution retains its scope, since the concept of “direct relationship” remains close to that of purposes within or outside the scope of a commercial, industrial, craft, liberal or agricultural activity referred to in the preliminary article of the Consumer Code.

The sale must take place within the framework of an organized system of selling or providing services at a distance, which seems de facto to exclude not only sales between individuals but also one-off sales made by a professional, such as those made exceptionally by a craftsman. Directive No 2002/65 on the distance marketing of financial services of 23 September 2002 negatively defines the “organized system” as excluding “services provided on a strictly occasional basis and outside a commercial structure dedicated to the conclusion of distance contracts” . Recital 20 of Directive No 2011/83 adds that the concept of an organized system covers those proposed by a third party other than the professional but used by the latter, such as an on-line platform. However, it does not concern the website which merely provides information on the professional, its goods and/or services and its contact details. According to the Court of Cassation, contracts concluded in the absence of an organized system of distance sales or services, even without the simultaneous physical presence of the two parties and through the exclusive use of distance communication techniques, cannot be classified as distance contracts within the meaning of Article L. 221-1 of the Consumer Code. 

Finally, the professional must exclusively use one or more remote communication techniques. Under the Order of 3 December 1987, on consumer information on prices, last amended by the Order of 4 July 2014, a remote communication technique is “any technique enabling the consumer, outside the usual places of reception of customers, to order a product or request the performance of a service. Remote communication techniques include, in particular, telematics, telephone, videotransmission, post and the distribution of printed material” . The solicitation of the consumer through various remote communication methods must not, however, be excessive. In addition to the prohibition of aggressive commercial practices , the legislator has adopted provisions that are more specifically protective of users. Article L. 34-5 of the Postal and Telecommunications Code, to which Article L. 223-7 of the Consumer Code refers, thus prohibits direct prospecting by means of an automated call or communication device, a fax machine or emails using the contact details of a natural person, a subscriber or user, who has not previously expressed his consent to receive prospecting by this means . 

 CA Lyon, 17 March 2016, LawLex201600000690JBJ.

 CA Paris, 21 January 2011, LawLex201200001385JBJ.

 Cass. 1re civ., 1 October 2014, LawLex201400001254JBJ. See also, excluding the applicability of the text in the presence of a direct relationship between the contract and the professional activity of its subscriber, CA Lyon, 17 March 2016, LawLex201600000690JBJ, cited above

 OJEC L 271 of 9 October 2002, 16, recital 18.

Cass. 1re civ. 31 August 2022, (LawLex not available in English).

 Recital 20 of Directive No 2011-83 mentions sales by mail order, Internet, telephone or fax. - See also Directive 2007/64 of 13 November 2007, on payment services which defines remote communication as any means which may be used to conclude a contract without the simultaneous physical presence of the service provider and the user.

 Under Article L. 121-6 (former Article L. 122-11) of the Consumer Code, the commercial practice which uses repeated and insistent solicitations to alter the consumer's freedom of choice or vitiate his consent is deemed aggressive.

 Consent is defined as any expression of free will, specific and informed, by which a person agrees that his personal data is used for the purposes of direct prospecting. Direct prospecting includes the sending of any message intended to promote, directly or indirectly, the goods, services or image of a person selling goods or providing services.

 CA Rouen, 16 November 2011, LawLex201200001379JBJ; 9 June 2016, LawLex201600001136JBJ, for a contract previously addressed by post, but concluded in the presence of both parties.

 Cass. 1re civ., 8 July 2003, LawLex200300002741JBJ; CA Versailles, 27 April 2011, LawLex201500001243JBJ; CA Paris, 7 February 2013, LawLex201400001252JBJ, for contracts for tracing succession; CA Rouen, 19 May 2005, LawLex201500001247JBJ, for a contract concluded with a research and investigation office.

CAA Lyon, 30 January 2020, LawLex202000000175JBJ.

 However, in recital 17, the directive states that where the contract is concluded for purposes partly within and partly outside the person's trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that this person should also be considered as a consumer.

 See, for an application even before the Order entered into force, CA Rouen, 9 June 2016, LawLex201600001136JBJ.

 TI Dieppe, 7 February 2011, LawLex201500001279JBJ, which excludes the right of withdrawal in case of sale on a website for online ads between individuals.

 CA Paris, 29 November 2013, LawLex201400001253JBJ.

French Consumer Law

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443. Transactions covered

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Les notions juridiques connexes

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