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

Distance selling contracts concluded between a professional and a consumer were first governed by Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts . The aim of Directive No 97/7 was to facilitate cross-border sales, which constitute one of the concrete manifestations, for consumers, of the completion of the internal market, by approximating national  …

Compatibility with Union law

Distance selling contracts concluded between a professional and a consumer were first governed by Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts . The aim of Directive No 97/7 was to facilitate cross-border sales, which constitute one of the concrete manifestations, for consumers, of the completion of the internal market, by approximating national legislation on consumer protection, whose divergences products adverse effects on competition. Nevertheless, since the 1997 directive was not of maximum harmonization , it did not achieve its objectives as noted by Directive No 2011/83 of 25 October 2011, which repeals and replaces it. Thus, in the new text, the European legislator opted for a complete harmonization of consumer information  to enable professionals and consumers to rely on a single regulatory framework and clearly defined legal concepts.

Directive No 2011/83 of 25 October 2011 covers “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” . According to the Court of Justice, a business management agreement, aimed at assuring the rights of a tenant with regard to a landlord, concluded with a professional on the latter's website, falls under the concept of a “distance contract .  On the other hand, a service contract concluded between a consumer and a trader using a means of distance communication, such as a lease agreement, cannot be classified as a distance contract within the meaning of Article 2(7) of No Directive 2011/83, where its conclusion was preceded by a negotiation phase, which took place in the simultaneous physical presence of the consumer and an intermediary acting in the name of or on behalf of the trader, during which the consumer received from that intermediary, for the purposes of that negotiation, all the information relating to his right of withdrawal and was able to question him about the envisaged contract or the proposed offer, in order to dispel any uncertainty as to the scope of his possible contractual commitment with the trader . The mere fact that a natural person carries out sales for profit or publishes eight advertisements simultaneously on an online platform is not in itself sufficient to classify that person as a trader within the meaning of Article 2(2) of Directive No 2011/83. Indeed, the assessment of the status of professional is based on a series of criteria which imply verifying, on a case-by-case basis, whether the online sale under examination has been carried out in an organized manner, whether it generates profit, whether the seller has information and technical skills relating to the products he is offering for sale which the consumer does not have, if his legal status enables him to carry out commercial transactions, whether he is subject to VAT, if, when he acts in the name of or on behalf of a particular trader , he has received remuneration or an incentive, whether he has purchased new or second-hand goods with a view to reselling them, whether the products on sale are all of the same type or value, or whether the supply is concentrated on a limited number of products . The directive excludes from its scope contracts relating to social services, health care, gambling, financial services (a non-exhaustive list of which is contained in the annex), the creation, acquisition or transfer or real estate property or relating to the construction of new buildings, the substantial transformation of existing buildings or the rental of a property for residential purposes, or contracts concluded through vending machines or automated commercial sites or with telecommunication operators through public pay telephones or for the purpose of using a single connection by telephone, Internet or fax established by the consumer . Contrary to Directive No 97/7 which provided only for a partial exclusion of the provisions of the directive, everyday household goods supplied during rounds and tourism and transport contracts are now totally excluded from the scope of Directive No 2011/83 . Under Directive No 97/7, the Court of Justice was required to state that the concept of “contract for the supply of transport services” referred to by the text included the rental of vehicles . Directive No 2011/83, which codifies this case law, removes any ambiguity by using the concept of “passenger transport services”.

Article 6 of Directive 2011/86 as amended by the Omnibus Directive, No 2019/2161 and the Greenwashing Directive, No 224/825,  requires the professional to provide the consumer, before he is bound by a distance contract, in a clear and comprehensible form, information relating: to the main characteristics of the good or service; its identity and contact details; the price of the good or service and, where applicable, additional transport, delivery or postage costs and any other costs ; the terms of payment  and delivery including environmentally friendly delivery options where applicable, and modes of performance, the date on which the professional undertakes to deliver the goods or perform the services and, if applicable, the professional's terms and conditions for the processing of claims; the right of withdrawal when it exists; the fact that the consumer has to bear the costs of returning the good in case of withdrawal, a reminder of the existence of the legal guarantee of conformity for goods, as well as its main components, including the minimum duration of two years, in a clearly visible manner, by means of the harmonized notice referred to in Article 22a ; a reminder, under the same conditions, of any commercial guarantee of durability , at no additional cost, if one exists; a reminder of the existence of a guarantee of conformity for digital content and digital services; the minimum period during which the producer or supplier will provide software updates for goods with digital elements, for digital content and for digital services; where applicable, the reparability score of the good etc.

Furthermore, to take account of the development of marketplaces, Directive No 2019/2161 of 27 November 2019 inserted an Article 6a into Directive No 2011/83, which provides that before the consumer is bound by a distance selling contract, or by an offer of the same type, in an online marketplace, the marketplace must provide the consumer with: a copy of the contract, in a clear and comprehensible manner and in a way appropriate to the form of distance communication; general information that is directly and easily accessible from the page where the offers are presented, on the main parameters for ranking the offers submitted in response to the consumer's request and the order of importance of those parameters, as opposed to other parameters; information stating whether the third party offering the goods, services or digital content is a trader or not; where the third party seller is not a trader, inform him that consumer rights under Union consumer protection law do not apply to the contract; where applicable, a statement on how the obligations arising from the contract are shared between the third party seller and the online marketplace provider. Member States are free to impose additional information requirements on online marketplace providers, provided that those requirements are proportionate, non-discriminatory and justified on grounds of consumer protection.

Under Article 8 of the directive, the professional (trader) must provide the required information or make it available to the consumer in a form suited to the distance communication technique used, in clear and comprehensible language. When information is provided on a durable medium, it must be legible. If the distance communication technique used imposes space or time constraints on the presentation of information, the professional is subject to a relaxed pre-contractual information obligation . The other information required by Article 6 may be provided in an appropriate form . To assess whether the distance communication technique used imposes space or time constraints on the presentation of the information required by the directive, the court must focus on its objective characteristics and not on the choices made by the trader regarding the development and use of the space and time at its disposal as a result of the means of communication which it decided to use .

After its conclusion, the professional must provide the consumer with confirmation of the contract, on a durable medium and within a reasonable time, at the latest at the time of delivery of the goods or before the start of the service . The confirmation must include all the information referred to in Article 6, unless the professional has already provided it on a durable medium before the conclusion of the contract. The provision of the information referred to in Article 6, on the website of the intermediary acting on behalf of a professional, in the general terms and conditions of the provision of services, does not replace the provision to the consumer of the confirmation of the contract on a durable medium .

According to Article 2 (10) of the Directive, the durable medium is defined as “any instrument which enables the consumer or the professional to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored”. Pursuant to Directive No 97/7, the Court of Justice ruled that an undertaking did not comply with the regulatory requirements where it merely makes available the information required by a hyperlink on its website, when this does not allow the consumer to “store information which is personally addressed to him in such a way that he can access it and reproduce it unchanged during an adequate period without the seller being able to amend the content unilaterally” .

A right of withdrawal is provided for all distance contracts except in the case of: the provision of services, where the service has been fully performed with the express prior consent of the consumer, if he has acknowledged that he will lose his right of withdrawal; the supply of goods or services whose price depends on fluctuations in the financial market which are beyond the control of the professional and are likely to occur during the withdrawal period; the provision of goods made according to the consumer's specifications or clearly personalized; the supply of goods likely to deteriorate or to expire rapidly; the provision of sealed goods which cannot be returned for health or hygiene reasons and which have been unsealed by the consumer after delivery ; the supply of goods which, after being delivered, and by their nature, are inseparably mixed with other articles; the supply of alcoholic beverages, the price of which has been agreed at the time of conclusion of the contract of sale, the delivery of which cannot be performed until after thirty days and whose actual value depends on fluctuations in the market beyond the control of the professional; the provision of sealed audio or video recordings or sealed computer software that has been unsealed after delivery; the provision of a newspaper, periodical or magazine except for contracts for subscribing to such publications; contracts concluded at a public auction; the provision of accommodation services other than for residential purposes, transport of goods, rental of cars, catering or services related to leisure activities  if the contract provides for a specific date or performance period and the supply of digital content not provided on a physical medium if the performance has commenced with the express prior agreement of the consumer, after he has acknowledged that he will lose his right of withdrawal .  The Court of Justice has held that where a distance contract relates to the provision of services and provides for an initial period free of charge for the consumer, followed, in the absence of cancellation or withdrawal by the consumer during that period, by a period where payment is required that is automatically extended – unless that contract is terminated – for a fixed term, the consumer's right to withdraw is guaranteed once only provided that, at the time the contract is concluded, the consumer  has been informed in a clear, comprehensible and explicit manner by that trader that, after the initial free period, payment will be required for that performance of services .

Article 9 of the Directive sets the period of withdrawal offered to the consumer at fourteen days, where Directive No 97/7 only provided for seven days . The right of withdrawal is exercised without the consumer having to justify his decision and incur any costs other than those related to the return of the thing. For service contracts, the period runs from the date of conclusion of the contract. In the case of a contract of sale, it runs from the day when the consumer physically takes possession of the property . According to Article 9 (3), Member States may not prohibit contracting parties from performing their contractual obligations during the withdrawal period. They are nevertheless authorized, as regards off-premises contracts, to maintain their national rules prohibiting the professional from receiving payment from the consumer for a specified period after the conclusion of the contract. Under Directive No 97/7, Member States were allowed to retain provisions that were more protective for consumers, including for distance sales . In a case concerning Belgian legislation, which prohibited the distance seller from demanding a deposit or payment of any kind before the expiry of the withdrawal period, the Court of Justice ruled that such a prohibition, justified, could not be extended to the possibility of requiring the number of the consumer's credit card, in order to guard against a possible default. According to the Court, such a requirement does not infringe the right of withdrawal, since the supplier cannot legally collect the price before the expiry of the withdrawal period . Since the entry into force of Directive No 2011/83, the seller cannot only request a card number, but also require a pre-payment.

When the professional fails to inform the consumer of the existence of his right of withdrawal, the withdrawal period is increased to twelve months from the end of the initial withdrawal period , whereas it could only be increased by three months under Directive No 97/7 . If the professional provides the information during these twelve months, the withdrawal period expires at the end of a period of fourteen days from the day on which the consumer received the information .

The right of withdrawal may be exercised either by using the model of the withdrawal form set out in the annex to the directive, or by an unambiguous statement indicating the consumer's decision to withdraw from the contract . Proof of the exercise of the right of withdrawal lies with the consumer. The exercise of the right extinguishes the obligation of the parties to perform the contract or to conclude it, when the consumer has made an offer . In addition, the professional must reimburse all payments received from the consumer, including, where applicable, delivery charges, within fourteen days of being informed of the consumer's decision . The consumer must return the goods to the professional within fourteen days of the notification of his decision, at the latter's expense . As stated by the Court of Justice, the professional cannot retain the cost of shipping the goods . Furthermore, the consumer's liability can only be incurred for damage to a product resulting from handling other than that necessary to establish the nature, characteristics and proper functioning of this product. When the professional has failed to inform him of his right of withdrawal, he cannot be held responsible for any depreciation of the goods . According to the Court of Justice, interpreting the similar provisions of Directive No 97/7, although no compensatory allowance may be imposed for the use of the property, nothing prevents such compensation being provided in case of use incompatible with the principles of civil law, such as good faith or unjust enrichment, provided that the effectiveness of the right of withdrawal is not called into question . Moreover, where the service has begun to be performed at the express request of the consumer, he must pay the professional an amount proportional to what was provided up to the time when he exercised his right of withdrawal . On the other hand, the consumer is not liable for any costs where the professional has failed to inform him of the existence of the right of withdrawal or of the costs relating to the start of performance. Finally, the exercise of the right of withdrawal automatically terminates any ancillary contract, at no cost to the consumer . The concept of ancillary contract covers, under Article 2 (15), any contract pursuant to which the consumer acquires goods or services under a distance contract, provided by the professional or a third party on the basis of an agreement between the him and the professional.

The directive also lays down the rules applicable to delivery , prohibits the charging of fees higher than those which professionals bear for the use of given payment means , settles the question of the transfer of the risk of loss or damage  , prohibits the use of telephone lines to contact the professional at a cost higher than the basic tariff  and submits to the consumer's express consent any additional payment to the remuneration agreed in the main contract . On the other hand, it does not require traders to set up a telephone or fax line or to create a new e-mail address to enable consumers to contact them before making a distance purchase and only obliges them to communicate that number, the fax number or their e-mail address where they already have these means of communication with consumers .  However, if the trader displays his telephone number on his website in a way which tends to suggest to consumers that he uses it as a means of contact, he is required to include it in the pre-contractual information on how to exercise the right of withdrawal .

Directive No 2011/83 was to be transposed by 13 December 2013 at the latest and its provisions were to apply from 13 June 2014 . This transposition was carried out in France by Law No 2014-344 of 17 March 2014 relating to consumption, known as the Hamon Law , Article 9 of which completely replaces the provisions of the Consumer Code governing distance sales and off-premises contracts, now consolidated into a single section. The amended provisions of the Consumer Code apply only to contracts concluded after 13 June  2014. The transposition was supplemented by Law No 2015-990 of 6 August 2015 (Macron Law) . Further amendments to French law are to be expected to take account of the new provisions of Directive No 2019/2161, which will have to be transposed by 28 November 2021 at the latest, for entry into force as of 28 May 2022.

 Directive No 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts, OJEC 144 of 4 June 1997, 19.

 Article 14 of Directive No 97/7 provided that “Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions compatible with the Treaty, to ensure a higher level of consumer protection. Such provisions shall, where appropriate, include a ban, in the general interest, on the marketing of certain goods or services, particularly medicinal products, within their territory by means of distance contracts, with due regard for the Treaty”. The Court of Justice had inferred that a Member State could adopt more restrictive measures, provided that they remain consistent with the principle of the free movement of goods: Case C-322/01 Deutscher Apothekerverband eV, Judgment of 11 December 2003, LawLex200900000268JBJ.

 Case C-336/03 EasyCar (UK) Ltd, 10 March 2005, LawLex200900000379JBJ.

In this respect, the Court of Justice has emphasized that a contract whose purpose is to enable the consumer to benefit from a price reduction at the time of the subsequent conclusion of passenger transport contracts does not fall within the exception to the right of withdrawal in respect of contracts relating to passenger transport services, see Case C-583/18 Verbraucherzentrale Berlin eV v. DB Vertrieb GmbH, Judgment of 12 March 2020, .

Under Article 6(6), if the professional has not complied with the information requirements relating to additional costs and other costs or the costs of returning the goods, the consumer will not bear these costs.

Case C-400/22 Conny GmbH, Judgment of 30 May 2024, LawLex202400003998JBJ, where a distance contract is concluded by electronic  means through an ordering process and entails an obligation on the part  of the consumer to pay, the trader must, first, provide that consumer,  directly before the placing of the order, with the essential information  relating to the contract and, secondly, explicitly inform that consumer  that, in placing the order, he or she is bound by an obligation to pay.

According to Article 22(a) of Directive No 2011-83, resulting from Directive No 2024-825 of 24 February 2024, the harmonized notice and the harmonized label, which aim to ensure that consumers are well informed and easily understand their rights throughout the EU, are easily recognizable and understandable for consumers and easy to use and reproduce for traders.

CJEU Case C-133/22 LACD GmbH, Judgment of 28 September 2023, LawLex202400003945JBJ, the commercial guarantee of which the professional may inform the consumer before he is bound by a distance or off-premises contract includes, as “any other requirements not related to conformity set out in the guarantee statement or in the relevant  advertising available at the time of, or before the conclusion of the contract”, an undertaking made by a guarantor to the consumer concerned  in respect of circumstances specific to the consumer, such as his or her personal satisfaction with the goods purchased, without it being  necessary to verify objectively whether those circumstances exist in order to give effect to that commercial guarantee.

Case C-430/17 Walbusch Walter Busch GmbH & Co. KG, Judgment of 23 January 2019, LawLex201900000095JBJ.

Case C-536/20 Tiketa UAB v Baltic Music, Judgment of 24 February 2002, LawLex202200001189JBJ.

 Case C-49/11 Content Services Ltd, Judgment of 5 July 2012, LawLex201700001302JBJ.

Case C-681/17 slewo - schlafen leben wohnen GmbH, 27 mars 2019, LawLex201900001284JBJ, holding that the right of withdrawal may be exercised in respect of a mattress from which the protective film has been removed by the consumer after delivery provided that such a product does not fall within the classification of sealed goods which are not suitable for return.

The exception to the right of withdrawal provided for in Article 16(l) of Directive No 2011/83 may be relied on against a consumer who has concluded, with an intermediary acting in its name, but on behalf of the organizer of a leisure activity, a distance contract for acquiring a right of access to that activity, provided that the termination of the obligation to perform that contract vis-à-vis the consumer by means of withdrawal would place the risk linked to the setting aside of the capacity thus released on the organizer activity concerned and if the leisure activity to which that right gives access is scheduled to take place on a specific date or within a specific period: Case C-96/21DM v CTS Eventim AG & Co. KGaA, Judgment of 31 March 2022, LawLex202200002130JBJ.

CJEU Case C-565/22 Verein für Konsumenteninformation v Sofatutor GmbH, Judgment of 5 October 2023, LawLex202300012134JBJ.

 In the case of multiple goods ordered at once by the consumer but delivered separately, the time limit runs from the day the consumer physically takes possession of the last good. In the case of a good consisting of batches or multiple parts, it runs from the day the consumer physically takes possession of the last batch or part. Finally, when the contract concerns the regular delivery of goods for a defined period of time, the period runs from the day on which the consumer physically takes possession of the first good.

 Case C-205/07 Gysbrechts v Santurel Inter BVBA, Judgment of 16 December 2008, LawLex200900001109JBJ.

 Case C-511/08 Handelsgesellschaft Heinrich Heine GmbH, Judgment of 15 April 2010, LawLex201100000612JBJ.

 Case C-489/07 Messner v Firma Stefan Krüger, Judgment of 3 September 2009, LawLex201100000388JBJ.

CJEU Case C-400/22 Conny GmbH, Judgment of 30 May 2024, LawLex202400003998JBJ.

 Directive No 2011/83, Art. 21. For an application, see Case C-568/15 Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV, Judgment of 2 March 2017, LawLex201700000395JBJ.

Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl, Judgment of 10 July 2019 LawLex201900001282JBJ

Case C-266/19 EIS GmbH, Judgment of 14 May 2020, LawLex202300003393JBJ.

CJEU Case No C-38/21 VK and others, Judgment of 21 December 2023, LawLex202400003944JBJ.

 Law No 2014-344 of 17 March 2014 relating to consumption, OJ of 18 March 2014, 5400 and Decree No 2014-1061 of 17 September 2014 on the pre-contractual and contractual consumer information obligations and the right of withdrawal, OJ of 19 September 2014, 15331.

  Law No 2015-990 of 6 August 2015 for growth, activity and equality of economic opportunities, OJ of 7 August 2015, 13537.

A trader (or "professional") is, according to Article 2(2) of Directive No 2011/83  not only a natural or legal person who is acting for purposes relating to his own trade, business, craft or profession in relation to distance and off-premises contracts, but also a natural or legal person who is acting as an intermediary, in the name of or on behalf of that person, without there being any need to establish the existence of a twofold provision of services.

Case C-105/17 Komisia za zashtita na potrebitelite, Judgment of 4 October 2018, LawLex201800001459JBJ.

 Directive No 2011/83, Article 3(3)( j) and (k).

French Consumer Law

441. Compatibility with Union law

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441. Compatibility with Union law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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