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 first text adopted by the Union on canvassing, Directive No 85/577 of 20 December 1985 on contracts negotiated away from business premises  imposed on the trader an obligation to inform the consumer , who had to have a right of “withdrawal” within a period of 7 days . Article 8 added, however, that the directive did not preclude Member States from adopting or maintaining more favorable consume …

EU law

The first text adopted by the Union on canvassing, Directive No 85/577 of 20 December 1985 on contracts negotiated away from business premises  imposed on the trader an obligation to inform the consumer , who had to have a right of “withdrawal” within a period of 7 days . Article 8 added, however, that the directive did not preclude Member States from adopting or maintaining more favorable consumer protection provisions, in the field covered by it .

As many Member States have made use of this option, “the cross-border potential of contracts negotiated away from business premises” is limited . In order to “promote a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises”, the Commission and the European Parliament, when re-examining several directives on consumer rights, decided to unify the rules on distance selling and contracts concluded off-premises and to strengthen consumer rights in several areas, such as information and the exercise of the right of withdrawal. Contrary to the directives which it repeals, maximum harmonization  Directive No 2011/83 prohibits Member States from adopting or maintaining stricter or more flexible provisions aimed at ensuring a different level of consumer protection , subject to certain exceptions.

Article 2 (8) of the directive defines “off-premises” contract as any contract between the professional (trader) and the consumer: a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; or b) for which an offer was made by the consumer in the same circumstances; c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer ; or d) concluded during an excursion organized by the trader with the aim or effect of promoting and selling goods or services to the consumer . According to the EU court, a stand run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes “business premises”, if, in the light, in particular, of the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract . By contrast, a contract concluded at a stand run by the trader at a trade fair, immediately after the consumer, who was in the aisle common to the various stands present in an exhibition hall of the fair, had been solicited by that trader, is an “off-premises contract” .

The directive applies to any contract concluded between a professional  and a consumer  , including when it relates to the supply of water, gas, electricity or district heating . The Court of Justice, when called upon to interpret the concept of consumer, took the view that the trader solicited with a view to ending his activity did not fall within the scope of the directive . Similarly, the guarantor, a natural person not acting within the framework of a professional activity, cannot avail himself of the protective provisions of the directive when the principal debtor guaranteed has contracted for the purposes of his trade . Moreover, where a third party intervenes in the name or on behalf of a trader in the negotiation or conclusion of a contract, the application of the directive cannot be made conditional on the trader knew or ought to have known that the contract was concluded in a situation of canvassing 

The text incorporates a number of exclusions already provided for in Directive No 85/577 , such as contracts for financial services . Under Directive No 85/577, the exclusion of insurance  was interpreted as extending to life insurance contracts linked to investment funds . The solution appears to be transposable to Directive No 2011/83. Similarly, in the same way as Directive No 85/577, the new text does not apply to the creation, acquisition or transfer of immovable property or to the construction of new buildings, the substantial transformation of existing buildings or the lease of accommodation for residential purposes . The Court of Justice has had occasion to point out that this exclusion did not apply to the multi-property contract providing for the supply of services of a value greater than that of the right to use the real estate property . From now on, contracts for the use of time-share properties are expressly excluded by Directive No 2011/83 . Moreover, according to the Court, a credit agreement does not escape the application of the directive merely because it is secured by a real estate security . On the other hand, even if they are merely part of a financial investment financed by a loan, contracts for the sale of real estate property are not covered . The directive does not apply to contracts relating to social services, healthcare, gambling, contracts falling under the directive on package travel, package holidays and package tours , contracts established by a public agent, contracts for the supply of food, beverages, goods intended for current consumption in the household supplied by regular roundsmen, or on passenger transport services, to contracts concluded by means of vending machines or automated commercial premises or with telecommunications operators through the use of public telephones operators by means of public pay telephones or for the purpose of the use of a single connection by telephone, internet or fax established by the consumer. Finally, the directive may not be applied by Member States to contracts for which the payment to the consumer does not exceed EUR 50 or a lower value .

Article 6, as amended by the Omnibus Directive No 2019/2161 and the Greenwashing Directive No 2024-825, requires the professional to provide the consumer, before he is bound by an off-premises contract, in a clear and comprehensible form, with certain information relating to the main characteristics of the good or service; its identity and contact information; the price of the good or service and, if applicable, the 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, where applicable, the procedures put in place by the professional for processing claims; the right of withdrawal, when it exists ; the fact that the consumer must 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. Under Article 7, this information is provided on paper or, with the consent of the consumer, on another durable medium . Once the contract has been concluded, the professional must provide him with a confirmation on paper or, within his consent, on another durable medium . The Member States  cannot impose any other formal requirements regarding pre-contractual information.

In the case of the intervention requested by the consumer for repair or maintenance, and where the requested payment does not exceed EUR 200, the directive provides for less information and then a confirmation of the contract containing all the information required by Article 6. However, the Member States are free not to apply these provisions .

Under Directive No 85/77, the Court of Justice pointed out that, since the obligation to inform the consumer was a matter of public policy, the national courts could in fact raise the professional's breach ex officio. As regards the “appropriate measures” to be taken by the Member States to ensure compliance with this obligation, the European Court held that national legislation could, without exceeding the directive's provisions, sanction the non-performance of the information obligation by nullity of the contract .

The existence of the right of “withdrawal”, defined as a right “revocation” by Directive No 85/577, is one of the pillars of the consumer protection system. Except cases  referred to in Article 16  where the contract is expressly excluded from the scope of the right of withdrawal , Article 9 of Directive No 2011/83 provides the consumer with a period of fourteen days to withdraw, where Directive No 85/577 only provided for a seven-day withdrawal period. The consumer can exercise this right without having to give reasons for his decision or to bear costs other than those of returning the goods. The time limit, for provisions of services, runs from the date of conclusion of the contract and for sale contracts, from the day on which the consumer physically takes possession of the goods. Three specific cases are provided for: i) in the case of multiple goods ordered at once but delivered separately, the time limit runs from the day on which the consumer physically takes possession of the last good; ii) in the case of the delivery of goods consisting of lots or multiple parts, from the day the consumer physically takes possession of the last lot or part; iii) in the case of contracts for the regular supply of goods for a defined period of time, from the day on which the consumer physically takes possession of the first good. Member States may not prohibit the parties from performing their obligations during the notice period, but may maintain a prohibition on payment requests during this period .  In this respect, the Court of Justice considers that a consumer must be exempted from any obligation to pay for services provided in performance of an off-premises service contract, where the trader concerned has not informed him of his right of withdrawal and he has exercised this right after performance of the contract . Directive No 2019/2161 of 27 November 2019 had added a point 1a to Article 9 of Directive No 2011/83 to clarify that Member States may extend to 30 days instead of 14 the withdrawal period for contracts concluded in the context of unsolicited visits by a trader to the home of a consumer or excursions organized by a trader with the aim or effect of promoting or selling products to consumers.

Whereas Directive No 85/577 confers on Member States the task of providing “appropriate measures” to protect the consumer when information on his right of withdrawal has not been provided , Article 10 of Directive No 2011/83 sanctions the omission of this information by a significant extension of the length of the withdrawal period, which increases to twelve months . However, if during this period the professional performs his information obligation, the withdrawal period expires at the end of a period of fourteen days from the day on which the consumer received the information.

The exercise of the right of withdrawal is not subject to proof that the consumer was influenced or manipulated by the professional . Under Directive No 85/77, the Court of Justice held that national legislation could not lay down any formal requirements for the implementation of the right of withdrawal . Article 11 of Directive No 2011/83 now lays down the maximum requirements to be met. The consumer may retract by using the model of the withdrawal form set out in the annex to the directive, or by an unambiguous declaration. No other formal requirements may be imposed by the Member States. The professional can also give the consumer the option of completing and sending online, on its website, either the model of the withdrawal form set out in the annex to the directive, or another unambiguous declaration. In this case, the professional must send the consumer an acknowledgement of receipt of the withdrawal, without delay.

The exercise of the right of withdrawal extinguishes the obligation of the parties to perform the contract or to conclude it, when the consumer has made an offer . The professional must reimburse the consumer for payments received, including delivery costs, no later than fourteen days after being informed of the consumer's decision to withdraw . However, the repayment may be deferred, in the sale contracts, until recovery of the goods or receipt of proof that the goods have been shipped by the consumer if this occurs on an earlier date . Reciprocally, the consumer must return the property  no later than within fourteen days of the professional being informed of the exercise of his right of withdrawal. Only the direct costs generated by the return are borne by the consumer. Where the property cannot be returned normally by post due to its nature, the professional recovers it at its expense.

Moreover, the consumer is liable for the depreciation of goods only if it is due to handling operations other than those necessary to establish their nature, characteristics and proper functioning and if the professional has informed him of his right of withdrawal . Thus, Union law prevents the professional from receiving a lump sum compensation for the injury caused to it by the exercise of the right of withdrawal . Under Directive No 85/777, the Court of Justice held that a national rule may provide that in the event of the revocation of membership in a closed real estate fund constituted in the form of a partnership, the consumer may obtain, where appropriate, only the return of an amount less than his contribution or be required to participate in the losses of the fund ; or that the exercise by the consumer of his right to cancel a loan may result in the obligation to immediately repay the amount of the loan, plus market interest even if the funds were paid directly to the seller of the property for which the loan was take out . Under the maximum harmonization achieved by Directive No 2011/83, it is not certain that these solutions will be maintained in the future.

In addition, when the consumer exercises his right of withdrawal after presenting a request for early performance of the service, he must pay the professional an amount proportional to what was provided up to the time he informed him of the claim exercise of the right of withdrawal .

Finally, under Article 15 of the directive, the exercise of the right of withdrawal automatically terminates any ancillary contract at no cost to the consumer. Pursuant to Directive No 85/577, the Court had held that national legislation could provide that the cancellation of a loan contract did not entail the annulment of the sale contract it financed . Article 15 of Directive No 2011/83 now states that its provisions apply without prejudice to those of Article 15 of Directive No 2008/48 of 23 April 2008 on credit agreements for consumers . According to this text, “where the consumer has exercised a right of withdrawal, based on Community law, concerning a contract for the supply of goods or services, he shall no longer be bound by a linked credit agreement”. Since Directive No 2008-48 is for maximum harmonization, the rule laid down by the Court of Justice should no longer apply in the future.

  Directive No 85-577 of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, OJEC L 372 of December 31, 1985, 31.

  Article 2 (2) of the directive defines the professional (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 in relation to contracts covered by this Directive”.

  Article 2 (1) of the directive defines the consumer as “any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession”.

 Case C-45/96 Bayerische Hypotheken-und Wechselbank AG, Judgment of 17 March 1998, LawLex201800000061JBJ.

  Case C-229/04 Crailsheimer Volksbank eG, Judgment of 25 October 2005, LawLex201800000072JBJ .

 Directive No 2011/83, Article 3(3(d). Article 2 (12) defines them as “any service of a banking, credit, insurance, personal pension, investment or payment nature”.

 Case C-166/11 González Alonso, Judgment of 1 March 2012, LawLex201800000073JBJ.

 Directive No 2011/83, Article 3(3)(e) and (f).

 Case C-423/97 Travel Vac SL, Judgment of 22 April 1999, LawLex201800000060JBJ.

  Case C-481/99 Heininger, Judgment of 13 December 2001, LawLex201800000074JBJ.

 Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG, Judgment of 25 October 2005, LawLex201800000075JBJ.

 Directive No 90/314 of June 13, 1990, OJ L 158 of 23 June 1990.

  Under Article 6(6), if the trader 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.

  See Case C-350/03 Schulte, cited above and Case C-229/04 Crailsheimer Volksbank eG. cited above, holding that Directive No 85/577 does not preclude the bank which has not informed the consumer of the existence of his right to cancel from bearing the risks inherent in the financial investments which he could have avoided, if he had been informed. See also Case C-412/06 Hamilton v Volksbank Filder eG, Judgment of 10 April 2008, LawLex201800000096JBJ, declaring that the provision to the consumer of incorrect information relating to the exercise of the right to cancel must be assimilated to the absence of any information in this regard.

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.

 For applications, see Case C-361/89 Di Pinto, Judgment of 14 March 1991, LawLex201800000058JBJ: of minimum harmonization, Directive No 85/577 does not preclude national legislation on solicitation, in this case French law, extending the protection it establishes to professionals, when they carry out acts for the sale of their business. The Court of Cassation, on referral, therefore maintained its position of offering the professional in question the protection established by the Law of 1972: Cass. crim., May 26, 1993, LawLex200300002826JBJ. See also Case 382/87  EBS, Judgment of 16 May 1989, LawLex201100000335JBJ, holding that the total prohibition of canvassing in respect of educational material, as provided for by French legislation, was not incompatible with the free movement of goods, since the prohibition was justified by a consumer protection objective, and this  An objective of consumer protection, and that this could not be achieved by means less restrictive than the prohibition; Case C-441/04  A-Punkt, Judgment of 23 February 2006, LawLex200900000832JBJ, holding that a Member State may prohibit in its territory the sale and collection of orders for silver jewelry by way of door-step selling where such a provision applies to all the operators concerned, provided that it affects in the same way, in law and in fact, the marketing of domestic products and those of products from other Member States; Case C-227/08 Martín v EDP Editores SL, Judgment of 17 December 2009, LawLex201100000503JBJ.

  Article 2 (10) defines the “durable medium” as “any instrument which enables the consumer or the trader 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”. Recital 23 of the Directive states that “such media should include in particular paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers as well as e-mails”.

  Case C-227/08 Martín Martín, Judgment of 17 December 2009, LawLex201100000503JBJ.

Article 16 excludes from the right of withdrawal: service contracts after the service has been fully performed if the performance has begun with the consumer's prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader; the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period; the supply of goods made to the consumer's specifications or clearly personalized; the supply of goods which are liable to deteriorate or expire rapidly; the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery; the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items; the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader; contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance unless, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery; the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications; contracts concluded at a public auction; the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance; the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer's prior express consent and his acknowledgement that he thereby loses his right of withdrawal. See CJEU Case C-208/19 NK v MS and AS, Judgment of 14 May 2020, LawLex202100004982JBJ, holding that an off-premises contract by which an architect merely draws up for a consumer a project for a single-family house to be built, by drawing up plans for that purpose, does not constitute a contract for the construction of a new building, which would be exempt from the right of withdrawal; Case C-529/19 Möbel Kraft GmbH & Co. KG, Judgment of 21 October 2020, LawLex202100004276JBJ: the exception to the right of withdrawal in the case of “the supply of  goods made to the consumer's specifications or clearly personalized”,  which is inherent in the very purpose of the off-premises contract, may be invoked against the consumer without being subject to the occurrence  of an event subsequent to the conclusion of the contract and irrespective of whether the contract has been performed or is being performed by the trader.

See Case C-208/19 NK v MS, Judgment of 14 May 2020, LawLex202100004982JBJ, ruling that A contract concluded between an architect and a consumer under which the  former undertakes to produce for the latter, in accordance with the  latter's requirements and wishes, a design for a new single-family house  to be built and, in that context, to draw up plans does not constitute a  contract for the supply of goods made to the consumer's specifications  or clearly personalized within the meaning of Article 16 of Directive No  2011/83 which lists the exceptions to the right of withdrawal; Case C-529/19 Möbel Kraft GmbH & Co. KG, Judgment of 21 October 2020, LawLex202100004276JBJ: the exception to the right of withdrawal in the case of “the supply of  goods made to the consumer's specifications or clearly personalized”, which is inherent in the very purpose of the off-premises contract, may  be invoked against the consumer without being subject to the occurrence  of an event subsequent to the conclusion of the contract and  irrespective of whether the contract has been performed or is being performed by the trader; Case C-38/21 VK, BMW Bank GmbH and others, Judgment of 21 December 2023:  a leasing agreement for a motor vehicle falls within the exception to the right of withdrawal provided for in Article 16(l) of Directive No 2011/83 for distance or off-premises contracts for car rental services with a specific performance date or period, concluded between a trader and a consumer, classified as a distance and/or off-premises contract within the meaning of the directive, where the main purpose of the contract is to enable the consumer to use a vehicle for the specific period stipulated in the contract, in return for the regular payment of a sum of money.

Case C-97/22 DV v HJ, Judgment of 127 May 2023, .

 See Case C-412/06 Hamilton, cited above, holding that the compliance with the directive of a national regulation provided that the right of withdrawal can be exercise no later than one month after the full performance by the contracting parties of the obligations under a long-term loan agreement.

 Directive No 2011/-83 of 25 October 2011 on consumer rights, OJEU L 304 of 22 November 2011, Recital  5.

 Contra, under Directive No 85/577, Case C-481/99 Heininger cited above., holding that a Member State cannot limit to one year from the conclusion of the contract the exercise of the right of withdrawal by a consumer who has not been informed of the existence of this right.

  Case C-423-97 Travel Vac SL, cited above.

 Directive No 2011/83, Article 14.  For an example, pursuant to Directive No 85/577, Case C-229/04 Crailsheimer Volksbank eG and Case C-350/03 Schulte, cited above, holding that when the credit institution has not informed the consumer of the existence of his right of withdrawal, he must be released from having to bear the risks inherent to the financial investments, which he could have avoided if he had known his rights.

  Case C-215/08 E. Friz GmbH Judgment of 15 April 2010, LawLex201800000097JBJ.

 Directive No 2011/83, Article 14(3). When, pursuant to Article 14(3) of Directive No 2011/83, the consumer exercises his right of withdrawal despite having expressly requested that the contract be performed within the withdrawal period, the proportionate amount to be paid to the trader must be calculated on the basis of the total price agreed in the contract, or if the total price is excessive on the basis of the market value of what has been provided, with the assessment of whether the total price is excessive made in the light of the price of the service offered by the professional concerned to other consumers under the same conditions and based on the price of the equivalent service provided by other professionals at the time at which the contract was concluded, Case C-641/19 PE Digital GmbH, Judgment of 8 October 2020, LawLex202100004252JBJ.

A service contract concluded between a consumer and a professional cannot be classified as an off-premises contract within the meaning of Article 2(8) of Directive No 2011/83 where, during the preparatory phase for the conclusion of the contract by means of a means of distance communication, the consumer has visited the business premises of an intermediary, acting in the name or on behalf of the trader, for the purposes of negotiating the contract but operating in a field of activity other than that of the trader, provided that the consumer, as an average reasonably well-informed and reasonably observant and circumspect consumer, could have expected, on visiting the business premises of the intermediary, to be commercially solicited by the intermediary for the purpose of negotiating and concluding a service contract with the professional, and that he could also have easily understood that the intermediary was acting in the name of and on behalf of the professional,

 Case C-423/97 Travel Vac SL, Judgment of 22 April 1999, LawLex201800000060JBJ: the contract concluded after a professional has invited a consumer to visit a place which is some distance from his place of residence and which is neither the establishment in which it habitually carries out its activities nor clearly identified as a place of sale to the public, to present products and services to him, must be considered as concluded during a tour organized by the professional outside of its commercial establishments.

Case C-485/17 Verbraucherzentrale Berlin eV, Judgment of 7 August 2018, LawLex201800001206JBJ.

 Case C-465/19 B & L Elektrogeräte GmbH, Order of 17 December 2019, LawLex202000001785JBJ.

French Consumer Law

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