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French Consumer Law

Since Law No 96-603 of 5 July 1996, which eliminated the requirements relating to the occasional or exceptional nature of the sale and the need for advertising, the place of sale is the decisive criterion to characterize a sale or purchase operation as a sale on temporary premises . Article L. 310-2 considers that sales on temporary premises of goods include the sale or purchase of goods carried o …

Premises not intended for commercial sales purposes 

Since Law No 96-603 of 5 July 1996, which eliminated the requirements relating to the occasional or exceptional nature of the sale and the need for advertising, the place of sale is the decisive criterion to characterize a sale or purchase operation as a sale on temporary premises . Article L. 310-2 considers that sales on temporary premises of goods include the sale or purchase of goods carried out in places (premises, spaces) not intended for the sale to the public or purchase of such goods. Places not intended for sale to the public are generally defined as those not operated under an occupancy title for the purpose of carrying on a trade or craft activity.

According to the trial courts, places not intended for the sale of goods include a banquet hall , a municipal hall , a hotel room , the premises of the Salvation Army  or the circulation mail of a hypermarket, when this space is not included in the store's authorized sale surface . Similarly, as an exhibition center is not intended for the sale of goods to the public, the fair organized there has been classified as a sale on temporary premises . The fact that the products sold in the premises in question are never the same does not affect the classification of the sale. Only a sale carried out in premises not intended for the sale of goods to the public characterizes a sale on temporary premises .

The classification proved difficult in the case of disused premises temporarily leased for a commercial operation. It was held, under the 1906 Law , that such premises could not be considered as a place usually intended for trade, even if they had a commercial purpose when they were previously used . In order to classify a sale in a temporarily leased premises as a sale on temporary premises under the 1996 Law, some courts even retained the non-identical nature of the products sold during this operation and those previously marketed in the premises . The Court of Cassation, however, rejected the criterion of the fixed nature of the product offered for resale by pointing out that only “sales of goods in premises or spaces not intended for the sale of these goods to the public” are considered as sales on temporary premises .

A new practice has recently developed called the “pop-up store”. It consists of a trademark temporarily leasing premises either to sell its goods or services for a period of time which may range from one week to several months, or to carry out a promotional operation there. These shops are subject to the regulations in force and, in particular, to the rules applicable to sales on temporary premises.

 Article L. 310-2, I, paragraph 1, defines the sale on temporary premises as "sales of goods carried out in premises or in spaces not intended for the sale of these goods to the public, and from vehicles specially equipped for this purpose".

 CA Agen, 27 November 1997, LawLex200400000168JBJ.

 CA Douai, 17 September 2001, LawLex200300003762JBJ.

  Cass. com., 24 September 2003, LawLex200300003569JBJ.

 CA Toulouse, 9 October 1997, LawLex200300002614JBJ.

 CA Limoges, 19 November 1997, LawLex200400000040JBJ; CA Poitiers, 22 January 1998, LawLex200400000155JBJ.

 CA Lyon, 7 January 1993, LawLex200300004220JBJ.

 TGI Agen, 9 July 1998, LawLex200400000165JBJ: the mall serving several stores in a shopping center being excluded from the sales surface and storage areas of the store, the defendant who uses these spaces to present items for sale carries out a sale on temporary premises; Cass. crim., 29 November 2000, LawLex200300004000JBJ, for the presentation of items, with the display of their characteristics and prices, in the parking lot, entry and in front of a store, places not usually assigned to sales.

 CA Toulouse, 4 February 1999, LawLex200200001010JBJ.  However, Ordinance  No 2004-274 of 25 March 2004 simplifying the law and formalities for undertakings excluded commercial events in an exhibition center from the scope of the regulations on sales on temporary premises (Article L. 310-2, III, Consumer Code).

 Cass. com., 24 September 2003, LawLex200300003569JBJ.

 The previous regulations referred to "premises not normally intended for trade"; Article 4, paragraph 1 of the Decree of 26 November 1962, falling under the provisions of Article 1, paragraph 1 of the Law of 30 December 1906.

  CA Besançon, 17 October 1989, LawLex200300001750JBJ; Cass. crim., Lawlex 04163; 25 October 1993, LawLex200400000045JBJ upholding CA Poitiers, 25 June 1992, LawLex200300003950JBJ; CA Aix-en-Provence, 18 March 1997,

All public or private spaces, which are not exploited, under an occupancy title, for the exercise of a commercial or craft activity, must be considered as not intended for sales . Consequently, a sale on temporary premises includes the sale organized in the parking lot of a supermarket, a place intended for customer's vehicles and not trade , or the presentation, by the operator of a hypermarket, in view of their sale to consumers, of furniture and televisions, in the central aisle of the shopping mall in which it is located . The length of time during which the practice has been carried out  or the obligation on the customer to pay the article at the store's checkouts  does not exempt the organizer from declaring the sale on temporary premises. In addition, the site intended for the construction of a future extension of the building of a hypermarket cannot be used for a sale on temporary premises . In fact, a hypermarket manager, under the pretext that his store has an authorization to operate a sales area sufficient to include the circulation mall, cannot consider himself authorized to carry over this sales area, neutralized by works, to the mall, without having carried out the necessary formalities for sales on temporary premises .

Case law was called upon to resolve a particular case: the sale under a marquee. To carry out promotional sales, hypermarkets started installing marquees on their parking lots. Should these marquees be regarded as extensions of the usual place of sale to the public, subject to the authorization of the departmental commercial facilities commission necessary beyond a certain threshold  or should they be assimilated to a space not intended for sale to the public, with the sale organized under marquees falling under the rules applicable to sales on temporary premises? The trial judges opted for the second solution , going as far as to state that the administrative authorization to extend the commercial surface of a hypermarket cannot extend to the marquee located in the parking lot of the store . Confirming this solution, the Court of Cassation pointed out that a tent temporarily installed on the parking lot of a supermarket cannot constitute a space reserved for trade : the sale organized under this marquee characterizes a sale on temporary premises .

 CA Nîmes, 4 October 1990, LawLex200300003948JBJ; CA Limoges, 22 February 1993, LawLex200400000151JBJ.

 Cass. crim., 22 February 1993, LawLex200300003937JBJ; 29 November 2000, LawLex200300004000JBJ.

 Cass. crim., 31 January 1996, LawLex200300003935JBJ, upholding CA Rouen, March 27, 1995, LawLex200300004045JBJ.

 Cass. crim., 10 March 2015, LawLex201500000343JBJ, holding that such a sales operation does not fall within the scope of the derogation of Article 102, § XXIX, paragraph 2, of the Law of 4 August 2008, which allows the creation, without authorization, of an additional sales space of less than 1000 m², in case of assignment to sale to the public of a specially fitted-out island in a shopping arcade continuing on from the space already existing, operated by the distributor and creator of the additional island.

 CA  Dijon, 20 June 2002, LawLex200300004193JBJ, for the organization of a sale on temporary premises on the mall of a shopping center.

 Cass. crim., 29 November 2000, LawLex200300004000JBJ, cited above.

 CA Toulouse, 5 March 1998, LawLex200400000166JBJ.

 Cass. crim., 14 June 2016, LawLex201600001129JBJ.

 The authorization regime, established by Law No 73-1193, known as the Royer Law, of 27 December 1973 for the orientation of trade and crafts, then Law No 89-1008 known as the "Doubin" Law, of 31 December 1989, Law No 93-122, known as the Sapin Law, of 29 January 1993, Law No 96-603, known as the Raffarin Law of 5 July 1996 and Law No 2000-1208, known as the SRU, of 13 December 2000, Law No 2008-776 of 4 August 2008 on the modernization of the economy and Law No 2014-626 of 18 June 2014 on crafts, trade and very small enterprises, was designed to ensure the balance between the different forms of trade, and more specifically to protect small trades. It submits the creation or extension of businesses of more than 1000 m² to the authorization of a departmental commission, which decides mainly according to a criterion of commercial density.

 CA Rouen, 14 May 1992, LawLex200300003946JBJ.

French Consumer Law

474. Premises not intended for commercial sales purposes

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474. Premises not intended for commercial sales purposes

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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