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French Consumer Law

The LME Law of 4 August 2008 simplified the regulation of sales on temporary premises by replacing the system of prior authorization of Law No 96-603 of 5 July 1996 with a simple declaration to the mayor of the municipality in which the place of sale is located . The declaration procedure is specified in Articles R. 310-8 and R. 310-9 of the Commercial Code.
The prior declaration must be delivered …

Procedure

The LME Law of 4 August 2008 simplified the regulation of sales on temporary premises by replacing the system of prior authorization of Law No 96-603 of 5 July 1996 with a simple declaration to the mayor of the municipality in which the place of sale is located . The declaration procedure is specified in Articles R. 310-8 and R. 310-9 of the Commercial Code.

The prior declaration must be delivered to the mayor of the municipality concerned against a receipt or sent by registered letter with acknowledgment of receipt within a period of at least fifteen days before the date planned for the start of the operation . However, the declaration is sent within the same time-limit as the application for authorization to temporarily occupy the public domain where the sale is planned on the public domain and the mayor is competent to issue the authorization for its temporary occupation . The prior declaration of the sale on temporary premises must conform to the model annexed to the Order of 9 January 2009 . It is accompanied by a proof of identity of the declarant . Within eight days before the sale, the mayor must inform the declarant that if the duration of the sale is exceeded, he may face criminal penalties. Article R. 310-19 (3) of the Commercial Code punishes by a fine of EUR 1,500 the fact of carrying out a sale on temporary premises that exceeds the duration of the sale provided for in the second paragraph of Article L. 310-2, I of the same code .

Individuals who are not registered with the trade and companies register can only participate in a sale on temporary premises twice a year.

Compliance with this obligation is ensured by Article R. 310-9 of the Commercial Code, which requires a register to be kept indicating the nature, characteristics, origin, method of payment of the object, a description of the objects acquired or held for sale or exchange and enable the identification of these objects and of the persons who sold or exchanged them, in accordance with the provisions of Article 321-7 of the Criminal Code .

Some professionals are not subject to the prior declaration obligation of Article L. 310-2 of the Commercial Code. This is the case for those who:

-  in one or more municipalities, make sales rounds as defined in Article L. 221-2 (former Article 121-16-1) of the Consumer Code, i.e. home sales of foods or everyday consumer products made by professionals or their employees during frequent or periodic rounds in the urban area where their establishment is located or in its vicinity;

-  carry out sales defined by Article L. 320-2 of the Commercial Code, i.e. sales by public auction;

-  provide proof of holding a highway permit or parking permit for roadside sales.

Article L. 310-2, III of the Commercial Code also exempts from the obligation of prior declaration the organizers of:

-  commercial events involving sales of goods to the public in an exhibition center;

-  commercial events qualified as trade fairs not held in an exhibition center;

-  fairs and agricultural events when only producers or breeders are exhibitors.

 In doing so, a double simplification is carried out, on the one hand, by switching from an authorization system to a declaratory system, as was done in 2004 for closing-down sales and, on the other hand, by generalizing the authority of the mayor.

  These time limits do not apply to sales of fresh fruit and vegetables carried out in times of economic crisis established in accordance with Article L. 611-4 of the Rural and Maritime Fishing Code, to favor, by rapid destocking, the regularization of market prices; these sales may be made without delay, by joint decision of the Minister for Trade and the Minister for Agriculture, after consultation by the Minister for Agriculture with the competent inter-branch organization.

 Article 2 of the Order of 9 January 2009 on the prior declaration of sales on temporary premises.

  Which can be increased to EUR 3,000 in the event of a repeat offense.

  Art. 321-7, paragraph  2, Criminal Code : "The same penalties apply to the omission, even by negligence, by any person other than a legal professional officer or public officer organizing on public premises or premises open to the public an event to sell or exchange articles described in the previous paragraph, to keep a daily register enabling the sellers to be identified, as required by a decree of the Council of State".

It is often the case that the same sale on temporary premises operation involves several sellers, in particular in the case of flea markets and garage sales.

The second paragraph of Article R. 310-9 of the Commercial Code  , prior to its amendment by Decree No 2009-16 of 7 January 2009, provided that when a sale on temporary premises involved several sellers, the authorization application had to be addressed to the competent authority by the organizer of this operation for the total sales area envisaged. The question arose as to whether, pursuant to these provisions, the organizer of a flea market in the public domain had the power to authorize non-sedentary traders to participate in such an event.

The courts replied in the affirmative. These decisions constitute, due to the place where the event takes place and the authorization to occupy the public domain held by the organizer, decisions to accept or refuse occupation of the public domain, which have the character of administrative acts taken under the prerogatives of public authority vested in the organizer. They therefore fall within the jurisdiction of the administrative court in the event of a dispute . Consequently, the interim relief judge is not competent to order the cessation of the sale on temporary premises when it has been authorized by the mayor .

The LME Law of 4 August 2008 and its implementing Decree No 2009-16 of 7 January 2009 abandoned the reference to a plurality of sellers. Now, Article R. 310-8 only mentions that the organizer must send the prior declaration to the mayor of the municipality in which the sale operation is planned. However, it can be assumed that, in the case of sale on the public domain requiring a temporary occupation permit, previous case law remains applicable.

 Former Article 7 of Decree No 96-1097 of 16 December 1996.

 TA Versailles, 28 May 2002, LawLex200300004095JBJ.

 CA Nancy, 12 November 2002, LawLex200300004053JBJ.

French Consumer Law

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