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

According to Article 121-3 of the Criminal Code, there is no crime or offense without the intent to commit it, except where provided for by law. The offense of unlawful casual trading, which is not one of the exceptions listed by the text, is therefore necessarily intentional.
At the time when casual trading was subject to prior authorization, the court deduced intent to commit the offense from th …

Intentional element

Under Article 121-2 of the Criminal Code, legal entities, excluding the State, are criminally liable for the offenses committed, on their behalf, by their bodies or representatives. This liability is confirmed in respect of the offences defined in Article L. 310-5 of the Commercial Code by Article L. 310-6, which refers to Article 121-2 of the Criminal Code.

Thus, Article L. 310-5, 2° of the Commercial Code stipulates that “the fact of holding a sale on temporary premises without the declaration stipulated in Article L. 310-2 or in violation of that declaration” is punished by a fine of EUR 15,000 for natural persons, and EUR 75,000 for legal entities . The court can also order the display of the conviction or its publication in the written press, not only for natural persons , but also for legal entities .

When the conditions of Article 121-2 of the Criminal Code are met, the offense can be attributed both to the natural person and to the legal entity on whose behalf the offense was committed, without the need to establish a separate fault on the part of the legal entity . Although the criminal liability of the legal entity can be incurred for an unauthorized sale on temporary premises, the offending facts must have been committed by its representative. Where the person with the necessary competence, authority and means has received a delegation or sub-delegation of authority from the bodies of the legal person, he necessarily has the status of representative .

Moreover, according to the Court of Cassation, the offense of an unauthorized (or now undeclared) sale on temporary premises is primarily attributable to the person making the sale. An association of shopkeepers of a shopping center, lessor of the spaces occupied by those conducting the sale on temporary premises, cannot be prosecuted, even if it knew the applicable regulations and received 234 days of rent during the year concerned by the prosecution . Similarly, the trial judges consider that the lessor of the premises used for the offending sale cannot be prosecuted for violation of the law on sales on temporary premises, when it does not own the goods sold .

In addition, pursuant to Article R. 310-19, 3° of the Commercial Code, conducting a sale on temporary premises in the same premises or in the same space for a period exceeding two months per calendar year  is punished by a fine provided for fifth-category infringements.

 Article 131-38 Criminal Code : "The maximum rate of the fine applicable to legal entities is equal to five times that provided for individuals by the law which punishes the offence [...]".

 Article L. 310-5 Commercial Code, under the conditions of Article 131-35 Criminal Code.

 Article L. 310-6 Commercial Code, under the conditions of Article 131-39, 9° Criminal Code.

 CA Grenoble, 14 April 2000, LawLex200300004484JBJ.

  See Cass. crim., 26 June 2001, LawLex200300004003JBJ; CA Grenoble, 14 April 2000, LawLex200300004484JBJ.

  Cass. crim., 29 April 2003, LawLex200300003628JBJ, overturning CA Dijon, 20 June 2002, LawLex200300004193JBJ.

  See CA Douai, 13 March 1991, LawLex200400000164JBJ; CA Limoges, 22 February 1993, LawLex200400000151JBJ.

 i.e. a fine of EUR 1,500 and EUR 3,000 in the case of recidivism under Article 131-13, 5° Criminal Code.

Imputability

According to Article 121-3 of the Criminal Code, there is no crime or offense without the intent to commit it, except where provided for by law. The offense of unlawful casual trading, which is not one of the exceptions listed by the text, is therefore necessarily intentional.

At the time when casual trading was subject to prior authorization, the court deduced intent to commit the offense from the willful nature of the absence of an application for authorization of the sale . To establish the bad faith of the offender, the courts took account of various circumstances, such as the organization of the sale in non-adapted premises, without affixing any sign allowing identification, or the refusal to communicate to the bailiff designated by the interim order the provenance of the goods .

Although casual trading is now subject to a simple prior declaration and not to an authorization, the solutions identified under the previous regulations retain a great deal of their value. The intentional element of the offence should lie in the non-performance of formalities relating to the declaration, or the organization of casual sales, in disregard of this declaration.

The court has also ruled out that a trader could invoke disregard of the rules in order to avoid liability, whereas, as a professional, he should have been fully aware of his regulatory obligations . It is unlikely that this interpretation will be valid for individuals participating in a sale on temporary premises, because of their non-professional status.

  Court of Appeal, 10 July 1990, LawLex200300004001JBJ: holding that the Court of Appeal cannot be criticized for not explaining the intentional element of the offence of casual trading without authorization, when intent is deduced from the voluntary nature of the omission found; Cass. crim., 24 November 1993, LawLex200300001703JBJ: holding that the voluntary nature of the offence of casual trading without special authorization from the Mayor is deduced in this case from the voluntary nature of the omission; Cass. crim., 17 January 1994, LawLex200300001704JBJ:  holding that the intent is to be deduced from the voluntary nature of the omission, as found against the accused, of obtaining the necessary authorizations.

 CA Aix-en-Provence, 18 March 1997, LawLex200400000163JBJ.

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

French Consumer Law

482. Intentional element

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Les décisions de justice citées dans ce paragraphe :

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482. Intentional element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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