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 sale on temporary premises ("vente au déballage") is defined in relation to the place of the sale or purchase, and not to the status of the person who conducts it or the goods sold. Indeed, according to Article L. 310-2 of the Commercial Code, a sale on temporary premises is the sale or purchase of goods carried out in premises or on sites not intended for sale to the public or the purchase of …

Definition

The sale on temporary premises ("vente au déballage") is defined in relation to the place of the sale or purchase, and not to the status of the person who conducts it or the goods sold. Indeed, according to Article L. 310-2 of the Commercial Code, a sale on temporary premises is the sale or purchase of goods carried out in premises or on sites not intended for sale to the public or the purchase of goods, including from vehicles converted for this purpose. Both individuals and professionals can conduct sales on temporary premises. However, this freedom is not unlimited: a sale on temporary premises cannot exceed two months per year, for the same premises or site , or twice a year, for an individual, who also can only sell personal and used items .

The condition of the goods is of little importance: they may be new or outdated, shabby, mismatched or downgraded  or may have been rejected for manufacturing defects . The sale on temporary premises can also related to products which are not usually sold by the person declaring it .

  With the exception of the sale of fresh fruit or vegetables during a period of structural crisis.  

 E.g. Garage/car boot sales (vides-greniers) which have enjoyed a certain success throughout France.

 CA Besançon, 17 October 1989, LawLex200300001750JBJ.

  Cass. crim., 10 July 1990, LawLex200300004001JBJ.

  TA Amiens, 28 June 2007, LawLex201200001376JBJ.

Sales on temporary premises were regulated for the first time by the Law of 30 December 1906. For there to be a sale on temporary premises, three conditions had to be met: the sales had to be accompanied or preceded by advertising, carried out in premises not usually intended for the trade concerned, and be really or apparently occasional .

Law No 96-603 of 5 July 1996 on the development and promotion of trade and crafts, which repealed the 1906 Law, substantially changed the definition of sales on temporary premises, by abolishing the conditions relating to the occasional or exceptional nature of the sale and the need for advertising. Only the requirements concerning the place of the operation were maintained . The courts had extended the scope of sales on temporary premises to old-fashioned, shabby or mismatched objects and factory rejects . Now, any kind of goods can be sold at a sale on temporary premises, whether new or used .

Under the 1906 law, the courts regarded the disseminating of advertisements of an unauthorized sale on temporary premises as a violation of the provisions of Article 8 of the Law of 31 December 1989 (now Article L. 121-22, former Article L. 121-15 of the Consumer Code) . They thus found that sending personalized letters to even a limited number of people constituted the offense of advertising for an unauthorized sale on temporary premises . The advertiser should include in all advertising relating to a sale on temporary premises the date and author of the authorization, the period for which it was issued and the identity and status of the beneficiary . Failure to include this information in advertising relating to a sale on temporary premises was punishable by a fifth-category infringement. Today, it is an offense, punished with a fine of EUR 15,000. Once sales on temporary premises were no longer subject to authorization, as for closing-down sales, the Court of Cassation, strictly interpreting criminal law, refused to apply Article L. 121-15 (current Article 121-22) of the Consumer Code to an undeclared sale, as it only penalized and sanctioned unlawful advertising relating to commercial operations subject to authorization . Since then, the Hamon Law has amended the text to include undeclared sales on temporary premises.

2)  Laws of 2 August 2005 and of 4 August 2008

Law No 2005-882 of 2 August 2005 in favor of small and medium-sized undertakings opened the possibility of participating in sales on temporary premises to individuals not registered in the Trade and Companies Register who can only, however, sell personal and used items on a specific geographical area . Since the requirement concerning the geographical area caused difficulties, in particular for sales on temporary premises exceeding the framework of departmental or municipal districts, the LME Law of 4 August 2008 abolished it, while reforming other aspects of the sale on temporary premises. Article L. 310-2 of the Commercial Code now submits sales on temporary premises to a prior declaration to the mayor of the municipality , instead of an authorization . In addition, Law No 2010-874 of 27 July 2010 on the modernization of agriculture and fishing excluded from the calculation of the maximum duration of two months per calendar year for a sale on temporary premises in the same premises or on the same space sales of fresh fruit and vegetables carried out in times of economic crisis.

The Hamon Law  extended the concept of sale on temporary premises to the purchase of goods, which includes in particular the case where a trader sets up business in a space not usually intended for trade to offer the purchase of a particular product to individuals.

 Article 4 of Decree No 62-1463 of 26 November 1962 defined the sales as "sales preceded or accompanied by advertising, carried out in spaces or premises not normally intended for the trade concerned and of a genuinely or apparently occasional or exceptional nature. This nature may be the result of the method of acquisition of the goods, the size of the stock put on sale, the prices advertised or any other cause".

 The 1996 legislature completed the definition of the sale on temporary premises concerning its location, specifying that in addition to "premises or spaces not intended for the sale of goods to the public", it could also be "vehicles specially designed for this purpose".

 Pursuant to Article L. 310-2 of the Commercial Code, as drafted prior to Law No 2008-776 of 4 August 2008, an administrative authorization was required either from the competent authority if all the sales areas used by the applicant in the same place was greater than 300 m² (including an extension of the sales area greater than this footage) or from the mayor in the case of a smaller surface area.

 Law No 2014-344 of 17 March 2014 on consumption.

 Cass. crim., 10 July 1990, LawLex200300004001JBJ, upholding CA Besançon, 17 October 1989, LawLex200300001750JBJ, that goods which have not yet come into the possession of a consumer, even if they are outdated, mismatched or factory seconds, must be considered as new.

 There are no legislative or regulatory provisions requiring the sale on temporary premises to be for products not normally sold by the person requesting authorization: TA Amiens, 28 June 2007, LawLex201200001376JBJ.

 CA Rouen, 14 May 1992, LawLex200300003946JBJ, approved by Cass. crim., 22 February 1993, LawLex200300003937JBJ: deeming unlawful the advertising in a local newspaper prior to an unauthorized sale on temporary premises taking place in a marquee installed in the parking lot of the store. For a similar decision: TGI Agen, 9 July 1998, LawLex200400000165JBJ: by disseminating advertisements, in particular in the hypermarket's anniversary catalog for products presented for sale in the mall, and consequently within the framework of an unauthorized sale on temporary premises, the director committed the offense of advertising for an unauthorized commercial operation of which he is accused.

 CA Toulouse, 9 October 1997, LawLex200300002614JBJ.

 CA Nancy, 12 November 2002, LawLex200300004053JBJ, finding that the omission of some information on the advertisement announcing a lawful sale on temporary premises constitutes a violation of the provisions of Article 10 of Decree No 96-1097 of 16 December 1996.

 Cass. com., 3 November 2010, LawLex201200001245JBJ.

 The sellers had to be domiciled or have their secondary residence in the municipality, the intermunicipal or the departmental district concerned.

 The declaration procedure is specified in Articles R. 310-8 and R. 310-9 of the Commercial Code.

Legislative developments

According to the Court of Justice, a measure with an effect equivalent to a quantitative restriction on imports prohibited by Article 34 TFUE is any national trade regulation likely to impede, directly or indirectly, actually or potentially, trade between Member States . However, such an impediment is permissible when the legislation in question applies equally to domestic and imported products and is justified by a mandatory requirement aimed, in particular, at fair trading and the defense of consumers . In all cases, national legislation which restricts or prohibits certain sales methods does not constitute a measure with an equivalent effect, provided that it applies to all operators concerned operating on the national territory and that it affects in the same way, in law and in fact, the marketing of national products and those from other Member States . Applying the “acte clair” theory - allowing it to waive reference of the case to the Court of Justice for interpretation - the Court of Cassation held that the regulations governing sales on temporary premises resulting from the 1906 Law do not infringe the principle of free movement of goods or the principle of free competition resulting from the provisions of Union law, as they apply without distinction to domestic and imported products and are justified by their purpose, i.e. consumer protection, security and the fairness of commercial transactions .

The entry into force of Directive No 2005/29 of 11 May 2005 on unfair commercial practices led the French legislator to replace the prior authorization by a system of prior declaration . However, as with closing-down sales, this substitution appears insufficient in the light of the requirements of the directive. According to the European court , where a commercial practice does not fall within the list of unfair commercial practices per se of annex I, which is the case of sales on temporary premises, an early or preventive control by the Member State cannot result in the prohibition of a commercial practice solely on the grounds that it has not been the subject of prior authorization by the competent administration, without its unfairness being assessed in the light of the criteria set out in Articles 5 to 9 of Directive No 2005-29.

  Case 8/74 Dassonville, Judgment of 11 July 1974, LawLex200500005388JBJ.

  Case 120/78 Cassis de Dijon, Judgment of 20 February 1979, LawLex200900001513JBJ.

  Joined Cases C-267/91 and C-268/91 , Keck and Mithouard, Judgment of 24 November 1993, LawLex201100000270JBJ.

  Cass. crim., 25 October 1993, LawLex200400000045JBJ, upholding CA Poitiers, 25 June 1992, LawLex200300003950JBJ.

  Law No 2008-776 of 4 August 2008 on the modernization of the economy (LME Law).

  For closing-down sales, see Case C-206/11 Köck v Schutzverband gegen unlauteren Wettbewerb, Judgment of 17 January 2013 , LawLex201300000099JBJ.

French Consumer Law

471. Definition

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