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 person responsible for the first market launch must check the conformity of the products with the requirements in force relating to the health and safety of persons, fair trading and consumer protection . These requirements may originate in French or European texts or, in the absence of regulations, in commercial practices . The importer of tooling equipment  or lamps  must therefore check the …

Obligation to check

The person responsible for the first market launch must check the conformity of the products with the requirements in force relating to the health and safety of persons, fair trading and consumer protection . These requirements may originate in French or European texts or, in the absence of regulations, in commercial practices . The importer of tooling equipment  or lamps  must therefore check the conformity of these products with the mandatory safety standards applicable to electrical equipment in France.

The obligation to check lies personally with the person responsible for the first market launch . He cannot take refuge behind a delegation of powers, or claim to be unaware of the quality of the product when he has a power of intervention in the supplies and in the commercial and general policy of the group . The conformity check must be carried out not on samples before importation but on consignments imported on their arrival on the national territory . The person responsible for the market launch also cannot, in principle, rely on a conformity check prior to the importation carried out at the request of the Chinese manufacturer of the goods . Finally, in an isolated judgment, the Court of Cassation showed particular severity by holding that the obligation to check laid down in Article L. 411-1 of the Consumer Code requires that the conformity of products be checked regularly .

The Court of Appeal of Paris considered that the fact that a product comes from a Member State does not presuppose its conformity with European standards . However, the importing Member State may not unnecessarily require technical or chemical tests or laboratory tests when these same examinations and analyzes have already been carried out in another Member State and the results are available to it . The Court of Justice therefore considered that the importer had to be able to rely on certificates issued by the authorities of the Member State of production or by a laboratory approved for this purpose by these authorities or, when the legislation of this Member State does not require such certificates to be issued, on certificates providing a similar level of guarantees . According to the Court of Cassation, “only documents from the manufacturer itself, such as its invoices and the analyzes carried out in its own laboratory” cannot be assimilated to the certificates or attestations mentioned by the European court .

  Article L. 411-1 (formerly L. 212-1) paragraph 1, Consumer Code.

  Cass. crim., 17 January 1996, LawLex200400001175JBJ.

 Case 25/88 Wurmser and others, Judgment of 11 May 1989, LawLex201700000038JBJ.

 Case 25/88 cited above; CA Paris, 2 November 1998, LawLex200400000172JBJ, declaring that an importer is not required, when in possession of a certificate of conformity established by an approved laboratory located in the territory of the Union, for the simultaneous introduction, in the Union, of a product acquired from an undertaking which is a national of one of the Member States, to carry out further laboratory tests on the French territory.

  Cass. crim., 17 October 1991, LawLex200400000271JBJ.

 Cass. crim., 10 April 1997, LawLex200400001145JBJ.

 CA Paris, 15 December 1993, LawLex200400001775JBJ.

  CA Paris, 15 May 2002, LawLex200300004449JBJ, for the importer of kettles manufactured in Hong Kong that it introduced and marketed on the French market merely with a certificate established at the sole request of the Chinese manufacturer.

  Cass. crim., 3 May 2006, LawLex200600001274JBJ, for a company having placed on the market allegedly the production of a farm in Brittany, although they were mixed with battery eggs from Belgium.

  Cass. crim., 10 April 1997, LawLex200400001145JBJ; CA Paris, 25 March 1996, LawLex200400000140JBJ.

  Cass. crim., 13 June 2006, LawLex200600001660JBJ.

  Cass. crim., 30 October 1990, LawLex200400000260JBJ.

  CA Paris, 15 December 1993, LawLex200400001775JBJ.

The person responsible for the first market launch must prove that he has fulfilled his obligation to check conformity with the requirements in force, by submitting evidence of self-checking operations . Indeed, paragraph 3 of Article L. 411-1 (former Article L. 212-1) of the Consumer Code reverses the burden of proof by requiring him to provide evidence, on the request of authorized agents, of the verifications and checks carried out. Authorized agents are agents of the DGCCRF, of the Customs Directorate and Directorate of Public Finances, labor inspectors, officers and agents of the judicial police, or official veterinarians . In addition, persons designated by the competent authorities of another Member State may assist authorized agents when EU legislation provides for cooperation between Member States (Consumer Code, Article L. 511-26, former Article L. 215-1-2). Their investigatory powers are defined in Articles L. 512-1 et seq. (former Articles 215-3 et seq.).

In accordance with Article L. 521-10 (former Article L. 218-5), they may in particular, when they find that products do not comply with the regulations in force, “order that they are rendered compliant, at the expense of the operator, within a time-limit fixed by them”. When it is impossible to render them compliant, their use for other purposes, the “re-export” or destruction of the goods may be ordered by the prefectural authority. In addition, Article L. 521-12 (former Article L. 218-5-2) provides that when the conformity of the product with the requirements in force can be questioned and the person responsible for placing it on the national market is unable to justify the checks and verifications referred to in Article L. 411-1, the competent administrative authority may require him to carry out checks at his own expense and suspend the placing on the market of the product pending the performance of these checks.

  Cass. crim., 2 May 2012, LawLex201400000662JBJ, holding that the company which markets toys which are non-compliant and dangerous, incorrectly showing the CE marking, must be declared guilty of the offense of deception on the substantial qualities of the goods, when it is unable to produce documents justifying self-checking operations.

  Consumer Code, Article L. 511-7, former Article L. 215-1.

Evidence

Article L. 411-1 (former Article L. 212-1) of the Consumer Code does not provide for any specific sanction for non-compliance by the person responsible for the first placing on the market of his obligation to check the compliance of the products manufactured or imported with the requirements in force. When it results from the bad faith of the person responsible, the breach of the obligation to carry out self-checks may be sanctioned as deception  or falsification. The Court of Cassation has held that the verification prior to the importation of goods placed on the market, which fails to meet the requirements of Article L. 212-1 of the Consumer Code imposing the verification of imported products on their arrival on the national territory, characterizes all the elements of the offense of deception as to the quality of the goods, particularly with regard to intent . In addition, violations of the decrees implementing Article L. 412-1 (former Article L. 214-1) are punishable by a fifth-class fine , when they are not combined with the offense of fraud or forgery (provided for in Articles L. 213-1 to L. 213-4 and L. 214-1, 7° of the Consumer Code). In case of a fine, Article L. 523-1 provides for the possibility of a compromise as long as the public action has not been initiated, with the agreement of the public prosecutor.

Since Law No 2017-203 ratifying the Ordinance of 14 March 2016, the non-compliance with the obligation to provide information imposed by Article L. 411-2 on any operator who has knowledge, after having acquired or disposed of products, of a non-conformity with the regulations is now punishable by a prison sentence of one year and a fine of EUR 150 000 as laid down in Article L. 451-1.

 It is inferred from Articles L. 212-1 and L. 213-1 of the Consumer Code that that the non-compliance by the person responsible for the first market launch with his obligation to check the compliance of the products manufactured or imported with the requirements in force is sanctioned by the offense of deception, meaning that the material element of the offense is constituted by the market launch of a product that does not comply with the regulations and the intentional element by the absence of necessary checks by the person responsible for the first market launch, CA Grenoble, 11 September 2007, LawLex201400002009JBJ.

  Cass. crim., 13 June 2006, LawLex200600001660JBJ; 20 September 2011, LawLex201200000946JBJ; 27 January 2015, LawLex201500001846JBJ, holding that the importer of zinc sulphate used in cattle feed, which has not carried out any control testing of containers, merely relying on the certificate of conformity of its Chinese supplier and which, informed of the non-conformity of the goods by one of its customers, partially replaced the products, is guilty of deception on a substantial quality of the goods.

Art. R. 451-1, Consumer Code (ceated by Decree No 2016-884 of 29 June 2016).

Sanction

 Following the controls carried out, the investigators referred to in Article L. 511-22 (former Article L. 215-1) are empowered to take certain administrative measures  applicable to establishments and products (Articles L. 521-5 to L. 521-14) and to the provision of services (Articles L. 521-19 to L. 521-26).

1)  Measures concerning establishments and products

Thus, when, due to a breach of Book IV or a Union regulation, the operating conditions of an establishment are such that the products manufactured, held or placed on the market present or are likely to present a danger for public health or the safety of consumers, the investigators may order any corrective measures (reinforcement of self-checks, staff training actions, performance of works or cleaning operations), including the closure of all or part of the establishment or the termination of one or more of its activities (Article L. 521-5). In the case of established non-conformity or danger to public health or consumer safety, the administrative authority may order cumulatively or alternatively the suspension of the placing on the market, withdrawal, recall and destruction. In the case of dangerous products, it may order the dissemination of a warning and the recall of the products with a view to an exchange, modification or total or partial reimbursement (Article L. 521-7).

In accordance with Article L. 521-10 (former Article L. 218-5), investigators may in particular, when they find that products do not comply with the regulations in force, “order that they are rendered compliant, at the expense of the operator, within a time-limit fixed by them”. When it is impossible to render them compliant, their use for other purposes, the “re-export” or destruction of the goods may be ordered by the prefectural authority. In addition, Article L. 521-12 (former Article L. 218-5-2) provides that when the conformity of the product with the requirements in force can be questioned and the person responsible for placing it on the national market is unable to justify the checks and verifications referred to in Article L. 411-1, the competent administrative authority may require him to carry out checks at his own expense and suspend the placing on the market of the product pending the performance of these checks.

2)  Measures concerning the provision of services

Pursuant to Article L. 521-19, when a provision of services is not in conformity with the regulations in force, the investigators may order that it be brought into conformity, within a time-limit set by them. In the event of serious or immediate danger, the provision of services may be suspended by order (Article L. 521-20). In the event of serious or immediate danger and where the provision of services is not regulated under Book IV, the administrative authority may take the necessary emergency measures by order. If necessary, it may suspend the provision of services for a period not exceeding three months, renewable under the same conditions, and make the resumption of the provision of services subject to review by an organization which guarantees independence, competence and impartiality, designated by it. The cost of this control is borne by the service provider (Article L. 521-23).

  Before the recodification set forth in Articles L. 218-2 et seq.

French Consumer Law

494. Obligation to check

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

494. Obligation to check

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise