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

On 29 May 2019 the EU adopted 2 maximum harmonization directives  with the aim of making it easier for consumers and businesses to buy and sell goods and digital content cross-border. The two directives, presented by the Commission as part of the Digital Single Market Strategy, standardize the system of guaranteeing conformity in contracts for the sale of goods and the supply of digital content an …

E-commerce package: Directives No 2019/771 and No 2019/770

Initially, the articles relating to the legal guarantee of conformity were inserted in the Consumer Code by Ordinance No 2005-136 of 17 February 2005 , which transposed into French law Directive No 1999/44 of 25 May 1999 on certain aspects of the sale and warranty of consumer goods ,  replaced, as of 1 January 2022, by Directive No 2019-771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods , which, together with Directive No 2019/770 also dated 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services , make up the e-commerce package aimed at reinforcing consumer rights on- and offline. 

The aim of the directive was to approximate the legislation of the Member States in order to ensure uniform protection for consumers within the internal market. The text lays down the rules applicable not only to the legal guarantee of compliance but also to the commercial guarantee . Article 2 of Directive No 1999/44 of 25 May 1999  made no distinction between latent defects and non-conformity: it required the seller to deliver a good in conformity with the contract of sale, i.e. which corresponded to the description given by the seller, or was fit for any special purpose sought by the consumer and brought to the knowledge of the seller. The directive deemed a lack of conformity resulting from incorrect installation of the consumer goods  to be equivalent to lack of conformity of the goods if, among other things, installation was included in the contract of sale of those goods (Article 2(5)) . It applied to contracts of sale sensu stricto, but also to contracts involving a supply of services, which, in accordance with applicable national law, were capable of falling within the classification of contracts for services or work provided that the supply of services is ancillary to the sale. It was likewise applicable to contracts for the supply of consumer goods to be manufactured or produced and contracts providing for the installation of such goods linked to the sale . According to the Court of Justice, the concept of seller for the purposes of Directive No 1999/44 also covered a professional acting as an intermediary on behalf of an individual who has not duly informed the consumer buyer of the fact that the owner of the property sold is an individual .

Since Directive No 1999/44 of 25 May 1999 imposed only minimal harmonization , the French legislator transposed its provisions while retaining those of Articles 1604 and 1641 of the Civil Code. The duration of the time-limit to take action for breach of the obligation of conformity, of five years in the Civil Code , is only two years  in the Consumer Code.  The provisions relating to the legal guarantee of conformity in the Consumer Code do not deprive the buyer of the right to exercise the action in respect of latent defects or any other action of a contractual or non-contractual nature that is recognized by law, at the choice of the consumer . In fact, it is not uncommon for consumers to base their action on both the provisions of the Civil Code and those of the Consumer Code . Moreover, the Consumer Code permits the seller to bring a recourse action against any person upstream in the chain of commercial transactions, including the producer, according to the rules of the Civil Code .

Finally, under the principle of non-retroactivity of laws, the legal guarantee of compliance can only be invoked in French law against contracts entered into after 17 February 2005, the date of entry into force of Ordinance No 2005-136 .

Directive No 2019/771 which repeals and replaces it is of maximum harmonization (see Article 4).

 Civil Code, Article 2224: “Personal actions or actions relating to personal property are time-barred five years from the day on which the owner of a right knew or ought to have known the facts which enabled him to exercise it.”

Consumer Code, Article L. 217-3 (former Article L. 217-12)

Consumer Code, Article L. 217-30 (former Article L. 217-13).

 CA Bordeaux, 10 March 2011, LawLex201300000545JBJ, concerning the application to have a contract of sale of a new vehicle affected by defects rescinded under Articles 1641 of the Civil Code relating to the guarantee against hidden defects and Articles L. 211-4 et seq. of the Consumer Code relating to the legal guarantee of conformity; CA Nancy, May 31, 2010, LawLex201300000634JBJ, concerning the malfunction of the regulation of a heating appliance and its intermittent failure; CA Douai, November 12, 2012, LawLex201300000782JBJ, concerning the sale of a defective second-hand vehicle, the action being based on Article 1147 (now Article 1231-1) of the Civil Code relating to contractual liability, Article 1604 of the Civil Code relating to the breach of the obligation of compliant delivery, and Articles L. 211-4 et seq. (current Articles 217-4 et seq.) of the Consumer Code.

Consumer Code, Article L. 217-31 (former Art. L. 217-14).

 See CA Bordeaux, 10 March 2011, LawLex201300000545JBJ, which, concerning the defect affecting a new vehicle purchased on 30 June 2004, rejects, given the date of acquisition of the good, the action concerning the legal guarantee of conformity on the basis of Articles [L. 211-4] et seq. of the Consumer Code.

Transposed into Articles L. 211-15 and L. 211-16 of the Consumer Code, now Articles L. 217-15 and L. 217-16. Since the adoption of Ordinance No 2021-1247, the commercial guarantee of conformity is now governed by Articles L. 217-21 to L. 217-24 of the Consumer Code.

 Directive 1999/44, Article 2: “1. The seller must deliver goods to the consumer which are in conformity with the contract of sale. 2. 2. Consumer goods are presumed to be in conformity with the contract if they: (a) comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model; (b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted; (c) are fit for the purposes for which goods of the same type are normally used; (d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labeling […]”. Directive No 2019/771 takes up and further develops this approach to the concept of conformity, in Articles 6 and 7, which respectively define the subjective and objective criteria of conformity.

Article 1 (2) of Directive No 1999/44 defines “consumer goods” as “any tangible movable object, with the exception of: - goods sold by way of execution or otherwise by authority of law; - water and gas where they are not put up for sale in a limited volume or set quantity; - electricity”. Cf. Article 2(5)(a) of Directive No 2019/771.

Article 8 of Directive No 2019/771 reproduces the provisions of Article2(5) adding a reference to goods with digital elements: "Any lack of conformity resulting from the incorrect installation of the goods shall be regarded as lack of conformity of the goods, if: (a)  

the installation forms part of the sales contract and was carried out by the seller or under the seller's responsibility; or (b)   

the installation, intended to be carried out by the consumer, was done by the consumer and the incorrect installation was due to shortcomings in the installation instructions provided by the seller or, in the case of goods with digital elements, provided by the seller or by the supplier of the digital content or digital service".

 Case C-247/16 Heike Schottelius v Falk Seifert, Judgment of 7 September 2017, LawLex201800001148JBJ: if a contract for the renovation of a swimming pool required the sale of various goods necessary to renovate that swimming pool, such as, for example, a filtration system featuring a pump, it does not fall within the scope of Directive No 1999/44, insofar as the provision of services for the installation of the goods is the principal subject of that contract for work and the sale of the goods is merely ancillary by comparison with that provision of services.

 Case C-149/15 Wathelet, Judgment of 9 November 2016, LawLex201700001305JBJ. 

Directive No 1999/44

On 29 May 2019 the EU adopted 2 maximum harmonization directives  with the aim of making it easier for consumers and businesses to buy and sell goods and digital content cross-border. The two directives, presented by the Commission as part of the Digital Single Market Strategy, standardize the system of guaranteeing conformity in contracts for the sale of goods and the supply of digital content and services. 

1) Directive No 2019/771 concerning contracts for the sale of good

Directive No 2019/771 repeals Directive No 1999/44 the provisions of which are now extended to cover internet consumers. It concerns all sales of goods whether in a shop, online or otherwise at a distance so that online traders will now have to offer the same guarantees to consumers as brick and mortar merchants. Like Directive No 1999-44, it applies to tangible movable items, including water, gas and electricity “where they are put up for sale in a limited volume or a set quantity”  but excludes immovable property and its “main components intended to constitute a major part of such immovable property” . It also covers goods with digital elements within the meaning of Article 2(5)(b), i.e. any tangible movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions (e.g. software, smart watches). Contracts for the supply of digital content or digital services  are not covered however, nor are tangible media serving exclusively as carriers of the digital content , which are governed by Directive No 2019/770. In the event of doubt as to whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of the sales contract, Directive No 2019/774 provides that they are presumed to be covered by the sales contract (Art. 3(3)).

Further, the directive stipulates that even if the concept of conformity is to be understood as referring to the conformity of goods with the contract of sale in the sense that the goods must not only correspond to the description provided for in the contract (type, quantity, quality, functionality, compatibility, interoperability and other features, be fit for the particular purpose required by the consumer on conclusion of the contract, be delivered with all accessories and instructions, including on installation, and updates as stipulated by the sales contract (Art. 6), it must also be examined on the basis of objective criteria: to be in conformity the goods must also be adapted to the purpose for which goods of the same type would normally be used under existing technical standards or, in the absence of such standards, applicable sector-specific industry codes of conduct, be supplied with the accessories and instructions that the consumer can reasonably expect to receive, and possess the qualities in relation to durability, functionality, compatibility and security normal for goods of the same type, bearing in mind that in the case of goods with digital elements, the seller must ensure that the consumer is informed of and supplied with updates, specifically security updates (Art. 7) . Furthermore, the goods must not be subject to any legal loopholes i.e. resulting from third-party rights especially intellectual property rights (Art. 9) .

The directive stipulates that there can be no lack of conformity if, at the time of the conclusion of the sales contract, the consumer was specifically informed that a particular characteristic of the goods was deviating from the objective requirements for conformity and the consumer expressly and separately accepted that deviation when concluding the sales contract  (Art7(5)). Also, where the consumer fails to install within a reasonable time updates supplied by the seller, the latter is not liable for any lack of conformity resulting solely from the lack of the relevant update, provided that the consumer has been informed about the availability of the update and the consequences of the failure of the consumer to install it, or the incorrect installation by the consumer of the update was not due to shortcomings in the installation instructions (Art. 7(4)).

The directive states that the period of the seller's liability is two years in principle, but where the contract provides for the supply of a digital element for a longer period, the guarantee of conformity is extended accordingly (Art. 10(2)). Furthermore, Member States are free to maintain or introduce longer time-limits for the seller's liability (Art. 10(3)). In relation to the sale of second-hand goods, the guarantee period can be less than two years - but not less than one year - if the seller and the consumer agree to contractual terms or to that effect (Art. 10(5)). Although the burden of proof of the lack of conformity falls in principle to the consumer, the directive lays down a presumption of pre-existence  according to which the lack of conformity is presumed to have been present, unless proved otherwise, at the time when the goods were delivered where it becomes apparent within one year of the time when the goods were delivered instead of the six months under Directive No 1999/44, with Member States having the possibility to maintain or introduce a period of two years. However, and for the first time, in the case of a contract for the continuous supply of digital content or services, the burden of proof is reversed: it is for the seller to prove the conformity of said content or service during the period in question (Art. 11(3)). 

In the event of a lack of conformity, the consumer may choose between repair and replacement free of charge unless the remedy chosen would be impossible or would impose disproportionate costs on the seller (Art. 13(2) and (3)). The consumer is entitled to a reduction in the price (Art. 15) or to terminate the contract (Art. 16) if the seller has not repaired or replaced the goods under the conditions laid down in Article 14  or refuses to bring the goods into conformity, or if a lack of conformity appears despite the seller having attempted to bring the goods into conformity, or is of too serious a nature or it is clear from the circumstances, that the seller will not bring the goods into conformity within a reasonable time, or without significant inconvenience for the consumer (Art. 13(4)). If the lack of conformity is only minor, the consumer is not entitled to terminate the contract, the burden of proof with regard to whether the lack of conformity is minor being on the seller (Art. 13(5)). The directive includes a non-performance defense for the consumer who has the right to withhold payment of any outstanding part of the price until the seller has fulfilled its obligations under the conditions determined by the law in each Member State (Art. 13(6)). It also allows the Member States to regulate whether and to what extent a contribution of the consumer to the lack of conformity affects the consumer's right to remedies (Art. 13(7)). Where the seller's liability is incurred towards the consumer for a lack of conformity of the goods resulting from an act or omission by a person in previous links of the chain of transactions, the seller may pursue remedies against that person under the conditions determined by its national law (Art. 18). 

Lastly, Article 17 of the directive adopts a broader interpretation of the commercial guarantee: in addition to the commercial guarantee statement, it now covers the “advertising available at the time of, or before the conclusion of the contract”. Further, where a producer offers to the consumer a commercial guarantee of durability for certain goods for a certain period of time, the producer is liable directly to the consumer, during the entire period of the guarantee for repair or replacement of the goods in accordance with Article 14. 

2) Directive No 2019-770 on certain aspects concerning contracts for the supply of digital content and digital services

Directive No 2019/770 covers the supply of digital content i.e. data which are produced and supplied in digital form (online videos, music) and digital services, i.e. services that allow the consumer to create, process, store or access data in digital form (cloud storage) or services that allow the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service (Facebook, YouTube, etc.).

Apart from digital content or services that incorporated in or inter-connected with goods containing digital elements , the directive excludes the supply of services other than digital services, electronic communications services, healthcare, gambling services, financial services, software offered by the trader under a free and open-source license, the supply of digital content where it is made available to the general public other than by signal transmission as a part of a performance or event and digital content provided by public sector bodies (Art. 3(4) and (5). 

Any lack of conformity resulting from the incorrect integration of the digital content or digital service into the consumer's digital environment shall be regarded as lack of conformity of the digital content or digital service if the digital content or digital service was integrated by the trader or under the trader's responsibility or it was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions provided to the consumer (Art. 9).

The directive provides that in the event of non-conformity of digital content or a digital service, assessed according to objective  and subjective  criteria similar to those of Directive No 2019/771, which cannot be remedied at all or within a reasonable period of time or without disproportionate costs for the seller, the consumer is entitled to have the digital content or digital service brought into conformity , a reduction in the price  or a full refund as a result of the termination of the contract within 14 days from the day the seller is informed of that decision (Art. 14 (4), 16 (3)). In case of termination, the consumer is not required to pay for the use he has made of the digital content or service during the period prior to the termination. However, he must refrain from using the digital content or digital service and from making it available to third parties, and return the tangible medium used if the digital content is supplied through it. The consumer is also entitled to terminate the contract in the event of lack of conformity (Art. 13)

The directive also states that the period during which the consumer is entitled to remedies for any lack of conformity may not be less than two years, but can extend to the duration provided for in the contract in the case of the continuous supply of digital content or services (Art. 11 (3)). The burden of proof with regard to whether the digital content or digital service was provided and in conformity is on the trader (Art. 12). Like its sister directive, Directive No 2019/770 states that where the trader is liable to the consumer because of any failure to supply the digital content or digital service, or because of a lack of conformity resulting from an act or omission by a person in previous links of the chain of transactions, the trader is entitled to pursue remedies against the person or persons liable in the chain of commercial transactions under the conditions of exercise determined its national law (Art. 20).  

 Directive No 2019/770 and Directive No 2019/771, Article 4: "Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more, or less, stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive".

Article 8 of Directive No 2019/770: "1. In addition to complying with any subjective requirement for conformity, the digital content or digital service shall:(a) be fit for the purposes for which digital content or digital services of the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct; (b) be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital content or digital services of the same type and which the consumer may reasonably expect, given the nature of the digital content or digital service and taking into account any public statement made by or on behalf of the trader, or other persons in previous links of the chain of transactions, particularly in advertising or on labelling unless the trader shows that: (i) the trader was not, and could not reasonably have been, aware of the public statement in question; (ii) by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or (iii) the decision to acquire the digital content or digital service could not have been influenced by the public statement; (c) where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive; and (d) comply with any trial version or preview of the digital content or digital service, made available by the trader before the conclusion of the contract.

 Article 7 of Directive No 2019/770: In order to conform with the contract, the digital content or digital service shall, in particular, where applicable: (a) be of the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the contract; (b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the trader at the latest at the time of the conclusion of the contract, and in respect of which the trader has given acceptance; (c) be supplied with all accessories, instructions, including on installation, and customer assistance as required by the contract; and (d) be updated as stipulated by the contract".

 Article 14(2) of Directive No 2019/770:"The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including: (a) the value the digital content or digital service would have if there were no lack of conformity; and (b) the significance of the lack of conformity".

 Article 14(4) of Directive No 2019/770: "The consumer shall be entitled to either a proportionate reduction of the price in accordance with paragraph 5 where the digital content or digital service is supplied in exchange for a payment of a price, or the termination of the contract in accordance with paragraph 6, in any of the following cases:(a) the remedy to bring the digital content or digital service into conformity is impossible or disproportionate in accordance with paragraph 2; (b) the trader has not brought the digital content or digital service into conformity in accordance with paragraph 3; (c) a lack of conformity appears despite the trader's attempt to bring the digital content or digital service into conformity; (d) the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the contract; or (e) the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital content or digital service into conformity within a reasonable time, or without significant inconvenience for the consumer".

 See Directive No 2019/771 recital 12, last line.

 By virtue of Article 7(3) in the case of goods with digital elements, the seller must ensure that the consumer is informed of and supplied with such updates for the period of time the consumer could reasonably expect them given the  type and purpose of the goods and the digital elements where the contract provides for a single supply of the digital content or digital service or where there is a continuous supply of the digital content or digital service for a certain period, which cannot be less than the 2 years of the guarantee provided for by the directive, if the contract provides for a shorter duration, but which may be longer if the contract is longer (Article 10 (2) and (5)).

 "Where a restriction resulting from a violation of any right of a third party, in particular intellectual property rights, prevents or limits the use of the goods in accordance with Articles 6 and 7, Member States shall ensure that the consumer is entitled to the remedies for lack of conformity provided for in Article 13, unless national law provides for the nullity or rescission of the sales contract in such case".

"[...] 2. Where the lack of conformity is to be remedied by repair or replacement of the goods, the consumer shall make the goods available to the seller. The seller shall take back the replaced goods at the seller's expense. 3. Where a repair requires the removal of goods that had been installed in a manner consistent with their nature and purpose before the lack of conformity became apparent, or where such goods are to be replaced, the obligation to repair or replace the goods shall include the removal of the non-conforming goods, and the installation of replacement goods or repaired goods, or bearing the costs of that removal and installation".

 Article 3(6) of Directive No 2019/770: "where a single contract between the same trader and the same consumer includes in a bundle elements of supply of digital content or a digital service and elements of the provision of other services or goods, this Directive shall only apply to the elements of the contract concerning the digital content or digital service".

French Consumer Law

515. E-commerce package: Directives No 2019/771 and No 2019/770(1)

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