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

Directive No 2001/95 of 3 December 2001 on general product safety , in the same way as Directive No 92/59  which it repealed and replaced, aimed to ensure a high level of consumer protection with regard to their health and safety and to eliminate barriers to trade and the distortions of competition which resulted from excessive differences between the laws of the Member States and regards the level of protection afforded to consumers.

In the interests of updating the directive and adopting a legal instrument that leaves Member States no scope for divergencies in transposition, the European lawmaker has adopted Regulation No 2023/988 of 10 May 2023  which repeals and replaces Directive No 2001/95, with the aim of ensuring that all consumer products placed on the internal market by economic operators are safe. The General Product Safety Regulation (GPSR) will become applicable on 13 December 2024. 

1) General product safety under Directive No 2001/95

Under Article 2 (a), the directive applied to any products which, including in the context of providing a service, was intended for consumers or likely, under reasonably foreseeable conditions, to be used by consumers even if not intended for them, and was supplied or made available, whether for consideration or not, in the course of a commercial activity, and whether new, used or reconditioned. It was also applicable without prejudice to Directive No 85/374 on liability for defective products, since it sought to prevent damage upstream, whereas the latter was concerned with compensation for damage after its occurrence. However, Article 1 (2) excluded from its scope cases where the safety of the products concerned were subject to specific European regulations with the same objective , except when they have gaps and do not protect the consumer against certain risks .

Directive No 200/95 thus required the producer to place only safe products on the market (Article 3 (1)), i.e. under normal or reasonably foreseeable conditions of use, including duration, putting into service, installation and maintenance requirements, does not presenting any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons (Article 2 (b)). The conformity of a product with this requirement was assessed in accordance with the non-compulsory national standards transposing other relevant European standards, Commission recommendations laying down Guidance on product safety assessment, the standards of the Member State of production or marketing, codes of conduct on safety or health, the current state of knowledge or technology and the safety that consumers can expect. Products that did not meet this condition were considered hazardous (Article 2 (c)).

The risk prevention system set up by Directive No 2001/95 involve three actors: producers, Member States and the Commission.

To ensure the safety of consumers, producers , obliged only to place on the market products meeting the general safety requirement (Article 3 (1)), had to provide consumers with the relevant information to enable them to assess the risks inherent in a product throughout the normal or reasonably foreseeable period of its use, where such risks were not immediately obvious without adequate warnings, and to take precautions against those risks (Article 5 (1)). They were then required to take appropriate measures to avoid the materialization of the risks identified, such as the withdrawal of products from the market, adequately and effectively warning consumers or the implementation of recall actions. Producers could undertake these actions on a voluntary basis or at the request of the competent authorities of the Member States. Distributors  were also obliged to provide products meeting the general safety requirement, to participate in monitoring the safety of products placed on the market and to communicate the necessary documents ensuring the traceability of the products. Producers or distributors who found that a product was hazardous  were required to notify the competent authorities and, where appropriate, cooperate with them (Article 5 (2)).

The directive also required Member States to ensure that producers and distributors complied with their obligations under the directive (Article 6 (1)), either through the authorities competent to monitor the compliance of products with the general safety requirement, or directly by using the prerogatives they had under Article 8 of the directive. The text gave Member States the possibility to implement a wide range of measures, allowing them, in particular, to order verifications and analyses, to require that the product comes with adequate warnings, to subject its placing on the market to prior conditions to make it safe or temporarily or permanently prohibit its placing on the market or its withdrawal, if it is already on the market.

Finally, under Article 4(2), the Commission was required to publish in the Official Journal of the European Union references to European standards which entailed the presumption of conformity of the products bearing them with the general safety requirement and to determine the mandates of the European standardization bodies. Article 10 of the directive also made it responsible for the management of the rapid alert system, the RAPEX, which facilitated the exchange of information on the assessment of risks, hazardous products, test methods and results, recent scientific developments and on other aspects to be taken into account for control activities, the establishment and implementation of joint monitoring and testing projects, the exchange of best practices as well as collaboration in training activities. This system also aimed to improve collaboration at the European level in the area of the tracing, withdrawal and recall of hazardous products. 

2) General product safety under the new Regulation No 2023/988

The new regulation, which excludes medicinal products, foodstuffs and animal feed, living plants, plant protection products, aircraft, antiques and products made available to consumers in the context of a service, covers new, second-hand, repaired, reconditioned or recycled products, products designed exclusively for professional use which have migrated to the consumer market, and products offered at a distance, particularly online, targeting consumers in the EU (Art. 2 and 3).

The regulation defines a number of aspects: (i) product characteristics, design, composition, instructions for use and maintenance; ii) presentation and labeling; iii) compatibility or effect with regard to other products; iv) category of consumers concerned; v) appearance of the product, in particular when it is likely to lead to a use other than that for which it was designed) and texts (European standards other than those published in the OJEU, international standards and agreements, certification schemes, national standards of the Member State in which the product is made available, codes of good practice, current state of the art and technology, safety levels that can reasonably be expected) against which the safety of a product is assessed (Arts. 6 and 8). 

According to Article 7, a product is presumed to comply with the general safety requirement if it complies with the relevant European standards, or if, in the absence of such standards, it complies with the national requirements of the Member State in which the product was placed on the market.

The GPSR  also imposes a general safety obligation on manufacturers, agents, importers and distributors for the products they place on the market (Art. 5). These economic operators, referred to respectively in Art. 9 and 13, 10, 11 and 12, must ensure that they have in place internal product safety processes enabling them to comply with the requirements of the regulation (Art. 14), cooperate with market surveillance authorities, in particular concerning the traceability of their products, and if they have reason to consider that a product placed on the market is a dangerous product (Art. 15), they must immediately take the necessary corrective measures to bring the product into effective compliance, and inform the surveillance authorities and consumers accordingly. 

To this end, the regulation entrusts the Commission with the role of developing the “Safety Gate”  system (formerly known as Rapex), comprising:  a rapid alert system for dangerous products, enabling the exchange of information between the Commission and national authorities, the Safety Gate rapid alert system (Art. 25);  an internet portal for informing the public and lodging complaints, the Safety Gate portal (Art. 26);  an internet portal enabling economic operators (including online marketplaces) to fulfill their obligation to provide information in the event of an accident linked to product safety, the Safety Business Gateway (Art. 27). National market surveillance authorities will be able to order online marketplaces to remove dangerous products from their platforms or make them inaccessible (Art. 22). If the Commission becomes aware of a product presenting a serious risk to the health and safety of consumers, it may take any appropriate measures, either on its own initiative or at the request of the Member States, by means of implementing acts (Art. 27). A European network of Member States' consumer safety authorities is set up to reinforce product safety throughout the EU (Art. 30). National market surveillance authorities may carry out simultaneous and coordinated control actions (“sweeps”) to verify the conformity of given products with the regulations (Art. 32). 

Finally, the GPSR reinforces the effectiveness of product recall actions: economic operators who carry out a product recall must offer consumers at least two of the following options: repair, replacement or adequate refund of the value of the recalled product, unless this is impossible or disproportionate (Art. 37); they must ensure that all consumers, who can be identified, are notified directly and without undue delay, using the personal customer data they have collected (Art. 35), bearing in mind that the recall notice must be clear and easily understood (Art. 36). Member States determine the penalties applicable to infringements of the regulation, which impose specific obligations on economic operators (Art. 44).

Directive No 2001/95 of 3 December 2001 on general product safety, OJEC L 11 of 15 January 2002, 4.

  Directive No 92/59 of 29 June 1992 on general product safety, OJEC L 228 of 11 August 1992,  24.

 For an application, see Case C-132/08 Lidl Magyarország Kereskedelmi bt, Judgment of 30 April 2009, LawLex200900002357JBJ holding that Directive No 1999/5 is a specific regulation concerning the declaration of conformity of radio equipment excluding the application of Directive No 2001/95.

 Article 2 (e) defines the producer as: i) the manufacturer of the product, when he is established in the Community, and any other person presenting himself as the manufacturer by affixing to the product his name, trade mark or other distinctive mark, or the person who reconditions the product; ii) the manufacturer's representative, when the manufacturer is not established in the Community or, if there is no representative established in the Community, the importer of the product; iii) other professionals in the supply chain, insofar as their activities may affect the safety properties of a product.      

 Article 2 (f) defines the distributor as “any professional in the supply chain whose activity does not affect the safety properties of a product”.

648. General Product Safety Regulation