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

Article L. 421-3 (former Article L. 221-1, paragraph 1) of the Consumer Code provides that “products and services must, under normal conditions of use or under other conditions reasonably foreseeable by the profession, have the safety that can be legitimately expected and not harm human health”. This provision, resulting from Law No 83-660 of 22 July 1983 on consumer safety, enshrines the obligati …

Scope

Article L. 421-3 (former Article L. 221-1, paragraph 1) of the Consumer Code provides that “products and services must, under normal conditions of use or under other conditions reasonably foreseeable by the profession, have the safety that can be legitimately expected and not harm human health”. This provision, resulting from Law No 83-660 of 22 July 1983 on consumer safety, enshrines the obligation to achieve a safe result developed by case law, on a contractual basis l, if the victim is bound to the professional by a contract, or on a tort basis, if he is a third party. Article L. 421-3 pursues a risk prevention objective by placing a general safety requirement on professionals, which entails other obligations imposed on the producer and/or distributor in Articles L. 421-1 et seq. of the Consumer Code (former paragraphs  2 to 7 of Article L. 221-1) .

According to Article L. 421-3, safety is assessed in the light of two rather vague criteria, left to the discretion of the courts:

-  The normal or reasonably foreseeable use  of the product by the professional. According to case law, the fact that the user of a self-propelled mower loses two fingers in the maneuver to remove a grass build-up after having disengaged the engine and immobilized his machine reveals that the safety of the user was not total within the framework of a use normally foreseeable by the manufacturer . Similarly, the breakage of the blade of a trimmer in operation is a safety defect, provided that the existence of repeated knocks against pebbles constitutes a condition of the reasonably foreseeable use of such a machine . However, a power surge does not represent a normal condition of use for a household appliance connected to the power grid, meaning that the safety defect cannot be attributed to the producer of this appliance .

-  The safety which can legitimately be expected. The concept is based on two assumptions: a user cannot expect unlimited safety and for his expectation to be legitimate, he must be in good faith. Thus, the conditions and duration of use of the product must be taken into account. Taking into account a period of six years between the sale and the occurrence of the disorder, a court dismissed the safety defect of a stove whose oven window had exploded . Moreover, a claimant suffering from bronchial cancer cannot rely on a breach by the cigarette manufacturer of his obligation under Article L. 421-3 of the Consumer Code, when in view of the information he was necessarily aware of, he could not legitimately expect the safety of such a product .

To clarify this abstract definition of product safety, Ordinance No 2008-810 introduced in the Consumer Code the criteria for assessing safety laid down in Directive No 2001/95, which associates compliance and safety obligations, on the basis of the assumption that observance of the first ensures, in principle, that of the second . Under Articles L. 421-5 to L. 421-7 (former Articles L. 222-1 to L. 222-3), the compliance of a product with the general safety requirement is based on three assumptions ranging from the product whose safety is regarded as certain to the product whose safety must be controlled with regard to a certain number of elements:

-  a product meets the general safety requirement when it complies with the specific regulations applicable to it whose purpose is to protect the health or safety of consumers ;

-  a product is irrebuttably presumed to fulfil such an obligation when it complies with the non-mandatory national standards transposing European standards, whose reference has been published in the Official Journal of the European Union pursuant to Article 4 of Directive No 2001/95 ;

-  when a product does not fall under either of these two assumptions, its compliance with the general safety requirement is assessed in the light of the non-mandatory national standards transposing European standards applicable to the product other than those referred to in Article L. 421-6, other French standards, Commission Guidance on the assessment of product safety, the good practice guidance in the sector concerned, the current state of knowledge and technology, the safety which consumers can legitimately expect .

When they are not “safe” within the meaning of Article L. 421-3,  products or services are prohibited or regulated (Article L. 422-1, former Articles L. 221-2 and L. 221-4), the public authorities intervening by means of decrees in the case of ordinary proceedings, or by order if the situation is urgent.

Finally, Article L. 421-3 of the Consumer Code establishes the liability for fault  by the professional - producer  , importer or distributor  - who does not deliver a product with a sufficient degree of safety , which allows the consumer to obtain, on that basis, compensation for the damage caused by the breach of the general safety requirement . The implementation of the civil liability of the professional thus sanctions non-compliance with Article L. 421-3 . However, the fact that the Court of Cassation specified by three judgments of 25 April 2002  that the directive cannot be interpreted as leaving the Member States the possibility to maintain a general regime of liability for defective products different from the one provided for in the directive, led to a development of case law. In fact, adopting the solution of the Union court, the Court of Cassation  and the trial judges  now consider that the regime of liability for defective products excludes the application of other contractual or non-contractual liability rules of general civil law based on the defect of a product which does not provide the safety that can be legitimately expected, with the exception of liability for fault or warranty against latent defects. Since then, disputes relating to the civil sanction of Article L. 421-3, in particular on the contractual basis , seem to be disappearing, since the applicant can only take action against the manufacturer under the general liability regime based on the lack of safety of a product on the condition that the specific liability regime of Articles 1245 et seq. (former Articles 1386-1 et seq.) of the Civil Code is not applicable .  

 CA Grenoble, 18 December 1995, LawLex200300003075JBJ: Article L. 421-3 (former Article L. 221-1) of the Consumer Code has confirmed the previous case law which decided that the seller is the debtor of a results-based safety obligation provided that the product is used under normal conditions, to which must be added those reasonably foreseeable by the professional.

 Resulting from Ordinance No 2004-670 of 9 July 2004 transposing Directive No 2001/95 on general product safety and adapting the legislation to Community law on product safety and conformity (OJ of July 10, 2004, 12520) and from Ordinance No 2008-810, cited above.

 Consumer Code, Article L. 421-6 (former Article L. 222-2).

 Consumer Code, Article L. 421-7 (former Article L. 222-3).

CA Montpellier, 14 May 2024, LawLex202400003714JBJ: since there is a chronological co-incidence between the victim's diarrhea and vomiting, which occurred after eating lunch in the establishment in question, and a concomitant occurrence, since the person who had lunch in his company also suffered from gastroenteritis after this meal, that an administrative investigation, carried out two months later in the restaurant's kitchens, revealed ten offenses concerning the lack of temperature monitoring of culinary preparations, an uncontrolled cold and hot chain and an offense relating to staff training in food hygiene, and that these offenses corroborate the hypothesis of the ingestion of contaminated food due to a violation of the applicable hygiene rules, these particular circumstances constitute serious, precise and consistent presumptions such as to establish the defective nature of the food ingested, as well as a link of liability between the death of the victim and the disputed meal.

CA Paris, 19 October 2018, LawLex201800001576JBJ: the importer and distributor of the valve in question cannot be accused of failing to carry out a technical inspection of its viability, or of breaching the general safety obligation set out in Article L. 421-3 of the Consumer Code, insofar as there is no causal link between the alleged breach and the breakage of the valve due to a latent defect that they may not have been able to detect; CA Metz, 4 June 2019, LawLex201900000764JBJ; CA Rennes, 23 September 2023, LawLex202300012009JBJ, holding that the operator of a walk-in store, who is bound by Article L. 421-3 of the Consumer Code, cannot be held liable for damage caused to a consumer by the blade of a cordless electric circular saw when it was handled in the store, since it has not been established with certainty that the appliance was displayed unpackaged, in working order, without the need to press a release button, so that no fault on the part of the operator causing the damage could be established.

CA Douai, 21 November 2019, LawLex201900001432JBJ: the manufacturer-designer of a kitchenette fails to comply with the general safety obligation provided by the Consumer Code when he delivers cooking hobs without thermal insulation and separated by only 1.5 to 1.8 cm from the refrigerator integrated into the set and under the impact of a heavy object, the bending of the fluted stainless steel sheet that forms a drip tray and supports the hobs, has caused increased exposure to their heat flow, resulting in the fire that occurred during the victim's sleep.

CA Metz, 4 June 2019, LawLex201900000764JBJ, specifying nevertheless that even if a distribution company is accountable to the customers of a general obligation of safety, its liability on this basis requires nevertheless that its failure to comply with this obligation be established, which cannot be confused or deduced from any damage suffered by a customer inside the store without demonstration of the fact that it would have originated from a failure to ensure safety; Cass. civ. 1re, 20 September 2017, LawLex201700001633JBJ: a distribution company is liable to customers in respect of a general obligation of safety, so that it is liable for compensation when a customer falls on a non-slip mat placed in front of a shelf located in one of its stores. Cf. Cass. civ. 1re, 9 September  2020, LawLex2021000099JBJ: if Article L. 421-3 of the Consumer Code lays down a general obligation of safety of products and services for the benefit of consumers, it does not impose on the operator of such a store a result-based obligation of safety with respect to customers, so that the liability of the latter can only be engaged, with respect to the victim of a fall which occurred in the store and of which an inert thing would be at the origin, on the basis of the liability for damage or injury caused by things in one's care; 24 November 2021, LawLex202200000817JBJ.

 CA Douai, 7 January 1999, LawLex200300003059JBJ: joint and several conviction for breach of their obligation to achieve a safe result of the manufacturer and successive sellers of lighting without a bulb protection system to prevent, in case of explosion of the bulb, the projection of incandescent fragments;  CA Nîmes, 9 December 1999, LawLex200300003257JBJ. However, the service provider may be bound by a safe performance obligation, in particular in the presence of a risk or the active role of the victim: Cass. 1re civ., 17 February 2011, LawLex201600000660JBJ (ski run operator);  CA Dijon, 15 September 2009, LawLex201300000943JBJ (bowling alley operator).

 CA Montpellier, 23 March 2010, LawLex201300000917JBJ, holding that the victim of burns caused by a tanning session is entitled to act in contractual liability against the beauty salon which practiced it, when by failing to check its equipment before putting it into service, contrary to the seller's recommendations, it breached its general safety obligation.

 Depending on whether the victim is bound by a contract, the liability is contractual or tortious.

  Case C-52/00 Commission v France, Judgment of 25 April 2002, LawLex200900001029JBJ; Case  C-183/00 María Victoria González Sánchez,  Judgment of 25 April 2002, LawLex200900000752JBJ; Case C-154/00 Commission v Greece, Judgment of 25 April 2002, LawLex200900000611JBJ.

 Cass. crim., 10 July 1995, LawLex200300003057JBJ: leaving a candle to completely burn down on its support does not constitute abnormal and unreasonable use.

 Cass. com., 26 May 2010, LawLex201200001519JBJ. According to the Court of Cassation, Directive No 85/374 does not exclude the application of other systems of contractual or non-contractual liability based on different grounds, such as the guarantee of hidden defects or fault, provided that the plaintiff in the tort action establishes that the damage suffered is the result of a fault distinct from the lack of safety of the product in question, Cass. 1re civ., 10 December 2014, LawLex201400001449JBJ; 17 March 2016, LawLex201600000628JBJ: the victim who does not establish the existence of a fault separate from the safety defect of the product concerned, can only base his action on Articles 1245 et seq. (former Articles 1386-1 et seq.) of the Civil Code, and not on Articles 1231-1 (former Article 1147) and 1603.

 CA Caen, 18 June 2013, LawLex201600000631JBJ: the regime of liability for defective products excludes the application of other contractual liability regimes of common law based on the defect of a product which does not provide the expected safety, with the exception of liability for fault or the guarantee against hidden defects.

 CA Dijon, 24 January 2008, LawLex201200001921JBJ: the buyer of lubricants who claims compensation for damage caused to a machine due to the cutting oil produced by the seller must base its action on Articles 1245 et seq.(former Articles 1386-1 et seq.) of the Civil Code, and not on the seller's safety obligation under Article 1231-1 (former Article 1147) of the Civil Code.

 CA Grenoble, 11 June 2008, LawLex201200001839JBJ.

 CA Douai, 28 February 2008, LawLex201300000914JBJ.

 CA  Nîmes, 9 December 1999, LawLex200300003257JBJ.

 CA Caen, 23 October 2012, LawLex201300000913JBJ.

 CA Montpellier, 7 January 2003, LawLex200300002323JBJ.

 Cass. 1re civ., 8 November 2007, LawLex200800001988JBJ.

 Cass. 2e civ., 4 November 2004, LawLex200600001455JBJ: The company that markets paints containing a dangerous substance without changing their labeling in order to inform the user breaches the general requirement of compliance and safety of the products it places it on the market imposed on it by the Consumer Code. See also CA Paris, 21 June 2011, LawLex201200001926JBJ, holding that a trader violates its general safety obligation by marketing a product having caused damage, when it does not justify having carried out an analysis of the conformity of this product distributed under its trademark with regard to the essential safety requirements.

 Consumer Code, Article L. 421-5 (former Article L. 222-1).

French Consumer Law

649. Scope

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