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Journal Officiel de la République française (France)
Consumer
Code (Legislative Part)
Date du dernier texte modificateur signalé : Loi 2003-289 du 18/03/03
(JO 19/03/03)
CONSUMER CODE (Legislative Part)
Vol 1 : Consumer information
and contract formation
Part 1 : Consumer information
Chapter I: General obligation of information
Article L111-1
All business suppliers of goods or services must,
prior to conclusion of the contract, ensure that the consumer is made aware of
the essential characteristics of the goods or services.
Article L111-2
Business suppliers of personal property must, in
addition, inform the consumer of the period during which parts that are
essential for use of the goods are likely to be on the market. The business
must, compulsorily, be notified of this period by the manufacturer or importer.
Article L111-3
The provisions of the previous two articles are
applicable without prejudice to provisions that are more favourable to
consumers which subject certain activities to special regulations regarding
consumer information.
Chapter II: Manner of Presentation and labelling
Article L112-1
(inserted by Act no.
99-574 of 9 July 1999 art. 82 Journal officiel of
Product labelling referring to an appellation
d’origine contrôlée fromagère must compulsorily include the name and
address of the manufacturer.
Article L112-2
(Act no. 99-574 of 9 July 1999 art. 83 Journal
officiel of 10 July 1999)
(Act no. 2001-420 of 15 May 2001 art. 61 Journal
officiel of
An official visual identification mark, known as the appellation
d’origine contrôlée logo, in the sense of point 2 of article 6B of the
A Council of State decree fixes, subsequent to
consultation of the Institut national des appellations d’origine, the
specimen official logo and its procedures for use.
Article L112-3
(inserted by Act no.
2001-6 of 4 January 2001 art. 18 II Journal
officiel of
Conditions for use of wording relating to poultry
rearing methods are determined by article L. 640-4 of the code rural,
reproduced hereinafter:
Art. L. 640-4 “For poultry with no identification mark
in the sense of article L. 640-2, reference to rearing methods relating to
foodstuffs can only be used, in accordance with current community legislation,
under the terms fixed by decree relating, in particular, to regular control
procedures.
Reference to the “extensive indoor (barn reared)” and
“free range” rearing methods, as well as to the age of slaughter, can only be
used on poultry for which an identification mark resulting in the issue by the
administrative authority of an identification mark
The words “farm – traditional free range” or “farm –
free range, total freedom” can only be used on poultry with a label, an appellation
d’origine contrôlée or certification of the method of organic production.
These provisions do not, however, apply to small-scale
productions intended for the direct or local sale referred to in article 3,
paragraph 5 of the directive 71/118/CEE.”
Article L112-4
(inserted by Act no.
2001-420 of
Conditions for simultaneous use, for labelling of a
foodstuff or a non-food, non-processed agricultural product, with the exception
of wines, spirits and intermediary products, of a commercial brand and an
identification mark, in the sense of article L. 640-2 of the code rural,
are laid down by Council of State decree.
Article L112-5
(inserted by Act no.
2001-420 of
Research and verification of breaches of the
provisions laid down in this chapter are exercised in accordance with the
conditions provided for in article L.215-3 by the agents mentioned in article
L.215-1.
Article L112-6
(inserted by Act no.
2001-420 of
Labeling of a product sold under an own brand must
mention the name and address of the manufacturer if the latter so requests.
Products with characteristics defined by the company
or the group of companies that retail the product and own the brand name under
which it is sold are deemed to be products sold under an own brand.
Article L112-7
(inserted by Act no.
2001-420 of
The designations “chocolat pur beurre de cacao”
and “chocolat traditionnel” and any other equivalent denominations are
reserved for chocolate manufactured only from fats extracted from cocoa beans,
without the addition of vegetable fats.
Chapter III: Price and conditions of sale
Article L113-1
The rules relating to the determination of prices are
fixed by the provisions of article 1 of order no. 86-1243 of
Prices of goods, products and services are freely
determined by economic forces. In sectors or areas where price competition is
limited due, either to monopolistic situations or sustained procurement
difficulties, or legislative or regulatory provisions, a Council of State
decree may regulate prices subsequent to consultation of the conseil de la
concurrence.
The provisions of the first two paragraphs shall not
form an obstacle to Government rulings, made by virtue of Council of State
decrees, against excessive price rises or falls, temporary measures caused by
crisis situations, exceptional circumstances, a public disasters or a
manifestly abnormal market situation in a determined sector. The decree is
issued subsequent to consultation of the Conseil national de la consommation.
It states its period of validity which may not exceed six months”.
Nota :
Article 1 of order n° 86-1243 of
Article L113-2
Aforementioned rules relating to the field of
application of order no. 86-1243 of
“Art. 53: The rules defined by this order apply to all
production, distribution and service activities, including those which are
performed by public entities, in particular, within the scope of public service
delegation agreements.”
N.B.: Article 53 of order no. 86-1243 of
Article L113-3
All product vendors or service providers must, by
means of marking, labelling, bill-posting or by any other appropriate
procedure, inform the consumer of prices, any limitations of contractual
liability and special terms of sale, in accordance with the procedures laid
down by orders issued by the ministre chargé de l’économie, subsequent
to consultation with the Conseil national de la consommation.
This provision applies to all the activities referred
to in the last paragraph of article L.113-2.
Chapter IV: Information on delivery dates
Article L114-1
In any contract for the sale of goods or the supply of
services to a consumer, the businers must, when the delivery of the goods or
the supply of the services is not immediate and if the agreed price exceeds the
thresholds fixed by regulation, indicate the final date by which it undertakes
to deliver the goods or perform the services.
The consumer may terminate the contract for the sale
of goods or the supply of services, by recorded delivery letter should the
delivery date for supply of the goods or services be exceeded by seven days and
should this not be due to a case of "force majeure".
This contract is, if necessary, considered to have
been broken upon receipt, by the vendor or by the service provider, of the
letter in which the consumer informs the latter of its decision, if the
delivery or service provision has not taken place between the sending and the
receipt of this letter. The consumer has sixty working days from the date given
for delivery of the goods or services in which to exercise this right.
Unless stipulated otherwise in the contract, sums paid
in advance are deposits, with the effect that each of
the contracting parties may go back on their obligation, the consumer by losing
the deposit, the business by returning twice the amount of said deposit.
Chapter V: Development of products and services
Section 1 : Appellation
d’origine. Registred designation of origin
Article L115-1
An appellation d’origine
is constituted by the name of a country, of a region or of a locality
serving to designate a product which originates from there and the quality or
character of which is due to the geographical location, comprising natural and
man-made factors.
Sub-section 2: Administrative protection procedure
Article L115-2
Failing a definitive legal decision on the basic
issues in application of articles L. 115-8 to L. 115-15, a Council of State
decree may limit the geographical production area and determine the qualities
or characteristics of a product bearing an appellation d’origine on the
basis of local, honest and constant usage.
Publication of this decree poses an obstacle for the
future institution of proceedings provided for in articles L. 115-8 to L.
115-15.
Article L115-3
The decree provided for in article L. 115-2 may
prohibit from appearing on products other than those bearing an appellation
d’origine or on the packages which contain them and labels, business
stationery and invoices thereto related, any information liable to cause
confusion with regard to the origin of the products.
Article L115-4
The decree provided for in article L. 115-2 is issued
subsequent to a public inquiry involving the consultation of those professional
groups with direct involvement. A Council of State decree fixes the procedures
of this inquiry.
Article L115-5
(Act no. 98-565 of 8 July 1998 art. 4 I Journal
officiel of 9 July 1998)
The procedure for the issue of an appellation
d’origine contrôlée is defined in article L. 641-2 of the code rural,
reproduced hereinafter:
“Art. L. 641-2. – Only raw or processed agricultural
or food products may be acknowledged by an appellation d’origine contrôlée.
The provisions of article L. 115-2 to L. 115-4 and L. 115-8 to L. 115-15 of the
consumer code do not apply to them.
In accordance with the terms provided for hereinafter,
these products may receive an appellation d’origine contrôlée if they
adhere to the provisions of article L. 115-1 of the consumer code, have a duly
established reputation and are the subject of approval procedures.
The appellation d’origine contrôlée may never
be considered to be of a generic nature and fall within the public domain.
The geographical name which constitutes the appellation
d’origine or any other wording evoking said mark, may not be used for any
similar product, without prejudice to legislative or regulatory provisions in
force on 6 July 1990, nor for any other product or service where this use is
likely to detract from or debase the standing of the appellation d’origine.
The appellation d’origine contrôlée for wines
of superior quality mentioned in article L. 641-24 and those which are in force
on,
Article L115-6
(Act no. 98-565 of 8 July 1998 art. 4 I Journal
officiel of 9 July 1998)
The procedure for defining an appellation d’origine
contrôlée is fixed by article L. 641-3 of the code rural, reproduced
hereinafter:
“Art. L. 641-3. – Each appellation d’origine
contrôlée is defined by decree on the proposal of the Institut national
des appellations d’origine, without prejudice, for wines and eaux de vie,
ciders, perry, or aperitifs based on cider, perry or wine, to the provisions of
article L. 641-15.
The decree limits the geographical production area and
determines the terms for production and approval of the product”.
Article L115-7
(Act no. 96-314 of 12 April 1996 art. 61 Journal
officiel of 13 April 1996)
(Act no. 98-565 of 8 July 1998 art. 4 I Journal
officiel of 9 July 1998)
The transitional provisions relating to agricultural
and agro-alimentary appellations d’origine are defined in article L. 641-4 of
the code rural, reproduced hereinafter:
“Art. L. 641-4. - appellations
d’origine defined by legislation or regulation prior to
Prior to 1 July 2000, products whose appellation
d’origine was defined by judicial means prior to 1 July 1990, or was
acquired in application of articles 14 and 15 of the Act of 6 May 1919 relating
to the protection of appellations d’origine written prior to Act no.
90-558 of 2 July 1990 relating to appellations d’origine contrôlée for
raw or processed agricultural or food products, and for which an application
for acknowledgement by way of appellation d’origine contrôlée has been
lodged with the Institut national des appellations d’origine prior to 31
December 1996, will be given this acknowledgement, by decree, if they satisfy
the conditions fixed by article L. 641-3. As of
Caduc ?
Sub-section 3: Legal protection procedure
Article L115-8
Any entity claiming that an appellation d’origine has
been applied, to its direct or indirect prejudice and in contravention of its
right, to a natural or manufactured product, contrary to the origin of this
product, may institute proceedings to prohibit the use of this appellation.
Unions and associations that have been regularly
constituted for at least six months shall be entitled to take the same course
of action in respect of rights that they wish to defend.
On the basis of local, loyal and constant usage, the
judge may limit the geographical production area and determine the qualities or
characteristics of the product referred to in the first paragraph.
Article L115-9
The court to which a case has been referred by virtue
of article L. 115-8 may hear and determine a case inclined to prohibit the
display, in products other than those with an appellation d’origine or
on packages which contain them and labels, business stationery and related
invoices, any information likely to cause confusion over the origin of the
products.
This action is open even if the geographical area of
production has been definitively limited in application of articles L. 115-8 to
L. 115-15.
Article L115-10
The proceedings will be brought before the tribunal
de grande instance for
the place of origin of the product for which the appellation is being
contested. The claim will be exempt from preliminary conciliation proceedings
and investigated judged according to procedure on the appointed day.
Article L115-11
Within eight days of the summons, the claimant must
have published in a journal d’annonces légales in the district in which
he is domiciled and in the district of the local Court, a brief note giving
surname, first names, profession and domicile, the surname, first names and
domicile of his representative, those of the defendant and the latter’s
representative if one has been appointed, and the purpose of the claim.
Proceedings may not commence until fifteen days after
publications of the note provided for in the previous paragraph.
Article L115-12
Any person, any union and association satisfying the
conditions in respect of term and interest provided for in article L. 115-8 may
take part in the proceedings.
Article L115-13
Within eight days of notification of the appeal, the
appellant or appellants must publish the information provided for in article L.
115-11.
Proceedings may not commence before the court until
fifteen days after this information has been published.
Article L115-14
The Cour de cassation, to which an appeal has
been referred, shall be competent to assess whether or not the practices cited
for the use of an appellation d’origine have all the legal
characteristics required in this section.
The appeal shall be suspensive.
Article L115-15
Final judgements shall reach a decision in respect of
all the inhabitants and proprietors of the same region, the same commune, or,
if necessary, of a part of the same commune.
Sub-section
4: Criminal actions
Article L115-16
(Act no. 92-1336 of 16 December 1992 art. 322,
art. 329 Journal officiel of 23 December 1992 in force on 1
March 1994)
(Act no. (4-2 of 3 January 1994 art. 1 Journal
officiel of
(Act no. 99-574 of 9 July 1999 art. 85 I Journal
officiel of 10 July 1999)
Anyone who has either affixed or displayed, by means
of any addition, excision, or alteration whatsoever, on natural or manufactured
products intended for sale, of appellations d’origine that said person
knows to be inaccurate will be punishable with the penalties provided for in
article L. 213-1.
Anyone who may have used a display method leading to
believe, or of a nature likely to lead to believe, that a product has an appellation
d'origine contrôleé will be punishable with the same penalties.
The court may, on the other hand, order the posting of
the judgement in all the places designated by it and its publication, in its
entirety, or in extracts, in the journals listed by said court, all at the
expense of the convicted person.
Any one who may have knowingly sold, put on sale or
into circulation, natural or manufactured products bearing an inaccurate appellation
d’origine will be punishable by the same penalties.
Article L115-7
The persons, unions and associations referred to in
the first two paragraphs of article L. 115-8 which claim to have been damaged
by the offence provided for in article L. 115-16 may bring a civil action in
accordance with the provisions of the Code de procédure pénale.
Article L115-18
(Act no. 98-565 of 8 July 1998 art. 4 II Journal
officiel of 9 July 1998)
(Act no. 99-574 of 9 July 1999 art. 85 II Journal
officiel of 10 July 1999)
The penalties provided for in article L. 115-16 as
well as the provisions of article L. 115-17 are applicable in the event of use
of the wording prohibited by virtue of articles L. 115-3 and L. 115-9.
The penalties provided for by article L. 115-16 are
also applicable in the event of use of any wording prohibited by virtue of the
fourth paragraph of article L. 641-2 of the code rural.
The provisions of article L. 115-25 are apply to section I of this chapter.
Sub-section
5: The Institut national des appellations d’origine
Article L115-19
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The organisation and operation of the Institut
national des appellations d’origine are defined in article L. 641-5 of the code
rural, reproduced hereinafter:
“Art. L. 641-5. – The Institut national des
appellations d’origine is a public administrative institution and a legal
entity.
It comprises:
A national committee with jurisdiction over wines,
eaux de vie, ciders, perrys, cider and aperitifs based on cider, perry or wine;
A national committee for dairy products;
A national committee for products other than those
covered by the authorities mentioned hereinabove.
These committees are made up of professional
representatives, representatives of government departments and qualified
entities for the representation, in particular, of consumers.
Each of these committees acts for the products over
which it has jurisdiction in respect of the questions mentioned in article L.
641-6.
The members of these committees meet for a plenary
session for the presentation of the budget and general policy of the institute.
A permanent committee made up of members belonging to
the same categories as those specified for the national committees and selected
from within these committees compiles the institute’s budget and determines the
general policy relating to appellations d’origine contrôlées.
Chairpersons of national committees and of the
permanent council are appointed by joint order of the ministre chargé de l’économie and
the ministre de l’agriculture. The chair of the permanent council is
appointed for two years. He is successively selected within each of the
national committees.
Organisational and operational regulations for the Institut
national des appellations d’origine are fixed by decrees issued by the
Conseil d’Etat.
Article L115-20
(Act no. 94-2 of 3 January 1994 art. 2 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The jurisdiction of the Institut national des
appellations d’origine is defined in article L. 641-6 of the code rural,
reproduced hereinafter:
“Art. L. 641-6. – The Institut national des appellations
d’origine has jurisdiction over all raw or processed agricultural or food
products. The provisions of articles L. 641-15 and L. 641-16 apply to all these
products.
Upon advice from the relevant defence unions, the Institut
national des appellations d’origine proposes recognition of appellations
d’origine contrôleés, which include the delimitation of the geographical
production areas and the determination of production and approval conditions
for each of these appellations d’origine contrôleés.
It gives its opinion on national provisions relating
to labelling and to the display of each of the products under its jurisdiction.
It may be consulted on any other question relating to appellations d’origine.
It contributes, in
Section 2: Labels and certification of food and agricultural products
Article L115-21
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
Products likely to benefit from an agricultural label
or conformity certification are defined in article L. 643-1 of the code rural,
reproduced hereinafter:
“Article L. 643-1. – Foodstuffs and non-food,
unprocessed agricultural produce, may benefit from an agricultural label or be
the subject of conformity certification in accordance with the rules defined in
the specifications”.
Article L115-22
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The purpose of agricultural labels is defined in
article L.643-2 of the code rural, reproduced hereinafter:
“Art. L. 643-2. – Agricultural labels attest to the
fact that a foodstuff or a non-food, unprocessed agricultural product possesses
a distinct set of qualities and specific characteristics which have been fixed
beforehand in specifications and establishing a superior level of quality.
The geographical origin may only appear amongst the
specific characteristics if it is registered as a protected geographical
indication, subject to the provisions of the second paragraph of article L.
643-4.
This product must be different from similar products
of the type usually sold, in particular, in respect of its special production
or manufacturing conditions and, possibly, in respect of its geographical
origin.
Only producers or processors organised in groups,
whatever their legal form, are authorised to apply for the issued of a label”.
Article L115-23
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of
(Act no. 98-545 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The purpose of the conformity certification is defined
in article L. 643-3 of the code rural, reproduced hereinafter:
Art. L. 643-3 – Conformity certification attests to
the fact that a foodstuff or a non-food unprocessed agricultural product conforms
to specific characteristics or rules fixed beforehand in specifications
relating, as the case may be, to the production, processing or packaging and,
if necessary, the geographical origin of the foodstuff or the product when this
origin is registered as a protected geographical indication, subject to the
provisions of the second paragraph of article L. 643-4”.
Article L115-23-1
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July art. 4 III Journal
officiel of 9 July 1998)
The principle of prohibiting the appearance in a label
or a conformity certification of geographical wording not registered as a
protected geographical indication is given in article 643-4 of the code
rural, reproduced hereinafter:
Art. L. 643-4. – The label or conformity certification
may not include geographical wording unless the latter has been registered as a
protected geographical indication.
If, however, the local authority has requested the
registration of this geographical wording as a protected geographical
indication, the label or conformity certification may include this wording,
included in the specific characteristics, until the date of the decision
relating to its registration.
The prohibition mentioned in the first paragraph does
not apply when the name which incorporates this wording is generic or
designates a product benefiting from an certificate of
special character.
Agricultural products or foodstuffs benefiting, prior
to
Article L115-23-2
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July art. 4 III Journal
officiel of 9 July 1998)
The procedure for issuing agricultural labels and
conformity certificates is defined in article L. 643-5 of the code rural,
reproduced hereinafter:
“Art. L. 643-5. – Agricultural labels and conformity
certificates are issued by certifying bodies approved by the administrative
authority.
Certifying bodies must offer guarantees of
impartiality and independence and must not, in particular, be producers,
manufacturers, importers or vendors of product of the same kind and must prove
their competence and the efficacy of their controls.
Approval can only be given upon verification of these
conditions and of the capacity of the body to provide quality controls for
products which have labels or conformity certificates”.
Article L115-23-3
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The purpose of interdepartmental approval of
agricultural labels and conformity certificates is defined in article L. 643-6
of the code rural, reproduced hereinafter:
“Art. L. 643-6. – Agricultural labels may only be used
if they have been the subject of approval by interdepartmental order.
Likewise for conformity certificates attesting to the
geographical origin..”
Article L115-23-4
(Act no. 94-2 of 3 January 1994 art. 1 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
Procedures for applying provisions relating to
agricultural labels and conformity certificates are referred to decrees issued
by the Conseil d’Etat as provided for by article L. 643-7 of the code
rural, reproduced hereinafter:
“Art. L. 643-7. – Decrees issued by the Conseil
d’Etat specify, as appropriate, the procedures for applying articles L.
643-2 to L. 643-6 and, in particular, the conditions to be met by
specifications, their examination and, if necessary, approval procedures,
characteristics of certifying bodies, their operating procedures and the terms
of their approval etc.”.
Article L115-24
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
The penalties provided for in article L. 213-1 shall
apply to anyone who may have:
Fraudulently used or attempted to use an agricultural
label or certificate;
Issued, used or attempted to use an agricultural label
which has not been approved;
Provided certification without satisfying the
conditions provided for in articles L. 643-3 to L. 643-7 of the code rural;
Used a mode of presentation leading to believe, or of
a nature to lead to believe, that a product has an agricultural label or
certification;
Led to believe or attempted to lead to believe that a
product with an agricultural label is guaranteed by the Government or by a
public body.
Article L115-25
(Act no. 98-565 of 8 July 1998 art. 4 III Journal
officiel of 9 July 1998)
(Act no. 2001-6 of 4 January 2001 art. 18 III Journal
officiel of
The provisions of chapters II to VI of part I of
volume II of this code, relating to the research and recording of breaches are
applicable to the prescriptions of part IV of volume VI of the code rural
and L. 115-24 of this code and the texts issued for their application.
Article L115-26
(Act no. 98-565 of 8 July 1998 art. 4 IV Journal
officiel of 9 July 1998)
Bans on the use of agricultural labels and conformity
certificates for products which have an appellation d’origine or for
certain wines are defined in article L. 643-8 of the code rural,
reproduced hereinafter:
“Art. L. 643-8. – Agricultural labels and conformity
certificates may not be used for products with an appellation d’origine,
les vins délimités de qualité supérieure and table wines.
Section 3: Protected designations of origin, protected geographical
indications and certificates
of specific character
Article L115-26-1
(Act no. 94-2 of 3 January 1994 art. 4 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 VI Journal
officiel of 9 July 1998)
The protected designation of origin or protected
geographical indication and certificate of specific character are defined in
article L. 642-1 of the code rural, reproduced hereinafter:
“Art. L.642-1. – A protected designation of origin or
a protected geographical indication are constituted by the name listed in the
register of protected designations of origin and protected geographical
indications kept by the Commission of the European Communities.
A certificate of specific character is constituted by
the name of the product which appears in the register of certificates of
specific character held by the Commission of the European Communities.
Only the designations of origin mentioned in articles
L. 641-1 to L 641-6 may be the subject of an application with a view to their
registration as protected designations of origin.
The application for registration of a geographical
indication or a certificate of specific character may only be made within the
scope of the provisions of chapter III of this part.”
Article L115-26-2
(Act no. 94-2 of 3 January 1994 art. 4 Journal
officiel of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 VI Journal
officiel of 9 July 1998)
Procedures for monitoring adherence to specifications
for protected geographical indications and certificates of specific character
are defined in article L. 642-2 of the code rural, reproduced
hereinafter:
“Art. L. 642-2. – The approved certifying bodies
mentioned in article L. 643-5 monitor adherence to specifications for protected
geographical indications and certificates of specific character.
“A Council of State decree does, however, define, as
appropriate, special monitoring procedures for agricultural producers and
craftspeople retailing their production in small quantities on the local
market.
Article L115-26-3
(inserted by Act no.
94-2 of 3 January 1994 art. 4 Journal officiel of
The provisions of article L. 115-16 apply to protected
designations of origin, protected geographical indications and certificates of
specific character.
Article L115-26-4
(Act no. 94-2 of 3 January 1994 art. 4 Official
Journal of 4 January 1994)
(Act no. 98-565 of 8 July 1998 art. 4 VII
Official Journal of 9 July 1998)
Conditions of use of an indication of origin or of
provenance are defined in article L. 642-4 of the rural code, reproduced
hereinafter:
“Art. L. 642-4. – Use of an indication of origin or of
provenance must not be likely to mislead the consumer in respect of the
products’ characteristics, nor to detract from or diminish the reputation of a
name registered as a protected geographical indication or as a certificate of
specific character.
A Council of State decree issued in application of
article L. 214-1 of the consumer code fixes, as appropriate, the conditions for
application of the previous paragraph”.
Section 4: Certification of non-food services and products
Article L115-27
(Act no. 94-2 of 3 January 1994 art. 3 Official
Journal of 4 January 1994)
(Act no. 94-442 of 3 June 1994 art. 1 Official
Journal of 4 June 1994)
Certification of a product or service subject to the
provisions of this section is constituted by the activity by which an
organisation, independent of the manufacturer, the importer, the supplier or the
service provider attests, at the latter’s request and carried out for
commercial ends, to the fact that a product or a service conforms to the
characteristics described in a benchmark and being subject to checks.
The benchmark is a technical document defining the
characteristics that a product or a service must display and procedures for
checking conformity of the product or service to these characteristics.
Article L115-28
(Act no. 94-2 of 3 January 1994 art. 3 Official
Journal of 4 January 1994)
(Act no. 94-442 of 3 June 1994 art. 2 Official
Journal of 4 June 1994)
Only organisations which have lodged a declaration
with a local authority relating to their activity and containing, in
particular, all necessary information regarding the measures intended to
guarantee their impartiality and their competence, may proceed with
certification of products or services.
Organisations accredited by an authority recognised
for this purpose by the government are exempt from supplying this information.
Any reference to certification in the advertising,
labelling or presentation of any product or service, as well as on related
business stationery, must be accompanied by clear information as to the nature
and extend of the certified characteristics.
The existence of benchmarks is the subject of a
mention in the Journal Officiel de la République française. They can be
consulted either, for free, on-site at the premises of the certifying body, or
copies can be sent out, at the expense of the applicant.
Certifying bodies register the distinctive mark which,
when appropriate, accompanies or materialises the certification, as collective
certification marks, in accordance with legislation on trademarks,
manufacturer’s brands, service marks.
Article L115-29
(Act no. 94-2 of 3 January 1994 art. 3 Journal
officiel of 4 January 1994)
(Act no. 94-442 of 3 June 1994 art. 3 Journal
officiel of 4 June 1994)
The provisions of articles L. 115-27 and L. 115-28 are
not applicable:
1° to the certification of foodstuffs and non-food,
unprocessed agricultural produce mentioned in article L. 115-21;
2° to authorisations to market the drugs for human or
veterinary use which are the subject of the provisions of volume V of the
Public health code;
3° to the issue of punched marks, stamps, visas,
approval certificates, collective marks or certificates of conformity to
community provisions, by the public authorities or by organisation designated
for this purpose and subject to technical or administrative monitoring by the
public authorities by virtue of legislative or regulatory provisions;
4° to the issue of the labels or marks provided for by
article L. 413-1 of the Labour code as well as craftsman and master craftsman’s
marks in so far as these marks only tend to certify the origin of a product or
a service and implementation of professional practices when these are specific
to them.
Article L115-30
(Act no. 94-2 of 3 January 1994 art. 3 Journal
officiel of 4 January 1994)
(Act no. 94-442 of 3 June 1994 art. 3 Journal
officiel of 4 June 1994)
The following are punishable by the penalties provided
for in article L. 213-1:
1° Advertising, labelling or presentation of any
product or service, as well as in commercial documents of any kind relating
thereto, of referring to a certification which has not been issued in
accordance with the terms defined by articles L. 115-27 and L. 115-28;
2° Issuing, in breach of the provisions provided for
in articles L. 115-27 and L. 115-28, a title, a certificate or any other
document attesting to the fact that a product or a service presents certain
characteristics which have been the subject of certification;
3° Using any means likely to
lead to the erroneous belief that an organisation satisfies the terms defined
in articles L. 115-27 and L. 115-28;
4° Using any means likely to
mislead a consumer or a user into thinking that a product or a service has been
certified;
5° Falsely presenting any
product or service which has been certified as being guaranteed by the
government or by a public body.
Article L115-31
(Act no. 94-2 of 3 January 1994 art. 3 Journal
officiel of 4 January 1994)
The following are qualified to proceed with research
and ascertainment of breaches of the provisions of this section and text issued
for its application:
officers
and agents of the judiciary police;
agents
of the metrology sub-division of the department of industry as well as those
belonging to regional departments of industry, research and the environment;
agents
from the directorate general for competition, consumer protection and fraud
prevention, from the directorate general of customs and indirect taxation;
pharmacy
inspectors and doctors/health inspectors from the department of health;
labour
inspectors;
the agents mentioned in article 22 of Act no. 76-663
of 19 July 1976 relating to installations classed as being for the protection
of the environment.
These agents are invested with the powers provided for
by chapters II to VI of part I of volume II of this code and their implementing
texts on the sites listed in article L. 213-4 (first paragraph).
Article L115-32
(Act no. 94-2 of 3 January 1994 art. 3 Journal
officiel of 4 January 1994)
(Act no. 94-442 of 3 June 1994 art. 5 Journal
officiel of 4 June 1994)
Implementation procedures for articles L. 115-27 and
L. 115-28 are fixed by Council of State decree, in particular:
1° Activity declaration procedures for certifying
bodies and the contents of their declaration;
2° Terms of recognition of the accreditation
authority;
3° Contents of benchmarks and terms under which they
are established and validated;
4° Procedures for consultation between interested
partners prior to the establishment or validation of benchmarks;
5° Procedures for consumer
information on certification.
Article L115-33
(Act no. 94-2 of 3 January 1994 art. 3 Journal
officiel of 4 January 1994)
Proprietors of trademarks, manufacturer’s brands or
service marks may oppose the circulation of publicity texts referring to their
mark by name where the use of this mark aims to mislead the consumer or where
it is used with a lack of good faith.
Part II : Commercial
practices
Chapter 1 : Regulated
commercial practices
Article L121-1
All advertising comprising, in any form whatsoever,
representations, information or presentations which are false or likely to
mislead, is prohibited, where the latter cover one or more of the items listed
hereinafter: existence, nature, composition, substantial qualities, content in
useful principles, species, origin, quantity, mode and date of manufacture,
properties, price and terms of sale of goods or services which are the subject
of advertising, conditions for their use, results which may be expected from
their use, reasons for sale or service provision, sale or service provision
procedures, scope of obligations undertaken by the advertiser, the identity,
qualities or aptitude of the manufacturer, retailers, promoters or service
providers.
Article L121-2
Agents from the directorate general for competition,
consumer protection and fraud prevention, those from the food directorate
general of the ministry for agriculture and those from the metrology department
of the department of industry are authorized to establish, by means of reports,
breaches of the provisions of article L. 121-1. They may ask the advertiser to
supply them with all the items appertaining to evidence of advertising
representation, information or presentations. They may also ask the advertiser,
the advertising agency or the media manager to supply them with the advertising
copy circulated.
Reports drafted in application of this article are
sent to the procureur de la République.
Article L121-3
Discontinuance of the advertising may be ordered by
the juge d’instruction or by the court to which the proceedings have
been referred, either by requisition of the public prosecutor or on its own
initiative. The order taken in this way is enforceable, notwithstanding all
rights of appeal. The order may be lifted by the jurisdiction that ordered it
or to which the case has been referred. The measure ceases to have any effect
in the event of a decision of non-suit or release being taken.
Decisions ruling on applications for lifting of said
measures may be the subject of an appeal before the chambre d’accusation or
before an appeal court depending on whether they were pronounced by a juge
d’instruction or by the court to which the proceedings were referred.
The chambre d’accusation or the court of
appeal rules within ten days of receiving the documents.
Article L121-4
In the event of sentencing, the court orders
publication of the judgment. It may, in addition, order the publication, at the
expense of the convicted party, of one or more corrective statements. The
judgment prescribes the terms of these statements and the procedures by which
they are to be circulated and gives the convicted party a deadline for their
issue. In the event of non-application, and without prejudice to the penalties
provided for in article L. 121-7, this circulation is implemented at the behest
of the public prosecutor at the expense of the convicted party.
Article L121-5
The advertiser on behalf of whom the advertising is
circulated is principally responsible for the offence committed. If the
offender is a legal person, the responsibility lies with its directors.
Complicity is punishable under the same conditions of common law.
The offence is committed as soon as the advertisement
is published out, received or perceived in
Article L121-6
(Act no. 2001-504 of 12 June 2001 art. 3 II Journal
Officiel of
Breaches of the provisions of article L. 121-1 are
punishable by the penalties provided for in article L. 213-1.
The maximum fine provided for in this article may be
as much as 50% of the cost of the advertising constituting the offence.
The provisions of article L. 213-6 providing for the
criminal liability of legal persons are applicable to these offences.
Article L121-7
For the application of article L. 121-6, the court may
ask both the parties and the advertiser to supply all relevant documents. In
the event of refusal, it may order the seizure of these documents or any
appropriate preparatory inquiry. It may, in addition, order a penalty of FRF
30,000 for every day of delay after the date that it has designated for
production of these documents.
The penalties provided for in the first paragraph of
article 121-6 are also applicable in the event of refusal to supply items of
proof or of advertising circulated, requested in accordance with the conditions
provided for in the first paragraph of article L. 121-1 as well as in the event
of failure to adhere to decisions ordering the discontinuance of the
advertising or the non-performance within the appointed deadline of corrective
statements.
Article L121-8
(Order no. 2001-741 of 23 August 2001 art. 1 Journal
officiel of
Any advertising which makes a comparison between goods
or services by identifying, implicitly or explicitly, a competitor or goods and
services offered by a competitor is only legal if:
1° It is not false or likely
to mislead;
2° It relates to goods or
services fulfilling the same requirements or having the same objective;
3° It objectively compares
one or more essential, pertinent, verifiable and representative characteristics
of these goods or services, one of which may be price.
Any comparative advertising referring to a special
offer must clearly state the dates when the goods and services offered are to
be available, where appropriate, the fact that the offer is limited to available
stocks and the specific terms applicable.
Article L121-9
(Order no. 2001-741 of 23 August 2001 art. 1 Journal
officiel of
Comparative advertising may not:
1° Take unfair advantage of the reputation attached to
a trademark, manufacturer’s brand or service mark, to a trade name, to other
distinctive marks of a competitor or to the designation of origin as well as
the protected geographical indication of a competing product;
2° Lead to the discrediting
or denigration of marks, trade names, other distinctive signs, goods, services,
activity or situation of a competitor;
3° Engender confusion between the advertiser and a
competitor or between the advertiser’s marks, trade names, other distinctive
signs, goods or services and those of a competitor;
4° Present goods or services as an imitation or
reproduction of goods or services with a protected mark or trade name.
Article L121-10
(Order no. 2001-741 of 23 August 2001 art. 3 Journal
officiel of
For products with a protected designation of origin or
geographical indication, comparison is only authorized between products each
with the same designation of origin or the same indication.
Article L121-11
The display of comparative statements as defined in
articles L 121-8 and L 121-9 on packages, invoices, travel tickets, means of
payment or tickets giving access to shows or sites open to the public, is
prohibited.
Article L121-12
(Order no. 2001-741 of 23 August 2001 art. 1 Journal
officiel of
Without prejudice to the provisions of article L.
121-2, the advertiser on behalf of which the comparative advertising is being
circulated must be in a position to prove, within a short time, the physical
accuracy of the statements, indications and presentations contained within the
advertising.
Article L121-13
Publication in the press of advertising defined in
articles L. 121-8 and L. 121-9 do not give rise to the application of article
13 of the Act of 29 July 1881 on the freedom of the press and article 6 of Act
no. 82-652 of 29 July 1982 on audiovisual communication.
Article L121-14
Without prejudice to the application of article 1382
of the civil code, breaches of the provisions of articles L. 121-8 to L. 121-12
are, as appropriate, punishable by the penalties provided for, on the one hand,
in articles L. 121-1 to L. 121-7 and, on the other hand, in articles 422 and
423 of the penal code.
A Council of State decree specifies, as required,
procedures for implementing articles L. 121-8 to L. 121-13.
Article L121-15
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force on 1 March 1994)
(Act no. 96-603 of 5 July 1996 art. 33 Journal
officiel of 6 July 1996)
In addition, all advertising is prohibited relating
to:
1° business transactions subject to authorization by
virtue either of articles 26, 27, 28, 29 and 30 of Act no. 96-603 of 5 July
1996 relating to the development and promotion of trade and the craft sector,
or articles 29 and 32 of Act no. 73-1193 of 27 December 1973 on guidelines for
trade and the craft sector, or order no. 45-2088 of 11 September 1945 relating
to fairs and shows, and which have not been authorized;
2° a business transaction necessitating the use of
employees requiring an authorization by virtue of chapter I of part II of
volume II of the Labour code and implemented without obtaining this
authorisation or which is in breach of articles 41 and 41b, 105a to 105i of the
code des professions applicable in the departments of Moselle, Bas-Rhin
and Haut-Rhin;
3° a business transaction carried out or due to be
carried out in breach of the provisions of article L. 221-17 of the labour
code.
Any advertiser distributing an advertisement which is
prohibited by virtue of the previous paragraphs is liable to punishment in the
form of a fine of FRF 250,000. The maximum fine may be as much as 50% of the
full amount of the cost of the illegal advertising.
The court may order the prohibited advertising to be
discontinued at the expense of the persons recognised as being guilty of the
offences defined in the preceding paragraphs.
Section 2: Distance selling of goods and services
Article L121-16
(Order no. 2001-741 of
The provisions of this section apply to all sales of
goods or service provisions concluded, without the simultaneous physical
presence of the parties, between a consumer and a business who, for the
conclusion of the contract, exclusively uses one or more distance communication
techniques.
Article L121-17
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force on 1 March 1994)
(Order no. 2001-741 of
Not subject to the provisions of this section are
contracts:
1° Relating to financial
services;
2° Concluded by means of vending machines or for
services supplied in automated business premises;
3° Concluded with telecommunications operators for the
use of public telephone booths;
4° Concluded for the construction and sale of land and
building or relating to other rights relating to such property, with the
exception of leases;
5° Concluded during a sale by public auction.
Article L121-18
(Order no. 2001-741 of
Without prejudice to the information provided for in
articles L. 111-1 and L. 113-3 as well as that laid down for the application of
article L. 214-1, the contract offer must include the following information:
1° The name of the product
vendor or service provider, their telephone number, address or, if this is a
legal person, its registered offices and, if different, the address of the
establishment responsible for the offer;
2° Where appropriate, delivery costs;
3° Payment, delivery or performance procedures;
4° The existence of the right
to withdraw, apart from where the provisions of this section excluded the
exercising of this right;
5° The period of validity of
the offer and the price of the latter;
6° The cost of operating the
means of distance communication used where this is not calculated in reference
to a basic tariff;
7° Where appropriate, the
minimum duration of the contract proposed, where this relates to the continuous
or periodic supply of goods or services.
The consumer must be notified of this information, the
commercial nature of which must appear unequivocally, by any means adapted to
the means of distance communication used.
In the event of canvassing by telephone or by any similar
means, the business must clearly state his identity and the commercial nature
of the call at the start of the conversation.
Article L121-19
1° Confirmation of the information mentioned in 1 to 4
of article L. 121-18 and that appearing, in addition, in articles L. 111-1 and
L. 113-3 as well as that laid down for the application of article L. 214-1,
unless the professional has satisfied this obligation prior to conclusion of
the contract;
2° Information on terms and procedures for exercising
the right of cancellation;
3° The address of the
supplier’s establishment to which the consumer may direct complaints;
4° Information relating to after-sales service and
commercial guarantees;
5° Terms under which the contract
may be cancelled where the latter is for an indeterminate period or for a
period in excess of one year.
II. – The provisions of this article do not apply to
services supplied just once by means of a distance communication method and
invoiced by the operator of this method with the exception of 3.
Article L121-20
(Order no. 2001-741 of
The consumer has seven clear days in which to exercise
his/her right of withdrawal without having to give reasons or pay penalties,
with the exception, where appropriate, of the cost of returning the goods.
The deadline mentioned in the previous paragraph runs
from the receipt of the goods or acceptance of the offer of services.
Where the information provided for in article L.
121-19 has not been supplied, the deadline for exercising the right of
withdrawal is extended to three months. Where this information is, however,
supplied within three months of receipt of the goods or acceptance of the
offer, this incurs the seven day deadline mentioned in the first paragraph.
Where the seven day deadline expires on a Saturday, a
Sunday or a Bank holiday or a non-working day, it is extended until the next
working day.
Article L121-20-1
(inserted by Order no.
2001-741 of
Where the right of withdrawal is exercised, the business
is liable to reimburse the consumer without delay and, at the latest, within
thirty days of the date on which said right was exercised. After this deadline
the sum owing automatically bears interest at the current legal rate.
Article L121-20-2
(inserted by Order no.
2001-741 of
The right of withdrawal may not be exercised, unless
the parties have agreed otherwise, for contracts:
1° For the supply of services
which have commenced, with the consumer’s agreement, prior to the end of the
seven clear day deadline;
2° For the supply of goods or
services where the price is dependent on fluctuations in financial market
rates;
3° For the supply of goods
made to the consumer’s specifications or specifically customized or which, due
to their nature, cannot be forwarded on or are likely to deteriorate or perish
rapidly;
4° For the supply of audio or
video recordings or computer software where the seal has been broken by the
consumer;
5° For the supply of
newspapers, periodicals or magazines;
6° For betting or authorised
lottery services.
Article L121-20-3
(inserted by Order no.
2001-741 of
Unless the parties are convinced otherwise, the
supplier must fullfill the order within thirty days of the day following that
on which the consumer sent his order to the supplier of the product or service.
In the event of failure to perform the contract by a
supplier due to the lack of availability of the goods or services ordered, the
consumer must be informed of this lack of availability and must, where
appropriate, be reimbursed without delay and, at the latest, within thirty days
of payment of the relevant sums. After this deadline, these sums bear interest
at the legal rate.
If, however, provision has been made for this
eventuality prior to the conclusion of the contract or within the contract, the
supplier may supply goods or services of an equivalent quality and price. The consumer
is notified of this eventuality in a clear and comprehensible manner. The cost
of returning goods subsequent to the exercising of the right of withdrawal is,
in this case, borne by the supplier and the consumer must be informed of this
fact.
Article L121-20-4
(inserted by Order no.
2001-741 of
The provisions of articles L. 121-18, L. 121-19, L.
121-20 and L. 121-21-1 do not apply to contracts relating to:
1° The supply of standard
consumer goods to the consumer’s residence or workplace by distributors making
frequent and regular rounds;
2° The provision of
accommodation, transport, catering or leisure services which must be supplied
on an appointed date or with a specific frequency.
Article L121-20-5
(inserted by Order no.
2001-741 of
Direct canvassing by a business, by means of automatic
calling machines or faxes, of consumers who have not expressed their agreement
to receive such calls is prohibited.
Distance communication methods, other than those
mentioned in the previous paragraph, involving personal communication, may only be used where the consumer has not raised an
objection.
The conditions under which the consumer expresses his
agreement to receive the calls mentioned in the first paragraph, information
that the professional must supply to the consumer regarding his opportunity to
raise an objections as well as the conditions under which objection registers
are kept are prescribed by Council of State decree.
Article L121-20-6
(inserted by Order no.
2001-741 of
Where the parties have selected the Act of a State
which is not a member of the European community to govern the contract, the
judge before whom this Act is invoked is obliged to dismiss the application of
said Act in favour of the more protective provisions of the Act of the
consumer’s habitual residence assuring the transposition of directive 97/7/CE
of the European parliament and Council of 20 May 1997 concerning the protection
of consumers with regard to distance contracts, where this residence is located
in a Member state.
Article L121-20-7
(inserted by Order no.
2001-741 of
The provisions of this section are public policy.
Article L121-20-8
(Transferred by Order no. 2001-741 of
Rules relating to the responsibility, in Act or in
fact, of the director of a radio or television broadcasting service are defined
by II of article 3 of Act no. 88-21 of 6 January 1988 relating to telepromotion
with the sale offer known as “teleshopping” reproduced hereinafter:
“II. – The director, in fact or in law, of a radio or
television broadcasting service defined in article 2 of this Act who may have
scheduled and had broadcast or distributed a programme in breach of the rules fixed
by virtue of the same article shall be fined FRF 500,000.
In the event of recidivism, the author of the offence
may be fined FRF 1,000,000”.
Article L121-20-9
(Transferred by Order no. 2001-741 of
Rules relating to the fixing of scheduling regulations
for broadcasts are defined by the aforementioned article 2 of Act no. 88-21 of
“Art. 2: The Conseil supérieur de l’audiovisuel fixes
scheduling regulations for broadcasts devoted, in whole or in part, to the
presentation or promotion of objects, products or services offered for direct
sale by radio and television broadcasting services authorized by virtue of Act
no. 86-1067 of 30 September 1986 relating to freedom of communication”.
N.B.: Article 2 of Act no. 88-21 of
Article L121-20-10
(inserted by Order no.
2001-741 of
Breaches of the provisions of articles L. 121-18, L.
121-19 and L. 121-20-5, as well as the refusal of the seller to reimburse a
product returned by the purchaser in accordance with the terms fixed in article
L. 121-20-1, are established and legal proceedings are instituted under the
conditions fixed by the first and third paragraphs of article L. 450-1 and
articles L. 450-2, L. 450-3, L. 450-4, L. 450-7. L.450-8, L.
470-1 and L. 470-5 of the Commercial code.
Article L121-21
Anyone who carries out canvassing, or has canvassing
carried out by third parties, at the domicile of a natural person, at their
residence or at their workplace, even if this is at their request, so as to
make them an offer for the purchase, sale, rental, hire -purchase or rent to
buy of goods or services is subject to the provisions of this section.
Canvassing in places not intended for the marketing of
the goods or services being offered and, in particular, the organization by a
trader, or to the latter’s benefit, of meetings or excursions with a view to
carrying out the transactions defined in the previous paragraph is also subject
to the provisions of this section.
Article L121-22
(Act no. 95-96 of 1 February 1995 art. 7 Journal
officiel of 2 February 1995)
Activities for which canvassing is regulated by a
particular legislative text are not subject to the provisions of articles L.
121-23 to L. 121-29.
The following are not subject to the provisions of
articles L. 121-23 to L. 121-28:
1°.
Door-to-door sales of foodstuffs or ordinary consumer goods by business or
their employees during the course of frequent or periodic rounds within the
conurbation in which their establishment is set up or within its neighbourhood;
2°. and 3°. (paragraphs annulled)
4°. Sales, leases or hire-purchase of goods or
services where these have a direct link with the activities performed within
the scope of an agricultural, industrial, commercial or craft industry concern
or that of any other profession.
Article L121-23
The transactions referred to in article L. 121-21 must
be the subject of a contract, a copy of which must be sent to the client when
the contract is concluded and must include the following information: otherwise
they are null and void:
1° Names of supplier and canvasser;
2° Supplier’s address;
3° Address of the place where the contract was
concluded;
4° Precise description of the
nature and characteristics of the goods offered or the services proposed;
5° Contract performance terms, in particular delivery
procedures and deadlines for goods or performance procedures and deadlines for
services;
6° Overall price to pay and payment methods. In the
event of sales on instalment credit terms or on credit, the forms required by credit
sales regulations, as well as the nominal rate of interest and the annual
percentage rate of charge determined in accordance with the conditions provided
for in article L. 313-1;
7° Option of cancellation provided for in article L.
121-25, as well as the conditions under which said option may be exercised and,
clearly stated, the full text of articles L. 121-23, L. 121-24, L. 121-25 and
L. 121-26.
Article L121-24
The contract referred to in article L. 121-23 must
include a detachable form intended to facilitate the exercising of the option
of waiver in accordance with the conditions provided for in article L. 121-25.
A Council of State decree will specify the wording which must appear on this
form.
This contract may not include any jurisdictional clause.
All copies of this contract must be signed and dated
by the client, in person.
Article L121-25
Within seven days, including bank holiday, of the
order or the undertaking to buy, the customer has the right to withdraw by
means of recorded delivery letter. If this deadline normally
expires on a Saturday, Sunday or bank holiday or non-working day, it is
extended until the next working day.
Any contractual clause by virtue of
which the customer waives his/her right to withdraw his/her order or his/her
undertaking to buy is null and void.
This article does not apply to contracts concluded
under the circumstances provided for in article L. 121-27.
Article L121-26
(Act no. 95-96 of 1 February 1995 art. 8 Journal
Officiel of 2 February 1995)
Prior to the expiry of the cooling-off period provided
for in article L. 121-25, nothing may be requested or obtained from the
customer, directly or indirectly, on any grounds or in any form whatsoever nor
any consideration or undertaking nor the provision of services of any kind
whatsoever.
Home subscription to a daily, or similar, publication
in the sense of article 39a of the General tax code is not, however, subject to
the provisions of the previous paragraph provided that the consumer has a
permanent right to cancel, without expense or compensation, together with
reimbursement, within fifteen days, of sums paid, on a pro-rata basis, for the
subscription period still to run.
In addition, payment obligations or orders must not be
executed prior to the expiry of the deadline provided for in article L. 121-25
and must be returned to the consumer within fifteen days of cancellation.
Article L121-27
Subsequent to telephone canvassing or canvassing by
any similar technical method, the business must send the consumer confirmation
of the offer that he/she has made. The consumer is only bound by his/her
signature and benefits from the provisions of articles L. 121-16 and L. 121-19.
Article L121-28
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force on 1 March 1994)
Any breach of the provisions of articles L. 121-23, L.
121-24, L. 121-25 and L. 212-26 will be punishable by imprisonment of one year
and a fine of FRF 25,000 or just one of these two penalties.
Article L121-29
The provisions of Act no. 47-1635 of
The company has a civil responsibility for canvassers,
even if they are independent, acting on its behalf.
Article L121-30
Breaches of the provisions of this section may be
established and proceedings instituted in accordance with the conditions fixed
by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243
of
Article L121-31
Upon the occasion of criminal proceedings instituted
in application of this section against the seller, the service provider or the
canvasser, it is admissible for the customer who is bringing the civil action
to apply to the criminal court for a sum equal to the full amount of payments
made or bills signed, without prejudice to compensation.
Article L121-32
Council of state decrees shall regulate, as appropriate,
implementation procedures for this section.
Article L121-33
(Act no. 94-442 of 3 June 1994 art. 6 Journal
officiel of 4 June 1994)
It is prohibited to visit the domicile of a natural
person, his/her residence or workplace to propose the sale, rental or
hire-purchase of any documents or materials whatsoever, likely to meet the same
needs as the service provisions for which canvassing is prohibited by a
particular text, due to its purpose.
Any breach of the provisions of the previous paragraph
results, in addition to the nullity of the agreement, in the application of the
sanctions provided for in article L. 121-28.
The provisions of the previous paragraphs do not cover
support materials for foreign or regional language learning intended for home learning,
without assistance or follow-up teaching, the presentation of which does not
refer to an educational level, a teaching
activity, to success at school, to training, to obtaining a diploma or a
professional post. In this event, the seven day cooling-off period is extended
by an additional period expiring fifteen days after receipt of the product by
the customer so that said product may be returned and reimbursed. In the event
of this right of return being exercised, the equipment is returned to the
vendor without cost or compensation other than the cost of forwarding the
product. The contract provided for in article L. 121-23 must, in addition,
reproduce the text of this paragraph concerning the right to cancel the order.
The consumer must be notified of the results of
aptitude tests relating to use of language methods carried out by the vendor or
the manufacturer under the supervision of an independent third party prior to
conclusion of the contract.
Article L121-34
Rules relating to direct sales to consumers as well as
marketing of substandard productions are fixed by article 39 of Act no. 73-1193
of
“Art. 39: Sales direct to consumers and the marketing
of substandard faulty productions, made by industrialists, are subject to
regulations fixed by decree”.
N.B.: Article 39 of Act no. 73-1193 reproduced below
was repealed by Act no. 96-603 of
Section 5: Sales or services with free gifts
Article L121-35
All sales or offers for sale of goods or any provision
or offer to provide services made to consumers and giving entitlement, free of
charge, immediately or at the end of a fixed period, to a bonus consisting of
products, goods or services, if these are identical to those forming the
subject of the sale or the service provision, are prohibited.
This provision does not apply to small objects or low
value services or samples.
This provision applies to all the activities referred
to in the last paragraph of article L. 113-2.
Section 6: Lottery and sweepstake advertising
Article L121-36
Written sales promotions which are
likely to engender hope of gain for each of the participants, whatever the
procedures of random selection, may only be practised if they do not require
any financial consideration or expense whatsoever from participants.
The entry form must be separate from any purchase
order for goods or services.
Article L121-37
The documents presenting the sales promotion must not
be likely to engender confusion with an administrative or banking document made
out in the name of the addressee or with an informative press article.
They must include a legible inventory of the lots
which may be won specifying, for each one, their nature, their exact number and
their commercial value.
They must also reproduce the following wording: “Rules
governing the promotion will be sent, free of charge, to anyone who asks for
them”. They must, in addition, specify the address to which this request may be
sent as well as the name of the public officer with whom said regulations have
been lodged in application of article L. 121-38.
Article L121-38
The sales promotions rules as well as a copy of the
documents sent out to the public must be lodged with a public officer who
checks that they are in order. The above rules must be sent, free of charge, to
anyone who requests them.
Article L121-39
A Council of State decree states, where appropriate,
the conditions under which the documents mentioned in the first paragraph of
article L. 121-37 are to be presented.
Article L121-40
Breaches of the provisions of this section may be
established and proceedings instituted in accordance with the conditions fixed
by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243
of
Article L121-41
(Act no. 92-1336 of 16 December 1992 art. 322
331 Journal officiel of 23 December in force on 1 March
1994)
Organisers of the promotions defined in the first
paragraph of article L. 121-36 who have failed to
adhere to the conditions required by this section shall be punished with a fine
of FRF 250,000. The court may order its decision to be published, at the
expense of the convicted party, by any appropriate means. In the event of a
particularly serious breach, it may order the decision to be sent to all
persons solicited by said promotions.
Where the court orders the decision to be displayed on
a poster, this is carried out in accordance with the conditions and subject to
the penalties provided for by article 131-35 of the Penal code.
Section 8: Advertising and business practices concerning baby food
Article L121-50
(inserted by Act no.
94-442 of 3 June 1994 art. 7 Journal officiel of
Baby food means, in the sense of this section,
foodstuffs intended to feed children up to the age of four months prepared and
presented as meeting, by themselves, all the nutritional needs of said
children.
Article L121-51
(inserted by Act
no. 94-442 of 3 June 1994 art. 7 Journal officiel of
Advertising baby food is authorized only in journals
intended for health professionals.
Article L121-52
(inserted by Act
no. 94-442 of 3 June 1994 art. 7 Journal officiel of
It is prohibited, in the retail trade, to distribute
samples of infant formulae, free of charge, as well as, any other promotional
practice encouraging the direct sale of these formulae.
Manufacturers and distributors are also prohibited
from supplying the public, free of charge, with infant formulae, samples of
these products or any other promotional gift, whether this is direct, or
indirect, through the intermediary of health services or their agents.
Article L121-53
(inserted by Act
no. 94-442 of 3 June 1994 art. 7 Journal officiel of
A Council of State decree fixes:
1° The conditions for free
distribution of documentation concerning infant formulae and display materials
for the latter;
2° Exceptional circumstances under which the ban
contained in the second paragraph of article L. 121-52 may be waived, in the
interest of the health of mothers and babies.
Section
9: Time-share contracts
Article L121-60
(inserted by Act no.
94-566 of 8 April 1998 art. 1 Journal officiel of
Any contract of group of contracts,
concluded for a fee, by which a business grants a consumer, directly or
indirectly, possession of one or more properties for use as a dwelling, for
determined or determinable periods, for at least three years or for an
indeterminate period, are subject to the provisions of this section.
Share subscription or share transfer contracts for
companies allocating possession of time-share properties governed by Act no.
86-18 of 6 January 1986 relating to companies allocation possession of
time-share properties, are subject to the provisions of this section.
Article L121-61
(inserted by Act no.
94-566 of 8 April 1998 art. 1 Journal officiel of
The offer to contract is made in writing and
indicates:
1° The identity and the
domicile of the business or, if this is a legal entity, its name, legal form
and registered office and, if necessary, those of the owner of the property and
of the intermediary, as well as the legal relationship existing between them;
2° The name and a precise description of the property
or properties and their surroundings or identifying features and, if the
property is under construction, essential information relating to deadlines for
performance of the works, for connection of various networks, to completion
guarantees and reimbursement in the event of failure to complete and to
planning permission;
3° Essential information relating to management of the
building;
4° The purpose of the contract, the legal nature of
the right by virtue of which the consumer is to possess the property, the
duration of this entitlement, the date on which it comes into effect and the
main legal conditions under which it may be exercised with any indication of
conditions still to be met;
5° The final date and terms
under which the final deed is to be drawn up if the offer is likely to result
in the drafting of a pre-contract;
6° The duration and frequency
of the period of tenure;
7° Dates of occupation or, if appropriate, procedures
for fixing said dates as well as procedures for determining the premises to be
occupied;
8° Share facilities and equipment made available to
the consumer and services provided, as incidentals, as well as the service
provider, conditions of access to said equipment and facilities and an estimate
of the cost of this access for the consumer;
9° The original price, the costs as well as the
detailed amount of all sums due periodically or the criteria by which they are
determined; annual rates of change in said sums during the course of the three
year period preceding the offer or, if this information is not available, a
statement warning of the risk of rises; the amount or determining elements for
duties, taxes and mandatory fees, on the date of the offer;
10° The method of payment of
the price and, where appropriate, the availability of credit in whatever form
this may be;
11° The affiliation or
non-affiliation of the professional with an exchange pool and the possibility
offered to the consumer to participate in said pool, as well at the terms,
particularly financial terms, and essential effects of this participation.
12° Mention of the non-exhaustive nature of the list
of expenses, charges and obligations of a contractual nature.
The offer is signed by the professional. It gives the
date and place of issue.
The words that must appear in the offer are specified
by law.
Article L121-62
(inserted by Act no.
98-566 of 8 April 1998 art. 1 Journal officiel of
The offer reproduces the provisions of articles L.
121-63 to L. 121-68 very clearly.
Article L121-63
(inserted by Act no.
98-566 of 8 April 1998 art. 1 Journal officiel of
The offer, complete with the consumer’s identity and
domicile, is handed or sent to the latter in two copies, one of which is to be
kept by the consumer and has a detachable slip designed to facilitate the
exercise of the right of cancellation provided for in article L.121-64. This
coupon states the identity and domicile of the professional’s registered
office.
The offer is valid for at least seven days from its
receipt by the consumer. The professional is responsible for proving the date
receipt.
Article L121-64
(inserted by Act no.
98-566 of 8 April 1998 art. 1 Journal officiel of
Acceptance of the offer takes effect when the offer is
signed by the consumer, preceded by the handwritten date and place, and is then
sent to the professional by recorded delivery letter or, failing this, by any
other means providing equivalent guarantees in respect of determining the date
of sending.
The consumer may, by the same means, withdraw within
ten days of sending the accepted offer to the professional, without
compensation or expense, with the possible exception of stated costs
necessarily incurred.
Article L121-65
(inserted by Act no.
98-566 of 8 April 1998 art. 1 Journal officiel of
Deadlines provided for by articles L. 121-63 and L.
121-64, expiring on a Saturday, Sunday or a Bank holiday or non-working day,
are extended until the next working day.
Article L121-66
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Prior to the expiry of the deadline for withdrawal
provided for in article L. 121-64, nothing may be requested or received from
the consumer, directly or indirectly, no payment or payment obligations on
whatever grounds or in whatever form this may be.
Article L121-67
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Where financed by a loan of which the professional has
been made aware, the contract is formed under the condition precedent of this
loan being obtained.
The exercise, on the part of the consumer, of the
cancellation option provided for in article L. 121-64 involves automatic
cancellation of the loan contract for financing of the time-share contract,
without cost or compensation, with the possible exception of stated costs
necessarily incurred.
Article L121-68
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Where the consumer resides in
The offer is, in addition, written, at the consumer’s
choice, in the language, or one of the languages, of the Member state in which
he resides or of which he is a national, from the official languages of the
European community.
When, in application of the paragraphs that precede
the offer, the offer is written in two languages, the consumer signs, at his
own choice, one or other of the versions.
Where the property or one of the properties is located
in a Member state of the European community other than
Article L121-69
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Any advertising relating to any contract or group of
contracts referred to in article L. 121-60 states the possibility of obtaining
the text of the offers made as well as the address of the place where it can be
withdrawn.
Article L121-70
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
There is a FRF 100,000 fine for the act:
1° on the part of any business, of submitting an offer
to a consumer likely to lead to the conclusion of a contract or group of
contracts referred to in article L. 121-60 without this offer being made in
writing and containing the statements listed in article L. 121-61 and clearly
reproducing the provisions of articles L. 121-63 to L. 121-68;
2° on the part of any advertiser, of circulating or
having circulated on its behalf, advertising that does not conform to the
provisions of article L. 121-69.
Article L121-71
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
There is a FRF 100,000 fine for the act, on the part
of any business, of requesting or receiving from the consumer, directly or
indirectly, any payment or payment obligation, on any grounds and in any form
whatsoever, prior to the expiry of the withdrawal period provided for in
article L. 121-64.
Article L121-72
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Legal entities may be declared criminally liable,
under the circumstances provided for by article 121-2 of the Penal code, for
offences defined in articles L. 121-70 and L. 121-71. The penalties incurred by
legal persons are:
1° A fine, in accordance with
the procedure provided for by article 131-38 of the Penal code;
2° The penalties mentioned in
article 131-39 of the Penal code.
Article L121-73
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Any clause assigning jurisdiction to a court in a
State which is not party to the Brussels convention of 27 September 1968 and
the Lugano convention of 16 September 1988 concerning legal jurisdiction and
the implementation of decisions on civil and commercial matters, where the
consumer is domiciled or usually resides in France or where the property or one
of the properties is located on the territory of a State that is party to these
conventions.
Article L121-74
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Where the property or one of the properties is located
on the territory of a Member state of the European community, and where the low
governing the contract does not include regulations complying with European
Parliament and Council directive 94/47/CE of 26 October 1994, concerning the
protection of acquirers for certain aspects of contracts for the acquisition of
the right to use time-share property, it is vital that the provisions brought
into force are applied, in order to adhere to said directive, by the State in
which the property is located or, failing this, the provisions of this section.
Article L121-75
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
Where the property or one of the properties is not
located within a Member state of the European community, the consumer normally
residing in a Member state of the European community cannot be deprived,
whatever the applicable law, of the protection afforded by the mandatory provisions
issued by this State in application of the aforementioned European Parliament
and Council directive 94/47/CE of 26 October 1994:
if the
contract was concluded in the State in which the consumer normally resides;
if the
contract was preceded in this State by a special offer or by advertising and
actions implemented by the consumer required for the conclusion of said
contract;
if the
contract was concluded in a State where the consumer was located subsequent to
a travel or holiday offer made, directly or indirectly, by the professional to
encourage the consumer to conclude the contract.
Article L121-76
(inserted by Act no.
98-566 of 8 July 1998 art. 1 Journal officiel of
The provisions of this section are public policy.
Failure to adhere to the provisions provided for by articles L. 121-61, L.
121-62, by the first paragraph of article L. 121-63 and by articles L. 121-64
and L. 121-68 is sanctioned by invalidity of the contract.
Section 10: Title of “baker”and “baker’s” sign
Article L121-80
(inserted by Act
no. 98-405 of 25 May 1998 art. 1 Journal officiel of
The title of “baker” and the commercial sign of
“bakery” or a name likely to cause confusion, at the place of sale of the bread
to the end consumer or in advertising, with the exception of commercial
documents strictly for professional use, may not be used by businesses who do
not, themselves, knead dough from selected raw materials, leave it to rise,
shape it, and bake bread at the place of sale to the end user. The products may
not, at any stage of the production or sale, be deep-frozen or frozen.
Article L121-81
(inserted by Act
no. 98-405 of 25 May 1998 art. 1 Journal officiel of
This designation may also be used when the bread is
sold by an itinerant business, or under his/her responsibility, when said
business meets the requirements specified in article L. 121-80.
Article L121-82
(inserted by Act
no. 98-405 of 25 May 1998 art. 1 Journal officiel of
Research into, and establishment of, breaches of the
provisions of articles L. 121-80 and L. 121-81 are carried out in accordance
with the conditions provided for by article L. 121-2 and are punishable by the
penalties provided for in article L. 213-1 and, where appropriate, the second
paragraph of article L. 121-6.
Chapter II: Illegal
business practices
Section 1: Refusal and subordination of sales or
service provisions
Article L122-1
It is prohibited to refuse to sell a product, or
supply a service, to a consumer without a legitimate reason and to make the
sale of a product subject to the purchase of a minimum quantity or to the
accompanying purchase of another product or another serves as well as making
the provision of a service subject to provision of another service or to the
purchase of a product.
This provision applies to all the activities referred
to in the last paragraph of article L. 113-2.
Section
2: Unsolicited
goods and services
Article L122-2
(Act no. 93-949 of 26 July 1993 art. 7 Journal
officiel of 27 July 1993 in force on 1 March 1994)
Breaches of the provisions of article R. 635-2 of the
Penal code may be established and proceedings instituted in accordance with the
conditions fixed by articles 45, first and third paragraphs, 46, 47 and 52 of order
no. 86-1243 of
Article L122-3
(Order no. 2001-741
of 23 August 2001 art. 14 Journal Officiel of
The supply of goods and services without a previous
order from the consumer is prohibited where the supply is the subject of a
demand for payment. Consumers receiving goods or services in violation of this ban, may not be held liable in any way.
The professional must return any sums that he/she may
have received unreasonably without the consumer’s express and prior
undertaking. These sums shall bear interest at the legal rate calculated as of
the undue payment date and interest at the legal rate plus one half as of the
date on which the request for reimbursement is made by the consumer.
Article L122-4
The provisions of article L. 122-3 shall not pose an
obstacle to the collection of interest, commissions or expenses by means of the
granting of short-term loans or bank overdrafts provided for by the general
banking terms of which customers have been made aware and specifying the amount
or method of calculation of these payments.
The same applies in the event of amendment to the
original terms of the contract resulting from the implementation of a revision
clause, the procedures for which have been expressly defined or have obtained
the approval of the parties when the contract is signed.
Article L122-5
Payment resulting from a legislative or regulatory
obligation does not require an express undertaking in advance.
Section 3: “Pyramid” selling of goods and services
Article L122-6
(Act no. 95-96 of 1 February 1995 art. 13 Journal
officiel of 2 February 1995)
The following are prohibited:
1° Sales made by the procedure known as “pyramid
selling” or any other similar procedures consisting, in particular, of offering
the public merchandise in the hope that they may obtain said merchandise free
of charge or cheaper than their real value and making the sales subject to the
placing of forms or tickets with third parties or the collection of memberships
or registrations;
2° The act of proposing to a
person that they collect memberships or register on a list in the hope of
financial gain resulting from a geometric progression of the number of people
recruited or registered.
In the case of sales networks constituted by chain
recruitment of members or affiliates, it is prohibited to obtain, from a member
or an affiliate, the payment of a sum corresponding to an entry fee or for the
acquisition of teaching materials or services, training or demonstration or
sale of any other similar material or service, where this payment leads to a
payment or to the attribution of an advantage benefiting one or more network
members or affiliates.
In addition, it is prohibited within these same
networks, to obtain from a member or an affiliate, the acquisition of a stock
of merchandise for resale, without a guarantee to take back the stock in the
terms of purchase, with possible deduction of a sum not exceeding 10% of the
corresponding price. This guarantee of return may, however, be limited to a
period of one year after the purchase.
Article L122-7
(Act no. 92-1336 of 16 December 1992 art. 322
art. 335 Journal officiel of 23 December 1992 in force on 1
March 1994)
Without prejudice to the application, where
applicable, of the penalties provided for in articles 313-1, 313-7 and 313-8 of
the Penal code, any breach of this section is punishable by a fine of FRF
30,000 and imprisonment of one year.
The offender may, in addition, be ordered to repay to
those of his/her customers who have not received satisfaction, the sums paid
out by them, without having recourse against those who have obtained the
merchandise.
Article L122-8
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force on 1 March 1994)
Anyone who may have taken advantage of a person’s
weakness or ignorance in order to get them to subscribe, by means of home
visits, to cash or credit obligations in whatever form these may take, shall be
punished by five year imprisonment and a FRF 60,000 fine or just one of these
penalties, where circumstances indicate that this person was not in a position
to assess the impact of the undertakings given or to detect the ruses or tricks
employed to convince him/her to subscribe to them or show that said person has
been subjected to duress.
Article L122-9
The provisions of article L. 122-8 are applicable,
under the same circumstances, to undertakings obtained:
1° either subsequent to canvassing by telephone or
fax;
2° or subsequent to personalised soliciting, without
said soliciting necessarily being by name, to visit a place of sale; taking
place at home and accompanied by the offer of particular benefits;
3° or upon the occasion of meetings or excursions
organised by the person committing the offence or to his advantage;
4° or when the transaction was carried out in places
not intended for the marketing of the goods or services proposed or within the
scope of fairs or shows;
5° or when the transaction was concluded in an
emergency making it impossible for the victim of the offence to consult one or
more qualified professionals, third parties or to the contract
Article L122-10
The provisions of articles L. 122-8 and L. 122-9 apply
to anyone who may have taken advantage of a person’s weakness or ignorance to
obtain, without giving anything in exchange, sums in cash or by bank transfer,
bank or giro cheques, payment orders by payment or credit cards, or else
securities, in the sense of article 529 of the civil code.
Article L122-11
Breaches of the provisions of this section may be
established and proceedings instituted in accordance with the terms fixed by
articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243 of
Part III
General contractual provisions
Chapter
I: Deposits and advances
Article L131-1
If the item to be sold is movable property, any sum
paid in advance in respect of the price, whatever the nature of this payment
and the name given in the document, shall be interest bearing at the legal rate
of interest, for civil matters, to run from the expiry of a period of three
months after the payment until the realisation or return of the sums paid in
advance, without prejudice to the obligation to deliver which remains intact.
For service provisions, the sums paid in advance shall
bear interest at the legal rate upon expiry of a period of three months from
the payment until performance of the service or the return of these sums,
without prejudice to the obligation to perform the service.
Interest will be deducted from the balance to pay at
the time of completion or will be added to the sums paid in advance in the
event of repayment.
Article L131-2
The provisions of this chapter do not apply to special
orders in accordance with estimates nor to sales of
products made to order specially for the purchaser.
Article L131-3
It is not possible to avoid the provisions of this
chapter by particular agreements.
Chapter II: Unfair terms
Section
1: Consumer protection
against unfair terms
Article L132-1
(Act no. 95-96 of 1 February 1995 art. 1, annex
to the Journal officiel of 2 February 1995)
(Order no. 2001-741 of 23 August 2001 art. 16 Journal
officiel of
In contracts concluded between a business and a
non-business or consumers, clauses which aim to create or result in the
creation, to the detriment of the non-professional or the consumer, of a
significant imbalance between the rights and obligations of the parties to the
contract, are unfair.
Council of State decrees issued upon the advice of the
committee set up as per article L. 132-2, may determine the types of clauses
that must be regarded as unfair in the sense of the first paragraph.
An annex to this code includes an
illustrative and non-exhaustive list of clauses that may be regarded as unfair
if they satisfy the conditions posed in the first paragraph. In the event of
dispute concerning a contract that includes one such clause, the applicant is
not exempt from submitting proof of the unfair nature of this clause.
These provisions apply whatever the
contract form or medium. This is the case, in particular, for purchase orders,
invoices, performance bonds, delivery notes or slips, travel vouchers or
tickets, containing stipulations which may, or may not, have been freely
negotiated, or references to general terms fixed in advance.
Without prejudice to the rules of
interpretation provided for in articles 1156 to 1161, 1163 and 1164 of the
civil code, the unfair nature of a term is assessed by referring, when the
contract is concluded, to all the circumstances surrounding its conclusion, as
well as to all the other contractual clauses. It is also evaluated in respect
of those contained in another contract where the conclusion or performance of these two contracts are legally dependent
upon one another.
Unfair terms are deemed to be null and void.
Evaluation of the unfair nature of terms in the sense
of the first paragraph does not involve either the definition of the main
purpose of the contract nor the adequacy of the price of, or remuneration for,
the goods being sold or the service being offered, provided that the terms are
written in a clear and comprehensible manner.
The contract shall continue to be applicable in all
its provisions other than those deemed to be unfair if it can continue to exist
without said terms.
The provisions of this article are public policy.
Annex: terms referred to in the third paragraph of
article L. 132-1.
1. Terms with the aim or effect:
a) of excluding or limiting the business’s legal
liability in the event of the death of a consumer or personal injury caused to
the latter, resulting from an act or omission of this business;
b) of inappropriately excluding or limiting the
consumer’s legal rights in respect of the business or another party in the
event of total, or partial, failure to perform, or defective performance by the
business of any one of the contractual obligations, including the possibility
of setting off a debt owed to the business with a credit that it may have
against said business;
c) of providing for a firm undertaking from the
consumer, even though the performance of the business services is subject to a
condition which is solely dependent on goodwill;
d) of enabling the business to withdraw sums paid by
the consumer when the latter has withdrawn from the conclusion or performance
of the contract, without providing for the right, for the consumer, to receive
compensation of an equivalent amount from the business where it is the latter
who withdraws;
e) from obliging the consumer
who has failed to perform his/her obligations to pay compensation in a
disproportionately high amount;
f) from authorising the business to cancel the
contract in a discretionary manner if the same option is not given to the
consumer, as well as enabling the professional to retain the sums paid in
respect of service provisions not yet supplied by him, where it is the
professional him who cancels the contract;
g) from authorising the
business to terminate a contract of indeterminate duration without giving
reasonable advance notice, without just cause;
h) from automatically
extending a contract of indeterminate duration in the absence of expression to
the contrary from the consumer, although an excessively remote date has been
set as the deadline for the expression of this desire not to extend the
contract on the part of the consumer;
i) from establishing
irrefutably the consumer’s adherence to clauses that the latter has not
actually had the opportunity to become aware of prior to conclusion of the
contract;
j) from authorising the
business to unilaterally amend the terms of the contract without valid reason
specified in the contract;
k) from authorising
businesses to unilaterally amend, without valid reason, the characteristics of
the product to be delivered or the service to be supplied;
l) from specifying that the price of the goods is to
be determined at the time of delivery, or from according the seller of the
goods or the supplier of the services the right to increase their prices
without, in both cases, the consumer having a corresponding right enabling
him/her to cancel the contract should the end price be too high in respect of
the price agreed when the contract was concluded;
m) from according the business the right to determine
whether the item delivered or the service supplied conforms to contractual
stipulations or from according the latter the exclusive right to interpret any
one of the clauses of the contract;
n) from restricting the
business’s obligation to respect the obligations undertaken by its authorised
agents or from making its undertakings subject to adherence to a particular
formality;
o) from obliging the consumer
to fulfil his obligations even though the business may not have fulfilled his
obligations;
p) from providing for the
possibility of transfer, on the part of the business, of the contract, where
this is likely to engender a reduction in guarantees for the consumer without
the latter’s agreement;
q) from cancelling or impeding the institution of
legal proceedings or means of redress by the consumer, in particular, by
obliging the consumer to exclusively refer the case to an arbitration panel not
covered by legal provisions, by unduly limiting the means of giving evidence
available to the consumer or by making the latter responsible for providing
proof which, by virtue of applicable law, should normally lie with another
party to the contract.
2. Scope of points g, j and l:
a) Point g does not pose an obstacle to clauses in
which suppliers of financial services reserve the right to unilaterally
terminate a contract for an indeterminate period without prior notice in the
event of a just cause, provided that the obligation to immediately inform the
other contracting party, or parties, of this fact lies with the business;
b) Point j does not pose an obstacle to clauses in
which suppliers of financial services reserve the right to change the rate of
interest owed by the consumer or owed to the latter, or the amount of any other
charges appertaining to financial services, without prior notice in the event
of just cause, provided that the obligation to inform the other contracting
party, or parties, of this fact as soon as possible, lies with the business and
provided that said party, or parties, are free to conclude ? the
contract immediately.
In addition, point j does not pose an obstacle to
clauses in which the business reserves the right to unilaterally change the
terms of a contract for an indeterminate period provided that the duty to
notify the consumer of this fact in sufficient time lies with the consumer and
the consumer is free to cancel the contract;
c) Points g, j and l do not apply to:
- transactions concerning securities, financial
instruments and other products and services whose price is linked to
fluctuations in currency or in a stock market index or in a financial market
rate beyond the business control;
- contracts for the sale or
purchase of currency, travellers cheques or international money orders
denominated in national currencies;
d) Point l does not pose an obstacle to price
indexation clauses provided that these are legal and that the mode of price
variation is described clearly.
Section 2: The Commission des clauses abusives
Article L132-2
The Commission des clause abusives, under the
auspices of the minister for consumer affairs, is aware of the standard
agreements normally proposed by professionals to non-professional or consumer
contracting parties. It is responsible for finding out whether or not these
documents contain terms which could be of an abusive nature.
Article L132-3
Case may be referred to it either by the minister for
consumer affairs, or by approved consumer protection associations, or by
interested professionals. Cases may also be referred to it automatically.
Article L132-4
The commission recommends the deletion or amendment of
clauses of an abusive nature. The minister for consumer affairs may, either
automatically, or at the request of the commission, make these recommendations
public although they may not contain any information likely to permit
identification of individual situations.
Article L132-5
Every year the commission compiles are report on its
work and may propose any legislative or regulatory changes that it deems
desirable, This report is made public.
Chapter III: Interpretation and form of contracts
Article L133-1
(Act no. 95-96 of 1 February 1994 art. 2 Journal
officiel of 2 February 1995)
With a view to providing the non-professional or
consumer contractor with information, the decrees provided for by article L.
132-1 may regulate the presentation of written documents noting the contracts
referred to in this same article.
Article L133-2
(inserted by Act no.
95-96 of 1 February 1995 art. 3 Journal officiel of
Contract terms proposed by professionals to consumers
or non-professionals must be presented and written in a clear and
comprehensible manner.
In the event of doubt, they are interpreted in the
sense which is most favourable to the consumer or the non-professional. This
paragraph does not, however, apply to procedures implemented on the basis of
article L. 421-6.
Chapter IV: Submission of contracts
Article L134-1
Professional sellers or service providers must submit,
to any interested party that makes a request, a copy of its standard
agreements.
Chapter
V: Conflicting
laws relating to unfair terms
Article L135-1
(inserted by Act no.
95-96 of 1 February 1995 art. 3 Journal officiel of
Notwithstanding any stipulation to the contrary, the
provisions of article L. 132-1 apply where the Act governing the contract is
that of a State not belonging to the European union, where the consumer or the
non-professional is domiciled in one of the Member states of the European union
and where the contract was proposed, concluded or performed there.
Part IV
Agents’ powers and jurisdictional proceedings
Sole
chapter: Special provisions
relating to the powers or agents and legal proceedings
Article L141-1
(Act no. 98-566 of 8 July 1998 art. 2 Journal
officiel of 9 July 1998)
I. Breaches to the provisions provided for in this
code by:
1° articles L. 121-70, L. 121-71, L. 121-72, L. 122-6
and L. 122-7;
2° articles L. 132-1 to L. 132-5, L. 133-1 and 134-1
are established and proceedings instituted in
accordance with the conditions fixed by articles 45, first and third paragraph,
46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to free prices
and competition, reproduced in paragraph IV hereinafter.
II. In accordance with the conditions fixed by
articles 45-48, 51, 52, 54 and 56 of the aforementioned order, reproduced in
paragraph IV hereinafter, persons authorised by virtue of article 45 of this order
may proceed with investigations required for the application of the provisions
provided for by articles L. 113-3, L. 121-35 and L. 122-1 of this code.
III. The provisions of articles 54 and 56 of the
aforementioned order, reproduced in paragraph IV hereinafter, apply to the
provisions provided for by articles L. 113-3, L. 121-35 and L. 122-1 of this
code.
IV. Rules relating to the application of the
provisions of paragraphs I to III below are fixed by articles 45 to 48, 51, 52,
54 and 56 of the aforementioned order no. 86-1243 of
“Art. 45: Civil servants authorised to this end by the
minister for economic affairs may proceed with the investigations required for
the application of this order.
Reporters from the Council on competition have the
same powers for cases that have been referred to said
Council.
Category A civil servants from the ministry for
economic affairs, specially authorised to this effect by the keeper of the
seals, minister for justice, on the recommendation of the minister for economic
affairs, may receive letters of request from juges d’instruction.
Art. 46: Inquiries lead to the compilation of
statements and, where appropriate, reports.
Statements are sent to the relevant authority. A copy
is given to the interested parties. These are authentic unless proven
otherwise.
Art. 47: Investigators may access all premises, sites
or means of transport for professional use, may request the sending of ledgers,
invoices and any other professional documents and may make copies of them, may
gather information and evidence on-site or by application.
They may ask the authority to which they are attached
to appoint an expert to proceed with any agreed expert appraisal that may be
required.
Art. 48: Investigators are only entitled to visit all
sites and seize documents within the scope of investigations requested by the
minister for economic affairs or the Council on competition and upon legal
authorisation given by order of the président du tribunal de grande instance
within the jurisdiction of which the premises to be inspected are located
or by order of a judge deputised by him/her. Where these premises are located
within the jurisdiction of several courts and a simultaneous action must be
brought in each of them, a single order may be issued by one of the competent
presiding judges.
The judge must check that there are grounds for the
request for authorisation submitted to him/her. This request must comprise all
the items of information likely to justify the inspection.
The inspection and seizure are carried out under the
authority of the authorising judge. Said judge appoints one or more officiers
de police judiciaire to assist with these operations and to keep him/her
informed of their progress. Where these operations take place beyond the
jurisdiction of his/her tribunal de grande instance, the judge issues a letter
of request to exercise this control to the président du tribunal de grande
instance with jurisdiction over the site of the inspection.
The judge may visit the premises during the
inspection. He/she may, at any time, decide to suspend or stop the inspection.
The order mentioned in the first paragraph of this
article is only open to further appeal in accordance with the regulations
provided for by the code of criminal procedure. This appeal is not suspensive.
The inspection, which may not commence prior to
The investigators, the occupant of the premises or
his/her representative as well as the officier de police judiciare alone
may acquire knowledge of the papers and documents prior to their seizure.
Inventories and placing under seals are carried out in
accordance with article 56 of the code of criminal procedure.
The original copies of the report and the inventory
are sent to the judge who ordered the inspection.
Papers and documents that are not longer required as
evidence are returned to the occupant of the premises.
Art. 51: Investigators may, without professional
secrecy being cited, access any document or item of information held by
Government departments and establishments and other local authorities.
Art. 52: Anyone hindering, in any way, the performance
of the duties with which the agents designated in article 45 and reporters from
the Council on competition have been charged in application of this order,
shall be punished by six months imprisonment and a FRF 50,000 fine.
Art. 54: The court may order legal persons, jointly
and severally, to pay the fines given to their directors by virtue of the
provisions of this order and texts issued for its application.
Art. 56: For the application of this order, the
minister for economic affairs or his/her representative may submit the findings
before civil or criminal courts and may expand them orally during the hearing.
He/she may also produce inquiry statements and reports”.
N.B.: Articles 45, 46, 47, 48, 51, 52 and 54 of order
no. 86-1243 of
Volume II
Conformity and safety of products and services
Part I
Conformity
Chapter I: General
provisions
Section 1: Legal guarantee
Article L211-1
Regulations relating to guarantees relating to latent
defect in consumer contracts are fixed by articles 1641 to 1648, first
paragraph, of the French civil code reproduced hereinafter:
“Art. 1641: The vendor is bound by the guarantee
covering hidden defects in the item sold which render said item unfit for the
use for which it was intended, or which diminish this use to such a degree that
the purchaser would not have bought said item or would only have paid a lower
price for it if the faults had been known.
Art. 1642: The vendor is not liable in respect of
obvious defects which the purchaser was able to discover him/herself.
Art. 1643: He/she is liable in respect of, even when
he/she was unaware of them, unless, in this case, it was stipulated that he/she
would not be bound by any guarantee.
Art. 1644: In the case of articles 1641 and 1643, the
purchaser may choose to return the item and receive reimbursement of the price
or to keep the item and receive reimbursement of part of the price, as
arbitrated by experts.
Art. 1645: Should the vendor be aware of the item’s
defects, he/she shall be obliged, in addition to reimbursing the price
received, to pay the purchaser compensation.
Art. 1646: Should the vendor be unaware of the item’s
defects, he/she shall only be obliged to repay the price and reimburse the purchaser
for the costs occasioned by the sale.
Art. 1647: Should the defective item have perished due
to its poor quality, the loss shall be taken by the vendor who shall be obliged
to repay the purchaser the price and other compensation for damages explained
in the previous two articles.
Loss due to unforeseeable circumstances is, however,
borne by the purchaser.
Art. 1648, first paragraph: Proceedings resulting from
redhibitory defects must be instituted by the purchaser, as soon as possible,
depending on the nature of the defects and customary practice in the place
where the sale was made”.
Section
2: Special provisions of
contractual guarantees
Article L211-2
When a consumer asks a business, during the course of
a contractual guarantee which was granted at the time of acquisition or repair
of movable property, renovation covered by the guarantee, any period, of at
least seven days, when the property cannot be used, is added to the duration of
the guarantee still to run as of the date of the request for work to be carried
out made by the consumer or the date on which the property in question is made
available for repair if this availability is subsequent to the request for
work.
This article cannot be excluded by agreement.
Chapter II: General obligation of conformity
Article L212-1
From their initial market launch, products must fulfil
current requirements relating to the health and safety of persons, to fair
trade and to consumer protection.
The person responsible for the initial launch of a
product on a market is, therefore, obliged to check that the latter conforms to
current requirements.
At the request of agents authorised to apply chapters
II to VI, he/she is obliged to provide evidence of checks and tests carried
out.
Chapter III: Fraud and falsification
Article L213-1
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
Officiel of 23 December 1992 in force on 1 March 1994)
Anyone, whether or not they are party to the contract,
who may have deceived or attempted to deceive the contractor, by any procedural
means whatsoever, even if this is through the intermediary of a third party,
shall be punished by two years imprisonment and a FRF 250,000 fine:
1° either in respect of the nature, species, origin,
material qualities, composition or content in terms of useful principles of any
merchandise;
2° or on the quantity of items delivered or on their
identity by delivery of merchandise other than the determined item to which the
contract relates;
3° or on the fitness for use, the risks inherent in
use of the product, the checks carried out, the operating procedures or
precautions to be taken.
Article L213-2
The penalties provided for in article L.213-1 are
doubled:
1° if the offences provided for in said article result
in use of the merchandise being made dangerous to human or animal welfare;
2° if the offence or attempted offence provided for in
article L. 213-1 was committed:
a) either with the aid of
weights, measures or other false or inaccurate instruments;
b) or with the aid of
manoeuvres or procedures likely to falsify operations of analysis,
determination, weighing or measuring or likely to fraudulently modify the
composition, weight or volume of the merchandise, even prior to these
operations;
c) or, finally, with the aid
of false information, likely to result in belief in a previous and accurate
operation.
Section 2: Adulteration and related offences
Article L213-3
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force on 1 March 1994)
The following are punishable by the penalties given in
article L. 213-1:
1° Those who adulterate
foodstuffs for human or animal consumption, medicines, drinks and agricultural
or natural products intended for sale;
2° Those who display, place on sale or sell foodstuffs
for human or animal consumption, drinks and agricultural or natural products
that they know to be adulterated or corrupt or toxic;
3° Those who display, place
on sale or sell adulterated medicines;
4° Those who display, place on sale or sell, knowing
their destination, products, objects or apparatus for use in adulterating
foodstuffs for human or animal consumption, drinks or agricultural or natural
products and those who have caused their used by means of any brochures,
circulars, prospectuses, posters, advertisements or instructions whatsoever.
If the falsified or corrupted substance,
or adulterated medicine is harmful to human and animal health, imprisonment
will be increased to four years and the fine to FRF 500,000.
The penalties shall apply even in the event of the
harmful adulteration being known to the purchaser or consumer.
The provisions of this article do not apply to fresh
and fermented or adulterated fruit and vegetables.
Article L213-4
(Act no. 92-1336 of 16 December 1992 art. 322 Journal
officiel of 23 December 1992 in force)
Punishable by a FRF 30,000 fine and three months
imprisonment or by just one of these penalties are those who, without
legitimate reasons, are found to be holders, in any manufacturing, production,
packaging, storage, warehouse or sales site, in vehicles used for transporting
merchandise, as well as in places where animals whose meat or products are
intended for human or animal consumption are housed or slaughtered:
1° Either false weights or
measures or other inaccurate apparatus used for weighing and measuring
merchandise;
2° Or foodstuffs for human or
animal consumption, drinks, agricultural or natural produce that they know to
have been adulterated, corrupted or to be toxic;
3° Or adulterated medicines;
4° Or products, objects or
apparatus for use in adulterating foodstuffs for human or animal consumption,
drinks or agricultural or natural produce.
If the adulterated or corrupted food substance or the
adulterated medicine is harmful to human or animal health, imprisonment will be
two years and the fine will be FRF 250,000.
The provisions of this article do not apply for fresh,
fermented or adulterated fruit and vegetables.
All vendors or holders of products intended for the
preparation or storage of drinks not bearing a label stating their components
and the proportion of those components, where use of said components is limited
by current legislation and regulations.
Article L213-5
(Act no. 96-314 of 12 April 1996 art. 60b Journal
officiel of 13 April 1996)
Anyone who, having been sentenced to correctional
penalties in application of chapters II to VI of this part or texts listed
hereinafter, within five years of the date of this sentence becoming final,
commits a new offence that comes under the application of chapters II to VI of
this part or the texts listed hereinafter, shall be considered to be in a state
of legal recidivism:
articles L. 141, L. 142 and L. 144, chapters I and IV
of part I, chapters II and III of part II and chapters I and VIII of part III
of volume V of the French public health code;
articles
L. 231-6 and L. 231-7 of chapter I of part III and article L. 263-2 of chapter
III of part VI of volume II of the French labour code;
chapter VII of the part, section 1 of chapter V of
part I of volume I, section 1 of chapter I of part II of volume I, article L.
115-30 of this code;
the Act of
the Act of
the Act of
the Act of
the Act of
the Act of 11 July 1906 relating to the protection of
tins of sardines, vegetables and prunes against foreign fraud, the provisions
of which were rendered applicable to all foreign tinned fish entering France by
the Act of 28 June 1913;
the Act of
the Act of
the Act of
the Act of
the Act of
the amended Act
of
the Act of
the Act of
the Act of
the Act of
amended
Act no. 525 of
Act no. 60-808 of
amended
Act no. 64-1360 of
Act no. 71-383 of
Act no. 73-1097 of
Act no. 79-595 of
Act no. 80-502 of
Article L213-6
(inserted by Act no. 2001-504
of 12 June 2001 art. 3 I Journal Officiel of
Legal entities may be declared criminally liable under
the conditions provided for by article 121-2 of the French penal code for
offences defined in articles L. 213-1 to L. 213-4.
Penalties incurred by legal entities are:
1° Fines, in accordance with the procedures provided
for by article 131-38 of the French penal code;
2° The penalties mentioned in
points 2 to 9 of article 131-39 of the French penal code.
The ban mentioned in point 2 of article 131-39 of the
French penal code relates to the activity during, or on the occasion, of the
performance of which the offence was committed.
Chapter
IV: Enforcement powers
Article L214-1
(Act no. 98-535 of 1 July 1998 art. 11 II 1 Journal
officiel of 2 July 1998 in force at the latest on 31 December 1998)
(Act no. 2001-420 of 15 May 2001 art. 57 Journal
officiel of
Council of state decrees shall rule on the measures to
be taken to ensure the performance of chapters II to VI of this part, in
particular, with regard to:
1° The manufacture and import of merchandise other
than that referred to in articles 258, 259 and 262 of the French rural code as
well as the sale, the placing on sale, the display, the possession and
distribution, free of charge, of all merchandise referred to in chapters II to
VI;
2° Presentation methods or marking of any kind on the
merchandise itself, on packaging, invoices, commercial or promotional
documents, in respect, in particular, of: production method, nature, essential
qualities, composition, content in terms of useful principles, type, origin,
identify, fitness for use, operating methods as well as special optional or
mandatory marks affixed to French merchandise for export abroad;
3° The definition, composition and designation of
merchandise of any kind, legal treatments to which said merchandise may be
subject, characteristics rendering them unfit for consumption;
4° The definition and
conditions of use of advertising terms and expressions, with the aim of
avoiding confusion;
5° Hygiene in establishments where foodstuffs for
human or animal consumption other than those referred to in articles 258, 259
and 262 of the French rural code are prepared, stored and sold and health and
safety conditions for persons working in these premises;
6° The conditions under which
the microbiological and sanitary characteristics of the merchandise intended
for human or animal consumption other than those referred to in articles 258,
259 and 262 of the French rural code are determined;
7° The physical conditions
under which the indications, referred to in the last paragraph of L. 213-4 must
be brought to the attention of purchases on labels, posters, publicity,
business stationery.
The decrees provided for in this article are issued
upon the advice of the Agence française de sécurité sanitaire des aliments
where they relate to products coming under its jurisdiction or that involve
provisions aiming to prevent health or nutritional risks. These opinions are
made public.
Article L214-1-1
(inserted by Act no.
99-574 of 9 July 1999 art. 100 I Journal officiel of
A Council of State decree fixes the list of products
or foodstuffs for which traceability must be guaranteed. It specifies the
obligations of producers and distributors who are obliged to compile and update
registered information and product, or product batch, identification
procedures. These procedures enable the origin of these products and batches to
be known as well as the conditions under which they were produced or
distributed.
The administrative body specifies, for each product or
foodstuff, the production and marketing procedures for which traceability must
be guaranteed, as well as the means to be implemented according to size of
company.
Article L214-2
(Act no. 99-574 of 9 July 1999 art. 100 II Journal
officiel of 10 July 1999)
Breaches of Council of state decrees, adopted by
virtue of articles L. 214-1, L. 214-1-1, L. 215-1, last paragraph, and L. 215-4
which are not to be confused with any fraud or falsification provided for by
articles L. 213-1 to L. 213-4 and L. 214-1 (point 7), shall be punished as
petty offence (third class).
Anyone who has placed on sale, or sold, without
waiting for the results of an official investigation which is under way, any
merchandise whatsoever which is definitely acknowledged as being fraudulent or
false subsequent to the legal inquiry following this investigation, without
prejudice to correctional proceedings instituted against the author of the
fraud or the falsification.
Article L214-3
Where a European economic community regulation
contains provisions which come under the field of application of chapters II to
VI, a Council of state decree ascertains whether these provisions, as well as
those of community regulations that may amend them or that may be adopted for
their application, constitute the implementing measures provided for in
articles L. 214-1, L. 215-1, last paragraph and L. 214-4.
Chapter V: Powers of investigation
Section 1: Authorised authorities
Article L215-1
(Act no. 97-1051 of 18 November 1997 art. 38 Journal
officiel of 19 November 1997)
(Act no. 98-535 of 1 July 1998 art. 26 I Journal
officiel of 2 July 1998)
(Act no. 99-574 of 9 July 1999 art. 101 VIII Journal
officiel of 10 July 1999)
The following are qualified to perform their duties in
respect of investigating and establishing breaches of chapters II to VI:
1° Agents from the Directorate-General for
competition, consumer protection and fraud preventions, from the
Directorate-General for customs and the Directorate-General for taxes;
2° Judiciary police officers, in accordance with the
terms fixed by article 16 of the French criminal procedure code and the
judiciary police agents designated in article 20 of said code;
3° Veterinary inspectors, agricultural engineers,
specialist technicians from the offices of the Department of Agriculture,
veterinary workers, technical veterinary representatives, engineers and
technicians responsible for the protection of vegetables;
4° Medical public health inspectors and Pharmacist
public health inspectors;
5° Agents from the Institut français de recherche pour l’exploitation de
la mer;
6° Agents from the Department of Industry’s department
of metrology as well as those belonging to regional departments of industry,
research and the environment;
7° Government agents approved and commissioned by the
minister for agriculture;
8° Agents approved and commissioned in accordance with
article 65 of the French finance act of
9° Administrators from marine affairs, marine affairs
inspectors, expert technicians from the department for marine navigation
safety, officers from the technical and administrative office of marine
affairs, marine affairs supervisors, seafarers’ associations, on-board marine
affairs support and monitoring personnel, testers from sea fishing
establishments.
Council of state decrees shall rule on the powers
invested in authorities qualified to investigate and ascertain breaches of
chapters II to VI with a view to gathering items of information from various
public authorities and transport companies.
Article L215-1-1
(inserted by Act no.
2001-420 of 15 May 2001 art. 8I II Journal
officiel of
Agents from the Directorate-general for competition,
consumer protection and fraud prevention may exercise the powers of inquiry
that they hold by virtue of volume II of this code throughout the
Article L215-2
(Act no. 94-114 of 10 February 1994 art. II Journal
officiel of
In the places listed in the first paragraph of article
L. 213-4 and on the public highway, authorities qualified to investigate and
ascertain breaches of chapters II to VI are also qualified to proceed in
respect of breaches of regulatory provisions adopted in application of articles
258, 259 262, 275-1, 275-2 and 275-4 of the French rural code fixing sanitary and
qualitative standards for animal foodstuffs and foodstuffs of animal origin
placed on sale.
Section 2: Investigation and report
Article L215-3
In order to research and record
breaches of chapters II to VI. agents
may enter, by day, the places and vehicles list in the first paragraph of
article L. 213-4,
They may also enter these same places, by night, if
they are open to the public or if the interior of said places are in the
process of production, manufacturing, processing, packaging, transport or
marketing activities.
Where these places are also used as dwellings, these
inspections may only be made by day and with authorisation from the Public
prosecutor if the occupant objects.
Agents may request that documents of any kind be sent
to them or may seize said documents, in whomsoever’s possession they may be,
appertaining to facilitating the completion of their task and the provision of
resources that are vital to the performance of their checks.
They may also consult any document required for the completion
of their task at the premises of public authorities, establishments and
organisations placed under the Government control and local authorities, as
well as statutory companies and departments, regions, departments and communes.
Article L215-4
Council of state decrees shall rule on measures to be
taken in respect of:
1° Formalities required in order to take samples and
make seizures in the places listed in article L. 213-4, as well as to carry out
agreed expert surveys on suspect merchandise;
2° The choice of analysis
method intended to establish the composition, components and content in terms
of useful principles of products or to recognised their falsification.
Article L215-5
On public highways and in the places listed in the
first paragraph of article L. 213-4, seizures may not be made without legal
authorisation apart from in the event of flagrant offences of falsification
where these relate to:
1° Products recognised as being rotten, adulterated or
toxic;
2° Products recognised as being unfit for consumption,
with the exception of the foodstuffs referred to in articles 258, 259 and 262
of the French rural code where unfitness for consumption can only be recognised
from abnormal organoleptic characteristics or signs of organic pathology;
3° Products, objects or apparatus used to make
forgeries in the cases provided for in articles L. 213-3 and L. 213-4;
4° Products, objects or apparatus recognised as not
conforming to current laws and regulations and presenting a danger for the
health and safety of consumers.
There is nothing new in respect of the procedure
followed by tax offices in order to ascertain and institute proceedings in
respect of events constituting both a tax contravention and a breach of the requirements
of chapters II to VI and of the Act of 29 June 1907 designed to prevent the
adulteration of wines and the abusive use of sweeteners.
Article L215-6
Seizures can only be made without an order from a juge
d’instruction in the event of persons being
caught in the act of falsification, or should the products be recognised as
being adulterated or toxic, subsequent to investigations carried out on-site or
subsequent to the analysis of a sample in a laboratory. In the case of products
recognised as being adulterated or toxic, seizure is mandatory.
In this last case, the agent may proceed with their
destruction, sterilisation or denaturation. Operations are related and proven
in the reports.
Article L215-7
Authorities qualified to research and investigate
breaches of chapters II to VI may, in any of the places listed in article L.
213-4 and on public thoroughfares, detain, whilst awaiting the results of the
necessary tests:
1° Products likely to be falsified, adulterated or
toxic;
2° Products likely to be unfit for consumption, with
the exception of the foodstuffs referred to in articles 258, 259 and 262 of the
French rural code where the unfitness for consumption can only be recognised in
relation to abnormal organoleptic characteristics or signs of organic
pathology;
3° Products, objects or apparatus recognised as not
conforming to current laws and regulations and presenting a danger for the
health and safety of consumers.
Products, objects or apparatus detained shall be left
in the care of their holder.
Authorised authorities compile a report mentioning the
products which are the subject of the detention. This report is sent, within
twenty four hours, to the procureur de la République.
Detention measures can only exceed fifteen days with
authorisation from the procureur de la République.
Lifting of the detention measure may be ordered at any
time by the authorised authorities or by the procureur de la République.
Article L215-8
The qualified authorities may request authorisation
from the president du tribunal de grande instance or from the magistrat
du siege appointed to this end, to detain in all the places listed in
article L. 213-4 and on public thoroughfares, whilst awaiting the necessary
checks, merchandise suspected of not conforming to the provisions of chapters
II to VI and to the texts adopted for their application, where keeping said
merchandise on the market could have serious and immediate implications for
fair trade or could seriously damage the interests of consumers.
This detention can only be implemented with
authorisation from the president du tribunal de grande instance under
whose jurisdiction the places where the litigious merchandise is being held
lie.
This judge is referred cases at the request of the
authorities mentioned in the first paragraph. He/she makes a ruling within
twenty four hours.
President du tribunal de grande instance checks
that there are grounds for the detention application brought before it. This
application includes all the items of information needed to justify the
measure.
The detention measure cannot exceed fifteen days. In
the event of particular difficulties linked to examination of the merchandise
in question, the president du tribunal de grande instance may renew the
measure for an identical period by a reasoned order.
Detained merchandise is left in the care of their
holder.
The president du tribunal de grande instance may
order the lifting of the detention measure at any time. Lifting is automatic
wherever the authorised authorities have ascertained the conformity of the
detained merchandise or the bringing of the latter into conformity subsequent
to the undertaking of the person responsible for first placing said merchandise
on the market or of their holder.
Article L215-9
All the expert surveys necessitated by the application
of chapters II to VI shall be agreed by both parties and the price of samples
recognised as being compliant shall be reimbursed according to their value on
the day of sampling.
Article L215-10
Should the procureur de la République believe,
subsequent either to statements or reports from the agents referred to in the
first to the ninth paragraph of article L. 215-1, or from the laboratory report
and, if necessary, subsequent to prior investigation, that proceedings should
be instituted or a preliminary investigation opened, the case is referred to
either the court or the juge d’instruction.
If an analysis is required, the latter is ordered and
performed in accordance with the requirements and in the forms provided for in
articles 156 to 169 of the French code of criminal procedure, subject to the
reservations given hereinafter.
Article L215-11
Should the allegation of fraud or falsification result
in an analysis being carried out in a laboratory, the alleged author of the
fraud or falsification is notified, by the procureur de la République,
that he may have access to the laboratory report and he has three clear days in
which to submit his observations and to advise whether or not he
requires the analysis agreed by both parties provided for by article L. 215-9.
Article L215-12
Where an analysis has been requested or where it has
been decided upon by the juridiction d’instruction or juridiction de
jugement, two experts are designated. One is appointed by the jurisdiction, the other is chosen by the interested party
and appointed by the jurisdiction in accordance with the conditions provided
for by article 157 of the French code of criminal procedure.
Under exceptional circumstances, the interested party
may choose an expert who does not appear on the lists provided for in the first
paragraph of the aforementioned article 157. Said choice is subject to approval
from the jurisdiction.
The manager of the laboratory that performed the
analysis may be appointed in accordance with the conditions fixed in the first
and second paragraphs, even when he does not appear on the lists provided for
in article 157, first paragraph of the French code of criminal procedure.
The Court gives the interested party a deadline by
which the expert must be designated, the interested party, nevertheless, being
entitled to explicitly renounce this appointment and rely on the findings of
the expert appointed by the jurisdiction.
If the interested party has not renounced this right
and has not designated an expert within the deadline given, said expert is
automatically appointed by the Court.
Article 215-13
The expert chosen by the interested party is appointed
by the jurisdiction under the same terms and receives the same assignment as
the expert chosen by it. These experts have the same obligations, the same
rights, the same responsibility and receive the same
payment, in accordance with the conditions provided for in the French code of
criminal procedure.
The experts must employ the method, or methods, used
by the laboratory and carry out the same analyses. They may, however, employ
other additional methods.
Article L215-14
The Court hands the second sample taken over to the
experts in accordance with the provisions of article 163 of the French code of
criminal procedure. If special storage measures have been taken, the
jurisdiction will specify procedures for withdrawing samples.
It also hands over to the experts the sample held by
the person at whose premises the sample has been taken, the latter having been
formally notified in advance to supply said sample within eight days, intact.
If the interested party does not submit said sample intact by the
aforementioned deadline, reference must no longer be made to this sample, at
any time/
Article L215-15
Where a product is rapidly alterable or where this
relates to an object or a piece of merchandise which, due to its value, nature
or the scant quantity of product available, cannot, without difficulty, be
sampled three times, the jurisdiction appoints the experts immediately, one of
whom being indicated by the interested party, and takes all measures to ensure
that the experts meet as a matter of urgency. The examination commences at the
behest of the promptest expert and the experts conclude on the findings reached
in this way.
Article L215-16
In derogation of article 167 of the French code of
criminal procedure, if the experts cannot agree, or if they agree to invalidate
the findings of the administration’s laboratory report, the jurisdiction, prior
to making a ruling, informs said laboratory of the contents of the experts
report and sets a deadline for said laboratory to make any observations, unless
the relevant laboratory manager has, him taken part in the expert survey in the
capacity of expert.
Article L215-17
In respect of bacteriological testing or checks on
biological purity, apart from cases where the interested party has declared its
wish to rely on a single expert, designated by the juge d’instruction, the
latter appoints two experts to carry out the expert survey on the sample taken.
The first of these experts is selected from the
managers of competent laboratories.
The second expert, appointed by the juge
d’instruction is the expert or his deputy, selected by the interested party
in the relevant discipline from the lists provided for by article 157 of the
French code of criminal procedure.
The two experts act together, in the laboratory to
which the sample has been sent, in examining this sample.
The juge d’instruction makes all necessary
arrangements to ensure that the sampling and the analysis which follows
immediately are carried out by the department for the prevention of fraud by
the date fixed by it. Default on the part of one of the experts does not
prevent the examination from being completed, with the effects attached to the procédure
contradictoire.
Section
5: Provisions relating
to conformity and to EC mark
Article L215-18
(Act no. 95-96 of 1 February 1995 art. 11 Journal
officiel of 2 February 1995)
(Act no. 2001-43 of 16 January 2001 art. 26 Journal
officiel of
1° Merchandise subject to a C.E. community marking
obligation and without this marking;
2° Merchandise which, although it bears C.E. marking
is, however, clearly does not conform to applicable marking regulations;
3° Merchandise which, although equipped with a C.E.
declaration of conformity or fitness for purpose presuming their conformity, or
fitness for purpose presuming their conformity to requirements essentially by
virtue of the relevant regulations, does not, however, conform to the latter.
The procureur de la République is informed,
without delay, by the agents carrying out the checks, of the detention measure.
These operations are noted by means of a report
stating the merchandise which is the subject of the detention measure. These
reports are sent to the procureur de la République within twenty four
hours. A copy is sent to the interested party within the same deadline.
The merchandise detained is left in the care of the
holder.
This measure also applies when the documentary
evidence requested by texts relating to C.E. marking cannot be submitted to the
agents within fifteen days of said documents being requested.
II. – The detention measure is automatically lifted:
a) Either in the event of the documentary evidence
required by legislative texts relating to C.E. marking, proving the advertised
conformity, being submitted to the agents;
b) Or in the event of the merchandise being brought
into conformity with texts relating to C.E. marking;
c) Or failing saisine, by the administration,
by the person responsible for placing the detained merchandise on the market or
by the owner of the detained merchandise, within seven working days of the
detention report date, by the president du tribunal de grande instance
with jurisdiction over the place where the detained merchandise is being held.
III. – The president du tribunal de grande instance , or the
magistrat du siège appointed to this end, ruling in chambers on matters
of special urgency, may either pronounce the lifting of the detention measure,
or limit its effects, or order detention until the merchandise is brought into
conformity within the deadline set by it, or, if the merchandise cannot be
brought into conformity, ban it from being put on the market.
In the event of particular difficulties relating to
the brining into conformity of the merchandise, the president du tribunal de
grande instance ,
or the magistrat du siège appointed to this end, may renew the measure
by reasoned order.
If the merchandise is not brought into conformity
within the deadline fixed, the president du tribunal de grande instance or
the magistrat du siège appointed to this end, may ban it from being put
on the market.
The marketing of merchandise in spite of the detention
measure or the ban on the merchandise being put on the market shall be
punishable by the penalties provided for by articles 314-5 and 314-6 of the
French penal code.
Article L216-1
Chapters II to VI apply to service provisions
Article L216-2
Merchandise, objects or apparatus still belonging to
the seller or the possessor, the sale, use or holding of which constitutes an
offence, may be confiscated. Weights and other false or inaccurate weighing,
measuring or quantification instruments, must be
confiscated and destroyed.
Should the confiscated merchandise, objects or
apparatus be useable, the court may make them available to the public
authorities for allocation to establishments of general interest.
If they are unusable or harmful, these merchandise,
objects or apparatus shall be destroyed at the expense of the convicted party.
In the event of non-suit or acquittal, should the
merchandise, objects or apparatus have been identified as being dangerous for
humans or animals, the judge orders the seizing authority to have them
destroyed or to use them for a purpose for which they are fit.
Article L216-3
(Act no. 92-1336 of 16 December 1992 art. 322,
art. 329 Journal Officiel of 23 December 1992 in force on 1
March 1994)
The court may order, in all cases, that the detention
ruling be published, in full, or in extracts, in the journals that it
designates and displayed in the places that it states, in particular, on the
doors of the convicted party’s domicile, shops, factories and workshops, all at
the expense of the convicted party without, however, the cost of this
publication exceeding the maximum amount of fine incurred.
Where display has been ordered, the court will fix the
dimensions of the poster and the typographical characters that must be used in
its printing.
In this case, and in all other cases where the courts
are authorised to order their judgement to be displayed by way of a fraud
prevention penalty, they must fix the time for which this judgement must be
displayed, not to exceed seven days.
In the event of total, or partial, removal,
concealment or defamation of the displays ordered by the judgement, the
provisions of the judgement relating to the display shall be applied, in full,
once again.
Should the removal, concealment or defamation have
been carried out intentionally by the convicted party, at his/her instigation
or under his/her orders, this shall result in the latter being sentenced to a
fine of FRF 25,000.
Repeated intentional removal, concealment or defamation of the displays by the convicted party, at his/her instigation or under his/her orders, shall be punishable by imprisonment of one month and a FRF 5