|Directive article||National ID||Cour de Cassation, chambre criminelle, N° 07-83.449|
|Common name||Decision type||Supreme court decision|
|Court||Cour de Cassation, chambre criminelle||Plaintiff(s)||Société Brestoise de lunetterie and others|
|Court translation||Supreme Court, criminal section||Defendant(s)||Caroptic|
|Subject||proof of negligence|
|Keywords||enforcement, evidence, misleading advertising, proof of negligence|
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The possibility for authorities to request a trader to provide evidence of the claims it made in an advertisement, does not exempt a private plaintiff from proving its own criminal allegations towards the trader.
The defendant, an optician, had announced a discounted price in leaflets, but did not prove the discount by referring to the normal price. The plaintiffs (also opticians) argued that such advertisement breached the French Consumer Code, but did not provide any details about the duration of the offer and its scope.
Article L. 121-2 of the French Consumer Code allows French authorities to require advertisers to make available to them any elements which substantiate their advertising claims, indications or presentations. However, according to the lower court, this does not exempt the plaintiffs from bringing evidence of the violation. The lower court therefore dismissed the claim, since the burden of proof for the constitutive elements of the offence still remains on the plaintiff.
Who bears the burden of proof in a claim for misleading commercial practices, in case there has not been an administrative investigation, and the defendant has been directly summoned?
The burden of proof remains with plaintiff.
|URL Decision||Decision full text|
The plaintiffs' claim was dismissed.
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