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Case detail

B a c k

Directive article Article 5 4.
Article 7 1.
Article 7 2.
National ID #09-83059
Country France Decision date 15/12/2009
Common name Decision type Supreme court decision
Court Cour de cassation, Chambre criminelle Plaintiff(s) X.. Lionel and Société ENDEIS TELECOM
Court translation Supreme Court, Criminal Chamber Defendant(s) Several former customers
Subject commercial offer
Keywords cancellation of contractcommercial offermisleading advertisingmisleading omissionspenaltiesright of cancellationmobile phone services

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Headnote

(1) Appointing commercial agents to convince consumers by focusing on call rates per second while omitting details regarding other material elements (such as the cost of each connection, the amount of the payment by cheque, and the minimum monthly billing), is a material act, constitutive of the offense of "advertising likely to mislead" under the French Commercial Code. Such offense also qualifies as an unfair practice. 

(2) Knowingly violating a legal or regulatory provision implies mens rea under French law.

Facts

Former customers of a telephone operator who had entered into an agreement with the telephone operator after a door-to-door selling, filed complaints. The court sentenced the defendants for advertising in a way that is likely to mislead and violate the rules governing distance sales (articles L. 120-1 and L. 121-1 of the French Consumer Code).

The telephone company and its manager, both prosecuted, appealed this decision, arguing that the elements characterizing the offense were not met.

Legal issue

(1) What are the constitutive elements of the offense of  "advertising likely to mislead the consumer" under the provisions of the French Consumer Code?

(2) Does the offense of misleading commercial practices require "mens rea" (criminal guilt)?
 

Decision

(1) Appointing commercial agents to convince consumers by focusing on call rates per second while omitting details regarding other material elements (such as the cost of each connection, the amount of the payment by cheque, and the minimum monthly billing), is a material act, constitutive of the offense of "advertising likely to mislead".

In addition to said acts, advertising leaflets were sent to consumers' domiciles, without any indication of the head office of the company, the validity term of the commercial offer, or the existence of a right to withdraw. As a result, only fragmented information on the actually applicable rates was provided to consumers. 

Furthermore, no details about the actual nature of the agreement could be easily found, because of the location of such information and the font used.

These elements constitute a violation of articles L. 120-1 and L. 121-1 of the French Consumer Code.

(2) The appellants did not ensure the accuracy of the advertising. The characterization of mens rea, as required by article L. 121-3 paragraph 1 of the French Criminal Code (intentional element), results from the knowing violation of a legal or regulatory obligation.

  URL Decision Decision full text
EN N/A
FR http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000021649661&fastReqId=1130845871&fastPos=1 Click here

Result

The plaintiff's appeal was dismissed.

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