European Commission

 

Enforcement fiche for France

B a c k

I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive? THE services of the departmental directorate for population protection (Hereafter “DDPP”: “direction départementale de la protection de la population”) enforce the rules laid out in the French Consumer Code (hereafter “CC”). They are under the authority of each department’s Prefect (“Préfet”, the State representative in each county “département”) . There is also a regional directorate which implements the missions that require supra-departmental actions. However, the regional directorates have no direct enforcement authority. Sworn agents of the DDPP may make enquiries and ascertain offences under the CC. With the prior authorisation of the Ministry of Economy or a judge, these agents can carry out inspections, see and read all relevant documents, place under seals, carry out seizures, ask the authority to designate an expert and summon persons (Articles L. 450-1 to L. 450-4 of the Commercial Code). They can file statements with the public prosecutor (“Procureur de la République”).
Who can file administrative complaints? A consumer who has a problem with a professional about a product or a service can file with complaint with the DDPP using the “BP 5000” service, which was implemented in 1977 by the Secretary of State for Consumer Issues (“Secrétariat d’état à la consommation”). The BP 5000 service can try to contact the professional and find a settlement between the parties.
Do any specific procedural requirements apply to filing administrative complaints? Consumers must write to the local BP 5000 service. All the necessary information can be found at this address: http://www.DDPP.bercy.gouv.fr/documentation/dossier_litiges/bp_5000.htm There are no additional specific procedural requirements.
Do the administrative authorities have an obligation to investigate the complaint? The administrative authorities do not have an obligation to investigate
Are there any specific requirements regarding the provision of evidence to the competent authorities? There is no specific requirement.
II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive? Consumers can bring proceedings before the civil or criminal courts. They can also apply to join criminal proceedings begun by the public prosecutor (“Procureur de la République”) as civil parties. Consumers may also file complaints with the public prosecutor, after which there may be preliminary investigation, followed by criminal charges. If the public prosecutor informs the consumer that s/he will not institute legal proceedings or if the public prosecutor did not respond within three months after having received the complaint or a copy if it, the consumers can then file complaints with the investigating magistrate and become civil parties. Pursuant to Article L. 121-3 of the CC, the Court or the investigating magistrate can specifically issue an order to stop misleading or aggressive commercial practices.
Who can start a court action? As noted above, consumers, or the public prosecutor, directly or through a consumer association. Although French law does not include “class actions”, Article L. 422-1 et seq. of the CC provides that where several consumers, identified as natural persons, have suffered individual harm caused by the same commercial act and having a common origin, then, any approved association recognised as being representative on a national level may, if it has been duly authorised by at least two of the consumers concerned, institute legal proceedings to seek damages before any court on behalf of these consumers. Pursuant to Article L. 421-1 of the CC, duly declared consumer associations whose statutory purpose specify the protection of consumer interests may, if they are approved for this purpose, exercise on their own the rights conferred upon civil parties (before the civil or criminal courts) in respect of events directly or indirectly harming the collective interest of consumers. Agents of the DDPP, Agents of the Directorate-General of Food at the Ministry of Agriculture (“Direction générale de l’alimentation du Ministère de l’agriculture”) and agents of the Department of Metrology at the Ministry of Industry (“Service métrologie au Ministère de l’industrie”) are authorised to establish evidence of violations of Article L. 121.1 of the CC by means of statements. Statements drawn up pursuant to this Article are sent to the public prosecutor.
Can court actions be initiated by competitors? Nothing under French law specifically prohibits or enables competitors to initiate court actions on such grounds. The French Supreme Court has ruled that a competitor can initiate such actions against another to force compliance with the CC if the competitor can demonstrate a legitimate interest (example: Cour de cassation, Chambre commerciale, 25 April 2001, N° 98-12.874).
Can the case be handled through an accelerated procedure? When a party can demonstrate urgency, the Court can order interim measures in a summary procedure (“en référé”). Such procedure does not produce a ruling on the merits.
Are there any specific requirements regarding the provision of evidence to the court? The general rules on evidence as laid down in the Civil Procedure Code apply. In a misleading commercial practice case, the court may order any party to supply all relevant documents (Article L. 121-7 of the CC). There are no specific requirements under French Law in relation to aggressive commercial practices.
III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions? The Court may require the immediate cessation of the misleading commercial practice (Article L. 121-13 of the CC). The Court may award the plaintiff damages to compensate his or her direct and foreseeable losses. The plaintiff must prove that s/he suffered a loss because of the defendant’s wrongful violation of the CC provisions.
What are the possible criminal sanctions for the infringement of the UCP provisions? Natural persons who are found guilty of misleading commercial practices may be punished by up to 2 years imprisonment and/or a fine up to €37,500 or up to 50% of the cost of the advertising or the practice constituting the offence (Article L. 121-6 of the CC). Penalties incurred by legal entities are: 1° a fine up to €187,500; and/or 2° A prohibition on exercising a professional or non-profit activity for a maximum period of five years. The prohibition relates to the activity during, or on the occasion of which the offence was committed; and/or 3° Publication of the decision in the written press or using any form of communication to the public by electronic means (Article L. 213-6 of the CC). Aggressive commercial practices are punished by up to 2 years imprisonment and/or a fine up to €150,000 for natural persons (Article L. 122-12 of the CC). Natural persons who are found guilty of aggressive commercial practices can in addition be sentenced up to five years’ prohibition on practicing directly or indirectly a commercial activity. Legal persons who are found guilty of aggressive commercial practices may be sentenced to: 1° a fine up to €750,000; and/or 2° prohibition on exercising, directly or indirectly, one or more non-profit or professional activities, either permanently or for a maximum period of five years; and/or 3° placement under judicial supervision for a maximum period of five years; and/or 4° permanent closure or closure for up to five years of the establishment, or one or more of the establishments, of the enterprise that was used to commit the offences in question; and/or 5° disqualification from public tenders, either permanently or for a maximum period of five years; and/or 6° prohibition, either permanently or for a maximum period of five years, to raise capital among the public; and/or 7° prohibition to draw cheques, except those allowing the withdrawal of funds by the drawer from the drawee or certified cheques, and prohibition to use payment cards, for a maximum period of five years; and/or 8° confiscation of the item that was used or intended for the commission of the offence, or of the thing which is the product of it; 9° publication of the decision in the written press or using any form of communication to the public by electronic means (Article L. 121-6 of the CC).
What are the possible administrative sanctions for the infringement of the UCP provisions? There are no administrative sanctions per se. See above regarding administrative enforcement mechanisms.
What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction? Pursuant to Article L. 122-15 of the CC, when the aggressive commercial practice leads to the signature of a contract, this contract is void and shall receive no effect. There are no contractual consequences for misleading commercial practices. However, such practices may make it may be easier for the consumer to prove that s/he did not freely consent to the contract. In this case, the court could order the termination or rescission of the contract. The court may also order the removal of unfair clauses.
How can consumers get redress/compensation (e.g. through collective actions)? As noted above, a consumer has several options for bringing a case before a civil or criminal court to claim damages, including through collect actions through an approved association.
Can the administrative authorities or the courts require the publication of their decisions? Yes, pursuant to Articles L. 121-4 and L. 213-6 of the CC, in both misleading commercial practices and aggressive commercial practices matters the court can order publication of the judgment if the court finds the professional guilty of such acts. It may, in addition, order the publication, at the expense of the convicted party, of one or more corrective statements. The judgment sets forth 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.
IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive? The Audiovisual Superior Council (“Conseil supérieur de l’audiovisuel”) is a regulatory authority whose mission is to verify compliance by audiovisual broadcasters with French law. It can order sanctions such as a fine or a prohibition to broadcast.
Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)? There are several mediating services that may deal with aspects of the UCP. There is Commission for settlement of consumer disputes (“Commission de règlement des litiges de consommation”,) issued by a decree dated 25 March 2005. These are local commissions. Their services are free and they try to find a solution within two months. There are also justice conciliators (“conciliateurs de justice”), created by a decree dated 20 March 1978. They try to facilitate, outside of a judicial procedure, the settlement of disputes concerning the rights of persons, including consumer’s disputes. A complaint can be filed by any manner. Once a complaint has been filed, the justice conciliators can ask the concerned parties to meet to discuss. If they settle, they can sign a settlement agreement which has the binding effect of a contract, and the parties can petition a court in case of non-compliance. There are specialised commissions on rental agreements (“baux d’habitation”) created by Law n° 86-1290 of 23 December 1986. A complaint can be filed by registered letter, with acknowledgment of receipt. The commission will then convoke the parties. If they don’t settle, the commission can release a statement that can be used by a court. The law “MURCEF”, n° 2001-1168 dated 11 December, 2001 implemented banking mediation. This mediator tries to find a solution for disputes between consumers and banks. The parties cannot disclose the statement and facts gathered by the mediator without the prior authorisation of the other party, even in court. The mediator must render its decision within two months and the statute of limitations is suspended during this period. Created by the DDPP in 2003 and extended in to all electronic communications in 2007, the mediator for electronic communications only binds the companies who signed a charter. As a result, only the customers of these companies can bring their cases before the mediator. It only intervenes if the customer did not obtain redress with the normal telecommunication operator complaint procedure. The mediator can render an opinion that is not binding. There is also a mediator for insurance, whose opinion is not binding.