Commercial law and the internet

The DGCCRF, name and shame and other actions, the trademark, distribution and competition law lawyer in Paris responds

by Cabinet Roquefeuil | Feb 16, 2023

Within the Ministry for the Economy, the DGCCRF oversees the proper functioning of the markets, for the benefit of consumers and businesses. The DGCCRF acts in favor of compliance with the rules of competition, the economic protection of consumers, the safety and conformity of products and services. A control authority, it intervenes in all areas of consumption (food and non-food products, services); at all stages of economic activity (production, processing, import, distribution); regardless of the form of commerce: stores, e-commerce sites or sites linked to the collaborative economy, etc.

Pursuant to Decree No. 2022-1701 of December 29, 2022 defining the procedures for publicizing the measures taken pursuant to Book IV of the Commercial Code and Book V of the Consumer Code, Companies that do not comply with consumer law, competition and trade, may be blacklisted by the DGCCRF (General Directorate for Competition, Consumer Affairs and Fraud Control)

This decree is based on articles L464-9 et s. of the Commercial Code and L521-2 and s. of the consumer code.

“Name and shame”: what can the DGCCRF publish?

Not only the penalties imposed for non-compliance with payment deadlines, but also those imposed for all offenses prosecutable by the DGCCRF:

Infringements of consumer law (pre-contractual information, right of withdrawal, legal warranty, misleading commercial practices)
Infringements constituting practices restricting competition

The DGCCRF may publish these sanctions on its website (see the “sanctions” page) or by press release, at the expense of the sanctioned company, on physical media (paper press, stores) and the Internet (blogs, social networks).

“Name and shame”: how to get unpublished?

The DGCCRF, following an investigation, takes an "injunction" or proposes a transaction.

If the injunction is not followed by effect, it may be the subject of a publication, the terms of which have been previously announced to the company concerned, before the injunction is pronounced.

“The terms of the advertising are specified in the injunction measure. »

It is therefore appropriate to refer to the injunction measure to verify that the publication is indeed in line with the forecasts. A "posting" cannot in any event exceed two months.

In the event of resistance to the injunction, even published, the authority of competition or the civil jurisdiction can be seized by the minister for more important decision-making.

But the Minister can also take authoritative measures, such as requesting an automatic delisting of the website of the seller served with formal notice.

Thus, in the wish.com affair, the Minister requested and obtained from the search engines the delisting of the site (Conseil d'Etat, January 27, 2023, No. 459960), pursuant to Law No. 2020-1508 of December 3 2020 (article L521-3-1 of the consumer code).

Lawyer specializing in competition law in Paris: the negative opinion

by Cabinet Roquefeuil | Jan 18, 2022

January 18, 2022 – Updated October 4, 2022

consumer opinion a communication challenge for companies

A competitor pretends to be a customer and posts a negative review? Be accompanied by a lawyer specializing in competition law in Paris.

It is now customary to be able to publish online reviews of a store, an online business or a service provider. But also on a brand or on a restaurant. Online reviews are useful for consumers, however they can sometimes be misleading and abusive. The lawyer specializing in communication law accompanies you on these themes of negative opinions online.

Despite the fact that everyone has the right to freedom of expression and therefore to freely express their thoughts and opinions, opinions published on the Internet may constitute defamatory remarks if they are abusive. The legislation also recalls the limits not to be reached for consumers who wish to give their online reviews.

From now on, in one click it is possible to publish a online reviews. On the other hand, the deletion of a review negative turns out to be more complex. Every business leader today fears being confronted with this problem. The reasons can be different: defamation, poor performance, personal revenge Or intent to harm.

Then, a company's reputation and business can be threatened by a negative opinion on the Web. It can sometimes be a unfair practice of a competitor. This is to denigrate your business and negatively influence the opinion of your customers. The qualification of defamation can also be accepted. It calls on the specific rules of press and communication law.

How to react in this case? What are your remedies? Stone of Roquefeuil, lawyer specializing in communication law, at Paris, accompanies you to defend your interests and those of your company.

See as well :

Lifting anonymity on the internet: current difficulties

Negative opinion published, impact on your communication and role of the lawyer specialized in commercial communication law

Some professionals do not hesitate to try to discredit a company competitor with the aim of harming it. There are various practices used to distort free competition. In particular that of write fake reviews pretending to be a consumer. The e-reputation has an important place in our society today.

Thus, more and more consumers rely on opinions posted on the Internet before making a purchase or seeking the services of a professional. According to a study by the French Institute of Public Opinion (IFOP), 88% of consumers consult reviews published on the internet before making a purchase. Finally, 96% would give up a purchase on seeing negative reviews. Opinions published on the Internet can therefore be harmful to your reputation and tarnish the image of your company. As a result, you may experience a loss of customers. You may also see a drop in your turnover, a loss of credibility, etc.

Professionals in the restaurant and hotel sector are more confronted with this problem. All this especially since the creation of an application allowing consumers, whoever they are, to easily publish opinions on an establishment.

Nevertheless, all sectors of activity can be affected, so it is advisable to be attentive.

What is an unfair practice?

To this end, the Directorate General for Competition, Consumption and the Repression of Fraud (DGCCRF) ensures the fairness of commercial relations between companies. It therefore sanctions the unfair business practices.

A commercial practice is unfair when it is contrary to due diligence requirements professional. But also when it substantially alters your economic behavior with regard to a good or service. The commercial practice considered unfair is therefore prohibited and penalized by article L. 121-1 of the consumer code.

At a time when digital is taking an increasingly important place in our society, it is now essential for every professional to know how to react. A lawyer specializing in communication law can provide you with all the essential advice on this subject.

How to react in this case? How do I remove a negative review?

First, you can reply to the negative review, even if there is no comment. This will allow Internet users who consult this notice to also be able to read your response elements. Care should therefore be taken to remain professional, courteous, without aggressiveness. If, for example, the author of the review has never visited your establishment, it would be wise to specify this in the response in order to demonstrate your good faith and discredit the negative opinion. Secondly, it may be useful to report this review to the platform responsible for it, specifying that the review would be associated with conflicts of interest.

Article 6-II of the law for confidence in the digital economy provides that the platform hosting the reviews must keep data such as to allow the identification of any person who has contributed to the creation of content of which they are service providers. .

Have you received a negative review that discredits your business? You fear that this opinion is harmful to your business ? There are appeal for facts of unfair competition and of denigration.

If you believe you are a victim of this practice, quickly take the ties of a lawyer specialized in competition law, in Paris (national competence).

Unfair practice, in action or in defense, assert your rights with the lawyer in communication and competition law

The obligation to inform consumers, a weapon against negative opinions

Since 1^er January 2018, information obligations for consumers entered into force. Article L. 111-7-2 of the Consumer Code provides for information obligations for online review managers. As such, consumers must be informed, in particular, of the existence of a opinion control procedure and its main characteristics. They must also be informed of the date of publication of the notice and of the consumer experience. The classification criteria for reviews must be indicated as well as the reasons justifying the refusal to publish a review.

Nevertheless, it is very difficult for a consumer to refer a fake review published on the internet. It can sometimes be misleading business practices. The DGCCRF has also reminded consumers not to rely on a single opinion published on the internet. She advises consider multiple opinions in order to make his own observation.

Misleading commercial practices, an offense that punishes negative reviews.

Deceptive marketing practices harm consumers for whom the opinion is distorted. They also harm the professionals who are victims of them.

AFNOR, the French standardization body, created the NF Service avis client certification in 2013 to fight against false opinions. This certification allows sincere companies to demonstrate that their review collection tool is completely authentic and reliable. AFNOR's NF certification is strictly governed by the French consumer code. Thus, any company that does not meet these criteria may be penalized by the French courts.

Article L. 121-4 of the Consumer Code provides that "are deemed to be misleading within the meaning of Articles L. 121-2 and L. 121-3, commercial practices which have as their object: (…) 21° Of falsely affirm or give the impression that the professional is not acting for purposes which fall within the scope of his commercial, industrial, craft, liberal or agricultural activity or to present himself falsely as a consumer”.

Call on a lawyer specializing in communication and competition law

Assuming that you do not know the identity of the author of the notice, you can go to the nearest police station or gendarmerie to file a handrail there.

In the event that you already know the identity of the author of the opinion on the Internet and that you have evidence without the court being forced to carry out a preliminary investigation, you can proceed to a direct quote. The comments in question and the offense noted must be mentioned with precision and clarity so as not to see the facts reclassified by the court. It is therefore imperative to hire a lawyer who specializes in communication law.

In this case, therefore, it is necessary to prove willful malicious act committed by the person who published the fake review. However, the faulty nature of a comment can be complicated to assess and prove. A lawyer specializing in communication law will accompany you in the procedure. Also, he will defend your interests with the competent court, most often in Paris (national jurisdiction).

What are the penalties incurred in the event of a misleading negative opinion from the pseudo consumer?

Any breach of the information obligations mentioned in Article L. 111-7-2 is liable to an administrative fine, the amount of which may not exceed 75,000 euros for a natural person and 375,000 euros for a legal person (Article L. 131-4 of the Consumer Code).

The misleading business practices can be penalized with two years imprisonment and one fine of 300,000 euros (article L. 132-2 of the Consumer Code).

To this end, the DGCCRF carried out checks and drew up reports for misleading commercial practices. Thus, some companies have been sanctioned by the French courts. The courts have also condemned the internet users having published notices when they had not benefited from the services mentioned in the notices. For having written a false negative opinion, an Internet user was, for example, sentenced to 2,500 euros in damages and interests. He was also sentenced and fined 5,000 euros in court costs. He had in fact filed negative reviews towards a restaurant which had not yet opened its establishment. The DGCCRF has also established that 35% of the companies controlled by its services resort to the use of false notices.

Are you a professional and have you noticed the publication of a negative opinion concerning you on the internet? Do you want this to be removed so that it does not harm your company's image? Stone of Roquefeuil, lawyer specializing in communication law, at Paris accompanies you. This in the context of respecting your interests and in order to protect your reputation on the Internet.

And even :

Ord. no. 2021-1734, 22 Dec. 2021, transposing Directive 2019/2161 of the European Parliament and of the Council of 27 November 2019 and relating to better application and modernization of EU rules on consumer protection: OJ 23 Dec. 2021, text n° 21 (entry into force May 28, 2022).

This directive complements Directive 2005/29 on unfair commercial practices.

Misleading commercial practices are specified in Article L. 121-3 of the Consumer Code, in particular the fact that the merchant does not indicate "the elements making it possible to establish whether and how the professional guarantees that the opinions published come from consumers who have actually used or purchased the product when a trader provides access to consumer reviews of products. This is, however, “material information” the omission of which reveals a misleading commercial practice.

This is a revolution in the world of negative reviews.

The merchant or review platform must:

take the necessary measures to ensure that the consumers submitting the reviews have indeed used the products concerned;
inform visitors about how the site editor ensures that consumers submitting reviews have used the products concerned;

We bet that this method will be singled out by anyone who assumes that the reviews in question are fake reviews.

The conviction in first instance of signal-arnaques.com, subject to appeal

According to article D111-17 of the consumer code:

Any person carrying out the activity mentioned in Article L. 111-7-2 clearly and visibly indicates:

1° Near notices:

a) The existence or not of a review control procedure;

b) The date of publication of each review, as well as that of the consumer experience concerned by the review;

c) The criteria for classifying notices, including the chronological classification.

2° In a specific, easily accessible section:

a) The existence or not of consideration provided in exchange for the filing of notice;

b) The maximum period of publication and retention of a notice.

Article L111-7-2

Without prejudice to the information obligations provided for in Article 19 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy and Articles L. 111-7 and L. 111-7-1 of this code, any natural or legal person whose activity consists, principally or incidentally, in collecting, moderating or disseminating online opinions from consumers is required to provide users with fair, clear and transparent information on the procedures for publishing and processing reviews posted online.

It specifies whether or not these opinions are subject to control and, if so, it indicates the main characteristics of the control implemented.

It displays the date of the notice and any updates.

It informs consumers whose online review has not been published of the reasons justifying its rejection.

It sets up a free feature that allows managers of products or services that are the subject of an online review to report a doubt about the authenticity of this review, provided that this report is justified.

A decree, issued on the advice of the National Commission for Computing and Liberties, sets the terms and content of this information.

Online review platforms are therefore required to indicate near the reviews the date of consumption experience, in an easily accessible section, the retention period for the reviews.

On the signal-arnaques.com site, the dates of consumption experience were not mentioned near the notices published on the reporting pages.

Conviction to removal of non-compliant report pages

By order dated December 22, 2021, the presiding judge

de commerce de Paris found that the publisher did not respect these obligations, by not mentioning the date of consumption experience next to the negative opinions.

The company victim of the negative opinions was therefore not able to verify the reality of consumer experiences and therefore could not justify itself, thus suffering a manifestly illicit disorder.

The judge ordered the deletion of the reporting pages concerned under a penalty of €1,000 per day of delay.

Another memorable decision, which we welcome, also subject to appeal, sanctions the famous Google My business listings, scoring a point against wild directories and anonymous negative opinions:

Judicial Court of Chambery, ch. civil, judgment of September 15, 2022, n° 19/01427

Google My business files file professionals without their consent and collect anonymous opinions without any verification, in the name of freedom of expression and even though Google's goal is mercantile: to attract clicks on its engine, to encourage professionals to use its advertising services.

These wild directories are highly reprehensible, like most operators of online reviews, which do not operate any verification of reviews, leaving the door open to all abuses, cf.THE NEW ARGUMENT OF THE WILD DIRECTORIES AGAINST THE GDPR: FREEDOM OF EXPRESSION.

In this decision, the court recognizes that

Google is prospecting professionals,
Google does not demonstrate a legitimate interest justifying the processing of the personal data of the professional without his consent; the "right to public information" (the famous "freedom of expression") invoked by Google, weighed against the protection of personal data and privacy, does not make it possible to identify such a legitimate interest, and while Google produces its listings and collects opinions in order to strongly encourage (if not oblige: if only to allow professionals to respond to negative opinions) the people on file to use its services; in addition, the public's right to information is already satisfied by the dissemination of information on the professional via other media; moreover, the right to reliable information is not satisfied by Google, which collects unverifiable opinions from anonymous people – and whereas today the lifting of anonymity is no longer possible in the context of civil actions and that Google refuses to remove reviews under its privacy obligations – there is a “Obvious imbalance between the professional and the user and the impact for the professional concerned can be significant”.

The legitimate interest of the data controller must be clearly and precisely determined.

The duty to inform must be properly fulfilled. The professional does not have to suffer reckless economic and moral damage.

The processing of personal data by Google is unlawful and pursues commercial purposes, the data subject therefore has the right to object.

What is interesting in this decision, beyond the privacy and personal data protection issues it deals with, is that it looks at freedom of expression, the public's right to information and the duty to inform.

The abuse of freedom of expression is sanctioned by the arduous procedures of defamation and insult, by the respect of private life. The qualification of denigration, the rules of consumer law, also make it possible to limit the abuse of free criticism of products.

Freedom of expression, the right to information, are generally based on independence and impartiality, good faith. This good faith does not sit well with mercantile interests, or the absence of guarantees as to the reliability of sources.

We see here a real possibility of braking against the expansion of the anonymity of public notices, anonymity so difficult to lift today because of the obligations of confidentiality to which operators are bound.

Influencer and contract with a brand, the lawyer in intellectual property law in Paris answers

by Cabinet Roquefeuil | Jan 12, 2022

The influencer generally has a community on one or more social networks such as instagram, facebook, tiktok..

Brands can ask him to comment on their products or services.

When is there an operation of an advertising nature? The intellectual property lawyer answers you

The practice of influencer is very framed as soon as it is identified as "advertising", that is to say when the influencer and the brand have concluded an agreement, and the weight of the brand is felt.

The Court of Cassation recalls that "the fact that this message was relayed by the intervention of an Internet user for his "network of friends" did not cause it to lose its advertising character" (Cas. 1st civ., July 3 2013, no. 12-22.633).

Advertising is subject to the requirements resulting from the misleading or aggressive commercial practices of Articles L. 121-1 and following of the Consumer Code, to the identification obligations provided for by the law for confidence in the digital economy (L. no. 2004-575, June 21, 2004, said LCEN) and the fight against hidden advertising, as far as the French market is concerned.

What are the rights at stake to consider in a contract with a brand? The intellectual property lawyer intervenes

The influencer of course has image rights.

But more generally he has a right to the protection of all the attributes of his personality, such as his surname and first name.

The brand essentially has a trademark right, allowing it to capitalize on the reputation of its product or service.

Other service providers have copyright, such as the photographer or the producer/director.

This right allows them to claim compensation against the exploitation of their work, in addition to the remuneration they may have received for the performance of their service.

All of these rights must therefore be subject to negotiation and a contract in order to avoid the risk of claims as much as possible.

The law aimed at regulating the commercial exploitation of the image of children under 16 on online platforms has been published (L. No. 2020-1266, Oct. 19, 2020).

The rules of the labor code are now applicable to them (art. L. 7124-1 et seq.), thus forcing parents to request individual authorization or approval from the administration.

The latter also have the obligation to invest part of their child's income with the Caisse des dépôts et consignations until they reach majority or are emancipated.(art. L.7124-9).

In all cases, a declaration must be made, beyond certain thresholds of duration or number of videos or income derived from their distribution. (L. no. 2020-1266, art. 3).

At the same time, video-sharing platforms are strongly encouraged, under the aegis of ARCOM, to adopt charters favoring the information of minors on the consequences of the dissemination of their image on their private life as well as on the psychological risks. and resulting legal (L. no. 2020-1266, art. 4 and 5).

The law gives children a right to digital oblivion that they can exercise alone without their parents (L. no. 2020-1266, art. 6).

What are the pitfalls to avoid when drafting and negotiating the contract with the brand? The intellectual property lawyer in Paris assists you

At the start of a partnership, we don't necessarily have all the cards in hand to negotiate as best and fairly as possible.

It is therefore appropriate to provide for a more or less flexible contract review clause, allowing a contracting party to withdraw, at least under such and such conditions.

It is also a question of avoiding contracts that are too long or written too small, or referring to general conditions, which are often tricky or unclear.

However, unclear contracts are open to interpretation. They are therefore a source of discussion, most often to the advantage of the economically stronger co-contractor.

Counterfeiting: how to react?

Marketplaces and brands

Be accompanied by a trademark lawyer

The right of withdrawal

by Cabinet Roquefeuil | Sep 9, 2021

In l

What is it, How long can it be exercised?

The European Union's right of withdrawal in distance selling to the consumer is an obligation of result, it is 14 days (from delivery, or from the contract in the case of a service , or from the time it was brought to the attention of the consumer). It is extended for 12 months as long as it has not been brought to the attention of the consumer. It allows the contract to be canceled according to its own regime.

Countdown:

The countdown of the 14-day period begins the day after the conclusion of the contract or the delivery of the goods. If this period expires on a Saturday, Sunday or public holiday, it is extended until the first following working day.

On consumer information and the insufficiency of a simple hypertext link:

JUDGMENT OF THE COURT (Third Chamber) – 5 July 2012 ‘Reference for a preliminary ruling — Directive 97/7/EC — Consumer protection — Distance contracts — Consumer information — Information provided or received — Durable medium — Meaning — Hyperlink on the website of the supplier — Right of withdrawal’ – In Case C‑49/11

Why a right of withdrawal?

The right of withdrawal applies in contracts concluded "at a distance", involving an order taking outside the establishment.

It can be compared to a kind of “fitting room”.

Thus, the taking of an order made partially in establishment, may have the effect of excluding the right of withdrawal, especially if this is agreed in the sales contract concluded (CJEU 5 July 2012, Directive 2011/83 articles 9 and following, article 20, articles L221-18 and following of the consumer code). A simple preliminary visit does not however exclude the application of article L221-1 of the consumer code.

Do we enjoy it systematically?

Thus, the right of withdrawal is excluded with regard to certain products which do not lend themselves to fitting: quickly perishable, or which do not have a fixed price, or which are not essentially standard, or which are under seal for reasons of hygiene and health, or which are consumed or are estimated to be consumed on first use, online software, etc. To be checked on a case-by-case basis.

Can we give it up?

The right of withdrawal cannot be waived. As soon as one declares exercising his right of withdrawal and the product is returned, it must be refunded.

The return clauses provided by the seller that would be too complicated will most often be declared null or abusive. Return costs are the responsibility of the consumer, unless he has not been informed of the right of withdrawal by the seller.

And what about services?

Services (L221-25):

With regard to the services, the trader will begin his service after the expiry of a period of 14 days, or before if the consumer requests it (for this purpose he will often be asked to pay in advance), and by Consequently, the price corresponding to the part of the service that has been performed will be due, as soon as the professional indicates that he has performed the service, or part of it.

Texts:

Directive 2011/83 articles 9 and following, article 20

Articles L221-18 and following of the Consumer Code

Update April 2022

Decree No. 2022-424 of March 25, 2022 relating to the pre-contractual and contractual information obligations of consumers and the right of withdrawal: Public concerned: professionals and consumers. Subject: information provided by the professional to the consumer prior to the conclusion of a contract using a remote communication technique or outside a commercial establishment, and modification, for these same contracts, of the model withdrawal form and the standard information notice concerning the exercise of the right of withdrawal.

Entry into force: the provisions of the decree enter into force on May 28, 2022 .
Note: the decree is linked to the exercise of transposition into domestic law of Directive 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards better application and modernization of Union rules on consumer protection.
It specifies, on the one hand, the pre-contractual information obligations to which professionals are bound with regard to consumers, pursuant to Article L. 221-5 of the Consumer Code, prior to the conclusion of contracts for distance and off-premises, and, on the other hand, makes the editorial adjustments provided for by Directive 2019/2161, in particular, on the mandatory communication to the consumer of the contact details of the professional.
Consequently, the appendix to article R. 221-1 of the consumer code relating to the standard withdrawal model, article R. 221-2 of the same code, which specifies the pre-contractual information communicated to the consumer in application of 4°, 5° and 6° of Article L. 221-5, Article R. 221-3 and its appendix relating to the information notice concerning the exercise of the right of withdrawal as well as the article R. 221-4 on the information provided in the event of public auctions.
References: the consumer code, in its wording resulting from this decree, can be consulted on the Légifrance website (https://www.legifrance.gouv.fr).

Unfair terms, what are they? how to punish them?

The new internet regulations in preparation

Can we have our foreign supplier judged in France

Remarks on the interpretation of the contract

Are the terms and conditions still useful?

Unfair terms

Be assisted by a lawyer in trademark, consumer and commercial communication law

Can we have our foreign supplier judged in France?

by Cabinet Roquefeuil | Sep 9, 2021

The judgment of the Paris court of May 31, 2021 n°11-19-007483 illustrates the questions of private international law confronted with the law of large and small disputes, which can arise when a French entrepreneur or (alleged) consumer decides to sue a foreign entrepreneur domiciled in a Member State of the European Union before the French courts.

See also: international chambers of commerce: https://roquefeuil.avocat.fr/international-arbitration-international-commercial-chambers-of-paris/

The French consumer (is he really?) who considers himself aggrieved by a lack of conformity of a product that he has ordered remotely from a foreign supplier can sue the said supplier before the French court and claim application of French consumer law.

Three types of private international law questions arise:

Are we really in the presence of a consumer, supposed "weak party" and deserving the application of derogatory and protective rules? What are the procedural consequences of this qualification?

Which court is actually competent territorially and according to the rate of the request? Is the call open? Is a prior attempt at conciliation necessary?

What is the applicable law? In this respect, is French consumer law applicable? To what extent?

In this case, the claimant presented himself as a consumer, and filed a claim for compensation of 4000 euros, which allowed him to seize the court

– by declaration to the registry (before the 2020 reform);

– without appointing a lawyer, in the context of oral proceedings;

– exempt the decision from the possibility of appeal; this impossibility of appeal must encourage the defendant to be extremely vigilant before a court whose competent body, the so-called “proximity” chamber or the “protection litigation” judge, pays particular attention to the weaker party;

– and obliged him to a prior conciliation (before the 2020 reform);

The recent civil procedure reform more or less replicates these threshold and rate rules (find out more: https://roquefeuil.avocat.fr/reforme-de-la-procedure-civile-le/)

The quality of consumer must be checked beforehand.

This concept varies from one country to another, and in French law the criterion according to which a consumer can only be a natural person (criterion which seems to be the minimum criterion common to all the Member States of the EU and which appears to be included in Article L217-3, and in the introductory article, of the Consumer Code) seems insufficient to exclude legal persons from the protection regimes owed to the consumer: the court thus verified that the plaintiff company had a professional activity and that its purchase was part of this activity.

French law indeed refers to an intermediate notion, other than that of “consumer”, that of “non-professional”, which also attracts the application of the protective regimes of consumer law.

However, it can be noted that this notion of "non-professional" is a French notion which, according to the very provisions of the consumer code, only triggers certain sections of the said code, and does not apply to the sale of goods. and the guarantee of conformity as referred to in said code. Indeed, article L217-3 of the consumer code refers only to the quality of “consumer” and not to that of “non-professional”:

“The provisions of this chapter [“obligation of conformity with the contract”] are applicable to the contractual relations between the seller acting within the framework of his professional or commercial activity and the buyer acting as a consumer. »

But the “consumer” is not strictly speaking a “non-professional”.

Thus the introductory article of the consumer code distinguishes: “For the application of this code, the following terms are understood to mean: – consumer: any natural person who acts for purposes that do not fall within the scope of his commercial, industrial, artisanal, liberal or agricultural activity; – non-professional: any legal person who does not act for professional purposes; – professional: any natural or legal person, public or private, who acts for purposes falling within the scope of his commercial, industrial, artisanal, liberal or agricultural activity, including when he acts in the name or on behalf of a other professional. »

At European Union level, EUDs (European Union Directive) 2011-83 and 2019/771 and all directives incorporating the concept of consumer (see for example Directive 93/13/CEE of the Council of 5 April 1993 concerning unfair terms in contracts concluded with consumers, article 2) retain only the concept of consumer according to which the consumer is a natural person who does not act for professional, liberal or commercial purposes. It is this definition which is included in the introductory article of the French Consumer Code. EU law therefore does not recognize the concept of “non-professional” specific to French law. Under EU law, either you are a consumer or you are not. Consequently, the concept of “non-professional” is in principle unenforceable against a national of another Member State. Furthermore, if it is conceivable that the application of RUE (European Union Regulation) 1215/2012, article 7, allows referral to the French judge in relations between nationals of Member States, RUE 593/2008, article 4, 1), a) does provide for the application of the law of the place of habitual residence of the seller, except in the case where a consumer is involved (article 6)(in which case the law of the country of residence of the consumer would be applicable). The question is of interest because the guarantee of conformity provided for in article L217-4 of the consumer code only applies to consumers, and provides for a more extensive guarantee of conformity than that provided for by common law. (1641 and 1642 of the Civil Code or Vienna Convention on the International Sale of Goods of 1980): Article L217-5 of the Consumer Code:"The good complies with the contract: 1° If it is suitable for the use usually expected of a similar good and, where applicable: - if it corresponds to the description given by the seller and has the qualities that the - presented to the buyer in the form of a sample or model; – if it has the qualities that a buyer can legitimately expect given the public statements made by the seller, the producer or his representative, in particular in advertising or labeling; 2° Or if it has the characteristics defined by mutual agreement by the parties or is suitable for any special use sought by the buyer, brought to the seller's attention and which the latter has accepted. » Article L217-8 of the Consumer Code: “The buyer is entitled to demand that the goods conform to the contract. He cannot, however, contest conformity by invoking a defect which he knew or could not ignore when he contracted. The same applies when the defect has its origin in the materials supplied by him. »

In Union law, it is the "Rome I" regulation 593/2008 which applies to commercial relations to determine the applicable law, and which designates, with some exceptions, the law of the seller's country. In this case, Spanish law (Spanish private international law) referred to the Vienna International Convention on the International Sale of Goods of 11 April 1980, since Spain and France are parties to the said Vienna Convention.

Contact theThe Pierre de Roquefeuil law firm in Paris

See as well :

Unfair terms, what are they? how to punish them?

The new internet regulations in preparation

Remarks on the interpretation of the contract

Are the terms and conditions still useful?

The right of withdrawal

Update :

Ord. no. 2021-1734, 22 Dec. 2021, transposing the Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 and on better application and modernization of EU consumer protection rules: OJ 23 Dec. 2021, text n° 21 (electronic commerce contracts and contracts relating to digital content or digital services)

I'ordinance n° 2021-1247 of September 29, 2021 “relating to the legal guarantee of conformity for goods, digital content and digital services” who transposed the directives 2019/770 and 2019/771 of May 20, 2019 relating, respectively, to certain aspects relating to contracts for the supply of digital content and digital services and to certain aspects relating to contracts for the sale of goods

law n° 2021-1485 of November 15, 2021 “aiming to reduce the environmental footprint of digital technology in France”, (Reinforcement of the fight against the planned obsolescence of a product, extended to software obsolescence)

European regulation of June 20, 2019, says “Platform to business” No. 2019/1150

Unfair terms, what are they, how can they be sanctioned?

by Cabinet Roquefeuil | Mar 23, 2021

At the origin: fight against the abusive conditions contained in the standard general conditions

Professionals most often offer the consumer or the non-professional non-negotiable standard conditions, pre-drafted, favorable to imbalances, to "abuse", for example in terms of residential leases, insurance, moving, or other contracts intended to the consumer, and regardless of the medium used: purchase orders, invoices, warranty vouchers, delivery slips or slips, bills or receipts.

Decrees listing abusive clauses

The French legislator took up the issue with Law No. 78-23 of January 10, 1978, providing that the executive power, on the recommendation of a (state) Unfair Terms Commission, could henceforth curb this massive phenomenon by decreeing what were the abusive clauses.

The abusive clause is one that creates an imbalance, but does not relate to the thing and the price.

An abusive clause is one which, without however being able to relate to the very object of the contract or to the price (other regimes then apply), creates a “significant imbalance”.

The judge, later confirmed by law, also recognized this power, deeming "unwritten" the clause that he could deem abusive in application of legal criteria, in particular on referral from consumer associations or the DGCCRF .

This public order regime is applicable throughout the national territory provided, in principle, that the consumer is there, including when international relations are in question.

What penalty?

It is the public authorities and consumer associations that are most interested in abusive clauses and seek from the judge (after warnings) withdrawal injunctions and compensation.

See for example the group action launched by UFC Que Choisir against Google:

Privacy/personal data – Class action against Google

Individuals are not deprived of recourse and will invoke the abusive nature of a clause during a dispute over a contract. They can request the intervention of consumer associations.

http://www.inc-conso.fr/content/les-associations-de-consommateurs

In all cases, a clause recognized as abusive will be deemed "unwritten".

What to do in the presence of a clause that one feels is “unfair”?

It should be checked that the clause is not already considered as definitively abusive, or probably abusive, in the lists provided for in articles R211-1 and following of the consumer code.

Indeed, the clauses already declared abusive or suspected of being abusive according to these texts have every chance of being spontaneously abandoned by the seller or the service provider, or confirmed as abusive by the judge.

Besides,

“The judge may raise ex officio all the provisions of this code in disputes arising from its application.

It dismisses automatically, after having collected the observations of the parties, the application of a clause whose abusive nature emerges from the elements of the debate. (Article R. 632-1 of the Consumer Code)

The judge, but also the professionals, the consumer associations, the public authorities, can in all cases refer to the Commission on unfair terms for an opinion (Articles L882-5 and R822-21 of the Consumer Code).

The collection of court decisions, opinions and recommendations compiled by the Unfair Clauses Commission illustrates the cases where a clause has been qualified as unfair. These decisions may also serve as a reference:

Welcome

Applicable texts:

Articles L212-1 and following, L241-1 and following, of the Consumer Code

Articles R211-1 and following of the Consumer Code

Be assisted by a specialist trademark and consumer lawyer

The right of withdrawal

The new internet regulations in preparation

Remarks on the interpretation of the contract

Are the terms and conditions still useful?

Can we have our foreign supplier judged in France?

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