The judgment of the Judicial Court of Paris of May 31, 2021 n°11-19-007483 illustrates the questions of private international law confronted with the law of major and minor disputes, which can arise when a French entrepreneur or (alleged) consumer decides to bring a case before the French courts against a foreign entrepreneur domiciled in a member state of the European Union.
See also: international chambers of commerce : https://roquefeuil.avocat.fr/international-arbitration-international-commercial-chambers-of-paris/
What impact does being a consumer have?
A French consumer who believes he has been harmed by a lack of conformity in a product he has ordered remotely from a foreign supplier may bring the said supplier before the French courts and claim the application of French consumer law.
Three types of private international law issues arise:
Are we really in the presence of a consumer, supposedly a "weaker party" and deserving of the application of derogatory and protective rules? What are the procedural consequences of this qualification?
Which court has jurisdiction over the claim? Can I appeal? Is a prior conciliation attempt necessary?
Which law applies? Is French consumer law applicable? To what extent?
In this case, the claimant presented himself as a consumer, and made a claim for compensation of 4,000 euros, which enabled him to bring the matter before the courts.
- by declaration to the clerk's office (prior to the 2020 reform) ;
- without a lawyer, in oral proceedings;
- this impossibility of appeal should prompt the defendant to exercise the utmost vigilance before a court whose competent body, the so-called "proximity" chamber or the "protection litigation" judge, pays particular attention to the weaker party;
- and required prior conciliation (before the 2020 reform);
The recent reform of civil procedure more or less replicates these threshold and rate rules (find out more : https://roquefeuil.avocat.fr/reforme-de-la-procedure-civile-le/)
Consumer status must be verified beforehand.
This notion varies from one country to another, and in French law the criterion that a consumer can only be a natural person (which appears to be the minimum criterion common to all EU member states, and which appears to be set out in article L217-3, and in the introductory article, of the French Consumer Code) seems insufficient to exclude legal entities from consumer protection regimes: the court thus verified that the applicant company did indeed have a professional activity, and that its purchase was indeed part of this activity.
French law 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 should be noted that this notion of "non-professional" is a French concept which, according to the provisions of the French Consumer Code, only triggers certain sections of the Code, and does not apply to the sale of goods and the guarantee of conformity as referred to in the Code. Article L217-3 of the French Consumer Code refers only to the status of "consumer" and not to that of "non-professional":
"The provisions of this chapter ["obligation of conformity with the contract"] are applicable to contractual relations between the seller acting in his professional or commercial capacity and the buyer acting as a consumer."
However, a "consumer" is not strictly speaking a "non-professional".
The introductory article of the Consumer Code distinguishes between : "For the purposes of this Code, the following definitions apply: - consumer: any natural person acting for purposes which do not fall within the scope of his commercial, industrial, craft, liberal or agricultural activity; - non-professional: any legal entity not acting for professional purposes; - professional: any natural or legal person, public or private, acting for purposes falling within the scope of his commercial, industrial, craft, liberal or agricultural activity, including when acting in the name or on behalf of another professional."
At European Union level, the EU Directives 2011-83 and 2019/771 and all the directives incorporating the notion of consumer (cf. e.g. Council Directive 93/13/EEC of April 5, 1993 on unfair terms in consumer contracts, article 2) retain only the notion of consumer as a natural person who is not acting for professional, liberal or commercial purposes.
This is the definition used in the introductory article of the French Consumer Code.
Union law therefore does not recognize the notion of "non-professional" specific to French law. Under EU law, you are either a consumer or you are not. Consequently, the notion of "non-professional" is in principle unenforceable against a national of another member state.
Furthermore, while it is conceivable that the application of EU Regulation 1215/2012, article 7, would allow the French court to be seized in relations between nationals of member states, EU Regulation 593/2008, article 4, 1), a) does provide for the application of the law of the seller's habitual place of residence, except where a consumer is involved (article 6) (in which case the law of the consumer's country of residence would be applicable).
The question is of interest because the guarantee of conformity provided for in article L217-4 of the French Consumer Code applies only to consumers, and provides for a more extensive guarantee of conformity than that provided for under ordinary law (1641 and 1642 of the French Civil Code or the 1980 Vienna Convention on the International Sale of Goods):
Article L217-5 of the French Consumer Code:"The goods are in conformity with the contract: 1° If they are fit for the use normally expected of similar goods and, where applicable: - if it corresponds to the description given by the seller and has the qualities that the seller has presented to the buyer in the form of a sample or model; - if it has the qualities that a buyer may legitimately expect in view of the public statements made by the seller, by the producer or by his representative, particularly in advertising or labelling; 2° Or if it has the characteristics defined by mutual agreement between the parties or is fit for any special purpose sought by the buyer, brought to the seller's attention and accepted by the latter."
Article L217-8 of the French Consumer Code: "The buyer is entitled to demand that the goods conform to the contract. He may not, however, contest conformity by invoking a defect of which he was aware or could not have been unaware when he entered into the contract. The same applies when the defect is due to materials supplied by the buyer.
In European Union law, the "Rome I" regulation 593/2008 applies to commercial relationships in order to determine the applicable law, and designates, with certain exceptions, the law of the seller's country. The Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980 may also be applied.
In CJUE March 9, 2023, aff. C-177/22, the Court of Justice refines the distinction between the consumer and the professional, concerning a sale of a motor vehicle concluded between a buyer, a natural person domiciled in Austria, and a seller, a legal entity under German law.
Brussels I bis Regulation no. 1215/2012 of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Articles 17 to 19 of the Civil and Commercial Code lay down rules of jurisdiction to protect consumers, who are defined as persons who
who enters into a contract "for a use which can be considered as outside his professional activity".
The buyer had called in a car dealer to do the research and contact the seller, and this
the latter had drawn up a contract stating that the buyer was a company and that the transaction was between professionals.
be contested by the buyer. The dealer came forward again, asking the seller if it was possible to mention the amount of the purchase price.
VAT on the invoice already issued.
The buyer sought the seller's warranty, citing defects, before an Austrian judge whose jurisdiction was disputed, the buyer invoking his status as a consumer as a basis for bringing the matter before his court.
- "It is necessary to take into account the current or future purposes pursued by the conclusion of the contract, irrespective of the salaried or self-employed nature of the activity carried out by the contracting party.
person". A person who has concluded a contract must be qualified as a consumer if the conclusion of this contract does not fall within the scope of his or her professional activity or, in the case of a dual-purpose contract, partly within the scope of his or her professional activity.
partly professional and partly private, if professional use is negligible in the context of the operation as a whole. The
the nature of the professional activity carried out by the person claiming consumer status is irrelevant for the purposes of such qualification.
- "the impression created by that person's behaviour on the other party, consisting in particular of a lack of reaction on the part of the other party, may be taken into account.
consumer status to the stipulations of the contract designating her as an entrepreneur, in the circumstance that she has concluded this
contract through an intermediary, carrying on professional activities in the field covered by the said contract, ...
Excluding consumer law
When it comes to contracts for the supply of intellectual services within the European Union, tribunal jurisdiction is that of the place where the services were received (EU Regulation no. 1215/2012 - "the place of jurisdiction"). Cour de cassation - Commercial chamber April 6, 2022 / n° 21-12.816); this is the principle; idem with regard to the supply of goods, EU Regulation 593/2008, article 4, 1), a) provides for the application of the principle of the law of the seller's habitual place of residence. Distinguish, therefore, between applicable law and competent jurisdiction.
Texts of interest :
Visit REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 7 b) provides:
A person domiciled in a Member State may be sued in another Member State:
1) a) in contractual matters, before the court of the place of performance of the obligation which serves as the basis for the claim;
- b) for the purposes of this provision, and unless otherwise agreed, the place of performance of the obligation on which the claim is based is:
- for the sale of goods, the place in a Member State where, under the terms of the contract, the goods have been or should have been delivered,
- for the provision of services, the place in a Member State where, under the contract, the services were or should have been provided; [...]".
A person domiciled in a Member State may also be sued: 1) if there are several defendants, before the court of the domicile of one of them, provided that the claims are so closely connected that it is expedient to hear and determine them at the same time, in order to avoid solutions which might be irreconcilable if the cases were tried separately; 2) in the case of a claim in warranty or a claim in intervention, before the court seized of the original claim, unless it has been filed solely in order to bring the defendant outside the jurisdiction of the competent court; 3) in the case of a counterclaim arising out of the contract or fact on which the original claim is based, in the court seised of the original claim; 4) in matters relating to a contract, if the action may be joined to an action in matters relating to rights in rem in immovable property brought against the same defendant, in the court of the Member State in whose territory the immovable property is situated.
These provisions allow the seller domiciled in another member state to be caught:
- in that other member state
- or before the courts of the place of delivery or damage
- or before the court having jurisdiction over another defendant, in the event of an obvious connection
On the French plaintiff's claim to be the owner of the work (cases of faulty workmanship and defective products):
Does the client - who is not a consumer - have a direct claim against a subcontractor based in another member state? The national law of this other member state should be consulted to answer this question.
European Union Regulation (EU) 593/2008, article 4, 1), a) provides for the application of the law of the seller's habitual place of residence:
Applicable law in the absence of choice 1. In the absence of a choice in accordance with Article 3 and without prejudice to Articles 5 to 8, the law applicable to the following contract shall be determined as follows: a) the contract for the sale of goods shall be governed by the law of the country in which the seller has his habitual residence; [...].
The regulation applies to contracts concluded in the European Union, and Article 6 "Consumer Contracts" does not exclude such contracts from its application, but designates the law of the consumer's country as the applicable law: a "consumer contract" must still exist.
For the international sale of goods, the Vienna Convention on the International Sale of Goods (hereinafter "CISG") (United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980), to which France is also a party, can be invoked.
None of its provisions provide for direct action by the client against the subcontractor.
In the absence of a specific provision in the agreement, there can be no direct right of action by the client against the subcontractor, who has no contractual relationship with the client.
This convention expressly enshrines the principle of the relativity of contracts, condemning in principle direct liability claims by the sub-purchaser against the original manufacturer or seller.
Such an action should therefore, barring exceptions, be refused on the basis of article 7 CISG:
Article 7 (1) In the interpretation of this Convention, regard shall be had to its international character and to the need to promote uniformity in its application and to ensure the observance of good faith in international trade. 2) Questions concerning matters governed by the present Convention which are not expressly settled in it shall be settled in accordance with the general principles on which it is based or, in the absence of such principles, in accordance with the law applicable by virtue of the rules of private international law.
Direct action is commonly regarded as a French exception.
A substantive law convention, the CISG is applicable in some fifty countries, almost all of which do not allow direct contractual action in groups of contracts.
The Convention does not provide for direct action, and the principle of unity of application of international law enshrined in Article 7(1) does not militate in favor of recognizing such an action.
For its part, the Commercial Chamber of the Cour de cassation has ruled that the direct action brought by the sub-purchaser against the manufacturer must be governed by the law designated by the forum conflict rule insofar as this action "falls within the scope of matters governed by the CISG but is not expressly decided by it", nor does it fall within the scope of one of its general principles (Cass. com., Jan. 16, 2019: JDI 2019, no. 4, note E. Fohrer-Dedeurwaeder).