This dossier explores the Code of Consumption. The main concepts are illustrated with concrete examples, while avoiding complex legal language to make them easier to understand.
The Code of Consumption
The Code of Consumption covers all the laws and regulations governing the relationship between consumers, i.e. private persons, and professionals who offer products or services within their activities (B2C relationships – business to consumer).
The main objectives of the Code are to protect consumers and to promote balanced relationships between the different parties to such contracts.
The Code provides information to consumers and professionals alike regarding each party’s rights and duties in specific situations covered by consumer law:
- the mandatory information to be provided to consumers on the goods or services offered by professionals,
- requirements on price indication,
- unfair trading practices,
- consumer contract rules,
- the different consumer protection and mediation authorities, and
- the rules on penalties.
The Code is in constant evolution.
It is amended and updated within to the EU framework, according to changes to technological developments and consumer behaviour.
The obligation to inform consumers
Articles L. 111-1 and L. 113-1
Before concluding a contract, professionals must describe the goods or services they offer in a clear and comprehensible manner to the consumers.
Thanks to this so-called pre-contractual information, consumers can make an informed decision whether or not they wish to enter into a contract with a professional.
Information must answer the following questions:
- Who is the professional and how can they be contacted?
- How much does the product or service cost, inclusive of all taxes?
- When must the good or service be paid for and how?
- What are the terms of delivery?
- What is the legal guarantee?
- Is there an after-sales service?
- What is the duration of the contract and how can it be terminated?
- Does the contract renew automatically? If so, when and how can the contract be terminated?
- What are a consumer’s rights if a professional does not comply with one or more of the obligations to provide critical information?
Price indication
Professionals are free to set the price of the goods or services they offer.
They must provide clear and accurate pricing information by means of labels or other visible and legible markings or displays allowing consumers to knowingly make their choice and without having to ask for it before entering into a contract.
This obligation applies to all types of sale:
- in shops,
- remote sales (online or via other communication tools such as the telephone or post), and
- “off-premises”, i.e. outside the business premises, such as at the consumer’s home, in public spaces such as fairs, markets, galleries, tents or any other atypical place for trade, e.g. during outings.
Prices must be:
- displayed in an unequivocal, easily identifiable and legible manner, either from the outside (in shop windows) or from the inside, depending on where the products are displayed,
- in Euro inclusive of all taxes,
- applicable to a specific unit or quantity, and
- defined as the unit of measurement for one kilogram, one litre, one metre, one square metre (m²) or one cubic metre (m³), so as to enable consumers to compare different products.
- The price indication for services must be listed as unit rates or flat rates (inclusive of all taxes) for the professional’s most commonly offered services.
- Prices may not be higher than those indicated. Professionals may not charge more money the price quoted, e.g. on the labels.
Reference price
Price reductions or discounts must be displayed in comparision to the reference price, which must also be shown.
The reference price is the lowest price charged for at least 30 days before the announced discount (except e.g. in the case of perishable products, where the reference period is shorter).
If professionals apply successive discounts to the same product, the reference price shall be the original price charged before the first price reduction.
These obligations also apply to online sales.
For further information
Display of prices for products and services
Unfair commercial practices
A commercial practice can be an action, omission, representation or communication, including advertising and marketing, as performed by professionals to promote or sell products to consumers.
Unfair commercial practices are prohibited.
Such are practices do not comply with the requirements of professional diligence. This means they are contrary to honest trade practices, to the principle of good faith, and they might substantially influence or be capable of influencing the behaviour of an average consumer when purchasing a good or service, thereby leading consumers to make a commercial decision they would not have otherwise.
The test of whether a commercial practice is in fact unfair also has to take into consideration whether this practice is aimed at a group of consumers referred to as “vulnerable” with regard to their age, credulity or the presence of a mental or physical disability.
There are two types of unfair commercial practices:
Aggressive commercial practices
A commercial practice is aggressive if professionals harass or coerce consumers, or exercise undue influence on them, thus significantly distorting or potentially impairing consumers’ free choice and inducing them to make decisions they would not have otherwise.
Such s practice put pressure on consumers in their decision-making.
The Code of Consumption contains a blacklist of circumstances that are deemed aggressive in any event, such as:
- cold calling by telephone or other means of electronic or distance communication,
- door-step selling at consumers’ homes despite their refusal to be approached,
- directly encouraging children in advertising to buy a product (or to persuade their parents or adults to buy it),
- giving the false impression that consumers have won or will win a prize or other benefit, that is inexistent or subject to payment.
Misleading marketing practices
A commercial practice is considered to be misleading if it contains or disseminates the following elements:
- false details which may mislead the average consumer, or
- details which are true but are presented in such a way that they are misleading,
thereby influencing the average consumer to make decisions they would not otherwise.
The omission of information is also considered to be misleading. This applies to circumstances where professionals omit or conceal information; provide it in an unintelligible, ambiguous or untimely manner or do so without indicating the true commercial intent, yet the omitted information is essential to consumers. This could be the identity and address of the professional, the price of the product (including all taxes) or its main features.
The Code lists a number of circumstances, which are deemed misleading in any event, such as:
- pretending to be a signatory to a code of conduct,
- displaying a quality label or equivalent without authorisation,
- claiming that a product is legal when it is not the case,
- providing information that is inaccurate as to the possibility of finding the product, with the aim of encouraging consumers to purchase it,
- describing a product as “free” when consumers must pay fees other than costs inevitable for responding to the offer and taking possession of the goods.
For further information
Identifying unfair commercial practices
Reporting unfair commercial practices
Unfair terms
A contract entered into between a professional and a consumer:
- must clear and comprehensible allowing the consumer to fully understand its content, and
- must not create a significant imbalance to the detriment of the rights of the consumer. Where there is any doubt regarding the interpretation of the terms, these will be interpreted in favour of the consumer. The professional will have to provide evidence to the contrary
The Code of Consumption provides effective protection for consumers against terms which:
- unilaterally grant rights to a professional without providing any equivalent to the consumer,
- exclude or reduce the legal guarantee in the event of a hidden defect or lack of conformity of a product,
- hinder the right to make a complaint and obtain compensation/redress, or
- permit price increases without allowing consumers to withdraw from the contract.
The Code also contains a blacklist of conditions considered "unfair" in any event, such as for example clauses which:
- limit the legal guarantee in the event of a latent defect or a lack of conformity,
- reserve unilateral the right to the professional to determine whether or not the goods or services are in conformity with the contract,
- allow the professional to retain sums paid by the consumer if the consumer withdraws from the contract, without allowing the consumer to receive compensation of an equivalent amount by the professional if the professional withdraws from the contract,
- note the consumer's consent to terms of which he could not actually have been aware of before entering into the contract and without being able to prove or contradict this.
Guarantees for goods
Articles L. 212-1 - L. 212-11, L. 212-30 and L. 212-31
The Code of Consumption distinguishes between two types of guarantees:
- the legal guarantee of conformity, and
- the commercial guarantee.
Both guarantees are independent from each other.
The legal guarantee of conformity
Only the legal guarantee of conformity is a legal obligation.
The retailer must provide goods that are in conformity with the contract and that present the features of durability, functionality, compatibility and security that are usual for these goods and which consumers can reasonably expect to find.
The legal guarantee of conformity is valid for a period of 2 years from the delivery of the good. It applies to defects that exist at the time of delivery.
If a lack of conformity becomes apparent within 12 months after the delivery of the good, there is a presumption that the defect existed at that time, unless proven otherwise by the professional.
If a lack of conformity becomes apparent after more than 12 months after the delivery of the good but before the 2-year period is over, the legal guarantee of conformity still applies, but for it to apply it is up to the consumer to prove that the defect existed at the time of the delivery of the good.
Upon lack of conformity, consumers have several options:
- repair of the good to remedy the lack of conformity or replacement free of charge without major inconvenience to the consumer and within a reasonable time, or
- termination of the contract provided the defect is not minimal or a proportional price reduction.
The commercial guarantee
The retailer or the producer (i.e. the guarantor) may also offer a commercial guarantee.
It is optional and may either be free of charge or subject to payment.
The guarantor freely decides on the contents and conditions of this guarantee (e.g. additional years of warranty or complementary (maintenance) services).
This guarantee must be in writing on a durable medium in German or French, at the choice of the consumer.
Guarantees for digital contents and digital services
The legal guarantee of conformity also applies to digital contents and services, such as purchased apps, e-books, online videogames, streaming service subscriptions, online film rentals, etc. Some healthcare services as well as gambling for money and financial services are not covered by the legal guarantee of conformity.
Professionals remain liable to consumers for any lack of conformity that:
- exists at the time of the delivery of the goods (i.e. the supply of the digital contents or services), and
- appear within two years of that time, including for digital contents and services. In the case of a continuous supply, for instance in the case of a subscription, the guarantee shall apply for the duration of the contract.
As is the case for other goods, where a lack of conformity becomes apparent within the first 12 months after the supply of the digital content or service, the guarantee works the consumer’s favour, as there is a presumption that the defect existed at the time of supply. The digital contents or services must comply with the stipulations of the contract and meet the various conformity requirements.
Objective conformity requirements include:
- conformity with the description, quantity, and quality stated in the contract,
- functionality, compatibility and presence of all the features listed in the contract,
- fitness for a specific purpose,
- supply of all accessories and instructions, including those pertaining to installations and updates.
Subjective conformity requirements include:
- fitness for the intended use, as expected of digital contents or services of that type,
- conformity with the demo versions or the general descriptions of the digital contents or services provided to consumers prior to the conclusion of the contract,
- information about the updates necessary to maintain the conformity of the digital contents or services in question.
Professionals (suppliers) must:
- inform consumers about the availability of updates, and
- provide such updates so that the “smart” or “connected” goods, or digital contents or services in question remain compliant.
Note: Consumers must install the updates provided in order to be able to enforce the legal guarantee of conformity with professionals.
Remedies: Upon a lack of conformity, either consumers are entitled to having the digital contents or services brought to conformity or to a proportionate price reduction or to termination of the contract.
New specific rights for digital products are:
- Consumers may refuse changes to the digital products purchased that go beyond what is provided for in the contracts and is necessary to ensure the conformity of the goods in question (i.e. security, maintenance, etc.). They may request the termination of the contract if the modifications have a significant negative impact on their access to the digital contents or services.
- Consumers may retrieve their contents in the event of a contract termination.
Delivery, additional costs, transfer of risk and inertia selling
Delivery
- General rule: the retailer must deliver the goods to the consumer within 30 days of the conclusion of the contract.
- Exception: The delivery may take place later mutually agreed upon between the professional and the consumer.
- If the professional fails to comply with the delivery date, consumers may formally require the professional to deliver the product within a new and reasonable period.
- If the professional fails to deliver the goods, consumers have the right to terminate their contract immediately and to reimbursement.
Additional costs
- Professionals may not charge fees (e.g. bank or telephone charges) that are higher than what they themselves spend on a given contract.
- Consumers must expressly consent to additional costs before the conclusion of a contract or acceptance of an offer.
Transfer of risk
- The risk of loss or damage transfers from the professional to the consumer as soon as they take possession of the good or responsibility for its transport.
Unsolicited supply of goods or services / inertia selling
- Inertia selling is the practice of sending unsolicited goods to consumers’ homes and requesting either the return of the goods or payment for them while consumers have not ordered anything.
- Inertia selling is prohibited and is punishable by fine.
- Consumers do not need to take any action in response to the receipt of unsolicited goods.
- Consumers are neither obliged to pay for the goods nor to return them.
- The absence of a reply by a consumer does not constitute consent.
Consumer Council
The Consumer Council is an advisory body made up of representatives of:
- the Government,
- consumer protection bodies, and
- employers.
Its mission is to encourage the exchange of views and consultations between its members on issues regarding consumer protection, and to issue opinions at the request of the Minister for Consumer Protection.
The right of withdrawal in distance and off-premises contracts
Articles L. 222-9 to L. 222-10
In principle, consumers have 14 calendar days to withdraw from distance or off-premises contracts.
They are not required to provide any justification for their decision.
Exceptions:
- (Urgent) services that have already been provided with the prior express consent of the consumer,
- goods and services subject to short-term, significant and uncontrollable price fluctuations, such as precious metals or wines sold before harvest,
- customised goods that are manufactured or prepared specifically for a consumer,
- perishable goods that rapidly go out-of-date, or that are rendered unusable for hygiene reasons after opening, such as food, newspapers, hygiene and beauty products, etc.,
- recordings, videos and software that have already been unsealed or downloaded by the consumer,
- purchases at public auctions,
- fixed-date services such as accommodation, transport of goods, vehicle rentals, and
- entrance fees for leisure events, etc.
Professionals must inform consumers of whether or not they are entitled to withdraw from the contract, and if so, the conditions and arrangements in place to exercise this right (i.e. the withdrawal period, starting point of the period, etc.).
Should a professional not provide this information before the conclusion of the contract, the withdrawal period shall be extended by 12 months from the expiry of the initial withdrawal period. If, during that period, the professional provides the customer with the information required by law, a new 14-day period shall run from the date on which the consumer receives that information.
The exercise of the right of withdrawal shall lead to the cancellation of the contract in question.
At present, consumers do not have the right of withdrawal in the case of most purchases made at trade fairs.
Remote financial services
Articles L. 222-12 to L. 222-23
Consumers may remotely contract financial services such as banking services (e.g. opening bank accounts), credits, investments and payments. This means that the contracts are concluded at a distance, namely by telephone, internet, email or fax.
As with all distance contracts, distance contracts relating to financial services must comply with mandatory pre-contractual information requirements.
At any time and until the end of the contract, consumers are entitled to receive the terms of the contract on paper.
Consumers may withdraw from the contract at no cost:
- in writing, on paper or on another durable medium,
- without having to justify their decision, and
- within 14 calendar days from the date of entering into the contract of the receipt of the goods.
Consumers cannot waive their right of withdrawal. Any such clause in a signed contract or in the general terms and conditions. shall be deemed null and void.
If consumers do not receive this information before entering into contract, the 14-day period shall start running only on the day of the receipt of that information.
These services may also be subject to additional rules depending on the nature of the service offered, e.g. if the financial service in question is a consumer credit.