I.- A commercial practice is deceptive if it is committed in one of the following circumstances:
1 ° When it creates confusion with another good or service, a mark, a trade name, or another distinctive sign of a competitor;
2 ° When it is based on false or misleading allegations, indications or presentations relating to one or more of the following elements:
- a) The existence, availability or nature of the good or service;
- b) The essential characteristics of the good or service, namely: its substantial qualities, its composition, its accessories, its origin, its quantity, its method and date of manufacture, the conditions of its use and its suitability for use , its properties and the results expected from its use, as well as the results and main characteristics of the tests and controls carried out on the good or service;
- c) The price or the method of calculating the price, the promotional nature of the price and the conditions of sale, payment and delivery of the good or service;
- d) After-sales service, the need for service, spare part, replacement or repair;
- e) The scope of the advertiser’s commitments, the nature, process or reason for the sale or provision of services;
- f) The identity, qualities, aptitudes and rights of the professional;
- g) Complaints handling and consumer rights;
3 ° When the person on whose behalf it is implemented is not clearly identifiable.
II.-A commercial practice is also deceptive if, taking into account the specific limits of the means of communication used and the circumstances which surround it, it omits, conceals or provides in an unintelligible, ambiguous or inappropriate manner substantial information or when it does not indicate its true commercial intention as long as it does not already appear from the context.
In any commercial communication constituting an invitation to purchase and intended for the consumer mentioning the price and characteristics of the good or service offered, the following information is considered to be substantial:
1 ° The main characteristics of the good or service;
2 ° The address and identity of the professional;
3 ° The price including all taxes and the delivery costs payable by the consumer, or the method of calculation, if they cannot be established in advance;
4 ° The terms of payment, delivery, execution and processing of consumer complaints, when they are different from those usually practiced in the field of professional activity concerned;
5 ° The existence of a right of withdrawal, if this is provided for by law.
III.-The I is applicable to practices targeting professionals
Created by LAW n ° 2008-776 of August 4, 2008 – art. 84
Are deemed misleading within the meaning of Article L.121-1 business practices that are aimed at:
1 ° For a professional, to claim to be a signatory of a code of conduct when he is not;
2 ° To display a certificate, a quality label or an equivalent without having obtained the necessary authorization;
3 ° To affirm that a code of conduct has received the approval of a public or private body when this is not the case;
4 ° To affirm that a professional, including through its commercial practices, or that a product or service has been approved, approved or authorized by a public or private body when this is not the case, or fail to comply with the conditions of the accreditation, approval or authorization received;
5 ° To offer the purchase of products or the supply of services at an indicated price without revealing the plausible reasons that the professional could have for thinking that he will not be able to provide himself, or to have the products supplied by another professional. or services in question or products or services equivalent to the price indicated, for a period and in quantities that are reasonable taking into account the product or service, the extent of the advertising made for the product or service and the price offered ;
6 ° To offer the purchase of products or the provision of services at an indicated price, and then:
- a) To refuse to present the article advertised to consumers;
- b) Or to refuse to take orders for these products or services or to deliver or supply them within a reasonable time;
- c) Or present a defective sample, for the purpose of promoting a different product or service;
7 ° To falsely declare that a product or service will only be available for a very limited period or that it will only be available under special conditions for a very limited period in order to obtain an immediate decision and deprive consumers of ‘a possibility or sufficient time to make an informed choice;
8 ° To undertake to provide after-sales service to consumers with whom the trader has communicated before the transaction in a language which is not an official language of the Member State of the European Union in which he is established and, then, to provide this service only in another language without clearly informing the consumer before the latter commits to the transaction;
9 ° To declare or give the impression that the sale of a product or the provision of a service is lawful when it is not;
10 ° To present the rights conferred on the consumer by law as constituting a characteristic specific to the proposal made by the professional;
11 ° To use editorial content in the media to promote a product or service while the professional has financed it himself, without clearly indicating it in the content or in the help images or sounds clearly identifiable by the consumer;
12 ° To make materially inaccurate statements regarding the nature and extent of the risks to which the consumer is exposed in terms of his personal safety or that of his family if he does not purchase the product or the service;
13 ° To promote a product or service similar to that of another clearly identified supplier, in such a way as to deliberately encourage the consumer to think that the product or service comes from this supplier when this is not the case;
14 ° To declare that the professional is about to cease his activities or to establish them elsewhere when this is not the case;
15 ° To claim that a product or service increases the chances of winning at games of chance;
16 ° To falsely assert that a product or provision of services is likely to cure diseases, dysfunctions or malformations;
17 ° To communicate materially inaccurate information on market conditions or on the possibilities of finding a product or a service, with the aim of encouraging the consumer to acquire it under less favorable conditions than normal market conditions;
18 ° To affirm, within the framework of a commercial practice, that a contest is organized or that a prize can be won without attributing the described prizes or a reasonable equivalent;
19 ° To describe a product or service as being “free”, “free of charge”, “free of charge” or other similar terms if the consumer has to pay anything other than the inevitable costs associated with responding to commercial practice and taking possession or delivery of the item;
20 ° To include in an advertising medium an invoice or a similar document requesting payment which gives the consumer the impression that he has already ordered the product or service marketed when this is not the case;
21 ° Falsely asserting or giving the impression that the trader is not acting for purposes which fall within the scope of his commercial, industrial, craft or liberal activity, or falsely presenting himself as a consumer;
22 ° To falsely create the impression that after-sales service related to a product or service is available in a Member State of the European Union other than that in which the product or service is sold.
This article is applicable to practices aimed at professionals.
The agents of competition, consumption and the repression of fraud, those of the general food directorate of the ministry of agriculture and those of the metrology service of the ministry of industry are empowered to ascertain, by means of of reports throughout the national territory deceptive commercial practices. They may require the manager of a commercial practice to make available to them or communicate all the elements necessary to justify the allegations, indications or presentations inherent in this practice. They may also require the advertiser, the advertising agency or the support manager to make the advertising messages disseminated to them.
The reports on the whole of the national territory drawn up in application of this article are transmitted to the public prosecutor.
Control of job vacancies
The cessation of the deceptive commercial practice can be ordered by the examining magistrate or by the court seized of the proceedings, either on request of the public prosecutor or ex officio. The measure thus taken is enforceable notwithstanding all legal remedies. Release can be given by the court which ordered it or which is seized of the file. The measure ceases to have effect in the event of a dismissal or discharge decision.
Decisions ruling on requests for release may be appealed against to the investigating chamber or to the court of appeal depending on whether they were pronounced by an investigating judge or by the court seised of the proceedings. lawsuits.
The investigating chamber or the court of appeal rules within ten days of receipt of the documents.
In the event of a conviction, the court orders the publication of the judgment. He may, moreover, order the dissemination, at the expense of the convicted person, of one or more corrective announcements. The judgment fixes the terms of these announcements and the modalities of their distribution and gives the convicted person a time limit in which to proceed; in the event of a deficiency and without prejudice to the penalties provided for in article L. 121-7, this dissemination is carried out at the behest of the public prosecutor at the expense of the convicted person.
The person on whose behalf the deceptive commercial practice is carried out is primarily responsible for the offense committed. The offense is constituted as soon as the commercial practice is implemented or produces its effects in France.
Deceptive commercial practices are punishable by the penalties provided for in the first paragraph of article L. 213-1 . The fine can be increased to 50% of the expenses of the advertising or the practice constituting the offense. The provisions of Article L. 213-6 providing for the criminal liability of legal persons are applicable to these offenses.
For the application of Article L. 121-6, the court may ask both the parties and the advertiser to provide all useful documents. In the event of refusal, he may order the seizure of these documents or any appropriate investigative measure. He may also impose a fine of up to 4,500 euros per day of delay from the date he has chosen for the production of these documents.
The penalties provided for in the first paragraph of Article L. 121-6 are also applicable in the event of refusal to communicate the supporting documents or advertisements broadcast, requested under the conditions provided for in the first paragraph of Article L. 121-2. , as well as in the event of non-observance of decisions ordering the cessation of the commercial practice or of non-execution within the time limit of the corrective announcements.
||FULL TEXT JURISPRUDENCE
||MISLEADING ADVERTISINGFALSE ADVERTISING
Tribunal de Grande Instance of Nanterre, October 15, 2001 , UFC Que Choisir and others against Société Française du Radiotéléphone (SFR), Raymond, Guy, Contracts Competition Consumption, n ° 12, 01/12/2001, pp. 23-24
Rouen Court of Appeal, April 3, 2000, Madame Denis v Société Sony Music, n. Raymond, Guy, Consumption Competition Contracts, n ° 2, 02/01/2001, pp. 29-30
Court of Cassation, Criminal Chamber May 23, 2000, Phillipe L against Public Ministry, n. Pottier, Isabelle, La Gazette du Palais, n ° 301, 27/10/2000, pp. 44-45