PENALTIES FOR ADVERTISING OF A KIND OF MISTAKE AND DECEPTION

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS on May 4, two thousand and four, delivered the following judgment:

On the report of the counselor PALISSE, the observations of Me BOUTHORS, lawyer in the Court, and the conclusions of the Advocate General DAVENAS;

Deciding on the appeal brought by:

– X … Jean-Maurice,

against the judgment of the Court of Appeal of AIX-EN-PROVENCE, 5th chamber, dated May 21, 2003, which, for deception and publicity likely to mislead, sentenced him to 8 months of suspended imprisonment, 3 years ban from exercising the professional activity of tour operator, ordered a publication measure, and which pronounced on civil interests;

Considering the brief produced;

On the first ground of appeal, alleging the violation of articles 6 of the European Convention on Human Rights, 66 of the Constitution, 551, 565, 591 and 593 of the Code of Criminal Procedure, together violation of the rights of the defense ;

“in that the Court rejected the objection of nullity of the citation initiating proceedings of October 24, 2001 inviting the applicant to appear on November 7, 2001;

man and article 551 of the Code of Criminal Procedure; – the company Txx France being the only party to the travel contracts with the various civil parties, it is the only one concerned by their complaints and should have been questioned; – Article L. 213-1 of the Consumer Code, referred to in the citation mandate, only concerns deception on goods and is inapplicable in the case; but given, in the first place, that the cruise entitled “Le France, 51ème Festival de Cannes”, organized from 23 to 25 May 1998, is expressly referred to in the contested citation, as regards the first head of prevention (deception) ; that with regard to the second count (misleading advertising), the quotation, which refers to the same circumstances of time and place,

that, moreover, if certain grievances are rightly criticized by Jean-Maurice X … as being stated in an elliptical manner, others are formulated in a precise manner:

the absence of a gala dinner to which all passengers were to be invited at the closing of the said Festival (May 24, 1998), the cancellation of the screening of films which had to be carried out in the presence of personalities from the entertainment world, the non-presence of personalities from the Cannes Film Festival; that, under these conditions, Jean-Maurice X … was able to know, in an effective and sufficient manner, the nature and the cause of the prevention and, as retained by the first judges, in a position to assert his means of defense; that secondly, under Article 121-2, paragraph 3, of the Penal Code, the criminal liability of legal persons does not exclude those of natural persons authors or accomplices of the same facts; that it follows from the own writings of Jean-Maurice X …, that he is the manager of the limited liability company Txx France; that he is, in his capacity as head of company, criminally responsible for the facts committed by this one, in application of article 121-1 of the same Code; that, moreover, in this case, the main document advertising and signed by the formula “The Director General, Jean-Maurice X …”, followed by the reproduction of the own handwritten signature of the interested party; that thus, it is with good reason that the proceedings were directed against him; that thirdly, it follows from Article L. 216-1 of the Consumer Code that the provisions of Article L. 213-1 of said Code are applicable to services; that the visa of the only article L. 213-1 in the contested citation does not has not had the effect of harming the interests of the accused – moreover a professional in the service provision sector – within the meaning of article 802 of the Code of Criminal Procedure; that it follows that the exception of nullity of the citation must be rejected;

“1) while, on the one hand, the accused person has the right to be informed in detail of the nature and cause of the prevention under conditions allowing him to present an effective defense; this fundamental requirement the indeterminate direct quotation as to the facts it intends to target and including erroneous information on the applicable texts; that in view of the short notice period, the rights of the defense were thus infringed;

“2) then, in any event, that in determining as it did, the Court abandoned the applicant’s submissions arguing that this citation, materially identical to two previous citations declared void, should itself be canceled for the same reasons “;

Whereas, to rule out the exception regularly raised of nullity of the citation, the judgment under appeal pronounces by the reasons exactly taken up by means;

Whereas in the state of these statements proceeding from its sovereign findings and from which it follows that no infringement has been brought to the interests of the applicant, the Court of Appeal justified its decision;

From which it follows that the plea must be rejected;

On the second ground of appeal, alleging violation of Articles 6 of the European Convention on Human Rights, L. 121-1, 121-4, 121-5, 121-6, 213-1, 216-2 and 216-3 of the Consumer Code, 591 and 593 of the Code of Criminal Procedure, together violation of the principle non bis in idem;

“in that the court of appeal retained the plaintiff in the links of the prevention of false advertising and deception on the substantial quality of a service;

“on the grounds that the advertisement broadcast by Txx France under the signature of Jean-Maurice X …, as indicated above, in A4 format, in four-color process and against a cloudy sky background, was worded in the following terms:” the Sunday 24, passengers will be invited to climb the steps of the Palace, before attending, in preview, the private screening of the closing film, which, by tradition, is an “event film”; finally, the closing dinner of the Festival, bringing together more than 800 personalities, will take place aboard the France in the presence of the mayor of Cannes and the president; yes, it is truly an exceptional event to which you are invited! to make sure you get your place, send us your registration form today “;

were not invited; that, on the first point, the alternative nature of the two services, manifestly contrary to the advertising message reproduced above and that the defendant’s lawyer sought to put into perspective at the hearing, results from an internal note broadcast on board the ship , Sunday, June 24, stating: “you can, if you wish, attend this dinner, but in this case, you could not attend the screening that we have prepared for you and you would experience great retrospective disappointment” ; on the second point, that no device was planned to give the slightest glare to the projection of the closing film; that if the broadcasted program mentions “all passengers are invited to the screening of the closing film Godzilla with Jean Réno”, you had to understand that the actor had a role in the film and not that he would attend the screening; as for the elegant and almost ceremonial character of such an event, for which an evening dress (even gala, according to the documents) was recommended, a photograph of the group, contributed to the debate by Patricia Y …, shows the cruise passengers in going up the steps of the palace in vacation or excursion dress; that the “climbing of the palace steps”, presented in all the advertising material of the Txx company as one of the main attractions, if not the main attraction, of the cruise, turned out to be an act devoid of all the symbolic with which he was adorned, accomplished in anonymity and general indifference; than, on the third point, it follows from a detailed letter sent on March 7, 2001 to the judicial police by François Z …, secretary general of the FIF, that there was never any question of seeing cruise passengers from Norway taking part in the receptions (cocktails + dinner) given on board for festival-goers; that the fact that this letter is posterior to a first judgment intervened in this business on September 13, 2000, having canceled a citation of the prosecution, does not diminish in any way the probative value of this document, poured before the judgment referred to the file of the procedure; that the internal note, distributed by the company Txx on May 24, 1998, specified that the closing dinner concerned “exclusively the guests of the Cannes Film Festival”, the contradiction existing between this mention and that, cited above, providing for the possibility for cruise passengers “to attend this dinner” showing only the embarrassment of the organizing company to assume irreconcilable commitments; that finally, the “Logbook” edited by the company Txx and representing on four pages the program of the day of Sunday May 24, 1998, does not make any reference to a gala dinner whatever it is, in particular with the festival-goers; that should, by these reasons and those not contrary the first judges, to confirm the judgment referred, in that it retained the guilt of Jean-Maurice X … the head of misleading advertising; finally, the “Logbook” edited by the company Txx and representing on four pages the program of the day of Sunday May 24, 1998, does not make any reference to a gala dinner whatever it is, in particular with the festival-goers; that should, by these reasons and those not contrary the first judges, to confirm the judgment referred, in that it retained the guilt of Jean-Maurice X … the head of misleading advertising; finally, the “Logbook” edited by the company Txx and representing on four pages the program of the day of Sunday May 24, 1998, does not make any reference to a gala dinner whatever it is, in particular with the festival-goers; that should, by these reasons and those not contrary the first judges, to confirm the judgment referred, in that it retained the guilt of Jean-Maurice X … the head of misleading advertising;

afternoon of May 24, 1998 to assert force majeure and its absence of fraudulent intent; that in fact, the “Logbook” of May 24, 1998, as well as the internal note distributed that day before the incidents, clearly demonstrate that, if agreements had been made with the FIF to organize a gala dinner on board France for festival-goers, it was not planned to involve cruise passengers; that it follows that by organizing under the conditions recalled above the cruise entitled “France, 51st Festival de Cannes” from 23 to 25 May 1998, Jean-Maurice X … committed the offenses of misleading advertising and of deception with which he is accused; indeed, the “Logbook” of May 24, 1998, as well as the internal memo distributed that day before the incidents, clearly show that, if agreements had been made with the FIF to organize a gala dinner on board from France for festival-goers, it was not planned to involve cruise passengers; that it follows that by organizing under the conditions recalled above the cruise entitled “France, 51st Festival de Cannes” from 23 to 25 May 1998, Jean-Maurice X … committed the offenses of misleading advertising and of deception with which he is accused; indeed, the “Logbook” of May 24, 1998, as well as the internal memo distributed that day before the incidents, clearly show that, if agreements had been made with the FIF to organize a gala dinner on board from France for festival-goers, it was not planned to involve cruise passengers; that it follows that by organizing under the conditions recalled above the cruise entitled “France, 51st Festival de Cannes” from May 23 to 25, 1998, Jean-Maurice X … committed the offenses of misleading advertising and of deception with which he is accused; although agreements had been made with the FIF to organize a gala dinner on board the France for festival-goers, there were no plans to involve cruise passengers; that it follows that by organizing under the conditions recalled above the cruise entitled “France, 51st Festival de Cannes” from 23 to 25 May 1998, Jean-Maurice X … committed the offenses of misleading advertising and of deception with which he is accused; although agreements had been made with the FIF to organize a gala dinner on board the France for festival-goers, there were no plans to involve cruise passengers; that it follows that by organizing under the conditions recalled above the cruise entitled “France, 51st Festival de Cannes” from 23 to 25 May 1998, Jean-Maurice X … committed the offenses of misleading advertising and of deception with which he is accused;

“1) whereas, on the one hand, the same facts cannot give rise to a double conviction; that having regard to their respective nature, the qualifications of false advertising and of deception on the substantial qualities of a service are mutually exclusive;

“2) while, on the other hand, there is no offense without intention; that false advertising can in no case be deemed to be to the detriment of only plaintiffs whose restrictive interpretation deprives the qualification of any legal basis when the offending advertisement did not reveal any deception and only external and unforeseeable events had affected the course of the cruise;

“3) whereas, thirdly, in the absence of any reference to the contractual documents binding each of the plaintiffs with the company Txx France, the Court determined on the basis of ineffective grounds on the deception relating to the substantial qualities of a travel service “;

Whereas, to declare the defendant guilty of having committed the offense of advertising likely to mislead, as well as that of deception, the judgment holds that, the company Txx having organized a maritime cruise entitled “Le France, 51ème Festival de Cannes “, Jean-Maurice X …, director of this company, distributed an advertising brochure from which it emerged that cruise passengers would attend the screening of the closing film, after having climbed the steps of the festival, and that ‘they would participate, in the midst of festival-goers, in the gala dinner planned on board the ship, while the attendance at the screening of the film excluded participation in the dinner and no decorum was planned to surround the rise of the stairs; that the judges add that the

Whereas in the state of these statements, from which it follows, on the one hand, that the defendant had disseminated, during the prospecting of customers, an advertisement comprising false allegations or likely to mislead and, on the other hand, that he deliberately deceived the contracting parties on the nature of the services provided, the court of appeal justified its decision;

From which it follows that the plea cannot be accepted;

But on the third ground of appeal, taken from the violation of articles 6 of the European Convention on Human Rights, 66 of the Constitution, 23 of law n ° 95-884 of August 3, 1995 on amnesty, together the law of August 6, 2002, article 133-11 of the Penal Code, 591 and 593 of the Code of Criminal Procedure;

“in that the Court condemned the applicant criminally to a suspended prison sentence accompanied by a prohibition of professional exercise, in addition to the publication by extract of the judgment of conviction;

“on the grounds that the bulletin n ° 1 of the criminal record of Jean-Maurice X …, published on March 11, 2003, shows a conviction, dated September 20, 1995, to a fine of 50,000 francs, including 20,000 francs suspended, for acts of misleading advertising, committed in 1989; that this entry in the criminal record, despite the amnesty laws of 1995 and 2002 indicates that the fine has not been paid; that the circumstances of the case, as well as the complaints of many customers of the company Txx France concerning services not targeted by the prevention, show that the behavior of Jean-Maurice X …, far from being accidental, participates in his commercial practice ; that it is appropriate to condemn Jean-Maurice X … to a main penalty ofsuspended imprisonment and an additional penalty of professional prohibition, as well as the publication measure, provided for by article L. 121-4 of the Consumer Code, already pronounced by the first judges;

“1) whereas, on the one hand, the recall prohibits an amnestied sentence expressly taken into consideration by the Court to aggravate the sentence, reason taken from the usual behavior attributed for this reason to the accused, directly affects the legality of the present condemnation;

“2) while, on the other hand, only a special text allows criminal courts to pronounce a professional prohibition, which, moreover, must be specially motivated in view of the infringement it is likely to bring to a fundamental freedom;

that in the absence of a special text, the sanction thus pronounced is illegal;

that it is in any event devoid of the slightest motivation to measure its proportionality;

“3) then, in any event, that such a ban, pronounced as an additional penalty, cannot be combined with the pronouncement of a main sentence of suspended imprisonment”;

Having regard to articles 131-9 and 131-10 of the Penal Code ;

Whereas, according to these texts, imprisonment cannot be pronounced cumulatively with one of the private or restrictive penalties provided for by article 131-6 of the aforementioned Code, unless the law expressly provides for it;

Whereas after having declared Jean-Maurice X … guilty of advertising liable to mislead and deceit, the judgment pronounces against him, in addition to a suspended sentence of eight months imprisonment, that of three years of ‘ban on exercising the professional activity of tour operator;

Whereas by pronouncing thus, while articles L. 213-1, L. 216-2 and L. 216-3 of the Consumer Code do not provide for the accumulation of a prison sentence with a professional ban, the court of appeal disregarded the aforementioned texts and the principle recalled above ;

From where it follows that the cassation is incurred on this head; that it will be limited to the penalty, since the conviction does not incur censorship;

For these reasons,

BREAKS and ANNULS the above-mentioned judgment of the Aix-en-Provence Court of Appeal, dated May 21, 2003, in its only provisions relating to the penalty, all other provisions being expressly maintained;

And so that he may be tried again, in accordance with the law, within the limits of the cassation thus pronounced,

REFERS the case and the parties before the Aix-en-Provence Court of Appeal, otherwise composed, to that designated by special deliberation taken in chamber of the council;

ORDERS the printing of this judgment, its transcription on the registers of the registry of the Aix-en-Provence Court of Appeal and its mention in the margin or following the partially canceled judgment;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberation: Mr. Cotte president, Mr. Palisse advisor rapporteur, MM. Farge, Blondet, Le Corroller, Castagnède councilors of the chamber, Mmes Agostini, Beaudonnet, Gailly, M. Chaumont referendum advisers;

Advocate General: M. Davenas;

Clerk of the chamber: Ms. Randouin;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;