mise a jour LEGIFRANCE au 27 novembre 2001

With the participation of :

Henri TEMPLE, Director for the Consumer Law Research Centre – Montpellier University, Avocat à la Cour

Geoffrey WOODROFFE, Director for the Consumer Law Research Centre – Brunel's West London University, Solicitor

 

 

 

                      

 CONSUMER CODE (Legislative Part)

 

 

 

Vol 1 : Consumer information and contract formation

 

Part 1 : Consumer information

 

Chapter I: General obligation of information

 

Article L111-1

 

All business suppliers of goods or services must, prior to conclusion of the contract, ensure that the consumer is made aware of the essential characteristics of the goods or services.

 

Article L111-2

 

Business suppliers of personal property must, in addition, inform the consumer of the period during which parts that are essential for use of the goods are likely to be on the market. The business must, compulsorily, be notified of this period by the manufacturer or importer.

 

Article L111-3

 

The provisions of the previous two articles are applicable without prejudice to provisions that are more favourable to consumers which subject certain activities to special regulations regarding consumer information.

 

 

Chapter II: Manner of Presentation and labelling

Article L112-1

 

(inserted by Act no. 99-574 of 9 July 1999 art. 82 Journal officiel of 10 July 1999)

 

Product labelling referring to an appellation d'origine contrôlée fromagère must compulsorily include the name and address of the manufacturer.

 

 

Article L112-2

 

(Act no. 99-574 of 9 July 1999 art. 83 Journal officiel of 10 July 1999)

 

(Act no. 2001-420 of 15 May 2001 art. 61 Journal officiel of 16 May 2001)

 

An official visual identification mark, known as the appellation d'origine contrôlée logo, in the sense of point 2 of article 6B of the Paris convention of 20 March 1883 for protection of industrial property, must be used in any display of agricultural produce and foodstuffs that have an appellation d'origine contrôlée, with the exception of wines, spirits and intermediary products.

A Council of State decree fixes, subsequent to consultation of the Institut national des appellations d'origine, the specimen official logo and its procedures for use.

 

Article L112-3

 

(inserted by Act no. 2001-6 of 4 January 2001 art. 18 II Journal officiel of 5 January 2001)

 

Conditions for use of wording relating to poultry rearing methods are determined by article L. 640-4 of the code rural, reproduced hereinafter:

Art. L. 640-4 “For poultry with no identification mark in the sense of article L. 640-2, reference to rearing methods relating to foodstuffs can only be used, in accordance with current community legislation, under the terms fixed by decree relating, in particular, to regular control procedures.

Reference to the “extensive indoor (barn reared)” and “free range” rearing methods, as well as to the age of slaughter, can only be used on poultry for which an identification mark resulting in the issue by the administrative authority of an identification mark

The words “farm – traditional free range” or “farm – free range, total freedom” can only be used on poultry with a label, an appellation d'origine contrôlée or certification of the method of organic production.

These provisions do not, however, apply to small-scale productions intended for the direct or local sale referred to in article 3, paragraph 5 of the directive 71/118/CEE.”

 

Article L112-4

 

(inserted by Act no. 2001-420 of 15 May 2001, art. 59 I Journal officiel of 16 May 2001)

 

Conditions for simultaneous use, for labelling of a foodstuff or a non-food, non-processed agricultural product, with the exception of wines, spirits and intermediary products, of a commercial brand and an identification mark, in the sense of article L. 640-2 of the code rural, are laid down by Council of State decree.

 

Article L112-5

 

(inserted by Act no. 2001-420 of 15 May 2001, art. 59 I Journal officiel of 16 May 2001)

 

Research and verification of breaches of the provisions laid down in this chapter are exercised in accordance with the conditions provided for in article L.215-3 by the agents mentioned in article L.215-1.

 

Article L112-6

 

(inserted by Act no. 2001-420 of 15 May 2001, art. 62 Journal officiel of 16 May 2001)

 

Labeling of a product sold under an own brand must mention the name and address of the manufacturer if the latter so requests.

Products with characteristics defined by the company or the group of companies that retail the product and own the brand name under which it is sold are deemed to be products sold under an own brand.

 

Article L112-7

 

(inserted by Act no. 2001-420 of 15 May 2001, art. 63 Journal officiel of 16 May 2001)

 

The designations “chocolat pur beurre de cacao” and “chocolat traditionnel” and any other equivalent denominations are reserved for chocolate manufactured only from fats extracted from cocoa beans, without the addition of vegetable fats.

 

 

 

Chapter III: Price and conditions of sale

 

Article L113-1

 

The rules relating to the determination of prices are fixed by the provisions of article 1 of order no. 86-1243 of 1 December 1986 relating to freedom of prices and competition, reproduced hereinafter:

Prices of goods, products and services are freely determined by economic forces. In sectors or areas where price competition is limited due, either to monopolistic situations or sustained procurement difficulties, or legislative or regulatory provisions, a Council of State decree may regulate prices subsequent to consultation of the conseil de la concurrence.

The provisions of the first two paragraphs shall not form an obstacle to Government rulings, made by virtue of Council of State decrees, against excessive price rises or falls, temporary measures caused by crisis situations, exceptional circumstances, a public disasters or a manifestly abnormal market situation in a determined sector. The decree is issued subsequent to consultation of the Conseil national de la consommation. It states its period of validity which may not exceed six months”.

Nota : Article 1 of order n° 86-1243 of 1 December 1986 reproduced above, has been repealed by order n° 2000-912 of 18 September 2000.

 

 

Article L113-2

 

Aforementioned rules relating to the field of application of order no. 86-1243 of 1 December 1986 are fixed by article 53 of this order, reproduced hereinafter:

“Art. 53: The rules defined by this order apply to all production, distribution and service activities, including those which are performed by public entities, in particular, within the scope of public service delegation agreements.”

N.B.: Article 53 of order no. 86-1243 of 1 December 1986 reproduced above, has been repealed by order no. 2000-912 of 18 September 2000.

 

 

Article L113-3

 

All product vendors or service providers must, by means of marking, labelling, bill-posting or by any other appropriate procedure, inform the consumer of prices, any limitations of contractual liability and special terms of sale, in accordance with the procedures laid down by orders issued by the ministre chargé de l'économie, subsequent to consultation with the Conseil national de la consommation.

This provision applies to all the activities referred to in the last paragraph of article L.113-2.

 

Chapter IV: Information on delivery dates

 

Article L114-1

 

In any contract for the sale of goods or the supply of services to a consumer, the businers must, when the delivery of the goods or the supply of the services is not immediate and if the agreed price exceeds the thresholds fixed by regulation, indicate the final date by which it undertakes to deliver the goods or perform the services.

The consumer may terminate the contract for the sale of goods or the supply of services, by recorded delivery letter should the delivery date for supply of the goods or services be exceeded by seven days and should this not be due to a case of "force majeure".

This contract is, if necessary, considered to have been broken upon receipt, by the vendor or by the service provider, of the letter in which the consumer informs the latter of its decision, if the delivery or service provision has not taken place between the sending and the receipt of this letter. The consumer has sixty working days from the date given for delivery of the goods or services in which to exercise this right.

Unless stipulated otherwise in the contract, sums paid in advance are deposits, with the effect that each of the contracting parties may go back on their obligation, the consumer by losing the deposit, the business by returning twice the amount of said deposit.

 

Chapter V: Development of products and services

 

Section 1 : Appellation d'origine. Registred designation of origin

 

Sub-section 1: Definition

 

Article L115-1

 

An appellation d'origine  is constituted by the name of a country, of a region or of a locality serving to designate a product which originates from there and the quality or character of which is due to the geographical location, comprising natural and man-made factors.

 

 

Sub-section 2: Administrative protection procedure

 

Article L115-2

 

Failing a definitive legal decision on the basic issues in application of articles L. 115-8 to L. 115-15, a Council of State decree may limit the geographical production area and determine the qualities or characteristics of a product bearing an appellation d'origine on the basis of local, honest and constant usage.

Publication of this decree poses an obstacle for the future institution of proceedings provided for in articles L. 115-8 to L. 115-15.

 

Article L115-3

 

The decree provided for in article L. 115-2 may prohibit from appearing on products other than those bearing an appellation d'origine or on the packages which contain them and labels, business stationery and invoices thereto related, any information liable to cause confusion with regard to the origin of the products.

 

 

Article L115-4

 

The decree provided for in article L. 115-2 is issued subsequent to a public inquiry involving the consultation of those professional groups with direct involvement. A Council of State decree fixes the procedures of this inquiry.

 

Article L115-5

 

(Act no. 98-565 of 8 July 1998 art. 4 I Journal officiel of 9 July 1998)

 

The procedure for the issue of an appellation d'origine contrôlée is defined in article L. 641-2 of the code rural, reproduced hereinafter:

“Art. L. 641-2. – Only raw or processed agricultural or food products may be acknowledged by an appellation d'origine contrôlée. The provisions of article L. 115-2 to L. 115-4 and L. 115-8 to L. 115-15 of the consumer code do not apply to them.

In accordance with the terms provided for hereinafter, these products may receive an appellation d'origine contrôlée if they adhere to the provisions of article L. 115-1 of the consumer code, have a duly established reputation and are the subject of approval procedures.

The appellation d'origine contrôlée may never be considered to be of a generic nature and fall within the public domain.

The geographical name which constitutes the appellation d'origine or any other wording evoking said mark, may not be used for any similar product, without prejudice to legislative or regulatory provisions in force on 6 July 1990, nor for any other product or service where this use is likely to detract from or debase the standing of the appellation d'origine.

The appellation d'origine contrôlée for wines of superior quality mentioned in article L. 641-24 and those which are in force on, 1 July 1990, in overseas departments shall retain their status.

 

Article L115-6

 

(Act no. 98-565 of 8 July 1998 art. 4 I Journal officiel of 9 July 1998)

  

The procedure for defining an appellation d'origine contrôlée is fixed by article L. 641-3 of the code rural, reproduced hereinafter:

“Art. L. 641-3. – Each appellation d'origine contrôlée is defined by decree on the proposal of the Institut national des appellations d'origine, without prejudice, for wines and eaux de vie, ciders, perry, or aperitifs based on cider, perry or wine, to the provisions of article L. 641-15.

The decree limits the geographical production area and determines the terms for production and approval of the product”.

 

Article L115-7

 

(Act no. 96-314 of 12 April 1996 art. 61 Journal officiel of 13 April 1996)

 

(Act no. 98-565 of 8 July 1998 art. 4 I Journal officiel of 9 July 1998)

 

The transitional provisions relating to agricultural and agro-alimentary appellations d'origine are defined in article L. 641-4 of the code rural, reproduced hereinafter:

“Art. L. 641-4. - appellations d'origine defined by legislation or regulation prior to 1 July 1990 are considered to meet the terms of article L. 641-3. Any subsequent modification of the tets defining these appellations must be made in accordance with the procedure provided for in the same article.

Prior to 1 July 2000, products whose appellation d'origine was defined by judicial means prior to 1 July 1990, or was acquired in application of articles 14 and 15 of the Act of 6 May 1919 relating to the protection of appellations d'origine written prior to Act no. 90-558 of 2 July 1990 relating to appellations d'origine contrôlée for raw or processed agricultural or food products, and for which an application for acknowledgement by way of appellation d'origine contrôlée has been lodged with the Institut national des appellations d'origine prior to 31 December 1996, will be given this acknowledgement, by decree, if they satisfy the conditions fixed by article L. 641-3. As of 1 July 2000, or in the event of the acknowledgement by way of appellation d'origine contrôlée being refused, these appellations shall become null and void”.

Caduc ?

 

Sub-section 3: Legal protection procedure

 

Article L115-8

 

Any entity claiming that an appellation d'origine has been applied, to its direct or indirect prejudice and in contravention of its right, to a natural or manufactured product, contrary to the origin of this product, may institute proceedings to prohibit the use of this appellation.

Unions and associations that have been regularly constituted for at least six months shall be entitled to take the same course of action in respect of rights that they wish to defend.

On the basis of local, loyal and constant usage, the judge may limit the geographical production area and determine the qualities or characteristics of the product referred to in the first paragraph.

 

Article L115-9

 

The court to which a case has been referred by virtue of article L. 115-8 may hear and determine a case inclined to prohibit the display, in products other than those with an appellation d'origine or on packages which contain them and labels, business stationery and related invoices, any information likely to cause confusion over the origin of the products.

This action is open even if the geographical area of production has been definitively limited in application of articles L. 115-8 to L. 115-15.

 

Article L115-10

 

The proceedings will be brought before the tribunal de grande instance  for the place of origin of the product for which the appellation is being contested. The claim will be exempt from preliminary conciliation proceedings and investigated judged according to procedure on the appointed day.

 

Article L115-11

 

Within eight days of the summons, the claimant must have published in a journal d'annonces légales in the district in which he is domiciled and in the district of the local Court, a brief note giving surname, first names, profession and domicile, the surname, first names and domicile of his representative, those of the defendant and the latter's representative if one has been appointed, and the purpose of the claim.

Proceedings may not commence until fifteen days after publications of the note provided for in the previous paragraph.

 

Article L115-12

 

Any person, any union and association satisfying the conditions in respect of term and interest provided for in article L. 115-8 may take part in the proceedings.

 

Article L115-13

 

Within eight days of notification of the appeal, the appellant or appellants must publish the information provided for in article L. 115-11.

Proceedings may not commence before the court until fifteen days after this information has been published.

 

Article L115-14

 

The Cour de cassation, to which an appeal has been referred, shall be competent to assess whether or not the practices cited for the use of an appellation d'origine have all the legal characteristics required in this section.

The appeal shall be suspensive.

 

 

Article L115-15

 

Final judgements shall reach a decision in respect of all the inhabitants and proprietors of the same region, the same commune, or, if necessary, of a part of the same commune.

 

Sub-section 4: Criminal actions

 

Article L115-16

 

(Act no. 92-1336 of 16 December 1992 art. 322, art. 329 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

(Act no. (4-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 99-574 of 9 July 1999 art. 85 I Journal officiel of 10 July 1999)

 

 

Anyone who has either affixed or displayed, by means of any addition, excision, or alteration whatsoever, on natural or manufactured products intended for sale, of appellations d'origine that said person knows to be inaccurate will be punishable with the penalties provided for in article L. 213-1.

Anyone who may have used a display method leading to believe, or of a nature likely to lead to believe, that a product has an appellation d'origine contrôleé will be punishable with the same penalties.

The court may, on the other hand, order the posting of the judgement in all the places designated by it and its publication, in its entirety, or in extracts, in the journals listed by said court, all at the expense of the convicted person.

Any one who may have knowingly sold, put on sale or into circulation, natural or manufactured products bearing an inaccurate appellation d'origine will be punishable by the same penalties.

 

Article L115-7

 

The persons, unions and associations referred to in the first two paragraphs of article L. 115-8 which claim to have been damaged by the offence provided for in article L. 115-16 may bring a civil action in accordance with the provisions of the Code de procédure pénale.

 

Article L115-18

 

(Act no. 98-565 of 8 July 1998 art. 4 II Journal officiel of 9 July 1998)

 

(Act no. 99-574 of 9 July 1999 art. 85 II Journal officiel of 10 July 1999)

 

The penalties provided for in article L. 115-16 as well as the provisions of article L. 115-17 are applicable in the event of use of the wording prohibited by virtue of articles L. 115-3 and L. 115-9.

The penalties provided for by article L. 115-16 are also applicable in the event of use of any wording prohibited by virtue of the fourth paragraph of article L. 641-2 of the code rural.

The provisions of article L. 115-25 are apply to section I of this chapter.

 

Sub-section 5: The Institut national des appellations d'origine

 

Article L115-19

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

 

The organisation and operation of the Institut national des appellations d'origine are defined in article L. 641-5 of the code rural, reproduced hereinafter:

“Art. L. 641-5. – The Institut national des appellations d'origine is a public administrative institution and a legal entity.

It comprises:

A national committee with jurisdiction over wines, eaux de vie, ciders, perrys, cider and aperitifs based on cider, perry or wine;

A national committee for dairy products;

A national committee for products other than those covered by the authorities mentioned hereinabove.

These committees are made up of professional representatives, representatives of government departments and qualified entities for the representation, in particular, of consumers.

Each of these committees acts for the products over which it has jurisdiction in respect of the questions mentioned in article L. 641-6.

The members of these committees meet for a plenary session for the presentation of the budget and general policy of the institute.

A permanent committee made up of members belonging to the same categories as those specified for the national committees and selected from within these committees compiles the institute's budget and determines the general policy relating to appellations d'origine contrôlées.

Chairpersons of national committees and of the permanent council are appointed by joint order of the ministre chargé de l'économie  and the ministre de l'agriculture. The chair of the permanent council is appointed for two years. He is successively selected within each of the national committees.

Organisational and operational regulations for the Institut national des appellations d'origine are fixed by decrees issued by the Conseil d'Etat.

 

 

Article L115-20

 

(Act no. 94-2 of 3 January 1994 art. 2 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

The jurisdiction of the Institut national des appellations d'origine is defined in article L. 641-6 of the code rural, reproduced hereinafter:

“Art. L. 641-6. – The Institut national des appellations d'origine has jurisdiction over all raw or processed agricultural or food products. The provisions of articles L. 641-15 and L. 641-16 apply to all these products.

Upon advice from the relevant defence unions, the Institut national des appellations d'origine proposes recognition of appellations d'origine contrôleés, which include the delimitation of the geographical production areas and the determination of production and approval conditions for each of these appellations d'origine contrôleés.

It gives its opinion on national provisions relating to labelling and to the display of each of the products under its jurisdiction. It may be consulted on any other question relating to appellations d'origine.

It contributes, in France and abroad, to the promotion and defence of the protected appellations d'origine and protected geographical information mentioned in chapter II of this part..”

 

 

Section 2: Labels and certification of food and agricultural products

 

Article L115-21

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

Products likely to benefit from an agricultural label or conformity certification are defined in article L. 643-1 of the code rural, reproduced hereinafter:

“Article L. 643-1. – Foodstuffs and non-food, unprocessed agricultural produce, may benefit from an agricultural label or be the subject of conformity certification in accordance with the rules defined in the specifications”.

 

Article L115-22

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

The purpose of agricultural labels is defined in article L.643-2 of the code rural, reproduced hereinafter:

“Art. L. 643-2. – Agricultural labels attest to the fact that a foodstuff or a non-food, unprocessed agricultural product possesses a distinct set of qualities and specific characteristics which have been fixed beforehand in specifications and establishing a superior level of quality.

The geographical origin may only appear amongst the specific characteristics if it is registered as a protected geographical indication, subject to the provisions of the second paragraph of article L. 643-4.

This product must be different from similar products of the type usually sold, in particular, in respect of its special production or manufacturing conditions and, possibly, in respect of its geographical origin.

Only producers or processors organised in groups, whatever their legal form, are authorised to apply for the issued of a label”.

 

Article L115-23

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994

 

(Act no. 98-545 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

The purpose of the conformity certification is defined in article L. 643-3 of the code rural, reproduced hereinafter:

Art. L. 643-3 – Conformity certification attests to the fact that a foodstuff or a non-food unprocessed agricultural product conforms to specific characteristics or rules fixed beforehand in specifications relating, as the case may be, to the production, processing or packaging and, if necessary, the geographical origin of the foodstuff or the product when this origin is registered as a protected geographical indication, subject to the provisions of the second paragraph of article L. 643-4”.

 

Article L115-23-1

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July art. 4 III Journal officiel of 9 July 1998)

 

The principle of prohibiting the appearance in a label or a conformity certification of geographical wording not registered as a protected geographical indication is given in article 643-4 of the code rural, reproduced hereinafter:

Art. L. 643-4. – The label or conformity certification may not include geographical wording unless the latter has been registered as a protected geographical indication.

If, however, the local authority has requested the registration of this geographical wording as a protected geographical indication, the label or conformity certification may include this wording, included in the specific characteristics, until the date of the decision relating to its registration.

The prohibition mentioned in the first paragraph does not apply when the name which incorporates this wording is generic or designates a product benefiting from an certificate of special character.

Agricultural products or foodstuffs benefiting, prior to 4 January 1994, from an agricultural label or conformity certification may continue to bear a geographical origin wording without having a protected geographical indication for a period of eight years from the aforementioned date”.

 

Article L115-23-2

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July art. 4 III Journal officiel of 9 July 1998)

 

The procedure for issuing agricultural labels and conformity certificates is defined in article L. 643-5 of the code rural, reproduced hereinafter:

“Art. L. 643-5. – Agricultural labels and conformity certificates are issued by certifying bodies approved by the administrative authority.

Certifying bodies must offer guarantees of impartiality and independence and must not, in particular, be producers, manufacturers, importers or vendors of product of the same kind and must prove their competence and the efficacy of their controls.

Approval can only be given upon verification of these conditions and of the capacity of the body to provide quality controls for products which have labels or conformity certificates”.

 

Article L115-23-3

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

The purpose of interdepartmental approval of agricultural labels and conformity certificates is defined in article L. 643-6 of the code rural, reproduced hereinafter:

“Art. L. 643-6. – Agricultural labels may only be used if they have been the subject of approval by interdepartmental order.

Likewise for conformity certificates attesting to the geographical origin..”

 

Article L115-23-4

 

(Act no. 94-2 of 3 January 1994 art. 1 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

Procedures for applying provisions relating to agricultural labels and conformity certificates are referred to decrees issued by the Conseil d'Etat as provided for by article L. 643-7 of the code rural, reproduced hereinafter:

“Art. L. 643-7. – Decrees issued by the Conseil d'Etat specify, as appropriate, the procedures for applying articles L. 643-2 to L. 643-6 and, in particular, the conditions to be met by specifications, their examination and, if necessary, approval procedures,  characteristics of certifying bodies, their operating procedures and the terms of their approval etc.”.

 

Article L115-24

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

The penalties provided for in article L. 213-1 shall apply to anyone who may have:

Fraudulently used or attempted to use an agricultural label or certificate;

Issued, used or attempted to use an agricultural label which has not been approved;

Provided certification without satisfying the conditions provided for in articles L. 643-3 to L. 643-7 of the code rural;

Used a mode of presentation leading to believe, or of a nature to lead to believe, that a product has an agricultural label or certification;

Led to believe or attempted to lead to believe that a product with an agricultural label is guaranteed by the Government or by a public body.

 

Article L115-25

 

(Act no. 98-565 of 8 July 1998 art. 4 III Journal officiel of 9 July 1998)

 

(Act no. 2001-6 of 4 January 2001 art. 18 III Journal officiel of 5 January 2001)

 

The provisions of chapters II to VI of part I of volume II of this code, relating to the research and recording of breaches are applicable to the prescriptions of part IV of volume VI of the code rural and L. 115-24 of this code and the texts issued for their application.

 

Article L115-26

 

(Act no. 98-565 of 8 July 1998 art. 4 IV Journal officiel of 9 July 1998)

 

Bans on the use of agricultural labels and conformity certificates for products which have an appellation d'origine or for certain wines are defined in article L. 643-8 of the code rural, reproduced hereinafter:

“Art. L. 643-8. – Agricultural labels and conformity certificates may not be used for products with an appellation d'origine, les vins délimités de qualité supérieure and table wines.

 

 

Section 3: Protected designations of origin, protected geographical indications and certificates of specific character

 

Article L115-26-1

 

(Act no. 94-2 of 3 January 1994 art. 4 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 VI Journal officiel of 9 July 1998)

 

The protected designation of origin or protected geographical indication and certificate of specific character are defined in article L. 642-1 of the code rural, reproduced hereinafter:

“Art. L.642-1. – A protected designation of origin or a protected geographical indication are constituted by the name listed in the register of protected designations of origin and protected geographical indications kept by the Commission of the European Communities.

A certificate of specific character is constituted by the name of the product which appears in the register of certificates of specific character held by the Commission of the European Communities.

Only the designations of origin mentioned in articles L. 641-1 to L 641-6 may be the subject of an application with a view to their registration as protected designations of origin.

The application for registration of a geographical indication or a certificate of specific character may only be made within the scope of the provisions of chapter III of this part.”

 

Article L115-26-2

 

(Act no. 94-2 of 3 January 1994 art. 4 Journal officiel of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 VI Journal officiel of 9 July 1998)

 

Procedures for monitoring adherence to specifications for protected geographical indications and certificates of specific character are defined in article L. 642-2 of the code rural, reproduced hereinafter:

“Art. L. 642-2. – The approved certifying bodies mentioned in article L. 643-5 monitor adherence to specifications for protected geographical indications and certificates of specific character.

“A Council of State decree does, however, define, as appropriate, special monitoring procedures for agricultural producers and craftspeople retailing their production in small quantities on the local market.

 

Article L115-26-3

 

(inserted by Act no. 94-2 of 3 January 1994 art. 4 Journal officiel of 4 January 1994)

 

The provisions of article L. 115-16 apply to protected designations of origin, protected geographical indications and certificates of specific character.

 

Article L115-26-4

 

(Act no. 94-2 of 3 January 1994 art. 4 Official Journal  of 4 January 1994)

 

(Act no. 98-565 of 8 July 1998 art. 4 VII Official Journal of 9 July 1998)

 

Conditions of use of an indication of origin or of provenance are defined in article L. 642-4 of the rural code, reproduced hereinafter:

“Art. L. 642-4. – Use of an indication of origin or of provenance must not be likely to mislead the consumer in respect of the products' characteristics, nor to detract from or diminish the reputation of a name registered as a protected geographical indication or as a certificate of specific character.

A Council of State decree issued in application of article L. 214-1 of the consumer code fixes, as appropriate, the conditions for application of the previous paragraph”.

 

 

Section 4: Certification of non-food services and products

 

Article L115-27

 

(Act no. 94-2 of 3 January 1994 art. 3 Official Journal of 4 January 1994)

 

(Act no. 94-442 of 3 June 1994 art. 1 Official Journal of 4 June 1994)

 

Certification of a product or service subject to the provisions of this section is constituted by the activity by which an organisation, independent of the manufacturer, the importer, the supplier or the service provider attests, at the latter's request and carried out for commercial ends, to the fact that a product or a service conforms to the characteristics described in a benchmark and being subject to checks.

The benchmark is a technical document defining the characteristics that a product or a service must display and procedures for checking conformity of the product or service to these characteristics.

 

Article L115-28

 

(Act no. 94-2 of 3 January 1994 art. 3 Official Journal of 4 January 1994)

 

(Act no. 94-442 of 3 June 1994 art. 2 Official Journal of 4 June 1994)

 

Only organisations which have lodged a declaration with a local authority relating to their activity and containing, in particular, all necessary information regarding the measures intended to guarantee their impartiality and their competence, may proceed with certification of products or services.

Organisations accredited by an authority recognised for this purpose by the government are exempt from supplying this information.

Any reference to certification in the advertising, labelling or presentation of any product or service, as well as on related business stationery, must be accompanied by clear information as to the nature and extend of the certified characteristics.

The existence of benchmarks is the subject of a mention in the Journal Officiel de la République française. They can be consulted either, for free, on-site at the premises of the certifying body, or copies can be sent out, at the expense of the applicant.

Certifying bodies register the distinctive mark which, when appropriate, accompanies or materialises the certification, as collective certification marks, in accordance with legislation on trademarks, manufacturer's brands, service marks.

 

Article L115-29

 

(Act no. 94-2 of 3 January 1994 art. 3 Journal officiel of 4 January 1994)

 

(Act no. 94-442 of 3 June 1994 art. 3 Journal officiel of 4 June 1994)

 

The provisions of articles L. 115-27 and L. 115-28 are not applicable:

1° to the certification of foodstuffs and non-food, unprocessed agricultural produce mentioned in article L. 115-21;

2° to authorisations to market the drugs for human or veterinary use which are the subject of the provisions of volume V of the Public health code;

3° to the issue of punched marks, stamps, visas, approval certificates, collective marks or certificates of conformity to community provisions, by the public authorities or by organisation designated for this purpose and subject to technical or administrative monitoring by the public authorities by virtue of legislative or regulatory provisions;

4° to the issue of the labels or marks provided for by article L. 413-1 of the Labour code as well as craftsman and master craftsman's marks in so far as these marks only tend to certify the origin of a product or a service and implementation of professional practices when these are specific to them.

 

 

Article L115-30

 

(Act no. 94-2 of 3 January 1994 art. 3 Journal officiel of 4 January 1994)

 

(Act no. 94-442 of 3 June 1994 art. 3 Journal officiel of 4 June 1994)

 

The following are punishable by the penalties provided for in article L. 213-1:

1° Advertising, labelling or presentation of any product or service, as well as in commercial documents of any kind relating thereto, of referring to a certification which has not been issued in accordance with the terms defined by articles L. 115-27 and L. 115-28;

2° Issuing, in breach of the provisions provided for in articles L. 115-27 and L. 115-28, a title, a certificate or any other document attesting to the fact that a product or a service presents certain characteristics which have been the subject of certification;

3° Using any means likely to lead to the erroneous belief that an organisation satisfies the terms defined in articles L. 115-27 and L. 115-28;

4° Using any means likely to mislead a consumer or a user into thinking that a product or a service has been certified;

5° Falsely presenting any product or service which has been certified as being guaranteed by the government or by a public body.

 

 

Article L115-31

 

(Act no. 94-2 of 3 January 1994 art. 3 Journal officiel of 4 January 1994)

 

The following are qualified to proceed with research and ascertainment of breaches of the provisions of this section and text issued for its application:

officers and agents of the judiciary police;

agents of the metrology sub-division of the department of industry as well as those belonging to regional departments of industry, research and the environment;

agents from the directorate general for competition, consumer protection and fraud prevention, from the directorate general of customs and indirect taxation;

pharmacy inspectors and doctors/health inspectors from the department of health;

labour inspectors;

the agents mentioned in article 22 of Act no. 76-663 of 19 July 1976 relating to installations classed as being for the protection of the environment.

These agents are invested with the powers provided for by chapters II to VI of part I of volume II of this code and their implementing texts on the sites listed in article L. 213-4 (first paragraph).

 

Article L115-32

 

(Act no. 94-2 of 3 January 1994 art. 3 Journal officiel of 4 January 1994)

 

(Act no. 94-442 of 3 June 1994 art. 5 Journal officiel of 4 June 1994)

 

Implementation procedures for articles L. 115-27 and L. 115-28 are fixed by Council of State decree, in particular:

1° Activity declaration procedures for certifying bodies and the contents of their declaration;

2° Terms of recognition of the accreditation authority;

3° Contents of benchmarks and terms under which they are established and validated;

4° Procedures for consultation between interested partners prior to the establishment or validation of benchmarks;

5° Procedures for consumer information on certification.

 

Article L115-33

 

(Act no. 94-2 of 3 January 1994 art. 3 Journal officiel of 4 January 1994)

 

Proprietors of trademarks, manufacturer's brands or service marks may oppose the circulation of publicity texts referring to their mark by name where the use of this mark aims to mislead the consumer or where it is used with a lack of good faith.

 

 

Part II : Commercial practices

 

Chapter 1 : Regulated  commercial practices

 

Section 1: Advertising

 

Article L121-1

 

All advertising comprising, in any form whatsoever, representations, information or presentations which are false or likely to mislead, is prohibited, where the latter cover one or more of the items listed hereinafter: existence, nature, composition, substantial qualities, content in useful principles, species, origin, quantity, mode and date of manufacture, properties, price and terms of sale of goods or services which are the subject of advertising, conditions for their use, results which may be expected from their use, reasons for sale or service provision, sale or service provision procedures, scope of obligations undertaken by the advertiser, the identity, qualities or aptitude of the manufacturer, retailers, promoters or service providers.

 

Article L121-2

 

Agents from the directorate general for competition, consumer protection and fraud prevention, those from the food directorate general of the ministry for agriculture and those from the metrology department of the department of industry are authorized to establish, by means of reports, breaches of the provisions of article L. 121-1. They may ask the advertiser to supply them with all the items appertaining to evidence of advertising representation, information or presentations. They may also ask the advertiser, the advertising agency or the media manager to supply them with the advertising copy circulated.

Reports drafted in application of this article are sent to the procureur de la République.

 

Article L121-3

 

Discontinuance of the advertising may be ordered by the juge d'instruction or by the court to which the proceedings have been referred, either by requisition of the public prosecutor or on its own initiative. The order taken in this way is enforceable, notwithstanding all rights of appeal. The order may be lifted by the jurisdiction that ordered it or to which the case has been referred. The measure ceases to have any effect in the event of a decision of non-suit or release being taken.

Decisions ruling on applications for lifting of said measures may be the subject of an appeal before the chambre d'accusation or before an appeal court depending on whether they were pronounced by a juge d'instruction or by the court to which the proceedings were referred.

The chambre d'accusation or the court of appeal rules within ten days of receiving the documents.

 

Article L121-4

 

In the event of sentencing, the court orders publication of the judgment. It may, in addition, order the publication, at the expense of the convicted party, of one or more corrective statements. The judgment prescribes the terms of these statements and the procedures by which they are to be circulated and gives the convicted party a deadline for their issue. In the event of non-application, and without prejudice to the penalties provided for in article L. 121-7, this circulation is implemented at the behest of the public prosecutor at the expense of the convicted party.

 

Article L121-5

 

The advertiser on behalf of whom the advertising is circulated is principally responsible for the offence committed. If the offender is a legal person, the responsibility lies with its directors. Complicity is punishable under the same conditions of common law.

The offence is committed as soon as the advertisement is published out, received or perceived in France.

 

Article L121-6

 

(Act no. 2001-504 of 12 June 2001 art. 3 II Journal Officiel of 16 June 2001)

 

Breaches of the provisions of article L. 121-1 are punishable by the penalties provided for in article L. 213-1.

The maximum fine provided for in this article may be as much as 50% of the cost of the advertising constituting the offence.

The provisions of article L. 213-6 providing for the criminal liability of legal persons are applicable to these offences.

 

Article L121-7

 

For the application of article L. 121-6, the court may ask both the parties and the advertiser to supply all relevant documents. In the event of refusal, it may order the seizure of these documents or any appropriate preparatory inquiry. It may, in addition, order a penalty of FRF 30,000 for every day of delay after the date that it has designated for production of these documents.

The penalties provided for in the first paragraph of article 121-6 are also applicable in the event of refusal to supply items of proof or of advertising circulated, requested in accordance with the conditions provided for in the first paragraph of article L. 121-1 as well as in the event of failure to adhere to decisions ordering the discontinuance of the advertising or the non-performance within the appointed deadline of corrective statements.

 

Article L121-8

 

(Order no. 2001-741 of 23 August 2001 art. 1 Journal officiel of 25 August 2001)

 

Any advertising which makes a comparison between goods or services by identifying, implicitly or explicitly, a competitor or goods and services offered by a competitor is only legal if:

1° It is not false or likely to mislead;

2° It relates to goods or services fulfilling the same requirements or having the same objective;

3° It objectively compares one or more essential, pertinent, verifiable and representative characteristics of these goods or services, one of which may be price.

Any comparative advertising referring to a special offer must clearly state the dates when the goods and services offered are to be available, where appropriate, the fact that the offer is limited to available stocks and the specific terms applicable.

 

Article L121-9

 

(Order no. 2001-741 of 23 August 2001 art. 1 Journal officiel of 25 August 2001)

 

Comparative advertising may not:

1° Take unfair advantage of the reputation attached to a trademark, manufacturer's brand or service mark, to a trade name, to other distinctive marks of a competitor or to the designation of origin as well as the protected geographical indication of a competing product;

2° Lead to the discrediting or denigration of marks, trade names, other distinctive signs, goods, services, activity or situation of a competitor;

3° Engender confusion between the advertiser and a competitor or between the advertiser's marks, trade names, other distinctive signs, goods or services and those of a competitor;

4° Present goods or services as an imitation or reproduction of goods or services with a protected mark or trade name.

 

Article L121-10

 

(Order no. 2001-741 of 23 August 2001 art. 3 Journal officiel of 25 August 2001)

 

For products with a protected designation of origin or geographical indication, comparison is only authorized between products each with the same designation of origin or the same indication.

 

Article L121-11

 

The display of comparative statements as defined in articles L 121-8 and L 121-9 on packages, invoices, travel tickets, means of payment or tickets giving access to shows or sites open to the public, is prohibited.

 

Article L121-12

 

(Order no. 2001-741 of 23 August 2001 art. 1 Journal officiel of 25 August 2001)

 

Without prejudice to the provisions of article L. 121-2, the advertiser on behalf of which the comparative advertising is being circulated must be in a position to prove, within a short time, the physical accuracy of the statements, indications and presentations contained within the advertising.

Article L121-13

 

Publication in the press of advertising defined in articles L. 121-8 and L. 121-9 do not give rise to the application of article 13 of the Act of 29 July 1881 on the freedom of the press and article 6 of Act no. 82-652 of 29 July 1982 on audiovisual communication.

 

Article L121-14

 

Without prejudice to the application of article 1382 of the civil code, breaches of the provisions of articles L. 121-8 to L. 121-12 are, as appropriate, punishable by the penalties provided for, on the one hand, in articles L. 121-1 to L. 121-7 and, on the other hand, in articles 422 and 423 of the penal code.

A Council of State decree specifies, as required, procedures for implementing articles L. 121-8 to L. 121-13.

 

Article L121-15

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

(Act no. 96-603 of 5 July 1996 art. 33 Journal officiel of 6 July 1996)

 

In addition, all advertising is prohibited relating to:

1° business transactions subject to authorization by virtue either of articles 26, 27, 28, 29 and 30 of Act no. 96-603 of 5 July 1996 relating to the development and promotion of trade and the craft sector, or articles 29 and 32 of Act no. 73-1193 of 27 December 1973 on guidelines for trade and the craft sector, or order no. 45-2088 of 11 September 1945 relating to fairs and shows, and which have not been authorized;

2° a business transaction necessitating the use of employees requiring an authorization by virtue of chapter I of part II of volume II of the Labour code and implemented without obtaining this authorisation or which is in breach of articles 41 and 41b, 105a to 105i of the code des professions applicable in the departments of Moselle, Bas-Rhin and Haut-Rhin;

3° a business transaction carried out or due to be carried out in breach of the provisions of article L. 221-17 of the labour code.

Any advertiser distributing an advertisement which is prohibited by virtue of the previous paragraphs is liable to punishment in the form of a fine of FRF 250,000. The maximum fine may be as much as 50% of the full amount of the cost of the illegal advertising.

The court may order the prohibited advertising to be discontinued at the expense of the persons recognised as being guilty of the offences defined in the preceding paragraphs.

 

 

Section 2: Distance selling of goods and services

 

Article L121-16

 

(Order no. 2001-741 of 23 August 2001 art. 5 and art. 7 Journal officiel of 25 August 2001)

 

The provisions of this section apply to all sales of goods or service provisions concluded, without the simultaneous physical presence of the parties, between a consumer and a business who, for the conclusion of the contract, exclusively uses one or more distance communication techniques.

 

Article L121-17

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

(Order no. 2001-741 of 23 August 2001 art. 5 and art. 8 Journal officiel of 25 August 2001)

 

Not subject to the provisions of this section are contracts:

1° Relating to financial services;

2° Concluded by means of vending machines or for services supplied in automated business premises;

3° Concluded with telecommunications operators for the use of public telephone booths;

4° Concluded for the construction and sale of land and building or relating to other rights relating to such property, with the exception of leases;

5° Concluded during a sale by public auction.

 

Article L121-18

 

(Order no. 2001-741 of 23 August 2001 art. 5 and art. 9 Journal officiel of 25 August 2001)

 

Without prejudice to the information provided for in articles L. 111-1 and L. 113-3 as well as that laid down for the application of article L. 214-1, the contract offer must include the following information:

1° The name of the product vendor or service provider, their telephone number, address or, if this is a legal person, its registered offices and, if different, the address of the establishment responsible for the offer;

2° Where appropriate, delivery costs;

3° Payment, delivery or performance procedures;

4° The existence of the right to withdraw, apart from where the provisions of this section excluded the exercising of this right;

5° The period of validity of the offer and the price of the latter;

6° The cost of operating the means of distance communication used where this is not calculated in reference to a basic tariff;

7° Where appropriate, the minimum duration of the contract proposed, where this relates to the continuous or periodic supply of goods or services.

The consumer must be notified of this information, the commercial nature of which must appear unequivocally, by any means adapted to the means of distance communication used.

In the event of canvassing by telephone or by any similar means, the business must clearly state his identity and the commercial nature of the call at the start of the conversation.

 

Article L121-19

 

I. – The consumer must receive, in writing or by means of another durable medium at his disposal, in sufficient time and at the latest at the time of delivery:

1° Confirmation of the information mentioned in 1 to 4 of article L. 121-18 and that appearing, in addition, in articles L. 111-1 and L. 113-3 as well as that laid down for the application of article L. 214-1, unless the professional has satisfied this obligation prior to conclusion of the contract;

2° Information on terms and procedures for exercising the right of cancellation;

3° The address of the supplier's establishment to which the consumer may direct complaints;

4° Information relating to after-sales service and commercial guarantees;

5° Terms under which the contract may be cancelled where the latter is for an indeterminate period or for a period in excess of one year.

II. – The provisions of this article do not apply to services supplied just once by means of a distance communication method and invoiced by the operator of this method with the exception of 3.

 

Article L121-20

 

(Order no. 2001-741 of 23 August 2001 art. 5 and art. 11 Journal officiel of 25 August 2001)

 

The consumer has seven clear days in which to exercise his/her right of withdrawal without having to give reasons or pay penalties, with the exception, where appropriate, of the cost of returning the goods.

The deadline mentioned in the previous paragraph runs from the receipt of the goods or acceptance of the offer of services.

Where the information provided for in article L. 121-19 has not been supplied, the deadline for exercising the right of withdrawal is extended to three months. Where this information is, however, supplied within three months of receipt of the goods or acceptance of the offer, this incurs the seven day deadline mentioned in the first paragraph.

Where the seven day deadline expires on a Saturday, a Sunday or a Bank holiday or a non-working day, it is extended until the next working day.

 

Article L121-20-1

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

Where the right of withdrawal is exercised, the business is liable to reimburse the consumer without delay and, at the latest, within thirty days of the date on which said right was exercised. After this deadline the sum owing automatically bears interest at the current legal rate.

 

Article L121-20-2

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

The right of withdrawal may not be exercised, unless the parties have agreed otherwise, for contracts:

1° For the supply of services which have commenced, with the consumer's agreement, prior to the end of the seven clear day deadline;

2° For the supply of goods or services where the price is dependent on fluctuations in financial market rates;

3° For the supply of goods made to the consumer's specifications or specifically customized or which, due to their nature, cannot be forwarded on or are likely to deteriorate or perish rapidly;

4° For the supply of audio or video recordings or computer software where the seal has been broken by the consumer;

5° For the supply of newspapers, periodicals or magazines;

6° For betting or authorised lottery services.

 

Article L121-20-3

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

Unless the parties are convinced otherwise, the supplier must fullfill the order within thirty days of the day following that on which the consumer sent his order to the supplier of the product or service.

In the event of failure to perform the contract by a supplier due to the lack of availability of the goods or services ordered, the consumer must be informed of this lack of availability and must, where appropriate, be reimbursed without delay and, at the latest, within thirty days of payment of the relevant sums. After this deadline, these sums bear interest at the legal rate.

If, however, provision has been made for this eventuality prior to the conclusion of the contract or within the contract, the supplier may supply goods or services of an equivalent quality and price. The consumer is notified of this eventuality in a clear and comprehensible manner. The cost of returning goods subsequent to the exercising of the right of withdrawal is, in this case, borne by the supplier and the consumer must be informed of this fact.

 

Article L121-20-4

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

The provisions of articles L. 121-18, L. 121-19, L. 121-20 and L. 121-21-1 do not apply to contracts relating to:

1° The supply of standard consumer goods to the consumer's residence or workplace by distributors making frequent and regular rounds;

2° The provision of accommodation, transport, catering or leisure services which must be supplied on an appointed date or with a specific frequency.

 

Article L121-20-5

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

Direct canvassing by a business, by means of automatic calling machines or faxes, of consumers who have not expressed their agreement to receive such calls is prohibited.

Distance communication methods, other than those mentioned in the previous paragraph, involving personal communication, may only be used where the consumer has not raised an objection.

The conditions under which the consumer expresses his agreement to receive the calls mentioned in the first paragraph, information that the professional must supply to the consumer regarding his opportunity to raise an objections as well as the conditions under which objection registers are kept are prescribed by Council of State decree.

 

Article L121-20-6

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

Where the parties have selected the Act of a State which is not a member of the European community to govern the contract, the judge before whom this Act is invoked is obliged to dismiss the application of said Act in favour of the more protective provisions of the Act of the consumer's habitual residence assuring the transposition of directive 97/7/CE of the European parliament and Council of 20 May 1997 concerning the protection of consumers with regard to distance contracts, where this residence is located in a Member state.

 

Article L121-20-7

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 12 Journal officiel of 25 August 2001)

 

The provisions of this section are public policy.

  

   

Article L121-20-8

 

(Transferred by Order no. 2001-741 of 23 August 2001 art. 5 and art. 6 6 Journal officiel of 25 August 2001)

 

Rules relating to the responsibility, in Act or in fact, of the director of a radio or television broadcasting service are defined by II of article 3 of Act no. 88-21 of 6 January 1988 relating to telepromotion with the sale offer known as “teleshopping” reproduced hereinafter:

“II. – The director, in fact or in law, of a radio or television broadcasting service defined in article 2 of this Act who may have scheduled and had broadcast or distributed a programme in breach of the rules fixed by virtue of the same article shall be fined FRF 500,000.

In the event of recidivism, the author of the offence may be fined FRF 1,000,000”.

 

 

 

Article L121-20-9

 

(Transferred by Order no. 2001-741 of 23 August 2001 art. 5 and art. 6 Journal officiel of 25 August 2001)

 

Rules relating to the fixing of scheduling regulations for broadcasts are defined by the aforementioned article 2 of Act no. 88-21 of 6 January 1988 reproduced hereinafter:

“Art. 2: The Conseil supérieur de l'audiovisuel fixes scheduling regulations for broadcasts devoted, in whole or in part, to the presentation or promotion of objects, products or services offered for direct sale by radio and television broadcasting services authorized by virtue of Act no. 86-1067 of 30 September 1986 relating to freedom of communication”.

N.B.: Article 2 of Act no. 88-21 of 6 January 1988 reproduced below was repealed by Act no. 2000-719 of 1 August 2000.

 

Article L121-20-10

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 5 and art. 13Journal officiel of 25 August 2001)

 

Breaches of the provisions of articles L. 121-18, L. 121-19 and L. 121-20-5, as well as the refusal of the seller to reimburse a product returned by the purchaser in accordance with the terms fixed in article L. 121-20-1, are established and legal proceedings are instituted under the conditions fixed by the first and third paragraphs of article L. 450-1 and articles L. 450-2, L. 450-3, L. 450-4, L. 450-7. L.450-8, L. 470-1 and L. 470-5 of the Commercial code.

 

 

Section 3: Canvassing

 

Article L121-21

 

Anyone who carries out canvassing, or has canvassing carried out by third parties, at the domicile of a natural person, at their residence or at their workplace, even if this is at their request, so as to make them an offer for the purchase, sale, rental, hire -purchase or rent to buy of goods or services is subject to the provisions of this section.

Canvassing in places not intended for the marketing of the goods or services being offered and, in particular, the organization by a trader, or to the latter's benefit, of meetings or excursions with a view to carrying out the transactions defined in the previous paragraph is also subject to the provisions of this section.

 

Article L121-22

 

(Act no. 95-96 of 1 February 1995 art. 7 Journal officiel of 2 February 1995)

 

Activities for which canvassing is regulated by a particular legislative text are not subject to the provisions of articles L. 121-23 to L. 121-29.

The following are not subject to the provisions of articles L. 121-23 to L. 121-28:

1°. Door-to-door sales of foodstuffs or ordinary consumer goods by business or their employees during the course of frequent or periodic rounds within the conurbation in which their establishment is set up or within its neighbourhood;

2°. and 3°. (paragraphs annulled)

4°. Sales, leases or hire-purchase of goods or services where these have a direct link with the activities performed within the scope of an agricultural, industrial, commercial or craft industry concern or that of any other profession.

 

 

Article L121-23

 

The transactions referred to in article L. 121-21 must be the subject of a contract, a copy of which must be sent to the client when the contract is concluded and must include the following information: otherwise they are null and void:

1° Names of supplier and canvasser;

2° Supplier's address;

3° Address of the place where the contract was concluded;

4° Precise description of the nature and characteristics of the goods offered or the services proposed;

5° Contract performance terms, in particular delivery procedures and deadlines for goods or performance procedures and deadlines for services;

6° Overall price to pay and payment methods. In the event of sales on instalment credit terms or on credit, the forms required by credit sales regulations, as well as the nominal rate of interest and the annual percentage rate of charge determined in accordance with the conditions provided for in article L. 313-1;

7° Option of cancellation provided for in article L. 121-25, as well as the conditions under which said option may be exercised and, clearly stated, the full text of articles L. 121-23, L. 121-24, L. 121-25 and L. 121-26.

 

Article L121-24

 

The contract referred to in article L. 121-23 must include a detachable form intended to facilitate the exercising of the option of waiver in accordance with the conditions provided for in article L. 121-25. A Council of State decree will specify the wording which must appear on this form.

This contract may not include any jurisdictional clause.

All copies of this contract must be signed and dated by the client, in person.

 

Article L121-25

 

Within seven days, including bank holiday, of the order or the undertaking to buy, the customer has the right to withdraw by means of recorded delivery letter. If this deadline normally expires on a Saturday, Sunday or bank holiday or non-working day, it is extended until the next working day.

Any contractual clause by virtue of which the customer waives his/her right to withdraw his/her order or his/her undertaking to buy is null and void.

This article does not apply to contracts concluded under the circumstances provided for in article L. 121-27.

 

Article L121-26

 

(Act no. 95-96 of 1 February 1995 art. 8 Journal Officiel of 2 February 1995)

 

Prior to the expiry of the cooling-off period provided for in article L. 121-25, nothing may be requested or obtained from the customer, directly or indirectly, on any grounds or in any form whatsoever nor any consideration or undertaking nor the provision of services of any kind whatsoever.

Home subscription to a daily, or similar, publication in the sense of article 39a of the General tax code is not, however, subject to the provisions of the previous paragraph provided that the consumer has a permanent right to cancel, without expense or compensation, together with reimbursement, within fifteen days, of sums paid, on a pro-rata basis, for the subscription period still to run.

In addition, payment obligations or orders must not be executed prior to the expiry of the deadline provided for in article L. 121-25 and must be returned to the consumer within fifteen days of cancellation.

 

Article L121-27

 

Subsequent to telephone canvassing or canvassing by any similar technical method, the business must send the consumer confirmation of the offer that he/she has made. The consumer is only bound by his/her signature and benefits from the provisions of articles L. 121-16 and L. 121-19.

 

Article L121-28

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Any breach of the provisions of articles L. 121-23, L. 121-24, L. 121-25 and L. 212-26 will be punishable by imprisonment of one year and a fine of FRF 25,000 or just one of these two penalties.

 

Article L121-29

 

The provisions of Act no. 47-1635 of 30 August 1947 relating to the cleaning up of the commercial and industrial businesses are applicable to persons carrying out door-to-door selling.

The company has a civil responsibility for canvassers, even if they are independent, acting on its behalf.

 

Article L121-30

 

Breaches of the provisions of this section may be established and proceedings instituted in accordance with the conditions fixed by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to freedom of prices and competition.

 

Article L121-31

 

Upon the occasion of criminal proceedings instituted in application of this section against the seller, the service provider or the canvasser, it is admissible for the customer who is bringing the civil action to apply to the criminal court for a sum equal to the full amount of payments made or bills signed, without prejudice to compensation.

 

Article L121-32

 

Council of state decrees shall regulate, as appropriate, implementation procedures for this section.

 

Article L121-33

 

(Act no. 94-442 of 3 June 1994 art. 6 Journal officiel of 4 June 1994)

 

It is prohibited to visit the domicile of a natural person, his/her residence or workplace to propose the sale, rental or hire-purchase of any documents or materials whatsoever, likely to meet the same needs as the service provisions for which canvassing is prohibited by a particular text, due to its purpose.

Any breach of the provisions of the previous paragraph results, in addition to the nullity of the agreement, in the application of the sanctions provided for in article L. 121-28.

The provisions of the previous paragraphs do not cover support materials for foreign or regional language learning intended for home learning, without assistance or follow-up teaching, the presentation of which does not refer to an educational level, a  teaching activity, to success at school, to training, to obtaining a diploma or a professional post. In this event, the seven day cooling-off period is extended by an additional period expiring fifteen days after receipt of the product by the customer so that said product may be returned and reimbursed. In the event of this right of return being exercised, the equipment is returned to the vendor without cost or compensation other than the cost of forwarding the product. The contract provided for in article L. 121-23 must, in addition, reproduce the text of this paragraph concerning the right to cancel the order.

The consumer must be notified of the results of aptitude tests relating to use of language methods carried out by the vendor or the manufacturer under the supervision of an independent third party prior to conclusion of the contract.

 

Section 4: Direct sales

 

Article L121-34

 

Rules relating to direct sales to consumers as well as marketing of substandard productions are fixed by article 39 of Act no. 73-1193 of 27 December 1973 relating to business and craft guidelines reproduced hereinafter:

“Art. 39: Sales direct to consumers and the marketing of substandard faulty productions, made by industrialists, are subject to regulations fixed by decree”.

N.B.: Article 39 of Act no. 73-1193 reproduced below was repealed by Act no. 96-603 of 5 July 1996.

 

 

Section 5: Sales or services with free gifts

 

Article L121-35

 

All sales or offers for sale of goods or any provision or offer to provide services made to consumers and giving entitlement, free of charge, immediately or at the end of a fixed period, to a bonus consisting of products, goods or services, if these are identical to those forming the subject of the sale or the service provision, are prohibited.

This provision does not apply to small objects or low value services or samples.

This provision applies to all the activities referred to in the last paragraph of article L. 113-2.

 

Section 6: Lottery and sweepstake advertising

 

Article L121-36

 

Written sales promotions which are likely to engender hope of gain for each of the participants, whatever the procedures of random selection, may only be practised if they do not require any financial consideration or expense whatsoever from participants.

The entry form must be separate from any purchase order for goods or services.

 

Article L121-37

 

The documents presenting the sales promotion must not be likely to engender confusion with an administrative or banking document made out in the name of the addressee or with an informative press article.

They must include a legible inventory of the lots which may be won specifying, for each one, their nature, their exact number and their commercial value.

They must also reproduce the following wording: “Rules governing the promotion will be sent, free of charge, to anyone who asks for them”. They must, in addition, specify the address to which this request may be sent as well as the name of the public officer with whom said regulations have been lodged in application of article L. 121-38.

 

Article L121-38

 

The sales promotions rules as well as a copy of the documents sent out to the public must be lodged with a public officer who checks that they are in order. The above rules must be sent, free of charge, to anyone who requests them.

 

Article L121-39

 

A Council of State decree states, where appropriate, the conditions under which the documents mentioned in the first paragraph of article L. 121-37 are to be presented.

 

Article L121-40

 

Breaches of the provisions of this section may be established and proceedings instituted in accordance with the conditions fixed by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to free prices and competition.

 

Article L121-41

 

(Act no. 92-1336 of 16 December 1992 art. 322 331 Journal officiel of 23 December in force on 1 March 1994)

 

Organisers of the promotions defined in the first paragraph of article L. 121-36 who have failed to adhere to the conditions required by this section shall be punished with a fine of FRF 250,000. The court may order its decision to be published, at the expense of the convicted party, by any appropriate means. In the event of a particularly serious breach, it may order the decision to be sent to all persons solicited by said promotions.

Where the court orders the decision to be displayed on a poster, this is carried out in accordance with the conditions and subject to the penalties provided for by article 131-35 of the Penal code.

 

 

Section 8: Advertising and business practices concerning baby food

 

Article L121-50

 

(inserted by Act no. 94-442 of 3 June 1994 art. 7 Journal officiel of 4 June 1994)

 

Baby food means, in the sense of this section, foodstuffs intended to feed children up to the age of four months prepared and presented as meeting, by themselves, all the nutritional needs of said children.

 

Article L121-51

 

(inserted by Act no. 94-442 of 3 June 1994 art. 7 Journal officiel of 4 June 1994)

 

Advertising baby food is authorized only in journals intended for health professionals.

 

Article L121-52

 

(inserted by Act no. 94-442 of 3 June 1994 art. 7 Journal officiel of 4 June 1994)

 

It is prohibited, in the retail trade, to distribute samples of infant formulae, free of charge, as well as, any other promotional practice encouraging the direct sale of these formulae.

Manufacturers and distributors are also prohibited from supplying the public, free of charge, with infant formulae, samples of these products or any other promotional gift, whether this is direct, or indirect, through the intermediary of health services or their agents.

 

Article L121-53

 

(inserted by Act no. 94-442 of 3 June 1994 art. 7 Journal officiel of 4 June 1994)

 

A Council of State decree fixes:

1° The conditions for free distribution of documentation concerning infant formulae and display materials for the latter;

2° Exceptional circumstances under which the ban contained in the second paragraph of article L. 121-52 may be waived, in the interest of the health of mothers and babies.

 

 

Section 9: Time-share contracts

 

Article L121-60

 

(inserted by Act no. 94-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

Any contract of group of contracts, concluded for a fee, by which a business grants a consumer, directly or indirectly, possession of one or more properties for use as a dwelling, for determined or determinable periods, for at least three years or for an indeterminate period, are subject to the provisions of this section.

Share subscription or share transfer contracts for companies allocating possession of time-share properties governed by Act no. 86-18 of 6 January 1986 relating to companies allocation possession of time-share properties, are subject to the provisions of this section.

 

Article L121-61

 

(inserted by Act no. 94-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

The offer to contract is made in writing and indicates:

1° The identity and the domicile of the business or, if this is a legal entity, its name, legal form and registered office and, if necessary, those of the owner of the property and of the intermediary, as well as the legal relationship existing between them;

2° The name and a precise description of the property or properties and their surroundings or identifying features and, if the property is under construction, essential information relating to deadlines for performance of the works, for connection of various networks, to completion guarantees and reimbursement in the event of failure to complete and to planning permission;

3° Essential information relating to management of the building;

4° The purpose of the contract, the legal nature of the right by virtue of which the consumer is to possess the property, the duration of this entitlement, the date on which it comes into effect and the main legal conditions under which it may be exercised with any indication of conditions still to be met;

5° The final date and terms under which the final deed is to be drawn up if the offer is likely to result in the drafting of a pre-contract;

6° The duration and frequency of the period of tenure;

7° Dates of occupation or, if appropriate, procedures for fixing said dates as well as procedures for determining the premises to be occupied;

8° Share facilities and equipment made available to the consumer and services provided, as incidentals, as well as the service provider, conditions of access to said equipment and facilities and an estimate of the cost of this access for the consumer;

9° The original price, the costs as well as the detailed amount of all sums due periodically or the criteria by which they are determined; annual rates of change in said sums during the course of the three year period preceding the offer or, if this information is not available, a statement warning of the risk of rises; the amount or determining elements for duties, taxes and mandatory fees, on the date of the offer;

10° The method of payment of the price and, where appropriate, the availability of credit in whatever form this may be;

11° The affiliation or non-affiliation of the professional with an exchange pool and the possibility offered to the consumer to participate in said pool, as well at the terms, particularly financial terms, and essential effects of this participation.

12° Mention of the non-exhaustive nature of the list of expenses, charges and obligations of a contractual nature.

The offer is signed by the professional. It gives the date and place of issue.

The words that must appear in the offer are specified by law.

 

Article L121-62

 

(inserted by Act no. 98-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

The offer reproduces the provisions of articles L. 121-63 to L. 121-68 very clearly.

 

Article L121-63

 

(inserted by Act no. 98-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

The offer, complete with the consumer's identity and domicile, is handed or sent to the latter in two copies, one of which is to be kept by the consumer and has a detachable slip designed to facilitate the exercise of the right of cancellation provided for in article L.121-64. This coupon states the identity and domicile of the professional's registered office.

The offer is valid for at least seven days from its receipt by the consumer. The professional is responsible for proving the date receipt.

 

Article L121-64

 

(inserted by Act no. 98-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

Acceptance of the offer takes effect when the offer is signed by the consumer, preceded by the handwritten date and place, and is then sent to the professional by recorded delivery letter or, failing this, by any other means providing equivalent guarantees in respect of determining the date of sending.

The consumer may, by the same means, withdraw within ten days of sending the accepted offer to the professional, without compensation or expense, with the possible exception of stated costs necessarily incurred.

 

Article L121-65

 

(inserted by Act no. 98-566 of 8 April 1998 art. 1 Journal officiel of 9 July 1998)

 

Deadlines provided for by articles L. 121-63 and L. 121-64, expiring on a Saturday, Sunday or a Bank holiday or non-working day, are extended until the next working day.

 

Article L121-66

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Prior to the expiry of the deadline for withdrawal provided for in article L. 121-64, nothing may be requested or received from the consumer, directly or indirectly, no payment or payment obligations on whatever grounds or in whatever form this may be.

 

Article L121-67

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Where financed by a loan of which the professional has been made aware, the contract is formed under the condition precedent of this loan being obtained.

The exercise, on the part of the consumer, of the cancellation option provided for in article L. 121-64 involves automatic cancellation of the loan contract for financing of the time-share contract, without cost or compensation, with the possible exception of stated costs necessarily incurred.

 

Article L121-68

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Where the consumer resides in France or when the property or one of the properties is located on French territory, the offer is written in French.

The offer is, in addition, written, at the consumer's choice, in the language, or one of the languages, of the Member state in which he resides or of which he is a national, from the official languages of the European community.

When, in application of the paragraphs that precede the offer, the offer is written in two languages, the consumer signs, at his own choice, one or other of the versions.

Where the property or one of the properties is located in a Member state of the European community other than France and the contract has not been written in the language of this State in application of this article, a true translation in this language is sent to the consumer.

 

Article L121-69

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Any advertising relating to any contract or group of contracts referred to in article L. 121-60 states the possibility of obtaining the text of the offers made as well as the address of the place where it can be withdrawn.

 

Article L121-70

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

There is a FRF 100,000 fine for the act:

1° on the part of any business, of submitting an offer to a consumer likely to lead to the conclusion of a contract or group of contracts referred to in article L. 121-60 without this offer being made in writing and containing the statements listed in article L. 121-61 and clearly reproducing the provisions of articles L. 121-63 to L. 121-68;

2° on the part of any advertiser, of circulating or having circulated on its behalf, advertising that does not conform to the provisions of article L. 121-69.

 

Article L121-71

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

There is a FRF 100,000 fine for the act, on the part of any business, of requesting or receiving from the consumer, directly or indirectly, any payment or payment obligation, on any grounds and in any form whatsoever, prior to the expiry of the withdrawal period provided for in article L. 121-64.

 

Article L121-72

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Legal entities may be declared criminally liable, under the circumstances provided for by article 121-2 of the Penal code, for offences defined in articles L. 121-70 and L. 121-71. The penalties incurred by legal persons are:

1° A fine, in accordance with the procedure provided for by article 131-38 of the Penal code;

2° The penalties mentioned in article 131-39 of the Penal code.

 

Article L121-73

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Any clause assigning jurisdiction to a court in a State which is not party to the Brussels convention of 27 September 1968 and the Lugano convention of 16 September 1988 concerning legal jurisdiction and the implementation of decisions on civil and commercial matters, where the consumer is domiciled or usually resides in France or where the property or one of the properties is located on the territory of a State that is party to these conventions.

 

Article L121-74

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Where the property or one of the properties is located on the territory of a Member state of the European community, and where the low governing the contract does not include regulations complying with European Parliament and Council directive 94/47/CE of 26 October 1994, concerning the protection of acquirers for certain aspects of contracts for the acquisition of the right to use time-share property, it is vital that the provisions brought into force are applied, in order to adhere to said directive, by the State in which the property is located or, failing this, the provisions of this section.

 

Article L121-75

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

Where the property or one of the properties is not located within a Member state of the European community, the consumer normally residing in a Member state of the European community cannot be deprived, whatever the applicable law, of the protection afforded by the mandatory provisions issued by this State in application of the aforementioned European Parliament and Council directive 94/47/CE of 26 October 1994:

if the contract was concluded in the State in which the consumer normally resides;

if the contract was preceded in this State by a special offer or by advertising and actions implemented by the consumer required for the conclusion of said contract;

if the contract was concluded in a State where the consumer was located subsequent to a travel or holiday offer made, directly or indirectly, by the professional to encourage the consumer to conclude the contract.

 

Article L121-76

 

(inserted by Act no. 98-566 of 8 July 1998 art. 1 Journal officiel of 9 July 1998)

 

The provisions of this section are public policy. Failure to adhere to the provisions provided for by articles L. 121-61, L. 121-62, by the first paragraph of article L. 121-63 and by articles L. 121-64 and L. 121-68 is sanctioned by invalidity of the contract.

 

 

Section 10: Title of “baker”and “baker's” sign

 

Article L121-80

 

(inserted by Act no. 98-405 of 25 May 1998 art. 1 Journal officiel of 26 May 1998)

 

The title of “baker” and the commercial sign of “bakery” or a name likely to cause confusion, at the place of sale of the bread to the end consumer or in advertising, with the exception of commercial documents strictly for professional use, may not be used by businesses who do not, themselves, knead dough from selected raw materials, leave it to rise, shape it, and bake bread at the place of sale to the end user. The products may not, at any stage of the production or sale, be deep-frozen or frozen.

 

Article L121-81

 

(inserted by Act no. 98-405 of 25 May 1998 art. 1 Journal officiel of 26 May 1998)

 

This designation may also be used when the bread is sold by an itinerant business, or under his/her responsibility, when said business meets the requirements specified in article L. 121-80.

 

Article L121-82

 

(inserted by Act no. 98-405 of 25 May 1998 art. 1 Journal officiel of 26 May 1998)

 

Research into, and establishment of, breaches of the provisions of articles L. 121-80 and L. 121-81 are carried out in accordance with the conditions provided for by article L. 121-2 and are punishable by the penalties provided for in article L. 213-1 and, where appropriate, the second paragraph of article L. 121-6.

 

 Chapter II: Illegal business practices

 

Section 1: Refusal and subordination of sales or service provisions

 

Article L122-1

 

It is prohibited to refuse to sell a product, or supply a service, to a consumer without a legitimate reason and to make the sale of a product subject to the purchase of a minimum quantity or to the accompanying purchase of another product or another serves as well as making the provision of a service subject to provision of another service or to the purchase of a product.

This provision applies to all the activities referred to in the last paragraph of article L. 113-2.

 

 

Section 2: Unsolicited goods and services

 

Article L122-2

 

(Act no. 93-949 of 26 July 1993 art. 7 Journal officiel of 27 July 1993 in force on 1 March 1994)

 

Breaches of the provisions of article R. 635-2 of the Penal code may be established and proceedings instituted in accordance with the conditions fixed by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to free prices and competition.

 

Article L122-3

 

(Order no. 2001-741 of 23 August 2001 art. 14 Journal Officiel of 25 August 2001)

 

The supply of goods and services without a previous order from the consumer is prohibited where the supply is the subject of a demand for payment. Consumers receiving goods or services in violation of this ban, may not be held liable in any way.

The professional must return any sums that he/she may have received unreasonably without the consumer's express and prior undertaking. These sums shall bear interest at the legal rate calculated as of the undue payment date and interest at the legal rate plus one half as of the date on which the request for reimbursement is made by the consumer.

 

Article L122-4

 

The provisions of article L. 122-3 shall not pose an obstacle to the collection of interest, commissions or expenses by means of the granting of short-term loans or bank overdrafts provided for by the general banking terms of which customers have been made aware and specifying the amount or method of calculation of these payments.

The same applies in the event of amendment to the original terms of the contract resulting from the implementation of a revision clause, the procedures for which have been expressly defined or have obtained the approval of the parties when the contract is signed.

 

Article L122-5

 

Payment resulting from a legislative or regulatory obligation does not require an express undertaking in advance.

 

Section 3: “Pyramid” selling of goods and services

 

Article L122-6

 

(Act no. 95-96 of 1 February 1995 art. 13 Journal officiel of 2 February 1995)

 

The following are prohibited:

1° Sales made by the procedure known as “pyramid selling” or any other similar procedures consisting, in particular, of offering the public merchandise in the hope that they may obtain said merchandise free of charge or cheaper than their real value and making the sales subject to the placing of forms or tickets with third parties or the collection of memberships or registrations;

2° The act of proposing to a person that they collect memberships or register on a list in the hope of financial gain resulting from a geometric progression of the number of people recruited or registered.

In the case of sales networks constituted by chain recruitment of members or affiliates, it is prohibited to obtain, from a member or an affiliate, the payment of a sum corresponding to an entry fee or for the acquisition of teaching materials or services, training or demonstration or sale of any other similar material or service, where this payment leads to a payment or to the attribution of an advantage benefiting one or more network members or affiliates.

In addition, it is prohibited within these same networks, to obtain from a member or an affiliate, the acquisition of a stock of merchandise for resale, without a guarantee to take back the stock in the terms of purchase, with possible deduction of a sum not exceeding 10% of the corresponding price. This guarantee of return may, however, be limited to a period of one year after the purchase.

 

Article L122-7

 

(Act no. 92-1336 of 16 December 1992 art. 322 art. 335 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Without prejudice to the application, where applicable, of the penalties provided for in articles 313-1, 313-7 and 313-8 of the Penal code, any breach of this section is punishable by a fine of FRF 30,000 and imprisonment of one year.

The offender may, in addition, be ordered to repay to those of his/her customers who have not received satisfaction, the sums paid out by them, without having recourse against those who have obtained the merchandise.

 

 

Section 4: Abuse of weakness

 

Article L122-8

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Anyone who may have taken advantage of a person's weakness or ignorance in order to get them to subscribe, by means of home visits, to cash or credit obligations in whatever form these may take, shall be punished by five year imprisonment and a FRF 60,000 fine or just one of these penalties, where circumstances indicate that this person was not in a position to assess the impact of the undertakings given or to detect the ruses or tricks employed to convince him/her to subscribe to them or show that said person has been subjected to duress.

 

Article L122-9

 

The provisions of article L. 122-8 are applicable, under the same circumstances, to undertakings obtained:

1° either subsequent to canvassing by telephone or fax;

2° or subsequent to personalised soliciting, without said soliciting necessarily being by name, to visit a place of sale; taking place at home and accompanied by the offer of particular benefits;

3° or upon the occasion of meetings or excursions organised by the person committing the offence or to his advantage;

4° or when the transaction was carried out in places not intended for the marketing of the goods or services proposed or within the scope of fairs or shows;

5° or when the transaction was concluded in an emergency making it impossible for the victim of the offence to consult one or more qualified professionals, third parties or to the contract

 

Article L122-10

 

The provisions of articles L. 122-8 and L. 122-9 apply to anyone who may have taken advantage of a person's weakness or ignorance to obtain, without giving anything in exchange, sums in cash or by bank transfer, bank or giro cheques, payment orders by payment or credit cards, or else securities, in the sense of article 529 of the civil code.

 

Article L122-11

 

Breaches of the provisions of this section may be established and proceedings instituted in accordance with the terms fixed by articles 45, first and third paragraphs, 46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to free prices and competition.

 

Part III

General contractual provisions

 

Chapter I: Deposits and advances

 

Article L131-1

 

If the item to be sold is movable property, any sum paid in advance in respect of the price, whatever the nature of this payment and the name given in the document, shall be interest bearing at the legal rate of interest, for civil matters, to run from the expiry of a period of three months after the payment until the realisation or return of the sums paid in advance, without prejudice to the obligation to deliver which remains intact.

For service provisions, the sums paid in advance shall bear interest at the legal rate upon expiry of a period of three months from the payment until performance of the service or the return of these sums, without prejudice to the obligation to perform the service.

Interest will be deducted from the balance to pay at the time of completion or will be added to the sums paid in advance in the event of repayment.

 

Article L131-2

 

The provisions of this chapter do not apply to special orders in accordance with estimates nor to sales of products made to order specially for the purchaser.

 

Article L131-3

 

It is not possible to avoid the provisions of this chapter by particular agreements.

 

 Chapter II: Unfair terms

 

Section 1: Consumer protection against unfair terms

 

Article L132-1

 

(Act no. 95-96 of 1 February 1995 art. 1, annex to the Journal officiel of 2 February 1995)

 

(Order no. 2001-741 of 23 August 2001 art. 16 Journal officiel of 25 August 2001)

 

In contracts concluded between a business and a non-business or consumers, clauses which aim to create or result in the creation, to the detriment of the non-professional or the consumer, of a significant imbalance between the rights and obligations of the parties to the contract, are unfair.

Council of State decrees issued upon the advice of the committee set up as per article L. 132-2, may determine the types of clauses that must be regarded as unfair in the sense of the first paragraph.

    An annex to this code includes an illustrative and non-exhaustive list of clauses that may be regarded as unfair if they satisfy the conditions posed in the first paragraph. In the event of dispute concerning a contract that includes one such clause, the applicant is not exempt from submitting proof of the unfair nature of this clause.

    These provisions apply whatever the contract form or medium. This is the case, in particular, for purchase orders, invoices, performance bonds, delivery notes or slips, travel vouchers or tickets, containing stipulations which may, or may not, have been freely negotiated, or references to general terms fixed in advance.

    Without prejudice to the rules of interpretation provided for in articles 1156 to 1161, 1163 and 1164 of the civil code, the unfair nature of a term is assessed by referring, when the contract is concluded, to all the circumstances surrounding its conclusion, as well as to all the other contractual clauses. It is also evaluated in respect of those contained in another contract where the conclusion or performance of these two contracts are legally dependent upon one another.

 Unfair terms are deemed to be null and void.

Evaluation of the unfair nature of terms in the sense of the first paragraph does not involve either the definition of the main purpose of the contract nor the adequacy of the price of, or remuneration for, the goods being sold or the service being offered, provided that the terms are written in a clear and comprehensible manner.

The contract shall continue to be applicable in all its provisions other than those deemed to be unfair if it can continue to exist without said terms.

The provisions of this article are public policy.

 

Annex: terms referred to in the third paragraph of article L. 132-1.

1. Terms with the aim or effect:

a) of excluding or limiting the business's legal liability in the event of the death of a consumer or personal injury caused to the latter, resulting from an act or omission of this business;

b) of inappropriately excluding or limiting the consumer's legal rights in respect of the business or another party in the event of total, or partial, failure to perform, or defective performance by the business of any one of the contractual obligations, including the possibility of setting off a debt owed to the business with a credit that it may have against said business;

c) of providing for a firm undertaking from the consumer, even though the performance of the business services is subject to a condition which is solely dependent on goodwill;

d) of enabling the business to withdraw sums paid by the consumer when the latter has withdrawn from the conclusion or performance of the contract, without providing for the right, for the consumer, to receive compensation of an equivalent amount from the business where it is the latter who withdraws;

e) from obliging the consumer who has failed to perform his/her obligations to pay compensation in a disproportionately high amount;

f) from authorising the business to cancel the contract in a discretionary manner if the same option is not given to the consumer, as well as enabling the professional to retain the sums paid in respect of service provisions not yet supplied by him, where it is the professional him who cancels the contract;

g) from authorising the business to terminate a contract of indeterminate duration without giving reasonable advance notice, without just cause;

h) from automatically extending a contract of indeterminate duration in the absence of expression to the contrary from the consumer, although an excessively remote date has been set as the deadline for the expression of this desire not to extend the contract on the part of the consumer;

i) from establishing irrefutably the consumer's adherence to clauses that the latter has not actually had the opportunity to become aware of prior to conclusion of the contract;

j) from authorising the business to unilaterally amend the terms of the contract without valid reason specified in the contract;

k) from authorising businesses to unilaterally amend, without valid reason, the characteristics of the product to be delivered or the service to be supplied;

l) from specifying that the price of the goods is to be determined at the time of delivery, or from according the seller of the goods or the supplier of the services the right to increase their prices without, in both cases, the consumer having a corresponding right enabling him/her to cancel the contract should the end price be too high in respect of the price agreed when the contract was concluded;

m) from according the business the right to determine whether the item delivered or the service supplied conforms to contractual stipulations or from according the latter the exclusive right to interpret any one of the clauses of the contract;

n) from restricting the business's obligation to respect the obligations undertaken by its authorised agents or from making its undertakings subject to adherence to a particular formality;

o) from obliging the consumer to fulfil his obligations even though the business may not have fulfilled his obligations;

p) from providing for the possibility of transfer, on the part of the business, of the contract, where this is likely to engender a reduction in guarantees for the consumer without the latter's agreement;

q) from cancelling or impeding the institution of legal proceedings or means of redress by the consumer, in particular, by obliging the consumer to exclusively refer the case to an arbitration panel not covered by legal provisions, by unduly limiting the means of giving evidence available to the consumer or by making the latter responsible for providing proof which, by virtue of applicable law, should normally lie with another party to the contract.

2. Scope of points g, j and l:

a) Point g does not pose an obstacle to clauses in which suppliers of financial services reserve the right to unilaterally terminate a contract for an indeterminate period without prior notice in the event of a just cause, provided that the obligation to immediately inform the other contracting party, or parties, of this fact lies with the business;

b) Point j does not pose an obstacle to clauses in which suppliers of financial services reserve the right to change the rate of interest owed by the consumer or owed to the latter, or the amount of any other charges appertaining to financial services, without prior notice in the event of just cause, provided that the obligation to inform the other contracting party, or parties, of this fact as soon as possible, lies with the business and provided that said party, or parties, are free to conclude ? the contract immediately.

In addition, point j does not pose an obstacle to clauses in which the business reserves the right to unilaterally change the terms of a contract for an indeterminate period provided that the duty to notify the consumer of this fact in sufficient time lies with the consumer and the consumer is free to cancel the contract;

c) Points g, j and l do not apply to:

- transactions concerning securities, financial instruments and other products and services whose price is linked to fluctuations in currency or in a stock market index or in a financial market rate beyond the business control;

- contracts for the sale or purchase of currency, travellers cheques or international money orders denominated in national currencies;

d) Point l does not pose an obstacle to price indexation clauses provided that these are legal and that the mode of price variation is described clearly.

 

 

Section 2: The Commission des clauses abusives

 

Article L132-2

 

The Commission des clause abusives, under the auspices of the minister for consumer affairs, is aware of the standard agreements normally proposed by professionals to non-professional or consumer contracting parties. It is responsible for finding out whether or not these documents contain terms which could be of an abusive nature.

 

Article L132-3

 

Case may be referred to it either by the minister for consumer affairs, or by approved consumer protection associations, or by interested professionals. Cases may also be referred to it automatically.

 

Article L132-4

 

The commission recommends the deletion or amendment of clauses of an abusive nature. The minister for consumer affairs may, either automatically, or at the request of the commission, make these recommendations public although they may not contain any information likely to permit identification of individual situations.

 

Article L132-5

 

Every year the commission compiles are report on its work and may propose any legislative or regulatory changes that it deems desirable, This report is made public.

 

Chapter III: Interpretation and form of contracts

 

Article L133-1

 

(Act no. 95-96 of 1 February 1994 art. 2 Journal officiel of 2 February 1995)

 

With a view to providing the non-professional or consumer contractor with information, the decrees provided for by article L. 132-1 may regulate the presentation of written documents noting the contracts referred to in this same article.

 

Article L133-2

 

(inserted by Act no. 95-96 of 1 February 1995 art. 3 Journal officiel of 2 February 1995)

 

Contract terms proposed by professionals to consumers or non-professionals must be presented and written in a clear and comprehensible manner.

In the event of doubt, they are interpreted in the sense which is most favourable to the consumer or the non-professional. This paragraph does not, however, apply to procedures implemented on the basis of article L. 421-6.

 

 

Chapter IV: Submission of contracts

 

Article L134-1

 

Professional sellers or service providers must submit, to any interested party that makes a request, a copy of its standard agreements.

 

 

Chapter V: Conflicting laws relating to unfair terms

 

Article L135-1

 

(inserted by Act no. 95-96 of 1 February 1995 art. 3 Journal officiel of 2 February 1995)

 

Notwithstanding any stipulation to the contrary, the provisions of article L. 132-1 apply where the Act governing the contract is that of a State not belonging to the European union, where the consumer or the non-professional is domiciled in one of the Member states of the European union and where the contract was proposed, concluded or performed there.

 

 

Part IV

Agents' powers and jurisdictional proceedings

 

Sole chapter: Special provisions relating to the powers or agents and legal proceedings

 

Article L141-1

 

(Act no. 98-566 of 8 July 1998 art. 2 Journal officiel of 9 July 1998)

 

I. Breaches to the provisions provided for in this code by:

1° articles L. 121-70, L. 121-71, L. 121-72, L. 122-6 and L. 122-7;

2° articles L. 132-1 to L. 132-5, L. 133-1 and 134-1

are established and proceedings instituted in accordance with the conditions fixed by articles 45, first and third paragraph, 46, 47 and 52 of order no. 86-1243 of 1 December 1986 relating to free prices and competition, reproduced in paragraph IV hereinafter.

II. In accordance with the conditions fixed by articles 45-48, 51, 52, 54 and 56 of the aforementioned order, reproduced in paragraph IV hereinafter, persons authorised by virtue of article 45 of this order may proceed with investigations required for the application of the provisions provided for by articles L. 113-3, L. 121-35 and L. 122-1 of this code.

III. The provisions of articles 54 and 56 of the aforementioned order, reproduced in paragraph IV hereinafter, apply to the provisions provided for by articles L. 113-3, L. 121-35 and L. 122-1 of this code.

IV. Rules relating to the application of the provisions of paragraphs I to III below are fixed by articles 45 to 48, 51, 52, 54 and 56 of the aforementioned order no. 86-1243 of 1 December 1986, reproduced hereinafter:

“Art. 45: Civil servants authorised to this end by the minister for economic affairs may proceed with the investigations required for the application of this order.

Reporters from the Council on competition have the same powers for cases that have been referred to said Council.

Category A civil servants from the ministry for economic affairs, specially authorised to this effect by the keeper of the seals, minister for justice, on the recommendation of the minister for economic affairs, may receive letters of request from juges d'instruction.

Art. 46: Inquiries lead to the compilation of statements and, where appropriate, reports.

Statements are sent to the relevant authority. A copy is given to the interested parties. These are authentic unless proven otherwise.

Art. 47: Investigators may access all premises, sites or means of transport for professional use, may request the sending of ledgers, invoices and any other professional documents and may make copies of them, may gather information and evidence on-site or by application.

They may ask the authority to which they are attached to appoint an expert to proceed with any agreed expert appraisal that may be required.

Art. 48: Investigators are only entitled to visit all sites and seize documents within the scope of investigations requested by the minister for economic affairs or the Council on competition and upon legal authorisation given by order of the président du tribunal de grande instance within the jurisdiction of which the premises to be inspected are located or by order of a judge deputised by him/her. Where these premises are located within the jurisdiction of several courts and a simultaneous action must be brought in each of them, a single order may be issued by one of the competent presiding judges.

The judge must check that there are grounds for the request for authorisation submitted to him/her. This request must comprise all the items of information likely to justify the inspection.

The inspection and seizure are carried out under the authority of the authorising judge. Said judge appoints one or more officiers de police judiciaire to assist with these operations and to keep him/her informed of their progress. Where these operations take place beyond the jurisdiction of his/her tribunal de grande instance, the judge issues a letter of request to exercise this control to the président du tribunal de grande instance with jurisdiction over the site of the inspection.

The judge may visit the premises during the inspection. He/she may, at any time, decide to suspend or stop the inspection.

The order mentioned in the first paragraph of this article is only open to further appeal in accordance with the regulations provided for by the code of criminal procedure. This appeal is not suspensive.

The inspection, which may not commence prior to 6am or later than 9pm, is carried out in the presence of the occupant of the premises or his/her representative.

The investigators, the occupant of the premises or his/her representative as well as the officier de police judiciare alone may acquire knowledge of the papers and documents prior to their seizure.

Inventories and placing under seals are carried out in accordance with article 56 of the code of criminal procedure.

The original copies of the report and the inventory are sent to the judge who ordered the inspection.

Papers and documents that are not longer required as evidence are returned to the occupant of the premises.

Art. 51: Investigators may, without professional secrecy being cited, access any document or item of information held by Government departments and establishments and other local authorities.

Art. 52: Anyone hindering, in any way, the performance of the duties with which the agents designated in article 45 and reporters from the Council on competition have been charged in application of this order, shall be punished by six months imprisonment and a FRF 50,000 fine.

Art. 54: The court may order legal persons, jointly and severally, to pay the fines given to their directors by virtue of the provisions of this order and texts issued for its application.

Art. 56: For the application of this order, the minister for economic affairs or his/her representative may submit the findings before civil or criminal courts and may expand them orally during the hearing. He/she may also produce inquiry statements and reports”.

N.B.: Articles 45, 46, 47, 48, 51, 52 and 54 of order no. 86-1243 of 1 December 1986 reproduced hereinafter have been repealed by order no. 2001-912 of 18 September 2000.

 

 

Volume II

Conformity and safety of products and services

 

Part I

Conformity

 

Chapter I: General provisions

 

 

Section 1: Legal guarantee

 

Article L211-1

 

Regulations relating to guarantees relating to latent defect in consumer contracts are fixed by articles 1641 to 1648, first paragraph, of the French civil code reproduced hereinafter:

“Art. 1641: The vendor is bound by the guarantee covering hidden defects in the item sold which render said item unfit for the use for which it was intended, or which diminish this use to such a degree that the purchaser would not have bought said item or would only have paid a lower price for it if the faults had been known.

Art. 1642: The vendor is not liable in respect of obvious defects which the purchaser was able to discover him/herself.

Art. 1643: He/she is liable in respect of, even when he/she was unaware of them, unless, in this case, it was stipulated that he/she would not be bound by any guarantee.

Art. 1644: In the case of articles 1641 and 1643, the purchaser may choose to return the item and receive reimbursement of the price or to keep the item and receive reimbursement of part of the price, as arbitrated by experts.

Art. 1645: Should the vendor be aware of the item's defects, he/she shall be obliged, in addition to reimbursing the price received, to pay the purchaser compensation.

Art. 1646: Should the vendor be unaware of the item's defects, he/she shall only be obliged to repay the price and reimburse the purchaser for the costs occasioned by the sale.

Art. 1647: Should the defective item have perished due to its poor quality, the loss shall be taken by the vendor who shall be obliged to repay the purchaser the price and other compensation for damages explained in the previous two articles.

Loss due to unforeseeable circumstances is, however, borne by the purchaser.

Art. 1648, first paragraph: Proceedings resulting from redhibitory defects must be instituted by the purchaser, as soon as possible, depending on the nature of the defects and customary practice in the place where the sale was made”.

 

 

Section 2: Special provisions of contractual guarantees

 

Article L211-2

 

When a consumer asks a business, during the course of a contractual guarantee which was granted at the time of acquisition or repair of movable property, renovation covered by the guarantee, any period, of at least seven days, when the property cannot be used, is added to the duration of the guarantee still to run as of the date of the request for work to be carried out made by the consumer or the date on which the property in question is made available for repair if this availability is subsequent to the request for work.

This article cannot be excluded by agreement.

 

Chapter II: General obligation of conformity

 

Article L212-1

 

From their initial market launch, products must fulfil current requirements relating to the health and safety of persons, to fair trade and to consumer protection.

The person responsible for the initial launch of a product on a market is, therefore, obliged to check that the latter conforms to current requirements.

At the request of agents authorised to apply chapters II to VI, he/she is obliged to provide evidence of checks and tests carried out.

 

Chapter III: Fraud and falsification

 

Section 1: Fraud

 

Article L213-1

 

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal Officiel of 23 December 1992 in force on 1 March 1994)

 

Anyone, whether or not they are party to the contract, who may have deceived or attempted to deceive the contractor, by any procedural means whatsoever, even if this is through the intermediary of a third party, shall be punished by two years imprisonment and a FRF 250,000 fine:

1° either in respect of the nature, species, origin, material qualities, composition or content in terms of useful principles of any merchandise;

2° or on the quantity of items delivered or on their identity by delivery of merchandise other than the determined item to which the contract relates;

3° or on the fitness for use, the risks inherent in use of the product, the checks carried out, the operating procedures or precautions to be taken.

 

Article L213-2

 

The penalties provided for in article L.213-1 are doubled:

1° if the offences provided for in said article result in use of the merchandise being made dangerous to human or animal welfare;

2° if the offence or attempted offence provided for in article L. 213-1 was committed:

a) either with the aid of weights, measures or other false or inaccurate instruments;

b) or with the aid of manoeuvres or procedures likely to falsify operations of analysis, determination, weighing or measuring or likely to fraudulently modify the composition, weight or volume of the merchandise, even prior to these operations;

c) or, finally, with the aid of false information, likely to result in belief in a previous and accurate operation.

 

 

Section 2: Adulteration and related offences

 

Article L213-3

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The following are punishable by the penalties given in article L. 213-1:

1° Those who adulterate foodstuffs for human or animal consumption, medicines, drinks and agricultural or natural products intended for sale;

2° Those who display, place on sale or sell foodstuffs for human or animal consumption, drinks and agricultural or natural products that they know to be adulterated or corrupt or toxic;

3° Those who display, place on sale or sell adulterated medicines;

4° Those who display, place on sale or sell, knowing their destination, products, objects or apparatus for use in adulterating foodstuffs for human or animal consumption, drinks or agricultural or natural products and those who have caused their used by means of any brochures, circulars, prospectuses, posters, advertisements or instructions whatsoever.

If the falsified or corrupted substance, or adulterated medicine is harmful to human and animal health, imprisonment will be increased to four years and the fine to FRF 500,000.

The penalties shall apply even in the event of the harmful adulteration being known to the purchaser or consumer.

The provisions of this article do not apply to fresh and fermented or adulterated fruit and vegetables. 

 

Article L213-4

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force)

 

Punishable by a FRF 30,000 fine and three months imprisonment or by just one of these penalties are those who, without legitimate reasons, are found to be holders, in any manufacturing, production, packaging, storage, warehouse or sales site, in vehicles used for transporting merchandise, as well as in places where animals whose meat or products are intended for human or animal consumption are housed or slaughtered:

1° Either false weights or measures or other inaccurate apparatus used for weighing and measuring merchandise;

2° Or foodstuffs for human or animal consumption, drinks, agricultural or natural produce that they know to have been adulterated, corrupted or to be toxic;

3° Or adulterated medicines;

4° Or products, objects or apparatus for use in adulterating foodstuffs for human or animal consumption, drinks or agricultural or natural produce.

If the adulterated or corrupted food substance or the adulterated medicine is harmful to human or animal health, imprisonment will be two years and the fine will be FRF 250,000.

 

The provisions of this article do not apply for fresh, fermented or adulterated fruit and vegetables.

All vendors or holders of products intended for the preparation or storage of drinks not bearing a label stating their components and the proportion of those components, where use of said components is limited by current legislation and regulations.

 

 

Section 3: Repeat offences

 

Article L213-5

 

(Act no. 96-314 of 12 April 1996 art. 60b Journal officiel of 13 April 1996)

 

Anyone who, having been sentenced to correctional penalties in application of chapters II to VI of this part or texts listed hereinafter, within five years of the date of this sentence becoming final, commits a new offence that comes under the application of chapters II to VI of this part or the texts listed hereinafter, shall be considered to be in a state of legal recidivism:

articles L. 141, L. 142 and L. 144, chapters I and IV of part I, chapters II and III of part II and chapters I and VIII of part III of volume V of the French public health code;

articles L. 231-6 and L. 231-7 of chapter I of part III and article L. 263-2 of chapter III of part VI of volume II of the French labour code;

chapter VII of the part, section 1 of chapter V of part I of volume I, section 1 of chapter I of part II of volume I, article L. 115-30 of this code;

the Act of 14 August 1889 on wine;

the Act of 11 July 1891 on fraud prevention in the sale of wine;

the Act of 24 July 1894 relating to frauds committed in the sale of wine;

the Act of 6 April 1897 concerning the manufacture, distribution of artificially produced wines;

the Act of 4 August 1903 regulating trade in copper products and fungicides;

the Act of 11 July 1906 relating to the protection of tins of sardines, vegetables and prunes against foreign fraud, the provisions of which were rendered applicable to all foreign tinned fish entering France by the Act of 28 June 1913;

the Act of 4 August 1929 regulating wine sweetening;

the Act of 1 January 1930 on wine;

the Act of 26 March 1930 on the prevention of false information relating to the origin of merchandise;

the Act of 30 December 1931 for the prevention of fraud in the trade of oil of terpentine and products made from resinous vegetables;

the Act of 29 June 1934 designed to guarantee fair trade in fruit and vegetables and to prevent the sale of maggoty fruits;

the amended Act of 3 July 1934 designed to regulate the manufacture of pasta;

the Act of 2 July 1935 designed to organise and restructure the dairy and resinous product markets;

the Act of 25 June 1936 designed to legally define and protect leather and to prevent fraud in the sale and leather and products crafted from leather;

the Act of 21 April 1939 designed to prevent fraud in the sale of shell and ivory objects;

the Act of 3 February 1940 designed to regulate trade in products for animal consumption;

amended Act no. 525 of 2 November 1943 relating to the organisation of controls on pesticides for agricultural use;

Act no. 60-808 of 5 August 1960 on agricultural guidance;

amended Act no. 64-1360 of 31 December 1964 on trademarks, manufacturer's brands and service marks;

Act no. 71-383 of 22 May 1971 relating to the improvement of wood species;

Act no. 73-1097 of 12 December 1973 on designations of origin relating to viticulture;

Act no. 79-595 of 13 July 1979 relating to the organisation of controls on fertilisers and growing supports;

Act no. 80-502 of 4 July 1980 on agricultural guidance (paragraphs III and IV of article 14).

 

Article L213-6

 

(inserted by Act no. 2001-504 of 12 June 2001 art. 3 I Journal Officiel of 13 June 2001)

 

Legal entities may be declared criminally liable under the conditions provided for by article 121-2 of the French penal code for offences defined in articles L. 213-1 to L. 213-4.

Penalties incurred by legal entities are:

1° Fines, in accordance with the procedures provided for by article 131-38 of the French penal code;

2° The penalties mentioned in points 2 to 9 of article 131-39 of the French penal code.

The ban mentioned in point 2 of article 131-39 of the French penal code relates to the activity during, or on the occasion, of the performance of which the offence was committed.

 

 

Chapter IV: Enforcement powers

 

Article L214-1

 

(Act no. 98-535 of 1 July 1998 art. 11 II 1 Journal officiel of 2 July 1998 in force at the latest on 31 December 1998)

 

(Act no. 2001-420 of 15 May 2001 art. 57 Journal officiel of 16 May 2001)

 

Council of state decrees shall rule on the measures to be taken to ensure the performance of chapters II to VI of this part, in particular, with regard to:

1° The manufacture and import of merchandise other than that referred to in articles 258, 259 and 262 of the French rural code as well as the sale, the placing on sale, the display, the possession and distribution, free of charge, of all merchandise referred to in chapters II to VI;

2° Presentation methods or marking of any kind on the merchandise itself, on packaging, invoices, commercial or promotional documents, in respect, in particular, of: production method, nature, essential qualities, composition, content in terms of useful principles, type, origin, identify, fitness for use, operating methods as well as special optional or mandatory marks affixed to French merchandise for export abroad;

3° The definition, composition and designation of merchandise of any kind, legal treatments to which said merchandise may be subject, characteristics rendering them unfit for consumption;

4° The definition and conditions of use of advertising terms and expressions, with the aim of avoiding confusion;

5° Hygiene in establishments where foodstuffs for human or animal consumption other than those referred to in articles 258, 259 and 262 of the French rural code are prepared, stored and sold and health and safety conditions for persons working in these premises;

6° The conditions under which the microbiological and sanitary characteristics of the merchandise intended for human or animal consumption other than those referred to in articles 258, 259 and 262 of the French rural code are determined;

7° The physical conditions under which the indications, referred to in the last paragraph of L. 213-4 must be brought to the attention of purchases on labels, posters, publicity, business stationery.

The decrees provided for in this article are issued upon the advice of the Agence française de sécurité sanitaire des aliments where they relate to products coming under its jurisdiction or that involve provisions aiming to prevent health or nutritional risks. These opinions are made public.

 

Article L214-1-1

 

(inserted by Act no. 99-574 of 9 July 1999 art. 100 I Journal officiel of 10 July 1999)

 

A Council of State decree fixes the list of products or foodstuffs for which traceability must be guaranteed. It specifies the obligations of producers and distributors who are obliged to compile and update registered information and product, or product batch, identification procedures. These procedures enable the origin of these products and batches to be known as well as the conditions under which they were produced or distributed.

The administrative body specifies, for each product or foodstuff, the production and marketing procedures for which traceability must be guaranteed, as well as the means to be implemented according to size of company.

 

Article L214-2

 

(Act no. 99-574 of 9 July 1999 art. 100 II Journal officiel of 10 July 1999)

 

Breaches of Council of state decrees, adopted by virtue of articles L. 214-1, L. 214-1-1, L. 215-1, last paragraph, and L. 215-4 which are not to be confused with any fraud or falsification provided for by articles L. 213-1 to L. 213-4 and L. 214-1 (point 7), shall be punished as petty offence (third class).

Anyone who has placed on sale, or sold, without waiting for the results of an official investigation which is under way, any merchandise whatsoever which is definitely acknowledged as being fraudulent or false subsequent to the legal inquiry following this investigation, without prejudice to correctional proceedings instituted against the author of the fraud or the falsification.

 

Article L214-3

 

Where a European economic community regulation contains provisions which come under the field of application of chapters II to VI, a Council of state decree ascertains whether these provisions, as well as those of community regulations that may amend them or that may be adopted for their application, constitute the implementing measures provided for in articles L. 214-1, L. 215-1, last paragraph and L. 214-4.

Chapter V: Powers of investigation

 

Section 1: Authorised authorities

 

Article L215-1

 

(Act no. 97-1051 of 18 November 1997 art. 38 Journal officiel of 19 November 1997)

 

(Act no. 98-535 of 1 July 1998 art. 26 I Journal officiel of 2 July 1998)

 

(Act no. 99-574 of 9 July 1999 art. 101 VIII Journal officiel of 10 July 1999)

 

The following are qualified to perform their duties in respect of investigating and establishing breaches of chapters II to VI:

1° Agents from the Directorate-General for competition, consumer protection and fraud preventions, from the Directorate-General for customs and the Directorate-General for taxes;

2° Judiciary police officers, in accordance with the terms fixed by article 16 of the French criminal procedure code and the judiciary police agents designated in article 20 of said code;

3° Veterinary inspectors, agricultural engineers, specialist technicians from the offices of the Department of Agriculture, veterinary workers, technical veterinary representatives, engineers and technicians responsible for the protection of vegetables;

4° Medical public health inspectors and Pharmacist public health inspectors;

5° Agents from the Institut français de recherche pour l'exploitation de la mer;

6° Agents from the Department of Industry's department of metrology as well as those belonging to regional departments of industry, research and the environment;

7° Government agents approved and commissioned by the minister for agriculture;

8° Agents approved and commissioned in accordance with article 65 of the French finance act of 27 February 1912, amended by article 3 of Statutory instrument of 14 June 1938;

9° Administrators from marine affairs, marine affairs inspectors, expert technicians from the department for marine navigation safety, officers from the technical and administrative office of marine affairs, marine affairs supervisors, seafarers' associations, on-board marine affairs support and monitoring personnel, testers from sea fishing establishments.

Council of state decrees shall rule on the powers invested in authorities qualified to investigate and ascertain breaches of chapters II to VI with a view to gathering items of information from various public authorities and transport companies.

 

Article L215-1-1

 

(inserted by Act no. 2001-420 of 15 May 2001 art. 8I II Journal officiel of 16 May 2001)

 

Agents from the Directorate-general for competition, consumer protection and fraud prevention may exercise the powers of inquiry that they hold by virtue of volume II of this code throughout the territory of France.

 

Article L215-2

 

(Act no. 94-114 of 10 February 1994 art. II Journal officiel of 11 February 1994)

 

In the places listed in the first paragraph of article L. 213-4 and on the public highway, authorities qualified to investigate and ascertain breaches of chapters II to VI are also qualified to proceed in respect of breaches of regulatory provisions adopted in application of articles 258, 259 262, 275-1, 275-2 and 275-4 of the French rural code fixing sanitary and qualitative standards for animal foodstuffs and foodstuffs of animal origin placed on sale.

 

Section 2: Investigation and report

 

Article L215-3

 

In order to research and record breaches of chapters II to VI. agents may enter, by day, the places and vehicles list in the first paragraph of article L. 213-4,

They may also enter these same places, by night, if they are open to the public or if the interior of said places are in the process of production, manufacturing, processing, packaging, transport or marketing activities.

Where these places are also used as dwellings, these inspections may only be made by day and with authorisation from the Public prosecutor if the occupant objects.

Agents may request that documents of any kind be sent to them or may seize said documents, in whomsoever's possession they may be, appertaining to facilitating the completion of their task and the provision of resources that are vital to the performance of their checks.

They may also consult any document required for the completion of their task at the premises of public authorities, establishments and organisations placed under the Government control and local authorities, as well as statutory companies and departments, regions, departments and communes.

 

Article L215-4

 

Council of state decrees shall rule on measures to be taken in respect of:

1° Formalities required in order to take samples and make seizures in the places listed in article L. 213-4, as well as to carry out agreed expert surveys on suspect merchandise;

2° The choice of analysis method intended to establish the composition, components and content in terms of useful principles of products or to recognised their falsification.

 

 

Section 3: Emergency measures

 

Article L215-5

 

On public highways and in the places listed in the first paragraph of article L. 213-4, seizures may not be made without legal authorisation apart from in the event of flagrant offences of falsification where these relate to:

1° Products recognised as being rotten, adulterated or toxic;

2° Products recognised as being unfit for consumption, with the exception of the foodstuffs referred to in articles 258, 259 and 262 of the French rural code where unfitness for consumption can only be recognised from abnormal organoleptic characteristics or signs of organic pathology;

3° Products, objects or apparatus used to make forgeries in the cases provided for in articles L. 213-3 and L. 213-4;

4° Products, objects or apparatus recognised as not conforming to current laws and regulations and presenting a danger for the health and safety of consumers.

There is nothing new in respect of the procedure followed by tax offices in order to ascertain and institute proceedings in respect of events constituting both a tax contravention and a breach of the requirements of chapters II to VI and of the Act of 29 June 1907 designed to prevent the adulteration of wines and the abusive use of sweeteners.

 

Article L215-6

 

Seizures can only be made without an order from a juge d'instruction  in the event of persons being caught in the act of falsification, or should the products be recognised as being adulterated or toxic, subsequent to investigations carried out on-site or subsequent to the analysis of a sample in a laboratory. In the case of products recognised as being adulterated or toxic, seizure is mandatory.

In this last case, the agent may proceed with their destruction, sterilisation or denaturation. Operations are related and proven in the reports.

 

Article L215-7

 

Authorities qualified to research and investigate breaches of chapters II to VI may, in any of the places listed in article L. 213-4 and on public thoroughfares, detain, whilst awaiting the results of the necessary tests:

1° Products likely to be falsified, adulterated or toxic;

2° Products likely to be unfit for consumption, with the exception of the foodstuffs referred to in articles 258, 259 and 262 of the French rural code where the unfitness for consumption can only be recognised in relation to abnormal organoleptic characteristics or signs of organic pathology;

3° Products, objects or apparatus recognised as not conforming to current laws and regulations and presenting a danger for the health and safety of consumers.

Products, objects or apparatus detained shall be left in the care of their holder.

Authorised authorities compile a report mentioning the products which are the subject of the detention. This report is sent, within twenty four hours, to the procureur de la République.

Detention measures can only exceed fifteen days with authorisation from the procureur de la République.

Lifting of the detention measure may be ordered at any time by the authorised authorities or by the procureur de la République.

 

Article L215-8

 

The qualified authorities may request authorisation from the president du tribunal de grande instance or from the magistrat du siege appointed to this end, to detain in all the places listed in article L. 213-4 and on public thoroughfares, whilst awaiting the necessary checks, merchandise suspected of not conforming to the provisions of chapters II to VI and to the texts adopted for their application, where keeping said merchandise on the market could have serious and immediate implications for fair trade or could seriously damage the interests of consumers.

This detention can only be implemented with authorisation from the president du tribunal de grande instance under whose jurisdiction the places where the litigious merchandise is being held lie.

This judge is referred cases at the request of the authorities mentioned in the first paragraph. He/she makes a ruling within twenty four hours.

President du tribunal de grande instance checks that there are grounds for the detention application brought before it. This application includes all the items of information needed to justify the measure.

The detention measure cannot exceed fifteen days. In the event of particular difficulties linked to examination of the merchandise in question, the president du tribunal de grande instance may renew the measure for an identical period by a reasoned order.

Detained merchandise is left in the care of their holder.

The president du tribunal de grande instance may order the lifting of the detention measure at any time. Lifting is automatic wherever the authorised authorities have ascertained the conformity of the detained merchandise or the bringing of the latter into conformity subsequent to the undertaking of the person responsible for first placing said merchandise on the market or of their holder.

 

Section 4: Analysis

 

Article L215-9

 

All the expert surveys necessitated by the application of chapters II to VI shall be agreed by both parties and the price of samples recognised as being compliant shall be reimbursed according to their value on the day of sampling.

 

Article L215-10

 

Should the procureur de la République believe, subsequent either to statements or reports from the agents referred to in the first to the ninth paragraph of article L. 215-1, or from the laboratory report and, if necessary, subsequent to prior investigation, that proceedings should be instituted or a preliminary investigation opened, the case is referred to either the court or the juge d'instruction.

If an analysis is required, the latter is ordered and performed in accordance with the requirements and in the forms provided for in articles 156 to 169 of the French code of criminal procedure, subject to the reservations given hereinafter.

 

Article L215-11

 

Should the allegation of fraud or falsification result in an analysis being carried out in a laboratory, the alleged author of the fraud or falsification is notified, by the procureur de la République, that he may have access to the laboratory report and he has three clear days in which to submit his observations and to advise whether or not he requires the analysis agreed by both parties provided for by article L. 215-9.

 

Article L215-12

 

Where an analysis has been requested or where it has been decided upon by the juridiction d'instruction or juridiction de jugement, two experts are designated. One is appointed by the jurisdiction, the other is chosen by the interested party and appointed by the jurisdiction in accordance with the conditions provided for by article 157 of the French code of criminal procedure.

Under exceptional circumstances, the interested party may choose an expert who does not appear on the lists provided for in the first paragraph of the aforementioned article 157. Said choice is subject to approval from the jurisdiction.

The manager of the laboratory that performed the analysis may be appointed in accordance with the conditions fixed in the first and second paragraphs, even when he does not appear on the lists provided for in article 157, first paragraph of the French code of criminal procedure.

The Court gives the interested party a deadline by which the expert must be designated, the interested party, nevertheless, being entitled to explicitly renounce this appointment and rely on the findings of the expert appointed by the jurisdiction.

If the interested party has not renounced this right and has not designated an expert within the deadline given, said expert is automatically appointed by the Court.

 

Article 215-13

 

The expert chosen by the interested party is appointed by the jurisdiction under the same terms and receives the same assignment as the expert chosen by it. These experts have the same obligations, the same rights, the same responsibility and receive the same payment, in accordance with the conditions provided for in the French code of criminal procedure.

The experts must employ the method, or methods, used by the laboratory and carry out the same analyses. They may, however, employ other additional methods.

 

Article L215-14

 

The Court hands the second sample taken over to the experts in accordance with the provisions of article 163 of the French code of criminal procedure. If special storage measures have been taken, the jurisdiction will specify procedures for withdrawing samples.

It also hands over to the experts the sample held by the person at whose premises the sample has been taken, the latter having been formally notified in advance to supply said sample within eight days, intact. If the interested party does not submit said sample intact by the aforementioned deadline, reference must no longer be made to this sample, at any time/

 

Article L215-15

 

Where a product is rapidly alterable or where this relates to an object or a piece of merchandise which, due to its value, nature or the scant quantity of product available, cannot, without difficulty, be sampled three times, the jurisdiction appoints the experts immediately, one of whom being indicated by the interested party, and takes all measures to ensure that the experts meet as a matter of urgency. The examination commences at the behest of the promptest expert and the experts conclude on the findings reached in this way.

 

Article L215-16

 

In derogation of article 167 of the French code of criminal procedure, if the experts cannot agree, or if they agree to invalidate the findings of the administration's laboratory report, the jurisdiction, prior to making a ruling, informs said laboratory of the contents of the experts report and sets a deadline for said laboratory to make any observations, unless the relevant laboratory manager has, him taken part in the expert survey in the capacity of expert.

 

Article L215-17

 

In respect of bacteriological testing or checks on biological purity, apart from cases where the interested party has declared its wish to rely on a single expert, designated by the juge d'instruction, the latter appoints two experts to carry out the expert survey on the sample taken.

The first of these experts is selected from the managers of competent laboratories.

The second expert, appointed by the juge d'instruction is the expert or his deputy, selected by the interested party in the relevant discipline from the lists provided for by article 157 of the French code of criminal procedure.

The two experts act together, in the laboratory to which the sample has been sent, in examining this sample.

The juge d'instruction makes all necessary arrangements to ensure that the sampling and the analysis which follows immediately are carried out by the department for the prevention of fraud by the date fixed by it. Default on the part of one of the experts does not prevent the examination from being completed, with the effects attached to the procédure contradictoire.

 

Section 5: Provisions relating to conformity and to EC mark

 

Article L215-18

 

(Act no. 95-96 of 1 February 1995 art. 11 Journal officiel of 2 February 1995)

 

(Act no. 2001-43 of 16 January 2001 art. 26 Journal officiel of 17 January 2001)

 

I. – During checks carried out within the scope of their jurisdiction and in the places where they exercise the checks with which they are entrusted by law, the agents mentioned in article L. 215-1 below and in article L. 40 of the French Post and telecommunications code may detain and demand that the following be brought into conformity:

1° Merchandise subject to a C.E. community marking obligation and without this marking;

2° Merchandise which, although it bears C.E. marking is, however, clearly does not conform to applicable marking regulations;

3° Merchandise which, although equipped with a C.E. declaration of conformity or fitness for purpose presuming their conformity, or fitness for purpose presuming their conformity to requirements essentially by virtue of the relevant regulations, does not, however, conform to the latter.

The procureur de la République is informed, without delay, by the agents carrying out the checks, of the detention measure.

These operations are noted by means of a report stating the merchandise which is the subject of the detention measure. These reports are sent to the procureur de la République within twenty four hours. A copy is sent to the interested party within the same deadline.

The merchandise detained is left in the care of the holder. Sale of merchandise in spite of the detention measure is punishable by the penalties provided for in articles 314-5 and 314-6 of the French penal code.

This measure also applies when the documentary evidence requested by texts relating to C.E. marking cannot be submitted to the agents within fifteen days of said documents being requested.

II. – The detention measure is automatically lifted:

a) Either in the event of the documentary evidence required by legislative texts relating to C.E. marking, proving the advertised conformity, being submitted to the agents;

b) Or in the event of the merchandise being brought into conformity with texts relating to C.E. marking;

c) Or failing saisine, by the administration, by the person responsible for placing the detained merchandise on the market or by the owner of the detained merchandise, within seven working days of the detention report date, by the president du tribunal de grande instance with jurisdiction over the place where the detained merchandise is being held.

 

III. – The president du tribunal de grande instance , or the magistrat du siège appointed to this end, ruling in chambers on matters of special urgency, may either pronounce the lifting of the detention measure, or limit its effects, or order detention until the merchandise is brought into conformity within the deadline set by it, or, if the merchandise cannot be brought into conformity, ban it from being put on the market.

In the event of particular difficulties relating to the brining into conformity of the merchandise, the president du tribunal de grande instance , or the magistrat du siège appointed to this end, may renew the measure by reasoned order.

If the merchandise is not brought into conformity within the deadline fixed, the president du tribunal de grande instance  or the magistrat du siège appointed to this end, may ban it from being put on the market.

The marketing of merchandise in spite of the detention measure or the ban on the merchandise being put on the market shall be punishable by the penalties provided for by articles 314-5 and 314-6 of the French penal code.

  

 

Chapter VI: Common provisions

 

Article L216-1

 

Chapters II to VI apply to service provisions

 

Article L216-2

 

Merchandise, objects or apparatus still belonging to the seller or the possessor, the sale, use or holding of which constitutes an offence, may be confiscated. Weights and other false or inaccurate weighing, measuring or quantification instruments, must be confiscated and destroyed.

Should the confiscated merchandise, objects or apparatus be useable, the court may make them available to the public authorities for allocation to establishments of general interest.

If they are unusable or harmful, these merchandise, objects or apparatus shall be destroyed at the expense of the convicted party.

In the event of non-suit or acquittal, should the merchandise, objects or apparatus have been identified as being dangerous for humans or animals, the judge orders the seizing authority to have them destroyed or to use them for a purpose for which they are fit.

 

Article L216-3

 

(Act no. 92-1336 of 16 December 1992 art. 322, art. 329 Journal Officiel of 23 December 1992 in force on 1 March 1994)

 

The court may order, in all cases, that the detention ruling be published, in full, or in extracts, in the journals that it designates and displayed in the places that it states, in particular, on the doors of the convicted party's domicile, shops, factories and workshops, all at the expense of the convicted party without, however, the cost of this publication exceeding the maximum amount of fine incurred.

Where display has been ordered, the court will fix the dimensions of the poster and the typographical characters that must be used in its printing.

In this case, and in all other cases where the courts are authorised to order their judgement to be displayed by way of a fraud prevention penalty, they must fix the time for which this judgement must be displayed, not to exceed seven days.

In the event of total, or partial, removal, concealment or defamation of the displays ordered by the judgement, the provisions of the judgement relating to the display shall be applied, in full, once again.

Should the removal, concealment or defamation have been carried out intentionally by the convicted party, at his/her instigation or under his/her orders, this shall result in the latter being sentenced to a fine of FRF 25,000.

Repeated intentional removal, concealment or defamation of the displays by the convicted party, at his/her instigation or under his/her orders, shall be punishable by imprisonment of one month and a FRF 50,000.

Where the judgement has been ordered to be displayed on the door of the convicted party's stores, the enforcement of the judgement cannot be prevented by sale of the business subsequent to the first decision ordering the display.

 

Article L216-4

 

(Act no. 92-1336 of 16 December 1992 art. 323 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Any proceedings instituted by virtue of chapters II to VI must be continued and terminated by virtue of the same texts.

In the event of extenuating circumstances, the court may not order the display and imprisonment may not be applied.

 

Article L216-5

 

Convicted parties shall be obliged to settle, in addition to ordinary government, departmental and communal expenses, the costs of reports, samples and analyses undertaken for the research and establishment of offences.

The figure for the repayment of costs provided for in this way is fixed by Council of state decree.

Determination and repayment of these costs is at the request of the directorate-general for competition, consumer protection and fraud prevention, in accordance with the conditions fixed by the decrees provided for in article L. 214-1.

 

Article L216-6

 

In the event of proceedings for fraud or attempted fraud in respect of the origin of merchandise, foodstuffs or agricultural and natural products, the magistrat instructeur or the courts may order the production of registers and documents from the various administrations, in particular, that of indirect contributions and transport operators.

 

Article L216-7

 

The suspension of the sale of merchandise which has given rise to proceedings for breach of the provisions of chapters II to VI and texts adopted for their application may be ordered by the juge d'instruction or the court to which the proceedings have been transferred.

The measure is enforceable notwithstanding that it may be appealed against. The measure may be lifted by the jurisdiction that ordered it or before which the case has been referred. The measure ceases to have any effect in the event of a decision of non-suit or relaxe.

Decisions ruling on applications for lifting of the measure may be the subject of an appeal before the chambre d'accusation or the court of appeal depending on whether they were pronounced by a juge d'instruction or by the court to which the proceedings were referred.

The chambre d'accusation or the court of appeal rules within one month of the date of the decision under appeal.

If the chambre d'accusation or the court of appeal has not ruled within this time limit, and at the latest within a forty deadline of the pronouncement of the decision, the measures ordered shall automatically cease.

 

 

Article L216-8

 

The court which makes the conviction for fraud and falsification that is dangerous or harmful to human and animal welfare in application of articles L. 213-1, L. 213-2, L. 213-3, L. 213-4 and L. 214-1 (point 7), in addition to the display and publication provided for in article L. 216-3 may order the convicted part to pay costs in respect of:

1° The dissemination of one or more messages, in accordance with the conditions, and subject to the penalties, provided for in article L. 121-4, informing the public of this decision;

2° The withdrawal of products to which the offence relates and, under the same conditions, a ban on service provisions;

3° The confiscation of all, or part, of a product, of the sale of products or services to which the offence relates.

 

Article L216-9

 

The penalties appearing in chapters II to VI and their provisions in respect of displays and breaches of the Council of state decrees issued for their enforcement are applicable to special laws on the prevention of fraud within the fertiliser, wine, cider and perry trade as well as that of curative serums and butter and margarine manufacture. They are substituted for the penalties and provisions of article 423 of the French penal code and the Act of 27 March 1851 in all cases where subsequent laws refer back to the texts of said laws, in particular in:

article L. 217-1 of this code;

article 7 of the Act of 14 August 1889 on wines;

article 2 of the Act of 11 July 1891 relating to frauds committed in the sale of wines;

article 1 of the Act of 24 July 1894 relating to frauds committed in the sale of wines;

article 3 of the Act of 6 April 1897 concerning wines, ciders and perrys;

Act no. 79-595 of 13 July 1979 relating to the organisation of monitoring of fertilising substances and growing supports.

The penalty of display is rendered applicable to the offences provided for and punished by article 7 of the Act of 28 January 1903 and by articles 2 and 3 of the Act of 18 July 1904.

 

 

Chapter VII: Special provisions

 

Article L217-1

 

Anyone who has, either affixed, or displayed by addition, delition or by any alteration whatsoever, on manufactured objects, the name of a manufacturer other than that of its author, or the trade name of a plant other than that where the said objects were manufactured, or finally, the name of place other than that where the said objects were manufactured, shall be punished by the penalties provided for in article L. 216-9, without prejudice to compensation, where appropriate.

Any vendor, commission agent or retailer shall be liable to the effects of the proceedings where the latter has knowingly displayed for sale or brought into circulation objects marked with forged or altered names.

 

Article L217-2

 

Any person who has fraudulently deleted, masked, altered or modified in any way the names, signatures, monograms, letters, figures, serial numbers, emblems and signs of any kind affixed to merchandise and serving to identify it shall be punished with the penalties provided for by article L. 213-1. Accomplices of the main author of the offence shall be punished by the same penalties.

 

Article L217-3

 

Those who have knowingly displayed, put on sale or sold merchandise altered in this way or who are found to be storing said merchandise on their premises shall be punished by the penalties covered by article L. 213-4.

 

Article L217-4

 

The court may, in addition, order the publication and display of the judgement in accordance with the provisions of article L. 216-3.

 

Article L217-6

 

Anyone who, on natural or manufactured products, stored or transported with a view to being sold or put on sale in France, or on packaging, boxes, bales, bands, labels etc., has affixed, or knowingly used a trademark or manufacturer's brand, a name a sign or any indication whatsoever likely to lead to the belief, if they are foreign, that they were manufactured in France or were of French origin and, in any event, that they had a different origin from real French or foreign one, shall be punished by the penalties provided for by article L. 213-1, without prejudice to compensation, where appropriate.

This provision shall not, however, apply when the product bears, in clearly displayed letters, an indication of the real origin, unless the false indication of origin constitutes a regional designation protected by section I of chapter V of part 1 of volume 1.

With regard to French products, the company name, the name and address of the vendor do not necessarily constitute an indication of origin.

 

Article L217-7

 

Those who, by means of addition, excision or any alteration whatsoever of the initial wording on the product, by advertisements, brochures, circulars, prospectuses or posters, by the production of invoices or forged certificates of origin, by an oral affirmation or by any other means, may have led the consumer to believe that foreign products were of French origin or, for all products, may have led the consumer to believe that they were of a different origin to their real French or foreign one, shall be punished by the penalties provided for by article L. 213-1.

 

Article L217-8

 

All associations or union of associations formed in accordance with the Act of 21 March 1884, to defend the interests of industry and trade in respect of all products and merchandise whatsoever, may exercise throughout the Republic, the rights invested in the plaintiff in respect of the offences provided for in this chapter.

 

Article L217-10

 

(Act no. 93-949 of 26 July 1993 art. 7 II Journal Officiel of 27 July 1993 in force on 1 March 1994)

 

Anyone who has made it impossible for agents from the directorate-general for competition, consumer protection and fraud prevention to carry out their duties, either by refusing them entry to their manufacturing, storage or retail sites, or by any other means, shall be liable to the penalties provided for by articles L. 213-1, L. 213-5 and L. 216-3 of this code, without prejudice to the penalties provided for by articles 433-6 to 433-10 of the French penal code.

The provisions of article L. 216-4 apply to the offences referred to in this article.

 

Chapter VIII : Prevention in respect of human and animal foodstuffs

 

Section 1: General provisions

 

Article L218-1

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

This chapter applies to foodstuffs intended for human or animal consumption as well as to raw materials, ingredients, technological supports and other products used for the preparation and production of foodstuffs, to materials and objects designed to come into contact with foodstuffs, to cleaning and maintenance products and to pesticides.

The controls operated by virtue of this chapter by the agents mentioned in article L. 215-1 aim to prevent public health risks, to guarantee fair trade and protect consumer interests.

 

Article L218-2

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

The agents mentioned in article L. 215-1 may enter the premises listed in the first paragraph of article L. 213-4, in the presence of the occupant of the premises or his/her representative, take samples there and collect from the professional concerned, who is obliged to supply them, all the items of information enabling the products' characteristics to be determined.

They may enter these premises between 8am and 8pm and, outside these hours, where production, manufacturing, processing, packaging, transport or marketing activities are going on inside.

Where these premises are for mixed use, the party's inspection of rooms allocated for use as a dwelling may only be carried out between 8am and 8pm and is subject to authorisation from the president du tribunal de grande instance  or the judge appointed to this end, who checks that the application for authorisation submitted to him/her includes all the items of information likely to justify the inspection. The judge may visit the premises during the inspection and may, at any time, decided to halt or cancel.

 

Article L218-3

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

Where, due to the lack of regulations adopted for the application of article L. 214-1 of this code or the lack of a European community regulation containing provisions falling within the scope of chapters II to VI, an establishment presents, or is likely to present, a threat to public health, the agents mentioned in article L. 215-1 may order the performance of works, cleaning operations, staff training and other corrective measures, as well s the reinforcement of self-checking. If necessary, the administrative authority may pronounce, upon the advice of these agents, the closure of all, or part, of the establishment or the shutdown of several of its activities.

 

Article L218-4

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

If it is established that, following its departure from the establishment of origin a batch of products presents, or is likely to present, considering its common production or marketing conditions, a danger to public health, the administrative authority, upon advice from one of the agents mentioned in article L. 215-1, orders its detention or recall to one or more sites for checking..

Any person who has acquired or disposed of one or more items from the batch and being aware of the decision to detain or recall the batch is obliged to inform the person who supplied them with the merchandise or the person to whom the merchandise has been sold.

Costs resulting from the decision to detain or recall, in particular, transport, storage, analysis or destruction costs shall be borne by the operator in question without prejudice to claims in respect of the supplier's liability.

 

Article L218-5

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

Where, on the occasion of checks carried out in performance of their assignments, the agents mentioned in article L. 215-1 ascertain that a batch does not conform to current legislation, these agents may order that said batch be brought into conformity, in particular, in respect of decontamination or any other treatment, within a deadline fixed by them. If it is not possible to bring said batch into conformity, the administrative authority, upon the advice of these agents, may order it to be used for other ends, its return to the country of origin or the destruction of the merchandise within a deadline fixed by it.

These operations are recorded in a report.

Prior to these measures being taken, the interested party is able to present his/her observations.

These measures are paid for by the person responsible for putting said merchandise on the market or the distributor.

 

Section 2: Establishments processing products using ionisation

 

Article L218-6

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

Establishments processing foodstuffs intended for human or animal consumption, with the exception of those determined by Council of state decree, by means of ionisation, are subject to a license from the administrative authority.

They must satisfy the conditions defined by orders issued by the ministers for consumer affairs, agriculture and industry. These orders also determine procedures for awarding, suspending and withdrawing said approval.

 

Section 3: Criminal provisions

 

Article L218-7

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 17 Journal officiel of 25 August 2001)

 

The act of processing foodstuffs by means of ionisation without being in receipt of the approval provided for in article L. 218-6 is punishable by imprisonment of one year and a EUR 15,000 fine. For these same acts, legal entities may be declared criminally liable in accordance with the conditions provided for by article 121-2 of the French penal code and may incur a fine as per the procedures provided for in article 131-38 of the same code.

The act of failing to implement measures ordered in application of the provisions of the chapter is punishable by two years imprisonment and a fine of EUR 15,000.

Offences to which the sanctions provided for in this article apply are investigated by the agents mentioned in article L. 215-1 in accordance with the conditions provided for by chapter V of this part.

 

Part II

Safety

 

 

Chapter 1: Prevention

 

Article L221-1

 

Products and services must, under normal conditions of use or under other circumstances that may reasonably be foreseen by the professional, offer the safety that can legitimately be expected and must not be a danger to public health.

 

Article L221-2

 

Products not satisfying the general safety requirement provided for in article L. 221-1 are prohibited or regulated in accordance with the conditions fixed below.

 

Article L221-3

 

Council of state decrees, adopted upon the advice of the commission provided for in L. 224-1:

1° Fix, as required, by product or product category, the conditions under which the manufacture, import, export, offer, sale, distribution free of charge, detention, labelling, packaging, product circulation or method of using these products are prohibited or regulated;

2° Determines the health and safety requirements that must be observed by persons taking part in the manufacture, processing, transportation, storage and sale of the products or who provide services;

3° May order these products to be withdrawn from the market or returned with a view to their modification, total or partial reimbursement or exchange, and may specify obligations relating to consumer information. They may also order the destruction of these products where this constitutes the sole means of putting an end to the danger;

4° Specify the conditions under which manufacturers, importers, distributors or service providers shall be made liable for cost appertaining to the safety measures to be taken in virtue of the regulations enacted in this way.

 

Article L221-4

 

Services not satisfying the general safety obligation provided for in article L. 221-1 are prohibited or regulation in accordance with the conditions posed by article L. 221-3.

 

Article L221-5

 

In the event of serious or immediate danger, the minister for consumer affairs and the interested minister, or ministers, may suspend, by means of a joint order, for a period not to exceed one year, the manufacture, import, export, placing on the market free of charge or for a fee, of a product and may have it withdrawn from all sites where it is located or have it destroyed where this constitutes the only means of putting an end to the danger. They are also entitled to order the circulation of warnings or precautions for use as well as recall of the product with a view to modification or total, or partial, refund.

They may, under the same circumstances, suspend the provision of a service.

These products and services may be put on the market again when they are recognised as conforming to current legislation.

The minister for consumer affairs and, where appropriate, the interested minister, or ministers, will hear the professionals, in question, without delay and at the latest fifteen days after a decision to suspend the products has been taken. They also hear representations from the workplace health and safety committee, from the works council or, failing this, representatives of personnel employed by the company in question, as well as approved national consumer associations.

These orders shall specify the conditions under which manufacturers, importers, distributors or service providers shall be responsible for costs appertaining to safety measures to be taken in application of the provisions of this article.

 

Article L221-6

 

(Act no. 98-535 of 1 July 1998 art. 11 3 Journal officiel of 2 July 1998 in force at the latest on 31 July 1998)

 

Agents who have performed the checks sent the government representative in the department the results of their investigations together with their proposals regarding the measures to be taken. The latter sends, as soon as possible and at the latest within fifteen days of sending, the file to the interested minister and to the minister for consumer affairs with his/her reasoned opinion.

In the event of grave or immediate danger, the government representative in the department takes the necessary emergency measures. He/she refers the matter at once to the interested minister and to the minister for consumer affairs who make a ruling, by means of a joint order, within fifteen days. He/she may, whilst awaiting the ministerial decision, detain, in all the places listed in article L. 213-4, products likely to present a danger to public health and safety. Detained products are left in the care of the holder following an inventory. He/she may, under the same circumstances, suspend the provision of a service.

For products coming under the jurisdiction of the Agence française de sécurité sanitaire des aliments, the results of investigations and the proposals mentioned in the first paragraph are sent, under the same conditions, to the general manager of the agency.

 

Article L221-7

 

The minister for consumer affairs or the interested minister, or ministers, may send  warnings to manufacturers, importers, distributors or service providers and may ask them to bring the products or services that they offer to the public into conformity with safety regulations.

They may recommend that the professionals concerned have the products or services that they offer to the public,  monitored by an authorised organisation, within a set deadline and at their own expense, where, for a product or service that is already on the market, there are sufficient danger indices or when the characteristics of a new product or service warrant this precaution.

A Council of state decree shall specify the terms under which sums incurred by the professional upon the occasion of these controls, are to be reimbursed.

Where a product or a service has not undergone the monitoring recommended in application of this article, it is deemed not to meet the requirements of article L. 221-1 unless proof to the contrary is submitted.

The list of scientific or technical organisations authorised to carry out these checks is fixed by decree. The list is updated every two years.

 

Article L221-8

 

The measures provided for in this article cannot be taken for products and services subject to special legislative provisions or to community regulations relating to consumer health and safety protection, apart from, in an emergency, those provided for by articles L. 221-5 and L. 221-6.

 

Article L221-9

 

The measures decided upon by virtue of articles L. 221-2 to L. 221-8 must be in proportion to the danger presented by the products and services. These may aim to warn of, or put an end to, the danger with a view to thereby guaranteeing the safety that can legitimately expected in accordance with France's international commitments.

 

Article L221-10

 

(inserted by Act no. 98-535 of 1 July 1998 art. 11II 2 Journal Officiel of 2 July 1998 in force at the latest on 31 December 1998)

 

Decrees issued in application of article L. 221-3 are adopted upon the advice of the Agence française de sécurité sanitaire des produits de santé or the Agence française de sécurité sanitaire des aliments where they relate to products under their jurisdiction. These opinions are made public.

Orders issued in application of article L. 221-5 are adopted according to the same procedures, apart from in duly substantiated emergencies where they are notified, without delay, to the competent agency.

 

 

Chapter II: Authorisations and powers of agents

 

Article L222-1

 

(Act no. 98-535 of 1 July 1998 art. 26 II Journal officiel of 2 July 1998)

 

The following are qualified to monitor products and services under the conditions provided for in articles L. 221-6 and L. 222-2:

 

1. Agents from the directorate general for competition, consumer protection and fraud prevention;

2. Agents from the metrology sub-division of the department of industry as well as those belonging to regional departments of industry, research and the environment;

3. Agents from the directorate general of customs and indirect taxation;

4. Agents from the ministry of agriculture's directorate general for food (department of food quality and veterinary initiatives and department of industrial agro-alimentary policy);

5. Public health medical/pharmaceutical inspectors and the agents referred to in articles L. 48 of the French public health code;

6. Labour inspectors;

7. The agents mentioned in article 22 of Act no. 76-663 of 19 July 1976 relating to installations classed as being for the protection of the environment.

8. Police and gendarmerie departments.

 

Article L22-2

 

The agents mentioned in article L. 222-1 may enter the premises described in article L. 213-4 during the day, take samples there and collect from the professional concerned, who is obliged to supply them, all items of information required to assess whether or not the product or service is dangerous. They have the same powers of investigation in public thoroughfares.

They are also invested with the powers instituted by paragraphs 2 and 3 of article L. 215-3.

 

Article L222-3

 

Agents from the police or gendarmerie departments acting in the capacity of officer or judicial police agent, and the other agents mentioned in article L. 222-1, are authorised to research and investigate breaches of the texts adopted in application of the provisions of this part. To this end, they are invested with the powers provided for by chapters II to VI of part I of this volume and their implementing provisions.

 

 

Chapter III: Penalties

 

Article L223-1

 

The court that makes a conviction for a breach of the texts adopted in application of the provisions of this part of the code may order the convicted party to pay costs for:

1° The publication of the decision to convict and the circulation of one or more messages, under the conditions and subject to the penalties provided for in article L. 121-4 informing the public of this decision;

2° Withdrawal or destruction of the products to which the offence relates and, under the same conditions, a ban on the provision of services;

3° Confiscation of all, or part, of the product, the sale of products or services to which the ban relates.

 

Article L223-2

 

The juge d'instruction may, as soon as the proceedings for breach of texts adopted in application of this part of the code are referred to him/her, order the temporary suspension of sale of the product or provision of the service alleged to be irregular.

Measures provided for in this article are enforceable, notwithstanding all rights of appeal. They may be lifted by the jurisdiction that ordered it or to which the case has been referred. They cease to have any effect in the event of a decision of non-suit or relaxe.

Decisions ruling on applications for lifting of said measures may be the subject of an appeal before the chambre d'accusation or before an appeal court depending on whether they were pronounced by a juge d'instruction or by the court to which the proceedings were referred.

The chambre d'accusation or the court of appeal rules within a month of the date of the decision under appeal.

If the chambre d'accusation or the court of appeal has not made a ruling in this time, or at the latest within a forty day deadline of pronouncement of the decision, the measures ordered shall cease automatically.

 

 

Chapter IV: The commission for consumer safety

 

Article L224-1

 

The commission for consumer safety is made up of a chairman appointed by decree of the Council of Ministers, members of the Council of state and jurisdictions of an administrative or judicial nature. It also includes persons belonging to professional organisations, to national consumer associations and experts. These persons and experts are appointed by the minister for consumer affairs upon advice from interested ministers and are selected for their risk prevention skills.

A government commissioner appointed by the minister for consumer affairs is a member of the commission. He may, within four days of a commission debate, call for a second debate.

 

Article L224-2

 

The commission is responsible for publishing advice and proposing any measures likely to improve risk prevention in terms of product and service safety.

It researches and draw up a list of information from any source on the dangers presented by products and services. To this end, it is informed, without delay, of any decision taken in application of articles L. 221-5, L. 221-7 and L. 223-1.

It may bring any information that it deems necessary to the attention of the public.

 

Article L224-3

 

Any natural or legal person may refer a case to the commission. If it believes that the events raised are not supported by sufficient documentary evidence, it may conclude by reasoned decision, that there is no point in continuing without further proof. It notifies the person responsible for the referral of its decision.

The commission may act under its own motion.

The competent judicial authorities may, at any stage of the proceedings, ask for the opinion of the commission for consumer safety. This opinion is only made public after a decision of non-suit has been taken or judgement has been given on the merits of the case.

Referral before the commission remains confidential until the commission has ruled on the merits of the case or on non-suit, unless the latter applies, by reasoned decision, the measures provided for in the third paragraph of article L. 224-2.

 

Article L224-4

 

(Act no. 92-1336 of 16 December 1992 art. 333, art. 372 Journal Officiel of 23 December 1992 in force on 1 March 1994)

 

The commission may ask to be sent information or may consult all the documents that it believes to be necessary in order to complete its assignment, on site, without being subject to the provisions of articles 226-13 and 226-14 of the French penal code.

The chairman may, by reasoned decision, proceed with, or have commission members or representatives proceed with the summonsing or hearing of any person likely to supply it with information concerning the matters that have been referred to it. Any person summonsed is entitled to be assisted by the counsel of their choice.

Prior to giving an opinion, the commission hears the case of the persons concerned, apart from in an emergency. It consults, if it deems this to be necessary, the relevant scientific and technical organisation, or organisations, referred to in the last paragraph of article L. 221-7.

Where, in the performance of its mission, the commission is obliged to acquaint itself with information covered by trade secrecy, it appoints a reporter from within its midst. The latter asks to be sent all relevant documents and makes the commission aware of elements relating to the dangerous nature of the products or services.

 

Article L224-5

 

Each year the commission compiles a report on its activity. This report is presented the President of the Republic and to Parliament. It is published in the Journal Officiel. The opinions of the commission are annexed to this report as well as the repercussions of these opinions.

 

Article L224-6

 

(Act no. 92-1336 of 16 December 1992 art. 333 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Commission members and representatives are subject to professional secrecy in respect of facts, documents and information of which they may become aware by virtue of their duties, in accordance with the conditions and subject to the penalties provided for by article 226-13 and 226-14 of the French penal code in the event of disclosure of information covered by trade secrecy.

 

 

Chapter V: Other provisions

 

Article L225-1

 

Decrees shall state, when necessary, procedures for application of this part of the code.

 

 

Volume III

Endebtment

 

Part I

Credit

 

Chapter I: Consumer credit

 

Section 1: Scope

 

Article L311-1

 

In of this chapter :

* Creditor means any person who grants the loans, contracts or credits referred to in article L. 311-2;

* Debtor means the other party to the same transactions.

 

Article L311-2

 

The provisions of this chapter apply to all credit transactions as well as to any surety, granted on a regular basis by natural or legal persons, whether this is free of charge or for a fee.

For the application of this chapter, hire purchase and rent to buy/lease purchase, as well as sales or provisions of services, payment for which is in stages, is deferred or is in instalments, are categorised as credit transactions.

 

Article L311-3

 

The following are outside the scope of this chapter:

1° Loans, credit contracts and transactions concluded in an authentic (notarial) form;

2° Those which re granted for a total duration of three months or less, as well as those for an amount that is higher than a sum to be fixed by decree;

3° Those that are intended to finance the requirements of a professional activity, as well as loans to public bodies;

4° Credit transactions relating to immovable property, in particular, property leasing transactions and those related to

a )the acquisition of ownership or possession of a property;

b) the subscription or purchase of company stocks or shares giving title to attribution of ownership or possession of a property;

c) to property construction, repair, improvement or maintenance costs, where the sum of these costs is in excess of an amount fixed by decree.

The provisions of this article do not exclude loans, credit contracts and transactions concluded in authentic form and loans, credit contracts and transactions for an amount exceeding the ceiling fixed in application of this article within the scope of article L. 311-5.

 

 

Section 2: Advertising

 

Article L311-4

 

(Act no. 98-657 of 29 July 1998 art. 84 Journal Officiel of 31 July 1998)

 

Any advertising implemented, received or perceived in France that, whatever its medium, relates to one of the credit transactions referred to in article L. 311-2, must:

1° State the identity of the lender, the nature, purpose and duration of the proposed transaction as well as the total cost and, where appropriate, the monthly and annual percentage rate of charge and fixed payments;

2° State the amount, in francs, of repayments by due date or, where this is not possible, the means of determining said amount. This amount includes the cost of insurance where this is obligatory in order to obtain financing and, where appropriate, the cost of fixed payments;

3° Indicate, for fixed term transactions, the number of due dates.

 

 

Section 3: Free credit

 

Article L311-5

 

Any advertising outside of places of sale, is prohibited:

1° including the words “free credit” or offers an equivalent advantage or relates to the total, or partial, payment of credit costs by the vendor;

2° relating to a financing transaction proposed for the acquisition or lease-purchase of consumer goods with one or more marks, but not another, and at a lower rate that the cost of refinancing for the same periods, as defined by the banking regulatory committee;

3° promotional advertising relating to the transactions referred to in article L. 311-2 offering a period of grace in respect of the payment of rents or loan repayments in excess of three months.

 

Article L311-6

 

Any advertising on places of sale including the words “free credit” or offering an equivalent advantage must indicate the amount discount given in the event of cash payment.

 

Article L311-7

 

Where a financing transaction involves total, or partial, meeting of the costs in the sense of articles L. 311-4 to L. 311-6, the vendor cannot ask the credit purchaser or the lessee for a sum of money in excess of the lowest price actually paid for the purchase of a similar item or service in cash in the same retail establishment, during the course of the thirty days prior to the start of the advertising or the offer. The vendor must, in addition, offer a price for cash payment that is less than the sum proposed for credit purchase or rental and that is calculated in accordance with procedures fixed by decree.

 

 

Section 4: Credit agreements

 

Article L311-8

 

The credit transactions referred to in article L. 311-2 are concluded under the terms of a prior offer, submitted in duplicate to the borrower and, if necessary, in a single copy to the guarantors. Submission of the offer obliges the lender to maintain the terms indicated therein for a minimum period of fifteen days from issue.

 

Article L311-9

 

Where this relates to the opening of a line of credit that, whether or not it is combined with the use of a credit card, offers its beneficiary the opportunity to access in stages, on dates of his/her choice, the amount of credit granted, the prior offer is only obligatory for the initial agreement.

It specifies that the duration of the agreement is limited to one year, open to renewal, and that the lender must indicate, three months prior to expiry, the terms under which the agreement may be renewed. It also fixes procedures for repayment, necessarily in instalments, unless the debtor wishes otherwise, of outstanding sums should the debtor ask to terminate the line of credit opened to him/her.

 

Article L311-10

 

The prior offer:

1° States the identity of the parties and, where appropriate, the guarantors;

2° States the amount of credit and, if necessary, the proportions in which it is periodically available, the nature, purpose and procedures of the agreement, including, where appropriate, the insurance terms as well as a breakdown of the total cost of the credit and, if necessary, its annual percentage rate of charge as well as the total fixed payments required in addition to interest by breaking down those corresponding to administration costs and those corresponding to costs by due date;

3° Refers to the provisions of articles L. 311-15 to L. 311-17 and L. 311-32 and, where appropriate, articles L. 311-20 to L. 311-31, L. 313-13 and reproduces those of article L. 311-37;

4° Indicates, as required, the goods or service provisions financed.

 

Article L311-11

 

For fixed term transactions, the prior offer also states, for each due date, the cost of insurance and fixed payments that may be requested as well as the intervals between repayments or, where this is impossible, the means of determining said intervals.

 

Article L311-12

 

Where the prior offer is accompanied by an insurance proposal, a notice must be sent to the borrower, that includes the general terms of the insurance relating thereto, in particular, the name and address of the insurer, the term, the risks covered and those that are excluded.

The prior offer is drafted in application of the terms provided for in the previous articles in accordance with one of the standard models fixed by the banking regulatory committee, following consultation of the National consumer association.

 

Article L311-14

 

No vendor or service provider may, for the same goods or service provisions, require the same client to sign one or more prior offers, referred to in articles L. 311-8 to L. 311-13 and L. 311-15 to L. 311-17, for a total capital amount in excess of the value payable on credit for the goods purchased or the services supplied.

This provision does not apply to prior offers for the opening of permanent lines of credit defined in article l. 311-9.

 

Article L311-15

 

Where the prior offer does not include any clause in accordance with which the lender reserves the right to approve the person of the borrower, the agreement becomes complete as soon as the prior offer is accepted by the borrower. The borrower may, however, within seven days of his/her acceptance of the offer, go back on his/her agreement. To enable this withdrawal option to be exercised, a detachable form is attached to the prior offer. The fact that the borrower has exercised his/her right to withdraw shall not result in registration of a file.

 

Article L311-16

 

Where the prior offer stipulates that the lender reserves the right to approve the person of the borrower, the contract accepted by the borrower only becomes complete on the dual condition that, within the same seven day deadline, said borrower has not exercised the right to withdraw referred to in article L. 311-15 and that the lender has informed the borrower of its decision to grant the loan. The approval of the person of the borrower is deemed to have been refused if, upon expiry of this deadline, the interested party has not been notified of the decision to grant the loan. Approval of the person of the borrower brought to the attention of the interested party subsequent to expiry of this deadline still remains valid, however, if the latter still intends to take advantage of the offer of credit.

 

Article L311-17

 

Until the transaction has been finally concluded, no payment, in any form and for any reason whatsoever may be made by the lender to the borrower or on the latter's behalf, nor by the borrower to the lender. During this same period, the borrower can no longer, by virtue of the transaction in question, make any deposit to the benefit of the lender or on the latter's behalf. If an authorisation to make a deduction from his/her bank or giro account is signed by the borrower, its validity and its effective date are subject to those of the credit agreement.

 

Article L311-18

 

Where a loan document, drafted in application of articles L. 311-8 to L. 311-13 is liable for size stamp duty, only the copy retained by the lender is subject to this duty.

 

Article L311-19

 

Deadlines, fixed in this chapter, that would normally expire on a Saturday, Sunday or on a bank holiday or a non-working day, are extended to the next working day.

 

 

 

Section 5: Connected credit

 

Article L311-20

 

Where the prior offer states the goods or service provisions being financed, the borrower's obligations do not take effect until delivery is taken of the goods or the service is supplied. In the event of an ongoing sale or service contract involving a series of operations, these take effect from the start of the delivery or supply and cease in the event of interruption of said delivery or supply. The vendor or the service provider must retain a copy of the prior offer submitted to the borrower and must present it to monitoring agents, at their request.

 

Article L311-21

 

In the event of dispute in respect of performance of the main contract, the court may, until the dispute is settled, suspend performance of the credit agreement. The latter is automatically cancelled or annulled when the contract in view of which concluded is itself legally cancelled or annulled.

The provisions of the previous paragraph shall not apply unless the lender is a litigant party or unless proceedings have been instituted against it by the vendor or the borrower.

 

Article L311-22

 

If the main contract is legally cancelled or annulled by the vendor, the latter may, at the lender's request, be ordered to guarantee the repayment of the loan to the borrower, without prejudice to compensation in respect of the lender and the borrow.

 

Article L311-23

 

Every time that the price is paid, in whole or in part, with the aid of credit, and subject to the sanctions provided for in article L. 311-34, the sale or service contract must state this. No commitment may be validly contracted by the purchaser in respect of the vendor if the latter has not accepted the lender's prior offer. Where this condition has not been fulfilled, the vendor may not receive any payment, in any form whatsoever, or any deposit.

 

Article L311-24

 

As long as the lender has not given notification that the credit has been granted and as long as the borrower can exercise the right to withdraw, the vendor is not obliged to fulfil its obligation to deliver or supply. Where, however, by means of an express written request, dated and signed by the purchaser's own hand, the latter requests immediate delivery or supply of the goods or services, the withdrawal deadline open to the borrower by articles L. 311-15 to L. 311-17 expires on the date of delivery or supply, without exceeding seven days or being less than three days. The vendor is responsible, at is own expense and risk, for any premature delivery or supply.

 

Article L311-25

 

The sale or service contract is automatically cancelled, without compensation:

1° if the lender has not, within the seven day deadline provided for in articles L. 311-15 to L. 311-17, informed the vendor that the credit has been awarded;

2° if the borrower has, within the designated deadlines, exercised the right to withdraw.

In both cases, the vendor or the service provider must, upon simple request, then repay any sum that the purchaser may have paid as an advance on the price. As of the eighth day following the request for repayment, this sum shall be interest bearing at the legal rate plus one half.

The contract is only cancelled if, prior to the expiry of the seven day deadline provided for hereinabove, the purchase pays in cash.

 

Article L311-25-1

 

(inserted by Order no. 2001-741 of 23 August 2001 art. 15 Journal officiel of 25 August 2001)

 

Where payment of the price of the goods or services is totally, or partly, financed by credit granted by the supplier or by a third party on the basis of an agreement between this third party and the supplier, the consumer's decision to exercise the right to withdraw involves automatic cancellation of the credit agreement intended to provide the financing, without costs or compensation, with the possible exception of costs incurred for the opening of the credit file.

 

Article L311-26

 

The prior commitment to pay in cash in the event of refusal of the loan automatically becomes null and void.

 

Article L311-27

 

The vendor or the service provider may not receive, from the purchaser, any payment in any form whatsoever, nor any deposit, on top of the part of the price that the purchaser has agreed to pay in cash, provided that the contract relating to the credit transaction has not been finally concluded.

If a bank or giro bank direct debit instruction is signed by the purchaser, its validity and effective date are subject to those of the sale contract.

In the event of payment of part of the price in cash, the vendor or service provider must give the purchaser a receipt to include the reproduction, in full, of all the provisions of article L. 311-25.

 

Article L311-28

 

In the event of door-to-door selling or canvassing there is a seven day cooling off period whatever the delivery or supply date of the goods or services. No cash payment may be made prior to the expiry of this deadline.

 

Section 6: Early settlement repayment and debter default

 

Sub-section 1: Early settlement

 

Article L311-29

 

The borrower may always, on his own initiative, repay in advance, without compensation, in part or in full, the credit that he has been granted. The lender may, however, refuse partial premature payment of an amount less than that fixed by decree.

The first paragraph does not apply to lease contracts, unless said contracts specify that the deed of ownership is finally to be transferred to the lessee.

 

 

Sub-section 2: Default by the borrower

 

Article L311-30

 

In the event of default by the borrower, the lender may ask for immediate repayment of the capital outstanding, plus interest accrued due but not paid. Until the actual settlement date, the outstanding sums are liable to interest on arrears at the same rate as the loan. In addition, the lender may ask the defaulting borrower for compensation which, depending on the length of contract still left to run and without prejudice to the application of articles 1152 and 1231 of the French civil code, shall be fixed in accordance with a scale fixed by decree.

 

Article L311-31

 

In the event of default in the performance, by the borrower, of a lease contract accompanied by an undertaking to sell or by a hire purchase contract, the lender is entitled to ask, in addition return of the goods and payment of the outstanding rental, for compensation which, depending on the length of contract still left to run and without prejudice to article 1152 of the French civil code, shall be fixed according to a scale fixed by decree.

 

Article L311-32

 

The borrower cannot be made liable for any compensation or cost other than those mentioned in articles L. 311-29 to L. 311-31 in the event of premature repayment, or default provided for by these articles.

The lender may, however, claim from the borrower, in the event of the latter's default, the repayment of taxable costs incurred by it due to this default, to the exclusion of any lump-sum reimbursement for recovery costs.

 

 

Sub-section 3: Common provisions

 

Article L311-33

 

The lender who grants credit without submitting a prior offer satisfying the conditions fixed by articles L. 311-8 to L. 311-13 to the borrower, loses the right to interest and the borrower is only obliged to repay the capital in accordance with the schedule laid down. Sums received in interest, which produce interest at the legal rate as of the date of their payment, shall be returned by the lender or charged against the capital outstanding.

 

Article L311-34

 

(Act no. 92-1336 of 16 December 1992 art. 326 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The lender who fails to adhere to the formalities required by articles L. 311-8 to L. 311-13 and to provide a detachable for in the offer of credit, in application of article L. 311-15, shall be punished with the fine provided for in point 5 of article 131-13 of the French penal code for petty offence (5^th class).

The same penalty applies to the advertiser on whose behalf the advertising that does not conform to the provisions of articles L. 311-4 to L. 311-6 is disseminated. If the offender is a legal entity, the responsibility lies with its directors. Complicity is punishable under the terms of common law.

The court may also order the publication of the judgement and the rectification of the advertising at the expense of the convicted party or just one of these penalties.

The penalties provided for in the first paragraph of this article also apply to the vendor who contravenes the provisions of article L. 311-7.

 

Article L311-35

 

(Act no. 92-1336 of 16 December 1992 art. 326 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The following are punishable with a FRF 200,000 fine:

1° The lender or vendor who, in breach of the provisions of article L. 311-17 and article L. 311-27, claims or receives from the borrower or the purchaser a payment in whatever form this may be;

2° Those who have bank or giro direct debits forms signed containing clauses contrary to the provisions of the articles referred to above;

3° Those who have signed, or approved or endorsed by the borrower or the purchaser, letters of exchange or promissory notes;

4° Those who unreasonably persist in failing to pay the sums referred to the paragraph before last of article L. 311-25;

5° Those who, in breach of the provision of article L. 311-15, register, or have registered, on a file, the name of persons making use of the option to withdraw;

6° Those who have several prior offers signed by the same customer for a total capital amount in excess of the value payable on credit for the goods purchased or the services supplied. 

 

Article L311-36

 

Breaches of the provisions of the decrees referred to in the second paragraph of article 1 of decree no. 55-585 of 20 May 1955 relating to credit sales will be punished with the penalties provided for by article L. 311-35 and will be established and proceedings instituted in accordance with the conditions fixed by articles 45, first paragraph, 46 and 47 of order no. 86-1243 relating to free prices and competition.

 

Section 8: Procedure

 

Article L311-37

 

(Act no. 95-125 of 8 February 1995 art. 27 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

The tribunal d'instance provides for litigation resulting from the application of this chapter. Proceedings brought before it must be instituted within two years of the event from which they arise, upon pain of loss of rights, including where these are the result of contracts concluded prior to 1 July 1989.

Where methods of payment for unpaid instalments have been the subject of restructuring or rescheduling, the starting point for the foreclosure deadline is the first irregular incident occurring after the first restructuring or rescheduling concluded between the interested parties or after the adoption of the contractual recovery plan provided for in article L. 331-6 or following a decision made by the juge de l'execution on the measures mentioned in article L. 331-7.

 

Chapter II: Credit for land purchase

 

Section 1: Scope

 

Article L312-1

 

In the sense of this chapter the following shall be considered as:

a) Buyer, any person who buys, contracts to or orders by means of the loans mentioned in article L. 312-2;

b) Seller, the other party to these same transactions.

 

Article L312-2

 

The provisions of this chapter apply to loans which, whatever their rating or function, are granted on a regular basis by any natural or legal person with a view to financing the following transactions:

1° For properties for use as a dwelling or for professional use as a dwelling:

a) Their acquisition under ownership or possession;

b) Subscription or purchase of company stocks or share giving title to their allocation under ownership or possession;

c) Costs relating to their construction, repair, improvement or maintenance where the amount of these costs is in excess of that fixed in performance of the last paragraph of article L. 311-3;

2° The purchase of land intended for the construction of the properties mentioned in point 1. hereinabove.

 

Article L312-3

 

The following are beyond the scope of this chapter:

1° Loans granted to legal entities under public law;

2° Those intended, in whatever form this may be, to finance a professional activity, in particular, that of natural and legal persons who, even if this is secondary to another activity, or by virtue of their company object, regularly procure, in whatever form this may be, properties or parts of properties, whether built or not, whether finished or not, whether apartments or individual houses, under ownership or possession;

3° Deferred credit transactions governed by Act no. 52-332 of 24 March 1952 relating to deferred credit obligations where they are not associated with premature credit.  

 

 

 

Section 2: Advertising

 

Article L312-4

 

Any adversisement published, received or perceived in France that, whatever its medium, relates to one of the loans referred to in article L. 312-2, must:

1° Specify the identity of the lender, the nature and the purpose of the loan;

2° Specify, if it relates to one or more calculated components, the duration of the proposed transaction as well as the total cost and the overall percentage rate of charge for the credit.

All obligatory wording must be presented in a perfectly legible and be comprehensible manner by the consumer.

 

Article L312-5

 

Any publicity document or any information document submitted to the borrower and relating to one of the operations referred to in article L. 312-2 must mentioned that the borrower has a ten day cooling off period, that the sale is subject to the loan being obtained and that if the latter is not obtained, the vendor must repay the borrower the sums paid.

 

Article L312-6

 

Any advertising categorising monthly repayments as rental payments or referring, for the calculation of instalments, to social security benefits which are not guaranteed throughout the life of the contract.

 

 

Section 3: The credit agreement

 

Article L312-7

 

For the loans mentioned in article L. 312-2, the lender is obliged to formulate, in writing, an offer sent, free of charge, by post, to the prospective borrower as well as to the guarantors declared by the borrower where these are natural persons.

 

Article L312-8

 

(Act no. 96-314 of 12 April 1996 art. 87 II Journal officiel of 13 April 1996)

 

The offer defined in the previous article:

1. Mentions the identity of the parties, and possibly the guarantors declared;

2. Specifies the nature, purpose and procedures of the loan, in particular, those relating to the dates and terms under which the funds are to be made available;

2a. Includes a depreciation schedule detailing, for each due date, the payment  breakdown between capital and interest. This provision does not, however, concern variable rate loan offers;

3. Indicates, in addition to the amount of credit likely to be granted and, where appropriate, that of the parts of the credit periodically available, its total cost, its rates defined in accordance with article L. 313-1 as well as, where appropriate, indexation procedures;

4. Lists, by giving an evaluation of their cost, the stipulations, insurances and valuable or personal securities required, that conditions the conclusion of the loan;

5. States the conditions required for any transfer of the loan to a third person;

6. Refers to the provisions of article L. 312-10.

Any amendment to the terms under which the loan is obtained, in particular, the amount or the credit rate, give rise to the submission of a new prior offer to the borrower.

This obligation is not, however, applicable to loans with a variable rate of interest, since a notice presenting the terms and procedures of rate variation has been submitted to the borrower with the prior offer.

 

Article L312-9

 

Where the lender offers the borrower or asks the latter to take part in a group insurance policy that has been taken out with a view to guaranteeing, in the event of the occurrence of one of the risks defined by said policy, either the total or partial reimbursement of the outstanding loan amount, or payment of all, or part, of the instalments for said loan, the following provisions are applied compulsorily:

1° Annexed to the loan contract is a notice listing the risks covered and specifying all the procedures for bringing the insurance into play;

2° Any amendment subsequently made to the definition of the risks covered or to the procedures for brining the insurance into play cannot be applied to the borrower since they have not been agreed by him/her;

3° Where the insurer has made its cover subject to the approval of the person of the insured party and this approval is not given, the loan contract is automatically cancelled at the borrower's request, without cost or penalty of any kind. This request must be made within one month of notification that approval has been refused.

 

Article L312-10

 

Sending of the offer obliges the lender to maintain the stated terms for a minimum of thirty days from receipt of the offer by the borrower.

The offer is subject to acceptance from the borrower and declared guarantor, as natural persons.

The borrower and guarantors can only accept the offer ten days or later after receiving it.

Acceptance must be given by letter, the postmark being taken as proof of posting date.

 

Article L312-11

 

Until acceptance of the offer by the borrower, no payment, in whatever form this may take, may be made, by virtue of the transaction in question, by the lender to the borrower or on the latter's behalf, nor by the borrower to the lender. Until this acceptance, the borrower may not, by the same token, make any deposit, sign or endorse any bill of exchange, nor sign any cheque. If a bank or giro account direct debit form has been signed by the borrower, its validity and effective date are subject to that of the credit agreement.

 

Article L312-12

 

The offer is always accepted under the condition subsequent of failure to conclude, within four months of its acceptance, the agreement for which the loan is requested.

The parties may agree on a longer deadline that that defined in the previous paragraph.

 

Article L312-13

 

Where the borrower informs its lenders that it is using several loans for the same transaction, each loan is concluded subject to the condition subsequent of the granting of each of the other loans. This provision only applies to loans for an amount in excess of 10% of the total credit.

 

Article L312-14

 

Where the contract in view of which the loan has been requested is not concluded within the deadline fixed in application of article L. 312-12, the borrower is obliged to repay, in full, the sums that the lender may have already paid to him/her, or that may have been paid on his/her behalf as well as any related interest. The lender may only retain or request study costs for which the maximum amount is fixed according to a scale determined by decree.

The amount of these costs, as well as the conditions under which they are received, must appear separately in the offer.

 

Article L312-14-1

 

(inserted by Act no. 99-532 of 25 July 1999 art. 115 Journal officiel of 29 June 1999)

 

In the event of the loan being renegotiated, amendments to the original loan are made only in the form of an additional clause. This additional clause comprises, on the one hand, a depreciation schedule detailing, for each due date, the capital outstanding in the event of early repayment and, on the other hand, the overall rate of charge as well as the cost of credit calculated solely on the basis of instalments and future costs. For variable rate loans, the additional clause includes the overall rate of charge as well as the credit cost calculated solely on the basis and future cost up until the rate review date, as well as the terms and procedures for rate variation. The borrower has a cooling off period of ten days from receiving the information mentioned below.

N.B. Act 99-532 1999-06-25 art. 115 II:

Subject to the legal decisions taken in respect of the thing being judged, loan renegotiations prior to publication of this Act are deemed to conform to the ninth paragraph of article L. 312-8 of the French consumer code, provided that they are favourable to the borrower, i.e. that they result either in a lowering of interest rates on the loan or in a drop in the amount of the loan instalments, or by a reduction in the duration of the loan.

 

 

Section 4: The main contract

 

Article L312-15

 

The written document, including the unilateral commitment to sell aiming to record one of the transactions mentioned in article L. 312-2, must say whether the price will be paid, directly or indirectly, even in part, with or without the aid or one or more loans governed by sections 1 to 3 of this chapter.

 

Article L312-16

 

Where the document mentioned in article L. 312-15 indicates that the price is paid, directly or indirectly, even in part, with the aid of one or more loans governed by sections 1 to 3 and section V of this chapter, this document is concluded under the conditions subsequent to obtaining one or more loans which assume the financing. The period of validity of this condition subsequent cannot be less than a month from the date on which the document is signed or, if this is a simple contract, subject, otherwise it is void, to the formality of registration, as of the date of registration.

Where the condition precedent provided for in the first paragraph of this article is not fulfilled, any sum paid in advance by the acquirer to the other party or on behalf of the latter is immediately repayable, in full, without deduction or compensation, on whatever grounds this may be. As of the fifteenth day after the request for reimbursement, this sum produces interest at the legal rate plus one half.

 

Article L312-17

 

Where the document mentioned in article L. 312-15 indicates that the price is to be paid without the aid or one or more loans, this document must bear, in the hand of the acquirer, a statement to the effect that the latter acknowledges having been informed that in the event of a loan being taken out, this chapter cannot be applied.

In the absence of the information laid down by article L. 312-15 or if the statement required by the first paragraph of this article is missing or is not in the hand of the acquirer and if a loan is, nevertheless, applied for, the contract is deemed to have been concluded under the condition precedent provided for in article L. 312-16.

 

Article L312-18

 

For the expenses designated in c of point 1 of article L. 312-2, and in the absence of a contract signed by both parties, the condition precedent provided for in article L. 312-16 can only result in a notification given by the owner, in writing, prior to any commencement of the performance of the works, indicating his/her intention to pay the price, directly or indirectly, even in part, with the aid of one or more loans.

 

Article L312-19

 

Where it is declared in the document recording the loan that the latter is intended to finance structures or construction works by means of agency contract, construction, project management or works contract, the court may, in the event of dispute or accidents affecting the performance of contracts and until the settlement of the litigation, suspend performance of the loan contract without prejudice to any right that the lender may have to compensation. These provisions only apply if the lender is a party litigant or if proceeding have been instituted against it by one of the parties.

 

Article L312-20

 

The provisions of this section do not apply to sales subsequent to a call for tenders.

 

Section 5: Early settlement and debt default

 

Sub-section 1: Early repayment

 

Article L312-21

 

The borrower may always, on his/her own initiative, repay early, in part or in full, the loans governed by sections 1 to 3 of this chapter. The loan contract may prohibit repayments equal to or less than 10% of the original amount of the loan, unless this is the remaining balance.

If the loan agreement includes a clause specifying that, in the event of early repayment, the lender is entitled to ask for compensation for interest not yet payable, this may not, without prejudice to the application of article 1152 of the French civil code, exceed an amount which, depending on the length of the contract still left to run, is fixed according to a scale determined by decree.

For contracts concluded as of the date on which Act no. 99-532 of 25 July relating to savings and financial security came into force, no compensation is owed by the borrower in the event of early repayment where the repayment is motivated by the sale of the property subsequent to a change in the borrower's place of professional activity or that of his/her spouse, by the death or compulsory termination of the professional activity of these persons.

 

Sub-section 2: Default by the borrower

 

Article L312-22

 

In the event of default by the borrower and where the lender does not request the immediate repayment of the outstanding capital, the latter may increase, within limits fixed by decree, the rate of interest that the borrower has to pay until the normal course of the contractual payments is resumed. Where the lender reaches the point of asking for the contract to be cancelled, he may request immediate repayment of the outstanding capital, as well as payment of interest accrued. Until the actual date of payment, the sums outstanding produce interest on arrears at the same rate as that of the loan. In addition, the lender may ask for compensation from the defaulting borrower which, without prejudice to the application of articles 1152 and 1231 of the French civil code, may not exceed an amount which, depending on the length of the contract still left to run, is fixed according to a scale determined by decree.

 

 

Sub-section 3: Common provisions

 

Article L312-23

 

The borrower may not be made liable for any compensation or cost other than those mentioned in articles L. 312-21 and L. 312-22 in the event of early repayment or default provided for by these articles.

The lender may, however, claim from the borrower, in the event of default by the latter, the repayment, subject to evidence, of any lump-sum reimbursement of collection costs.

 

Section 6: Lease-purchase and lease with promise to sell

 

Article L312-24

 

Subject to the provisions of points 1 and 2 of article L. 312-3, the hire-purchase or lease agreements accompanied by a commitment to sell relating to the properties mentioned in point 1 of article L. 312-2 are subject to this chapter, in accordance with the conditions fixed in this section.

 

Article L312-25

 

Any advertising implemented, received or perceived in France, whatever its medium, relating to one of the contracts governed by this section, must specify the identity of the lessor, the nature and purpose of the contract.

If this advertising includes one or more calculated components, it must mentioned the duration of the lease as well as the annual and total cost of the transaction.

 

Article L312-26

 

For contracts governed by this section, the lessor is obliged to formulate, in writing, an offer sent, free of charge, by post to the prospective lessee.

This offer states the identity of the parties. It specifies the nature and purpose of the contract as well as its procedures, in particular, with regard to the dates and terms under which the good are provided, the amount of the initial payments and that of the rental payments as well as any indexation procedures.

It refers, in addition, to the provisions of article L. 312-27.

For rental contracts accompanied by a commitment to sell, it also fixes:

1° The conditions under which the option may be taken up and its cost divided between, on the one hand, the proportion of initial payments and rental payments taken into consideration for payment of the price and, on the other hand, the residual value of the goods, considering the impact of the revision clauses that may be provided for by the contract;

2° The conditions and cost of non-realisation of the sale.

 

Article L312-27

 

Sending of the offer obliges the lessor to maintain the stated terms for a minimum of thirty days from receipt of the offer by the lessee.

The offer is subject to acceptance from the lessor who can only accept the offer ten days after receiving it.

Acceptance must be given by letter, the postmark being taken as proof of posting date.

 

Article L312-28

 

Until acceptance of the offer, the lender cannot make any deposit, sign or endorse any bill of exchange, sign any cheque or bank or giro account direct debit form to the lessor's advantage or on the latter's behalf.

 

Article L312-29

 

In the event of default by the lessee in the performance of a contract governed by this section, the lessor is entitled to ask, in addition to settlement of outstanding rental payments, for compensation which, without prejudice to the application of article 1152 of the French civil code, may not exceed an amount which is dependent upon the length of the contract still to run and fixed according to a scale determined by decree.

In the event of hire-purchase, the lessor may only ask for the goods to be returned subsequent to repayment of that part of the sums paid corresponding to the capital value of these goods.

The lessee cannot be made liable for any compensation or cost other than those mentioned below. The lessor may, however, claim back from the lessor, in the event of default by the latter, repayment, subject to evidential proof, of taxable expenses which may have been incurred by the lessor by said default, with the exclusion of any lump-sum repayment of collection costs.

 

Article L312-30

 

In the event of lease accompanied by a commitment to sell, the document recording the taking up of the option is concluded under the condition precedent provided for in article L. 312-16.

Where this condition is not met, the lessor is obliged to return all the sums paid by the lessor with the exception of rental payments and costs relating to the making good of the property.

As of the fifteenth day following the request for repayment this sum produces interest at the legal rate plus one half.

 

Article L312-31

 

The provisions of article L. 313-12 apply to contracts subject to the provisions of this section.

 

 

Section 7: Penalties

 

Article L312-32

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The advertiser on whose behalf advertising which does not conform to the provisions of articles L. 312-4 to L. 312-6 or of article L. 312-25 is disseminated, will be punished by a fine of FRF 200,000.

The provisions of articles L. 121-2 to L. 121-7 apply to offences relating to advertising falling within the scope of this chapter.

 

Article L312-33

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Creditors or lessors who do not comply with any one of the obligations provided for by articles L. 312-7 and L. 312-8, L. 312-14, second paragraph, or article L. 312-26, will be punished by a fine of FRF 25,000.

Lenders who have the borrower or the stated guarantors sign, or receives acceptance of the offer from them, without this being dated or bearing a false date likely to lead to the belief that it was given subsequent to the ten day expiry date provided for by article L. 312-10, will be punished with a fine of FRF 200,000.

The same penalty will apply to the lessor who has the lessee sign or who received in its part acceptance of the offer without this being dated or bearing a false date likely to lead to the belief that it was given subsequent to the ten day expiry date provided for by article L. 312-27.

In the cases provided for in the previous paragraphs, the lender or the lessor may, in addition, lose the right to interest, in full or in the proportion fixed by the judge.

 

Article L312-34

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The lender or the lessor who, in breach of the provisions of article L. 312-11 or article L. 312-28, agrees to receive from the borrower or the lessee, or on behalf of one of the latter, a payment or a deposit, a cheque or a signed bill of exchange, endorsed or guaranteed to its advantage, or uses a bank or giro account direct debit authorisation, shall be punished with a FRF 200,000 fine.

 

Article L312-35

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The lender, in breach of the provisions of the first paragraph of article L. 312-14, or the vendor, in breach of the provisions of article L. 312-16, or the lessee, in breach of the provisions of the last paragraph of article L. 312-30, who does not repay the sums referred to in these articles, will be punished by a FRF 200,000 fine.

The same penalty will be applicable to those who claim from the borrower or from the lessee or deduct from their account sums in excess of those that they are authorised to claim or to deduct in application of the provisions of article L. 312-23 or the two last paragraphs of article L. 312-29.

 

 

Section 8: Procedure

 

Article L312-36

 

The tribunal d'instance makes provisions for proceedings arising from the application of articles L. 312-31 and L. 313-12.

 

Chapter III: Common provisions

 

Section 1: Interest rate

 

Sub-section 1: The annual percentage rate

 

Article L313-1

 

Under all circumstances, costs, commissions or repayments of any kind, whether direct or indirect, including those paid or owing to intermediaries acting in any capacity whatsoever in the granting of the loan, even if these costs, commissions or payments correspond to real disbursements, are added to the interest, for the determination of the loan's annualised percentage rate, as well as for that of the reference effective rate.

For the application of articles L. 312-4 to L. 312-8, however, the charges relating to the guarantees by which the credits may be accompanied as well as legal officer's fees, are not included in the annualised percentage rate defined hereinabove, where their amount cannot be given accurately upon final conclusion of the contract.

In addition, for loans which are the subject of scheduled depreciation, the annualised percentage rate must be calculated by taking into consideration the depreciation methods used for the loan.

The Council of state decree will determine the conditions governing the application of this article.

 

Article L313-2

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The annualised percentage rate determined as stated in article L. 313-1 must be mentioned in all written documents constituting a loan contract governed by this section of the code.

Any breach of the provisions of this article will be punished by a FRF 30,000 fine.

 

 

Sub-section 2: The usury rate

 

Article L313-3

 

A usurious loan is constituted by any contractual loan granted at an annualised percentage rate which exceeds, at the time of granting, by more than one third, the average effective rate practised during the course of the previous quarter by credit institutions for transactions of the same nature involving similar risks, as defined by the administrative authority upon advice from the Conseil national du crédit.

Loans awarded on the occasion of sales on instalment credit are, for the application of this section, classed as contractual loans and deemed to be usurious under the same terms as money loans for the same purpose.

Conditions relating to the calculation and advertising of average effective rates referred to in the first paragraph are fixed by regulatory means.

 

Article L313-4

 

Where a contractual loan is usurious, the excessive levies in respect of articles L. 313-1 to L. 313-3 are automatically charged on normal interest payable and secondarily on the loan capital.

If the loan capital and interest is paid off, the sums levied unreasonably must be repaid with legal interest from the day on which they are paid.

 

Article L313-5

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Anyone who grants another a usurious loan or knowingly contributes for any reason and in any way, whether directly or indirectly, to the obtaining or granting of a usurious loan or a loan that may become usurious in the sense of article L. 313-3 due to his/her contribution is punishable by a two year imprisonment a FRF 300,000 fine or only one of these two penalties.

The court may, in addition, order:

1° The publication, in full, or in extracts, of its decision, at the expense of the convicted party, in the journals designated by it, as well as the posting of this decision in accordance with the terms provided for in article 131-35 of the French penal code;

2° The closure, whether temporary or final, of the company in which one or more persons responsible for administration or management is convicted in application of the first paragraph of this article, possibly accompanied by the appointment of any administrator or liquidator.

In the event of closure, the court fixes the period during which the offender or the company must continue to pay its employees wages, benefits and payments of any kind to which the latter has been entitled until this time. This periods must not exceed three months.

Recommendation of prosecution with regard to the offence referred to in the first paragraph hereinabove runs from the date on which the last collection was made, whether this was of interest or of capital.

 

Article L313-6

 

At any stage of the preliminary hearing or the inquiry or judgement proceedings, the competent legal authorities may, should they deem it to be necessary, refer the case to an advisory panel constituted by means of an order and which will give an opinion both on the average effective rate referred to in the first paragraph of article L. 313-3 and on the annualised percentage rate used in the domain under consideration.

 

Section 2: Guarantors

 

Article L313-7

 

The natural person who undertakes by virtue of a private contract to stand surety for one of the transactions coming under chapters I or II of this part of the code must, under penalty of its undertaking being rendered invalid, precede its signature with the following handwritten statement, and only this statement:

“in standing surety for X……., up to the sum of ……….. covering payment of the principal, interest and, where appropriate, penalties or interest on arrears and for the duration of ………… I undertake to repay the lender the sums owing on my income and property if X…… fails to satisfy the obligation himself”.

 

Article L313-8

 

Where the creditor asks for a joint and several guarantee for one of the transactions to which chapters I or II of this part of the code relate, the natural person who is standing surety must, under penalty of its undertaking being rendered invalid, precede its signature with the following handwritten statement:

“In renouncing the benefit of execution defined in article 2021 of the French civil code and obliging me, jointly and severally, with X………., I undertake to repay the creditor without being able to ask that the latter first institute proceedings against X…”.

 

Article L313-9

 

Any natural person who stands surety upon the occasion of a credit transaction to which chapters I or II of this part of the code relate, must be informed by the lending institution of the main debtor's default as soon as the first incident of payment characterised as being liable for registration in the file instituted by article L. 333-4. Should the lending institution fail to conform to this obligation, the surety cannot be extended to payment of penalties or interest on arrears payable between the date of this first incident and that on which notification was given.

 

Article L313-10

 

A credit institution may not take advantage of a guarantee agreement for a credit transaction to which chapters I or II of this part of the code relate, concluded by a natural person whose undertaking was, at the time of conclusion, manifestly disproportionate to his/her property and income, unless the net worth of this guarantee, when called for, is such as to enable the latter to meet his obligation.

 

Section 3: Payment of the vendor

 

Article L313-11

 

No vendor, whether or not it receives a wage from a banking or credit organisation, may, under any circumstances, be paid a fee that is dependent on the rate of credit that it has arranged to contract with the purchaser of moveable or immoveable property.

 

 

Section 4: Time order

 

Article L313-12

 

The performance of the debtor's obligation may, in particular, in the event of termination of employment, be suspended by order of the juge d'instance in accordance with the conditions provided for in articles 1244-1 to 1244-3 of the French civil code. The order may decide that, during the period of grace, the sums owing will not produce any interest at all.

The judge may, in addition, determine in his/her order, the payment terms for the sums payable at the end of the period of suspension, without the final payment exceeding by more than two years the term originally planned for repayment of the loan. The judge may, however, defer judgement on these payment terms until the end of the period of suspension.

 

 

Section 5: Bills of exchange and promissory notes

 

Article L313-13

 

The provisions of article 114 of the French commercial code apply to bills of exchange and promissory notes signed or endorsed by borrowers, even if these are major, upon the occasion of credit transactions governed by this part of the code with the exception of sections 2, 4, 6 and 7 of chapter II and sections 1, 3 and 4 to 8 of this chapter.

 

Section 6: Powers of investigation

 

Article L313-14

 

Breaches of the provisions of chapters I and II and sections 2 to 8 of chapter III of this part of the code are ascertained and prosecuted in accordance with the conditions fixed by articles 45, first paragraph, 46 and 47 of order no. 86-1243 of 1 December 1986 relating to free prices and competition.

 

 

Section 7: Implementing provisions

 

Article L313-15

 

The implementing provisions of this part of the code, with the exception of section 1 of this chapter, are fixed by Council of state decree. The specimen offer referred to in articles L. 312-7, L. 312-8 and L. 312-26 may, however, where necessary, be fixed by the banking regulatory committee.

 

 

Section 8: Public policy provision

 

Article L313-16

 

The provisions of chapters I and II and of sections 2 to 8 of chapter III of this part of the code are public policy.

 

 

Part II : Brokers and the settlement of debts

Chapter I: Void agreements

 

Article L321-1

 

(Act no. 98-657 of 29 July 1998 art. 85 Journal officiel of 31 July 1998)

 

Any agreement by virtue of which an intermediary is responsible or puts him/herself forward, for a fee:

1° Either to investigate the position of a debtor with a view to establishing a repayment schedule;

2° Or to research on a debtor's behalf, the obtaining of extensions for debt repayment or debt remission;

3° Or to intervene, on the debtor's behalf, in whatever form this may be, for the requirements of the absolute insolvency/excessive indebtedness procedure;

shall automatically be deemed null and void.

 

 

Chapter II: Various provisions

 

Article L322-1

 

(Act no. 92-1336 of 16 December 1992 art. 322 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

Any intermediary who may have received a sum of money on the occasion of one of the transactions mentioned in article L. 321-1 will be punished by imprisonment of one year and a fine of FRF 200,000 or only one of these two penalties.

In addition, the court may order, at the expense of the convicted party, the publication, in full, or in extracts, of the judgement in journals fixed by him/her, without the cost of this publication exceeding the full amount of the fine incurred.

 

Article L322-2

 

The provisions of this part of the code do not apply:

1° to members of the legal, and legally regulated, professions;

2° to natural or legal persons involved in the transactions referred to in article L. 321-1 within the scope of their conciliation duties as instituted by Act 84-148 of 1 March 1984 relating to the prevention and out-of-court settlement of corporate disputes;

3° to natural or legal persons designated in application of articles 141 and 143 of Act no. 95-08 of 25 January 1985 relating to reorganisation and compulsory liquidation of companies involved in the transactions referred to in article L. 321-1;

4° to natural persons mentioned in the second paragraph of article 2 of Act no. 85-99 of 25 January 1985 relating to receivers, authorised agents/liquidators and experts in company diagnostics, within the scope of the duties that they have been assigned by legal decision.

The do not pose an obstacle to the legislative and regulatory provisions provided for by legal representation.

 

Article L322-3

 

The provisions of articles L. 321-1, L. 322-1 and L. 322-2 apply to contracts in progress on 1 January 1986. On this date, active files must be submitted, in full, to debtors by intermediaries responsible for them.

 

 

Part III : Handling situations of overin debtedness

 

Chapter 1: Proceedings before the Commission de surendettement des particuliers

 

Article L331-1

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 86 Journal officiel of 31 July 1998)

 

At least one commission for personal overindebtedness has been set up in each department.

Said commission comprises the departmental government representative, a chairperson, the paymaster, a vice-chairman, the director of tax services. Each of these persons may be represented by one single, same deputy, in accordance with conditions fixed by decree. The commission also includes the local representative of the Banque de France, which provides the secretariat, as well as two entities chosen by the departmental government representative, the first on the advice of the Association française des établissements de crédit et des enterprises d'investissement, the second on the advice of family and consumer associations.

A deputy for each of these entities is appointed under the same conditions.

 

Article L331-2

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 86 Journal officiel of 31 July 1998)

 

The commission's aim, in accordance with the conditions provided for by this chapter, is to deal with personal overindebtedness in respect of natural persons, characterised by the clear impossibility on the part of the debtor, acting in good faith, to meet all of his non-professional outstanding debts and those falling due.

The full amount of the repayments resulting from the application of articles L. 331-6 or L. 331-7 is fixed, in accordance with conditions specified by decree, in reference to the distrainable portion of income as per article L. 145-2 of the French labour code, in such a manner that part of the funds required for everyday household expenses are retained as a priority. This portion of income, which cannot be less than the minimum wage available to the household, is mentioned in the contractual recovery plan provided for in article L331-6 or in the recommendations provided for in articles L. 331-7 and L. 331-7-1.

 

Article L331-3

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 86 Journal officiel of 31 July 1998)

Proceedings are instituted before the commission at the debtor's request.

The commission checks that the application is in the position defined in article L. 331-2. The juge de l'execution is competent to deal with appeals directed against decisions rendered by it in this respect.

The commission compiles the debtor's debt statement. The latter is obliged to declare all assets and liabilities. Where the commission ascertains that the repayment of one or more of the main debtor's debts is guaranteed by surety, it informs the guarantor that proceedings have been instituted. The guarantor may notify the commission of its observations in writing.

The debtor is heard, at its request, by the commission. The latter may also hear from any person that it may deem useful, provided that the latter appears free of charge.

The commission may have a call-up of creditors published.

After having been informed by the commission of the statement of liabilities declared by the debtor, the creditors have thirty days to supply, should they disagree with this statement, proof of their debts in terms of principal, interest and incidentals. Failing this, the debt is considered by the commission solely in view of the items supplied by the debtor.

The creditors must then say whether the debts in question involve a guarantee and whether this has been brought into play.

Notwithstanding any provision to the contrary, the commission may obtain, from public administrations, credit institutions, social security organisations as well as services responsible for centralising banking risks and payment hitches, any information likely to provide it with exact information on the debtor's position, any possible changes to this position and out-of-court conciliation procedures under way.

At its request, local authorities and social security organisations carry out social investigations.

 

Article L331-4

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 90 Journal officiel of 31 July 1998)

 

The commission informs the debtor of the statement of liabilities that it has compiled. Debtors wishing to contest this statement have twenty days in which to ask the commission for a referral before the juge de l'exécution, for the purposes of checking the validity of the debt certificates and the amount of the sums claimed, by indicating the disputed debts and the grounds on which the application is being made. The commission is obliged to grant this application. At the end of the twenty day period, the commission may, in the event of difficulties, refer the case to the juge de l'exécution for the same ends.

 

Article L331-5

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-46 of 23 January 1998 art. 5 Journal officiel of 24 January 1998)

 

The commission may refer the case to the juge de l'exécution for the purposes of suspending the enforcement proceedings instituted against the debtor and relating to debts other than those relating to alimony. Subsequent, however, to the publication of a final demand and notice for the purposes of foreclosure, the foreclosing judge alone is competent to pronounce the suspension of this procedure. In emergencies, the judge's referral may intervene on the initiative of the chair of the commission, the latter's deputy, the local representative of the Banque de France or the debtor. The commission is then informed of the this referral.

The latter is acquired, without exceeding one year, until approval of the contractual recovery plan provided for in article L. 331-6 or, should the conciliation fail, until expiry of the deadline fixed by Council of state decree provided for by article L. 333-8, used by the debtor to ask the commission to make recommendations in application of articles L. 331-7 and L. 331-71-1 (1^st paragraph). In the event of a request being made within this deadline, it is acquired until the judge renders the measures recommended, in application of article L. 332-1, enforceable, or if the case has been referred in application of article 332-2, until the judge has made a ruling. Where the debtor makes use of the right conferred by article L. 331-7, the length of the temporary suspension is extended, until the judge renders the measures recommended, in application of article L. 332-1, enforceable, or if the case has been referred in application of article 332-2, until the judge has made a ruling.

Where, in the event of foreclosure, the date of the court order has been fixed, the commission may, for serious and duly justified reasons, refer the case to the judge for the purposes of having the adjudication cancelled, in accordance with the conditions provided for by article 703 of the old French civil code.

Unless authorised by the judge, the decision pronouncing the temporary suspension of the enforcement proceedings bans the debtor from performing any act likely to increase his/her insolvency, from paying, in whole or in part, a debt other than alimony incurred prior to this decision, from paying off guarantors who would settle debts incurred prior to the decision, from making any arrangement other than the normal management of the estate. It also prohibits the acceptance of any guarantee or surety.

 

Article L331-6

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

The commission's aim is to reconcile the parties with a view to compiling a contractual recovery plan approved by the debtor and the main creditors.

The plan may include measures to postpone or stagger debt repayments, cancellation of debts, reduction or removal of interest rates, consolidation, creation or substitution of guarantees.

The plan may make these measures subject to completion, on the part of the debtor, of actions to facilitate or guarantee the payment of the debt. It may also make said measures subject to the debtor abstaining from actions likely to worsen its insolvency.

The plan provides for implementation procedures.

 

Article L331-7

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-46 of 23 January 1998 art. 6 Journal officiel of 24 January 1998)

 

(Act no. 98-657 of 29 July 1998 art. 92 Journal officiel of 31 July 1998)

 

Should its conciliation mission fail, the commission may, at the debtor's request and after having put the parties in a position to furnish their observations, recommend all, or part, of the following measures:

1° Rescheduling, including, where appropriate, by deferring payment of part of the debts, payment of debts other than those of a fiscal or quasi-fiscal nature or those owed to social security organizations, without said postponement exceeding eight years or half the duration of the repayment period still left to run on current loans. In the event of default, the postponement or rescheduling may be as long as half the duration of the repayment period still left to run prior to expiry;

2° Charge payments, firstly to the capital;

3° Recommend that sums corresponding to instalments or rescheduled dates should bear interest at a reduced rate that may be less than the legal rate by special and reasoned proposal and should the debtor's position so require. Whatever the duration of the recovery plan, the rate cannot be higher than the legal rate.

4° In the event of compulsory sale of the debtor's main dwelling, charged with an encumbrance to the benefit of a credit institution having supplied the sums required for its acquisition, to reduce, by means of a special and reasoned proposal, the amount of the proportion of mortgage remaining due to credit institutions after the sale, after charging of the sale price against the outstanding capital, in proportions such that its payment, combined with rescheduling calculated as per the above, is compatible with the debtor's income and expenditure, The same provision applies in the event of a private sale, the principle and procedures of which, designed to avoid repossession, have been ordered by mutual agreement between the debtor and the credit institution. In any event, the benefit of these provisions cannot be invoked more than two months after a demand for payment of the proportion of the mortgage still owing, unless the case has already been referred to the commission. Under penalty of invalidity, the demand for payment reproduces the terms of this paragraph.

The commission may recommend that these measures are made subject to completion, on the part of the debtor, of actions to facilitate or guarantee the payment of the debt. It may also make said measures subject to the debtor abstaining from actions likely to worsen its insolvency.

For the application of this article, the commission takes into consideration the awareness on the part of each of the creditors, when the various contracts were concluded, of the debtor's debt position. It may also check that the contract was agreed with all the gravity required by professional custom.

The provisions of this article do not apply to alimony debts.

The debtor's application, formed in application of the first paragraph, interrupts the period of limitation and deadlines for action.

 

Article L331-7-1

 

(inserted by Act no. 98-657 of 29 July 1998 art. 93 I Journal officiel of 31 July 1998)

 

When the commission establishes the debtor's insolvency, characterised by the absence of funds or distrainable property such as to permit the discharge of all, or part, of his/her debts and rendering the measures provided for in article L. 331-7 non-applicable, it may recommend the suspension of payability of debts other than alimony or tax liabilities for a period not exceeding three years. Unless the commission proposes otherwise, the suspension of the debt results in the suspension of payment of interest owing in this respect. During this period, only sums due by virtue of capital repayment may automatically produce interest at a rate not exceeding the legal rate.

Tax liabilities may be the subject of total or partial remissions under the circumstances referred to in article L. 247 of the livre des procedures fiscales.

At the end of the period referred to in the first paragraph, the commission re-examines the debtor's position, If the situation permits, it recommends all, or some, of the measures provided for by article L. 331-7. If the debtor is still insolvent, it recommends, by virtue of a special and reasoned proposal, the total, or partial, clearing of debts, other than alimony or tax liabilities. Tax liabilities may be the subject of total or partial remissions in accordance with the conditions referred to in article L. 247 of the livre des procedures fiscales. No further clearing may be implemented, within an eight year period, for debts similar to those resulting in cancellation.

 

Article L331-8

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 93 II Journal officiel of 31 July 1998)

 

The measures recommended in application of article L. 331-7 or article L. 331-7-1 and rendered enforceable by application of article L. 332-1 or article L. 332-2 cannot be applied to creditors whose existence may not have been made known by the debtor and who have not been notified by the commission.

 

Article L331-9

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 93 II Journal officiel of 31 July 1998)

 

Creditors to whom the measures recommended in application of article L. 331-7 or the first paragraph of article L. 331-7-1 and rendered enforceable in application of article L. 332-1 or article L. 332-2 are applicable cannot exercise implementation proceedings against the debtor's property for the entire period in which these measures are in force.

 

Article L331-10

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

The parties may be assisted before the commission by any person of their choice.

 

Article L331-11

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 30 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

Commission members, as well as any person taking part in its debt work, are obliged to refrain from disclosing to third parties the information made know to them within the scope of the procedure instituted by this chapter, under the penalty of sanctions provided for by article 226-13 of the French penal code.

 

 

Chapter II: Supervision by the judge of measures recommended by the private overindebtedness commission

 

Article L332-1

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 31 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 93 IV Journal officiel of 31 July 1998)

 

If the dispute provided for in article L. 332-2 has not been referred to him/her, the juge de l'exécution renders the measures recommended by the commission in application of article L. 331-7 and the first paragraph of article L. 331-7-1 enforceable, after having verified their regularity, and measures recommended by the commission in application of the third paragraph of article L. 331-7-1 enforceable, after having verified their regularity and the grounds on which they are based.

 

Article L332-2

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 31 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 93 V Journal officiel of 31 July 1998)

 

A party may contest, before the juge de l'exécution the measures recommended by the commission in application of article L. 331-7 or article L. 331-7-1, within fifteen days of notification.

Prior to ruling, the judge may, at the request of one of the parties, order by provision, the enforcement of one or more of the measures referred to in the first paragraph.

He/she may have a call-up of creditors published.

He/she may check, even as a matter of course, the validity and amount of proofs of credit and establish that the debtor is really in the position described in article L. 331-2.

He/she may also recommend any measure of inquiry that he/she may deem necessary. Costs relating to the latter are paid for by the State.

Notwithstanding any provision to the contrary, the judge may obtain notification of any information enabling him/her to assess the debtor's position and any possible changes likely.

 

Article L332-3

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 31 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 95 Journal officiel of 31 July 1998)

 

The judge before whom the dispute provided for in article L. 332-2 is referred, takes all of part of the measures described in article L. 331-7 or in article L. 331-7-1. In any event, that portion of the funds required for everyday household expenses is determined as per the tenth paragraph of article L. 331-2. It is mentioned in the decision.

 

Chapter III: Judicial arrangement for bankruptcy

 

Article L332-4

 

(Law no. 95-125 of 8 February 1995 art. 31 Journal Officiel of 9 February 1995 in force on 1 August 1995)

 

(inserted by Law no. 98-657 of 29 July 1998 art. 96 Journal Officiel of 31 July 1998)

 

Clearing a debt in application of article L.332-1 or of article L.332-2 amounts to regularisation of the payment problem in the sense of article 65-3 of the decree of 30 October 1935 unifying the law on cheques and payment cards.

 

Chapter IV: Common provisions

 

Article L333-1

 

Debts owing to provident and mutual benefit institutions may be the subject of remissions in accordance with the conditions provided for by Council of state decree.

N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.

 

Article L333-2

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 32 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

(Act no. 98-657 of 29 July 1998 art. 93 VI Journal officiel of 31 July 1998)

 

The following are deprived of the benefit of the provisions of this part of the code:

1° Any person who has knowingly made false statements or submitted inaccurate documents with a view to obtaining the benefit of the procedure for dealing with overindebtedness;

2° Any person who, without the approval of his/her creditors, has misappropriated or concealed, or attempted to misappropriate or conceal, all or part of his/her property;

3° Any person who, without the approval of his/her creditors, the commission or the judge, has increased his/her debt by taking out new loans or who has disposed of his/her estate during the course of the procedure for dealing with overindebtedness, or during the performance of the plan or the measures referred to in article L. 331-7 or article L. 331-7-1.

 

Article L333-3

 

The provisions of this part of the code do not apply when the debtor is covered by the procedures instituted by Act no. 84-148 of 1 March 1984 relating to the prevention and out-of-court settlement of corporate difficulties, no. 88-1202 of 30 December 1988 relating to the adaptation of the agricultural concern to its economic and social environment and no. 85-98 of 25 January 1985 relating to compulsory administration and liquidation of companies.

These same provisions do not pose an obstacle to the application of articles 22, 23 and 24 of the Act of 1 June 1924 introducing French commercial laws into the departments of Haut-Rhin, Bas-Rhin and Moselle.

*N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.

 

Article L333-3-1

 

(inserted by Act no. 95-125 of 8 February 1995 art. 28 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

The provisions of this part of the code also apply to debtors with French nationality who domiciled outside of France and who in a position of overindebtedness and have contracted non-professional debts with creditors set up in France.

To this end, the debtor may refer the case to the debt/overindebtedness commission in the place where one of its creditors is established.

 

Article L333-4

 

(Act no. 98-657 of 29 July 1998 art. 97 I Journal officiel of 31 July 1998)

 

A national file is instituted listing information on characteristic payment problems relating to loans granted to natural person for non-professional requirements. This file is managed by the Banque de France, It is subject to the provisions of Act no. 78-17 of 6 January 1978 relating to electronic data processing, files and liberties.

The credit institutions referred to by Act no. 85-46 of 24 January 1984 relating to the activity and monitoring of credits institutions as well as financial services of La Poste, are obliged to declare to the Banque de France, the incidents referred to in the previous paragraph.

Where the commission set up in article L. 331-1 has checked that the debtor whose case has been referred to it is in the position referred to in article L. 331-2, it notifies the Banque de France so that the case can be recorded on the file instituted in the first paragraph of this article. The clerk to the juge de l'exécution is similarly obliged where, upon appeal by the interested party in application of the second paragraph of article L. 331-3, the position referred to in article L. 33102 is recognised by this judge.

The file lists the measures included in the contractual recovery plan mentioned in article L. 331-6. The Banque de France is notified of these measures by the commission. Listing is maintained throughout the period in which the contractual plan is in force, not exceeding eight years.

The file also lists the measures taken by virtue of articles L. 331-7 and L. 331-7-1 which are defined in article L. 331-7 and in the first paragraph of article L. 331-7-1 and the listing is maintained throughout the period in which these measures are in force, not exceeding eight years. With regard to the measures defined in the third paragraph of article L. 331-7-1, the listing period is fixed at eight years.

The Banque de France alone is authorised to centralise information referred to in the previous paragraph.

Professional organisations or central bodies representing the institutions referred to in the second paragraph alone are authorised to hold files listing payment difficulties.

The Banque de France is not bound by professional secrecy in respect of the dissemination, to credit institutions and aforementioned financial services, of personal data contained in the file.

The Banque de France is prohibited, in respect of credit institutions and financial services of La Poste, from handing over any copy, in whatever form this may be, of information contained in the file, even to the interested party where the latter is exercising its right of access in accordance with article 35 of aforementioned Act no. 78-17 of 6 January 1978, under penalty of the sanctions provided for in articles 43 and 44 of the same law.

*N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.   

 

Article L333-5

 

A ruling of the banking regulatory committee, taken upon advice from the Commission nationale de l'informatique et des libertés and the consultative committee set up by article 59 of aforementioned Act no. 84-46 of 24 January 1984, fixes, in particular, the procedures for collecting, recording, storing and consulting this information.

* N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.

 

Article L333-6

 

(Act no. 98-657 of 29 July 1998 art. 97 I Journal officiel of 31 July 1998)

 

In overseas departments, the Institut d'émission des departments d'outre-mer exercises, in liaison with the Banque de France, the powers invested in its by this chapter.

 

* N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.

 

Article L333-7

 

(Act no. 95-125 of 8 February 1995 art. 29, art. 33 Journal officiel of 9 February 1995 in force on 1 August 1995)

 

The provisions of articles L. 333-1, L. 333-2 to L. 333-6 and L. 333-8 apply to contracts in force on 2 January 1990.

The other provisions of this part of the code are immediately applicable to procedures implemented on the date on which said provisions, as defined in II of article 33 of Act no. 95-125 of 8 February 1995 relating to the organisation of jurisdictions and the French civil, penal and administrative procedures, come into force.

 

Article L333-8

 

Council of state decrees determine the conditions governing the application of this part of the code.

* N.B. – article covered by the public economic policy of social protection by opinion of the Cour de Cassation no. 09420028P of 16 December 1994*.

 

Part IV – Surety

 

Article L341-1

 

(inserted by Act no. 98-657 of 29 July 1998 art. 102 Journal officiel of 31 July 1998)

 

Without prejudice to special provisions, any natural person standing as surety is informed by the professional creditor that the principal debtor has defaulted as soon as the first payment difficulty arises that is not settled by the end of the month in which said payment is due. If the creditor does not comply with this obligation, the guarantor cannot be held liable for the payment of penalties or interest on arrears due between the date of this first incident and that on which it was informed of said incident.

 

Volume IV

Consumer associations

 

Part I

Association approval

 

Chapter I: The associations (Article L411-1)

 

Article L411-1

 

The terms under which consumer protection associations can be approved, upon the advice of the public prosecutor, taking into consideration their degree of representation on a national or local level, as well as the terms for withdrawal of this approval, are fixed by decree.

 

Chapter II: Consumer cooperatives (Article L412-1)

 

Article L412-1

 

Approval can only be granted to associations that are independent of any form of professional activity. Associations deriving from consumer cooperatives, governed by the Act of 7 May 1917 relating to the organisation of credit for consumer cooperatives and subsequent texts may, however, be approved if they also satisfy the conditions fixed in application of article L. 411-1.

 

Part II : Association's legal actions

Chapter I: Action taken in the collective interest of consumers

 

 

Section 1 – Compensation in criminal Courts

 

Article L421-1

 

Duly declared associations whose statutory object specifies the protection of consumer interests may, if they are approved for this purpose, exercise the rights conferred upon civil parties in respect of events directly, or indirectly, prejudicing the collective interest of consumers.

The organisations defined in article 2 of the French family and social welfare code are exempt from approval to go to Act under the conditions provided for in this article.

 

Article L421-2

 

The consumer associations mentioned in article L. 421-1 and acting in accordance with the conditions specified in this article, may ask the civil court, ruling on civil actions, or the criminal court, ruling on civil actions, to order the counsel for the defence or the defendant, where appropriate subject to penalty, for any measure intended to stop illicit actions or to remove illicit clauses from the contract or the standard contract offered to consumers.

 

 

Article L421-3

 

The criminal court to which the case is referred in accordance with the terms of article L. 421-1 may, after having found the accused guilty, adjourn the sentencing, where appropriate subject to conformance, within a fixed deadline, with the requirements that it determines and which aim to stop illicit actions or to remove illicit clauses from the contract or the standard contract offered to consumers.

Should the criminal court combine the adjournment with a fine, it must specify the rate and the date from which it is to run. The adjournment, which can only be given once, may be decided even if the accused does not appear in person. The judge may order the provisional enforcement of the injunction.

 

Article L421-4

 

At the postponed hearing, which must take place, at the latest, within one year of the decision to adjourn, the court rules on the penalty and clears the fine if there is one. It may, where appropriate, cancel the latter completely or reduce the amount. The fine is collected by the Treasury in the same way as a criminal fine. It cannot result in arrest and detention.

 

Article L421-5

 

The fine is automatically cancelled each time it is established that the person concerned has complied with an injonction sous astreinte pronounced by another criminal judge ruling in order to stop an identical offence to the one on which the proceedings are based.

 

Section 2: Stop orders

 

Article L421-6

 

(Act no. 95-96 of 1 February 1995 art. 4 Journal officiel of 2 February 1995)

 

(Order no. 2001-741 of 23 August 2001 art. 19 and art. 20 Journal officiel of 25 August 2001)

 

The associations mentioned in article L. 421-1 and organisations able to provide proof of their inclusion on the list published in the Official Journal of the European Communities in application of article 4 of directive 98/27/CE of the European parliament and council relating to actions for an injunction to stop or prohibit any illicit action in respect of the provisions transposing the directives mentioned in article 1 of the aforementioned directive.

The judge may order, on these grounds, where appropriate subject to a fine, the deletion of an illicit or abusive clause in any contract or standard contract offered to, or intended for, the consumer.

 

Section 3: Legal interventions

 

Article L421-7

 

The associations mentioned in article L. 421-1 may instituted proceedings in civil courts and, in particular, request the application of the measures provided for in article L. 421-2, where the initial application aims to repair damage suffered by one or more consumers due to events not constituting a criminal offence.

 

Section 4: Common provisions

 

Article L421-8

 

The public prosecutor may submit before the court to which the case has been referred, notwithstanding legislation to the contrary, the inquiry statements or reports that it is holding and which may be required for the dispute to be settled.

 

Article L421-9

 

(Act no. 92-1336 of 16 December 1992 art. 331 Journal officiel of 23 December 1992 in force on 1 March 1994)

 

The court to which the case has been referred may order the public dissemination, by all appropriate means, of the judgement given, Where it orders the information to be displayed in application of this paragraph, this is implemented in accordance with the terms and under the penalties provided for in article 131-35 of the French penal code.

The information is disseminated at the expense of the unsuccessful or convicted party or the association bringing the civil action where proceedings initiated on its initiative have resulted in an order of nolle prosequi.

 

 

Chapter II: Representative action

 

Article L422-1

 

Where several consumers, identified as natural persons, have suffered individual damages caused by the same business act and which have a common origin, any approved association recognised as been representative on a national level in application of the provisions of the part I may, if its has been duly authorised by at least to of the consumers concerned, may institute legal proceedings to obtain reparation before any court on behalf of these consumers.

The mandate may not be solicited by means of a public appeal on radio or television, nor by means of posting of information, by tract or personalised letter. Authorisation must be given in writing by each consumer.

 

Article L422-2

 

Any consumer who has agreed, in accordance with the conditions provided for in article L. 422-1, to the institution of proceedings before a criminal court is, in this event, deemed to be exercising the rights conferred upon a civil party in application of the French code of criminal procedure. Notifications or notices concerning the consumer are, however, addressed to the association.

 

Article L422-3

 

Associations instituting legal proceedings in application of the provisions of articles L. 422-1 and L. 422-2 may institute a civil action before the juge d'instruction or juridiction de jugement in the place where the company against which the action is being taken has its registered office or, failing this, in the place where the first offence occurred.

 

 

Volume V: The institutions

 

Part III: National consumer institute

 

Chapter I: Administrative organisation

 

Article L531-1

 

The Institut national de la consommation, a national publicly owned institution, is a centre for research, information and study on consumer problems.

A Council of state decree will fix the conditions governing this article and, in particular, the organisation and operational procedures appertaining to the publicly owned institution.

 

 

Part VI: Testings laboratory

 

Chapter I: Aims

 

Article L561-1

 

The test laboratory is a publicly owned national institution of an industrial and commercial nature responsible for performing study, research, consultation, expert survey, testing and monitoring work and for all technical support services required for the protection and information of consumers or for the improvement of product quality.

These works and studies may relate to metrology, manufacturing techniques and rating of industrial products, processed non-food agricultural produce and capital goods, as well as the measurement of pollution and nuisances.

This establishment may also be responsible for:

1° Studying on behalf of and at the request of the interested ministers, the test methods required for the compilation of regulations and standards, in particular, with regard to health, safety, nature and environmental protection, energy saving and raw materials, and, more generally, fitness for use of products;

2° Issuing qualification certificates;

3° Instituting links, under the authority and at the request of the interested ministers, with foreign or international organisations responsible for the questions mentioned in this article.

The establishment assumes the rights and obligations of the Laboratoire national d'essais du Conservatoire national des arts et métiers. Agents employed by the National testing laboratory on 11 January 1978 are, at their own request, maintained in their posts.

 

 

Chapter II: Operation

 

Article L562-1

 

The establishment is administered by a board comprising representatives of the administration, of industrial concerns, of consumer organisations, of personnel employed by the establishment as well as of qualified entities.