Prof. Dr. Linda Arcelin Lécuyer / Université de La Rochelle – France
First of all, I want to thank the organizers of this international symposium. It’s an honor to be among you and a real pleasure to be in this beautiful city.
Well, the topic I have chosen is “The protection of French consumers prior to the conclusion of any sales or service contract”. It’s a very large subject which should deserve hours of discussions; but I have only 20 minutes, so I will necessary be evasive.
We have, in France, a very old and protective law of the consumers.
First, this concern is old: it goes back to 1905 with the first rules about goods misrepresentation. After, the consumerist movement which began in France in the sixties, has led to a speeding-up of legislative work. Two very important laws were adopted, one in 1963 which forbad misleading advertising and an other one in 1972 concerning the door-to-door selling. Since then, a lot of rules have been passed to improve the consumer protection and, we may affirm that France is ahead on this point. For the moment, most European directives have brought only a minimal harmonization, very below the degree of current protection in France.
Secondly, we sometimes hold a very large scope of protection. Especially the rules concerning unfair contract terms which don’t only apply to consumers but also to another person who is called, in the consumer code, the “non trader”. Consumer and non-trader are different. They are not synonyms. French law respects the European definition of consumer such as it appears in a decision of the Court of Justice in 2001 (22 nov. 2001). Consumer means any natural person who is acting for purposes which are outside his trade, business, craft or profession. In contrast, trader means any natural or legal person who is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader. But who is the non-trader ? If the consumer is necessarily a natural person, he can be a legal one (Cass. 1re civ., 15 mars 2005: Bull. Civ.I, n° 135. Example : co-owner’s syndicate : Recommendation of the commission of the unfair terms n° 11-01). The directive on consumer rights may eliminate this French peculiarity. Indeed, the European Directive on consumer Rights which was adopted on 10th October 2011, will organize a full harmonization and the article 4 provides that “Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection”. So I think we will have to abandon the extension of the protection to the non trader.
Relations between consumers and traders are based on a balance of power for the benefit of the latter. These relations very often begin with a seduction of the professional who is going to lead the consumer to contract. The balance of power is present at that stage because the trader has information, knowledge which the consumer does not have. It explains that the French law governs this stage of the process of contractualisation a lot.
On the one hand, it controls the incentive commercial practices among which is included, of course, the advertising.
On the other hand, the French law promotes information and education for the consumer which are without any doubt the best means of protection.
These two points will be examined successively.
1.The control of incentive commercial practices
Each part of the contract must be able to contract freely and with full of knowledge of the facts. According to this aim, the French consumer code forbids some commercial practices as the abuse of weakness but, regulates also other commercial practices which can be unfair or aggressive. We are going to focus on this regulation.
A.Unfair commercial practices
Until 2008, French law only recognized misleading advertising. The directive n° 2005/29/CE of 11th may 2005 called unfair commercial practices Directive, wanted to exceed the only frame of the advertising to aim at any commercial practices. Those mean “any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers”. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence, and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
This Directive was transposed into French law in two times in 2008. One of the provisions of the consumer code forbids misleading commercial practices and another one gives an exhaustive list of practices regarded in all circumstances as misleading. Basically, a big part of those bans were cases of advertising considered as misleading. The list takes up the Annex 1 of the directive which is exhaustive. I mean that any behavior or commercial practice forbidden in a national provision but unknown by the Annex 1 must be allowed. It is forbidden to forbid when the directive does not! France is a bad student! After a reprimand of the Court of Justice, France has to reform its legislation. Three provisions in the consumer code forbade “per se” bundling sales, some commercial lotteries and sales with bonus which were not included in the Annex 1. So several months ago, we introduced a clause saying that those behaviors are forbidden if they are unfair. Now, the unfairness must be proved.
In the same way, the advertising self-regulatory organizations can’t be forgotten. The self regulation can be defined as a system of regulation combining statutory and self-regulatory elements and sometimes involving other stakeholders, e.g. consumer organizations and environmental organizations. This professional concern dates back to the past: the first rules were adopted in 1937 by the International Chamber of Commerce (ICC) to provide a global framework for responsible creativity and ethical commercial communication. It has been revised several times over the years, remaining adapted to societal changes, marketing techniques and technology. Self-regulatory takes care of consumer confidence which leads him to buy. As the EASA – European Advertising Standards Alliance – explains:
“If consumers are misled by advertising, they will not buy again; if it offends them, they are unlikely to buy in the first place. Such advertising, even though it may account for only a small percentage of the whole, will gradually undermine consumer confidence and all advertising will suffer. If political stakeholders feel that consumers are misled, offended or influenced in an irresponsible way by advertising they will try and push through detailed legislation restricting certain types of advertising, or possibly banning them.
It is, therefore, in the interest of all those in the advertising industry, whether advertisers, advertising agencies or the media, to ensure that advertising follows a set of rules to make sure that advertising is legal, decent, honest and truthful. This is traditionally done through self-regulation (SR), a system that works within the framework of existing legislation”.
The French organization is very important: it’s the ARPP, the Authority of professional regulation of advertising. It takes recommendations and decisions and is brought to an organ of control (The Jury of advertising ethics) which is chaired by the last chairman of the French competition Council (MD Hagelsteen) : where we see that consumer and competition are not far each other… Those recommendations and decisions are respected by almost all the professionals even though they are not obligatory. If one of them does not, the media can block the advert. Therefore, the self-discipline is very strong. I guess that it’s the same in all countries having such an organization, like Turkey with the Reklam Ozdenetim Kurulu.
B.The techniques of sales
Consumers must be protected from the kinds of sales which can be considered as dangerous because they are either a bit aggressive or because the consumer did not see the product before buying it. To put it simply, he bought something online. The main provision concerns the deadline of reflection or withdrawal right.
The first case concerns the doorstep selling. It can be considered as dangerous because of the intrusion of someone in your residence or in your workplace. It can be perceived as a violation of the private life that some persons can’t get away from, except by buying, or as the only visit of the week for lonely persons, who are ready to buy just for having company. Therefore, the withdrawal right appears essential. In seven days as from the order or from the commitment of purchase, the customer has the power to give it up by a registered letter with recorded delivery. To ensure this faculty, two kinds of measures are provided for. First of all, before the expiration of the withdrawal right, nobody can require or obtain from the customer any payment, even if for example the check is antedated. Afterwards, the giving up of the contract does not need to be justified. The opposite should, for certain persons – basically the most vulnerable– be an obstacle to the exercise of the right.
The same concern is applied for the distance contracts. The danger comes from the incomplete view of the product because the consumer has only seen it on the screen. Thereby, the consumer has a withdrawal right of seven days to exercise his right of retraction without having to prove motives or to pay any penalties, in the exception, where necessary, expenses of return. The European directive provides that “The consumer shall have a period of fourteen days to withdraw from a distance or off-premises contract, without giving any reason”.
I think my colleague will tell you more on this point. So I stop here!
If the trader has not provided the consumer with the information on the right of withdrawal the withdrawal period shall expire three months after the trader has fully performed his other contractual obligations. The trader shall reimburse any payment received from the consumer as soon as possible and at the latest within thirty days from the day on which he receives the communication of withdrawal.
2.The promotion of information and education of consumers
Giving information to the consumer is the best means to protect him/her (A). But, too much information swamps him. So, the information must be provided to the consumer but education as well (B).
A.The information given to the consumer
So as to make the consumer play his arbitral role, professionals must supply him information prior to the conclusion of any sales or service contract. Of course, they depend on the kind of contract and product or service. But, the European Directive groups them together, excluding credit agreement. The article 5 provides:
“Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:
(a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;
(b) the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number;
(c) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) where applicable, the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the service, and the trader’s complaint handling policy;
(e) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;
(f) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
(g) where applicable, the functionality, including applicable technical protection measures, of digital content;
(h) where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.
This information is already present in French law. But the Directive admits, as an exception to the full harmonization, that “Member States may adopt or maintain additional pre-contractual information requirements for contracts to which this Article applies”. So, after the transposition of the Directive in 2013, we will conserve, for example, the obligation for the professional to inform the consumer of the period during which the spare parts will be available.
The professional must prove he has fulfilled his obligations. It’s a protective measure for the consumer who should be very disadvantaged if he has to prove he received all the information. But, it’s difficult for the professional when he has not got documents as evidence, such as an estimate.
French law doesn’t provide for a general specific sanction for the infringement of this obligation. But we can think that it conducts to avoid the contract. Sometimes, stronger penalties are provided for example the loss of the right to interest in credit agreement.
B.The consumer education
Consumers are bombarded with messages, advice and warnings. Consumer education is crucial in helping them make meaningful choices and use their rights when faced with that information overload.
The promotion comes from two kinds of organism:
First, the executive power has a pedagogic role. France earlier created a consumption Ministry – 1978 – which has gradually been transformed into a simple State Secretary grouped with other concerns (Industry, Small and Middle Size Firms, Family…). It shows that, in France, the consumer movement ran out of the steam even if many laws keep being adopted. Europe has taken over the role.
The European Commission currently supports a number of consumer education tools, all of which have been evaluated this year, especially during the European consumer summit of April 2011 in Brussels. Europe implements several measures like:
- The Europa Diary. It’s a school diary aimed at students between the ages of 15 and 18, helping young people to become more aware of their rights and provide them with information on topics such as health or food safety and sustainable consumption, and enabling them to make more informed decisions as consumers.
- Dolceta which is a web-based tool which offers consumer education modules targeted at teachers and trainers, as well as consumers.
All those measures are thought with the BEUC, which is the European association of consumers. And, precisely, consumers associations are in a better position to educate their members. Their legal action against disloyal traders set a good example to consumers. They can sue them so as to compensate collective damages. We have in France a famous case concerning an anticompetitive agreement on price to customers between the three Mobile phone operators. UFC QueChoisir, one of the most important and active consumer associations had submitted this infringement to the competition council (in the time). The three traders were very heavily fined. But, I want especially to call your attention on their everyday pedagogic role. They are the closest towards consumers’ life thanks to the diffusion of magazines, TV programmes and the legal consultations they carry out. They can teach consumers how to read offers, contracts terms, and finally help them not to fall into the trap of misleading practices.
To summarize, and as a conclusion, what I have tried to show is the complimentarily between hard law and soft law. Hard law is a necessary answer to disloyal behaviors prior the conclusion of any sales or service contract. We have in France many laws concerning this stage. But, the protection may also come from the traders themselves, by self-regulation and adoption of best practices codes, and by all the actions of consumers associations. By working hand in hand a better world for consumers can be reached.
Thank you for your attention.
*Bu metin,24-25 Kasım 2011 tarihinde gerçekleştirilen Uluslararası Tüketici Hukuku Sempozyumu‘nun 1 . Gün 2. Oturumunda Prof. Dr. Linda Arcelin Lécuyer tarafından sunulmuştur.