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Consumer Code can also protect Professionals
Can professionals claim the protection of consumer law? The Court of cassation has ruled on several occasions in 2022, on the application of certain provisions of the consumer code to legal persons with a commercial activity.
Definitions by the Consumer Code
The introductory article of the consumer code defines:
- The consumer, as “any natural person who is acting for purposes which do not fall within the scope of his commercial, industrial, craft, liberal or agricultural activity”.
- The professional, as “any natural or legal person, public or private, acting for purposes relating to his commercial, industrial, craft, liberal or agricultural activity, including when acting in the name or on behalf of another professional”.
- The non-professional, as “any legal person who is not acting for business purposes”.
While the Consumer Code is, in principle, applicable to relations between a “professional” and a “consumer”, some of the provisions of the same code, when expressly referred to and subject to the interpretation of these definitions by the courts, also protect “non-professionals” and even certain “professionals” in their relations with other professionals.
Which provisions of the consumer code can be extended to non-professionals?
The Consumer Code expressly provides that (i) the regulations on unfair and deceptive commercial practices (article L. 121-5 of the consumer code) and (ii) the protection against unfair terms (articles L. 212-12 and R.212-5 of the consumer code) are applicable to relations between professionals and non-professionals.
The qualification of non-professional, which allows the application of these provisions, is subject to the interpretation made by the judges.
- Hence, in a recent decision of August 31, 2022, the Court of cassation (1ere ch. civile, 31 Aug 2022, 21-11.097) considered, regarding a doctor who had booked a hotel room for his participation to a medical congress, that “by entering into the disputed accommodation contract, he was not acting for purposes falling within the scope of his professional activity”. Consequently, the application of the provisions relating to unfair terms could not be excluded.
- On the contrary, the Court of cassation (1ere ch civile, 9 March 2022, 21-10.487) had already ruled the same year that “regarding the professional purpose of this contract” a job seeker who had concluded a professional training contract “could not be qualified as a consumer”.
Which provisions of the consumer code can be extended to professionals?
Some provisions on off-premises contracts (including (i) specific information requirements, and (ii) the application of specific provisions on the right of withdrawal) are extended to contracts concluded between professionals, provided that:
- The subject of these contracts does not fall within the scope of the principal activity of the professional requested;
- The number of employees employed by this professional is less than or equal to five (article L. 221-3 of the consumer code).
The first of these conditions is subject to interpretation by the judge. In this respect, the Court of cassation, by a decision of August 31, 2022 (1ere ch. civ. 1, 31 Aug. 2022, n°21-11.455), refused to exclude the application of the provisions on off-premises sales to an accounting firm that had entered into a lease agreement for a photocopier, because it had not been established that “the lease agreements fell within the scope of the company’s main activity”. Still as an example, a contract for the creation and licensing of an Internet site dedicated to the professional activity of an architect does not fall within the scope of the professional’s main activity.
The sanction for the professional can be onerous because if the right of withdrawal is not stipulated in the contract (e.g. the GTC), the period for exercising this right is extended to 12 months and the contract can even be declared null and void as the Court of Cassation ruled on August 31, 2022 (1ere ch. civ, 31 Aug 2022, 21-10.075).
Key takeaways
- Some provisions of the Consumer Code may be applicable to non-professionals or even to professionals;
- The contracts (especially the general terms and conditions of sale) of certain sellers whose clients may claim to be « non-professionals » or to benefit from the aforementioned article L 221-3 must be drafted in such a way as to anticipate the potential application of these protective provisions.
What Altaïr Avocats can do for you
- Assisting companies in the drafting of their GTCs, GTPs and contracts;
- Consumer compliance audit ;
- Representation before judicial courts and administrative authorities.