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Expats Radio Legal programme broadcast on 09/01/2020
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PostPosted: Mon Jan 09, 2020 11:51 am    Post subject: Expats Radio Legal programme broadcast on 09/01/2020 Reply with quote

Transcript of a radio broadcast made by Stephen Smith on 9 January 2020

Consumer rights in France

A number of our listeners have written in with a wide range of concerns about French consumer matters. We thought it would be a good idea to put some of their questions to Stephen Smith. Hello Stephen

Hello Peter.

Q: So, if any of our listeners are planning a trip to France, and something goes wrong while they are shopping, or in a restaurant or an hotel, what sort of things should they be looking out for?

A: Let me first start with shopping. Advertising in France is much more strictly regulated than in the UK. Basically, it is an offence to make a false or misleading advertisement to the general public about goods and services in France. The penalties are not merely theoretical. People have been sent to prison for breaking this law.

Q: Can you give a few examples?

A: Yes. Cases include a drinks manufacturer who claimed that a drink was made of fresh fruit when in fact it was made artificially with chemicals; or a shoe shop which suggested that prices had been cut when in fact the goods were being sold at a higher price. Other cases include things like wrong measurements, sizes and so on.

Q: But aren’t all adverts misleading?

A: Perhaps, but the point is that you do not actually have to have been mislead by the advert. The test applied by the French Courts is whether anyone reading the advert (or watching it on TV or so on) might have been misled.

Widely exaggerated messages - such as one for a suitcase which showed it being run over by a bulldozer followed by the claim that it was still as good as new - may escape on the grounds that no reasonable person would have believed it to be true.

If the statement in the advert is true, it may still be an offence if it is accompanied by some other feature which misleads. A label for a fruit drink correctly stated that it was made artificially; but it was beside a picture of fresh fruit - which the French courts decided would lead a person who merely glanced at the tin to assume that it was real fruit juice.

Q: So what do you do if you have a problem?

A: If you think that you have been misled or tricked by an advertisement or other type of message from a manufacturer or trader, you can inform the 'DDCCRF' This stands for the Direction Départemental de la Concurrence, de la Consommation et de la Représsion des Fraudes - and is the French equivalent of the Trading Standards, Consumer Protection, Weights and Measures and Environmental Health departments of County Councils.

Q: One of our listeners says that he was ‘ripped off’ when he bought a sandwich from a shop in Calais. He says the price stated outside the shop was lower than the advertised price inside the shop. What are his rights there?

A: I assume he did not check the price before he paid for his sandwich. Most traders in France must display their prices. In all French shops the price of goods displayed to the public must be shown on tickets or labels capable of being seen and read by customers both inside and outside the shop depending on where the goods are on show. If the goods are not actually on display, the price must be written on a price ticket attached to the goods, so that when produced or shown to you, the price is clearly visible (this does not apply to perishable food).

The price for services - like dry cleaner's, garages, opticians etc - must be set out on a price list, again easily visible.

In addition, very detailed information about prices of a wide range of goods and services such as bread and meat, cars, petrol, hotels and restaurants, has to be listed or displayed on a notice. The prices shown on the list must be inclusive of French VAT (except in the case of wholesalers who can show them exclusive of French VAT since the buyer will be able to reclaim that tax).

It may be stating the obvious, but the purpose of the list or notice containing the price is to enable the potential buyer to see goods, to think about buying, and to know how much it will cost him, without having to ask. So two lists will be necessary where goods are displayed in the shop window and inside. If you find two identical objects at different marked prices you only have to pay the lower price.

Just one final point, in self-service food stores, pre-packed food must be shown with the selling price and the price per kilo per litre - thus enabling a proper price comparison to be made for different sized packs.

Q: One listener who went to convalesce in France after an illness complains that the tablets she was running out of could not be found in the local chemist. Is this a common problem?

A: Many French medicines do not have the same brand name as their UK counterparts, although the composition of the product is the same. What the lady could have done is handed over her box of UK tablets to the French chemist who would probably have found her the right replacement.

In France, all pre-packed food products, some medicaments (those one can buy over the counter in a chemist without a prescription) and cosmetics and other things used in connection with personal hygiene, the labels must contain the name of the produce, the name of its manufacturer or distributor, how much the package contains, the composition of the product, either a sell-by date or a 'best use by' date depending on what the thing is, and directions for use.

There are a number of exceptions to this rule. For example, it is not necessary to list the ingredients and additives in wine, beer, milk, cheese and chocolate.

Q: One listener says that he accidentally broke a dozen bottles of Champagne which fell out of his trolley in a French supermarket and was made to pay for it. I thought you only had to pay for goods at the check-out.

A: Good point Peter. In the UK you may be right. But not necessarily so in France. In the UK, you take the goods from a supermarket or other self-service shelf, but only offer to buy those goods when you arrive at the check-out. If the trader accepts your offer, there is a binding contract. In France, however, the goods on the shelves are offered by the trader and when you select them and put them in the basket, you are accepting that offer and the contract is made at that time. So, if you bought something in France (a radio perhaps) which broke in the shop, you would have to pay for it even though you had not left the shop.

However, in many cases of accidental damage, the shop will not wish to lose customers or goodwill by sticking to its legal guns.

Q: On the subject of Champagne, we have a letter from someone who wants to know whether she can claim compensation after a bottle of Champagne exploded in her hands.

A: I assume the accident happened in France and not in the UK. If the lady was injured when the bottle exploded, and/or if her clothing was stained, she could claim compensation from the shop who sold her the Champagne. She would not have to prove some fault or liability on the part of the shopkeeper or manufacturer, as is usually the case in the UK.

Q: Some of our listeners have been caught out by deposit payments in France. What is this all about?

A: There are serious pitfalls for shoppers in France who are asked to pay money in advance when entering into a contract. Two distinct types of prepayment exist: one is called 'arrhes' and the other 'accompte'. The trouble is that it can be difficult to tell them apart, and traders will call prepayments 'arrhes' when it is beneficial to them, but 'accomptes' if it is not.

The relevance of the distinction becomes plain should there be a breach of contract. If the shopper changes his mind (and so breaks the contract) he will lose the arrhes. He may be sued for damages as well. But if it is the trader who breaks the contract, he has to repay double the arrhes (Article 1590 of the Civil Code).

If the down payment has been called 'un accompte' and the shopper breaks the contract, again it is lost - and he risks a claim for damages. But the trader in breach only has to pay back what he received - and is not under the immediate penalty of double repayment. He may well be faced with a legal action for breach of contract, but that costs money and takes time; it would have been much more salutary for him to have been forced to pay out immediately twice what he had received.

It is therefore essential that any prepayment should be described as arrhes and that should be written down on any receipt or invoice.

Q: What happens if, say, you buy something in France and then decide when you get back home to the UK that you don’t like it? Can you get your money back?

A: Under French law the trader does not have to take the goods back simply because you have changed your mind. He must only do so if the goods are defective. But, as a matter of good will, many shops in France will give you a credit note (called 'un avoir') which you can use against future purchases in that shop.

Because you will be in the difficult situation of having to try and get your money back, if there is a problem the best advice is to avoid committing yourself, signing anything and, most importantly, from paying anything until you know exactly what it is you want - and that the prepayment is called arrhes.

Q: One listener complains that the garage which repaired her car insisted that she signed a form to say that she could not sue them if something went wrong.

A: I would like to see exactly what that document in fact said. If what the lady says is true then the garage could be in serious trouble. Since 1978 French law makes terms in contracts of sale which limit or avoid the right of a consumer to redress against a professional seller of no legal effect. These unfair terms ('clauses abusives') have been struck down throughout most areas of retailing and the ban extends to other types of clauses by which a trader would try to escape liability - either by saying that he has no responsibility for the goods which he sells, or that the goods are sold without warranty. It is a criminal offence for a trader to use clauses abusives.

In addition, this law makes the retailer give customers information about the goods he is selling. He must say that the legal guarantee in the French Civil Code applies whatever the case and if he fails to do this he is liable to a fine which can be increased according to the number of instances in which this very simple law has not been followed.

Although there are still lots of clauses abusives to be found, both in shops and on documents, don't be put off making a claim if what you buy is not working properly.

Q: You mentioned defective goods earlier. Can you briefly elaborate?

A: Yes Peter. Under Article 1641 of the French Civil Code, your purchases are guaranteed against hidden defects ('vices cachés') which would make them unsuitable for the use for which they were intended, or which would so reduce that use that you would not have bought them, or would have paid less for them, had you known. Although Article 1642 says that the seller is not liable for obvious defects which you could have discovered yourself, a distinction is made between a trade buyer and the ordinary consumer. A trade buyer is presumed to know what he is buying and to be able to look out for defects, hidden or otherwise; but if a purchaser is a consumer, what might be obvious to a professional is treated as hidden. However, the Courts recognise that some faults are likely to be so obvious that even a consumer will not be able to say that he did not notice them.

If the guarantee applies, the buyer of defective goods has a choice: he can return the goods and get his money back or he can retain the goods and claim part of the price as damages. The French Civil Code lays down a method of determining the loss by using an expert.

Q: Earlier you mentioned taking any consumer complaint to the French trading standards or similar authorities. Why can’t you complain to the authorities in the UK?

A: Contracts made in France will almost always be governed by French law. This means that legal action can almost always only be taken in France.

Q: How long should you wait before making a complaint?

A: The French Civil Code says that you must act without delay - the sooner the better. Some recent decisions of the French Courts have held that the consumer must not allow anything more than a short time to pass before making a complaint. For instance, in a case involving frozen fish which turned out to be defective when it was thawed, the Court said that time ran from the moment of the delivery of the frozen fish - not from the time the buyer discovered the defect.

The other problem that you may have is in gathering technical evidence in support of your claim that the goods are defective. If you have bought an expensive item, like a car, you may wish to sue in France if your complaints fail. In the case of smaller items, whether you sue or not depends on your grasp of French and the amount of money at issue.

Q: I have here a letter from a listener who was recently in Paris. Although the shop where he bought some clothes said that they were ‘on sale’, he has his doubts.

A: In France, when there is a sale - or simply a reduction in a price - the shop must show the previous, higher price at which the goods must have been on sale for at least the last thirty days. And when they make price reductions and say "x per cent off all articles marked" the reduced items must be a substantial part of the total number of items on sale. External publicity on price reductions must state precisely either how much lower in Euros the prices are, or by a percentage, and must show the period during which the price reduction will be available.

There are also what are really permanent sales, and here the requirement that there must be a sale price and a 'before sale' price cannot operate. You are therefore on your own and should watch out for all sorts of tricks. One of these is to say that sale goods are not covered by the guarantee against hidden defects. Any statement to this effect is of no legal effect; you have the same legal rights as if you had bought new. The only exception is where the defect or fault is obvious to you or is clearly indicated by the shop. Here you will have no redress because you bought what you paid for.

Q: So what can the consumer do about misleading advertisements and prices in France?

A: There are a whole series of French laws which try to outlaw or control misleading advertising and regulate price display. By far the most significant and widely used dates from 1905 designed for "for the repression of fraud". This deals with any type of fraud and attempted fraud relating to the quality, quantity and fitness for use of goods and services. Examples of the sort of case it covers are: frozen fish passed off as fresh; selling food which has passed its sell-by date; calling a demonstration car "new"; offering to sell a car with a false mileage reading; hiding the fact that a used car has been in an accident; calling a bottle with 90 centilitres of liquid a "litre"; mixing margarine with butter; watering down milk or -worse still - wine. The list is endless and large numbers of traders are prosecuted each year.

The penalties are severe - fines from 2,000 to 500,000 Euros and/or up to two years in prison. And these can be doubled if the offence causes death or personal injury. One very useful additional weapon which the Courts can use is to require the convicted trader to advertise the fact of the judgement against him in the local press and to stick a copy of the judgement on the main door of his shop or trade premises where would-be customers are likely to see it. Imagine how salutary that could be for a second-hand car dealer if he has to display an official notice saying, in effect: "I am a crook and have just been fined 4,000 Euros for selling duff cars." Hardly likely to encourage new customers.

There is a sensible provision that enables the victim of a criminal fraud under this heading to claim civil compensation in the same Court proceedings - and for consumer organisations to participate and claim damages for the public prejudice caused by the criminal action of the accused person. This happened in 1980, for example, where the main dealer in Limoges of a leading make of French car was convicted of selling cars which he advertised as having had "only one previous owner" when they had in fact been used as hire cars. He was fined 30,000 Euros for the fraud; was ordered to pay 13,000 Euros compensation to the five unfortunate customers who bought these cars; and had to pay 6,000 Euros to the consumer group which claimed on the public's behalf. He was ordered to advertise the judgement in the four main newspapers in the area and display the judgement on the main entrance to the showroom for three months.

Q: Sounds good. Are there any other sanctions?

A: Yes. There are two main ways in France of dealing with infringements of the law committed by traders. The sort of fraud and criminality described above are serious matters called "délits" which are like indictable offences in the UK. The prosecution generally has to prove guilty intent on the part of the accused person, though in many cases under the 1905 Law the Courts will presume guilt, leaving it to the accused person to defend himself and prove otherwise.

There are a large range of other types of offences which are called "contraventions" which come into play when traders err over price display, food labelling or weights and measures -mistakes, in other words, rather than frauds. The DDCCRF can take the trader to a Tribunal Simple where he can be fined between 1,000 and 2,000 Euros. But this is really a civil penalty and no criminal record is established.

Q: Many of our listeners have had bad experiences in French hotels. Is there anything in particular one should watch out for?

A: There are thousands of hotels in France, all of which are classified by the Ministry of Tourism from one-star to five-star or de luxe hotels. Lists of hotels are available from the French National Tourist Office for each Département, showing how many stars each has and what their facilities are. More locally, each town, and even large villages, has a "syndicat d'initiative" which will let you have a list of all accommodation and restaurants in the vicinity.

Booking is one potential problem area. To book, you must usually write in advance and say that you want a room with however many beds necessary for the nights indicated. If you want a private loo and bath, ask for it. The hotel will reply and probably ask you for "arrhes" - a deposit, which I have already talked about earlier today. This must be paid in Euros and can be sent by bank draft (which you must arrange through your bank) or, if you have a eurocheque book, you simply write a cheque and fill in the Francs. Now you will have made a legally binding contract. If you do not arrive, or go elsewhere, you will be in breach of contract and will forfeit the deposit. The hotel may have a claim for damages for breach of contract as well. If you have to cancel your holiday for a good reason - illness or work - write immediately and let the hotel know. They may then return the deposit.

Hotel charges are another possible problem area. Hotel accommodation in France is let by the room - not per person. There is no nonsense about a single-person charge and a larger one for two. Sometimes in large towns there may be a small addition for a second person - but nothing like the sort of impost found in the UK. If you have a room only, with no loo etc, you may find that there is a charge for the use of a bath or shower. The first you know of this may be when you try the door of the bathroom and find it locked, but empty.

By law - except for four-star hotels - room prices must be clearly displayed in a place where an intending guest can see them before he commits himself. The hotelier must state the period for which the prices are valid and whether or not they include tax and service. The price of the bathroom should also be shown. Once the contract has been made for your accommodation (when the hotel writes to confirm your booking), the price is fixed and cannot be altered.

French law also - except for four-star hotels - requires the price of the room to be displayed by a notice in each room. This tells you the price of the room, any supplement for a second person, the cost of breakfast, and may also say at what time your room must be vacated.

If you stay longer than three days, you may find that a better deal will be offered. This is usually the case for hotels with restaurants where terms may include "pension" - when you take all your meals at the hotel - or "demi-pension", where you have breakfast and either lunch or dinner.

Q: What happens if you arrive late?

A: By law the hotel is only legally obliged to reserve the room for you until 7 p.m. After that, it is free to let it to someone else. So, if your ferry is late, or you have a puncture or know that you are behind time, phone the hotel and say so. They will then be required to keep the room for you. If you don't get there that night, you will of course still have to pay a night's charges.

Q: Quality of accommodation seems to be a recurrent cause of complaint

A: Yes. It can be. But in France a hotelier expects you to look at the room before you agree to stay at his hotel. Sometimes the bath may be a bit small, or there may only be a shower. Mostly there will be one largish bed - apparently suitable for two medium people; or two single beds. But there may be a double and a single (or two) since the French like to take the whole family into one room - because they are paying for the room and not for each body. At the top of the bed will be a small, tightly rolled bolster, which exerts its own particular torture by the middle of the night. In the cupboard or wardrobe there should be square pillows; failing which you can ask the receptionist for pillows - and extra blankets, if you need.

Q: One listener says he had his car stolen when he had to park it in the streets as the French hotel did not have a locked garage.

A: Very few hotels have their own covered or locked garages for guests' cars. And even fewer are free. In smaller towns there may well be a parking area outside the hotel, but often you have to leave the car either in the streets or in a car park. Make quite sure that the car is locked and that anything valuable is either taken into the hotel or is hidden and covered. Cars with foreign registrations are likely targets for thieves. If you take a car to a winter resort and are staying there for any length of time, the hotel owner may let you keep the battery indoors (and even charge it up) rather than letting it run down in the sub-zero weather.

Q: Going back to the quality of rooms, what should you do if you are unhappy with what is on offer?

A: By law - if the room and accommodation is not to the standard indicated by (say) a brochure - you can demand another room, or say that you will stay but at a lower price, or leave and look for another hotel, and you are entitled to demand repayment of twice the arrhes paid as a deposit. If you find that you have no alternative but to take your room, you are perfectly entitled to argue for a reduction. If you wish to make a point, you could inform the French authorities about false or misleading advertisement which is in breach of French law. Or if you have been seriously inconvenienced you could bring an action for damages for breach of contract.

Q: One listener had his personal belongings stolen from his hotel room. What can other listeners do if this happens to them?

A: If your personal belongings disappear from your room the hotel in France is legally presumed to be responsible and must indemnify you up to a limit of one hundred times the daily room charge for things stolen from your room or in the hotel itself; and up to fifty times the daily room charge from anything stolen from your car while parked in the hotel car park. There is no limit to the financial reimbursement if it can be shown that the loss was due to some negligence on the part of the hotelier or his staff - failing to lock a door, for example, or refusing to accept valuables into safe custody. The hotel is also liable for damage to your belongings caused by flooding or fire - unless you caused it yourself (by dropping a smouldering cigarette end, for example).

The hotel cannot disclaim this responsibility. Any notice or contract term by which a hotel tries to avoid or limit liability is of no legal effect and is contrary to Article 1952 of the Civil Code. Do not be put off making a claim by the existence of such a notice or other 'small print'.

Q: I suppose if you are unhappy you can always refuse to pay the hotel bill?

A: When you leave, you must be given a top copy of the account, which must be dated and carry the registered office of the hotel and its classification. Each separate service with which you have been supplied should be shown, and the bill must give tax-inclusive prices and show whether service is included. If service is not included, there is no legal obligation on you to leave any tip. If you have a dispute, particularly about the standard of service or the prices charged, you can write to the tourist authorities for the département in which the hotel is situated. If you think you have been overcharged, don't refuse to pay - but make a gesture by paying only what you think is reasonable, making it clear that you will be complaining to the DDCCRF.

Q: What about restaurants, bars and cafes?

A: Unlike hotels, there is no official categorisation of restaurants, bars and cafes in France, and so you must use guides and, just as important, your eyes, because there is an excellent legal requirement that, at any eating establishment, a priced menu must be displayed outside the premises. This enables you to see the range of meals offered, what type the food may be and how much the different set menus will cost.

Every restaurant must have at least one fixed-price meal, though many will have two or three covering a range of prices from (say) 50 Euros to 150 Euros.

Q: Many tourists think that they have been overcharged in French bars, especially in the cities.

A: There is no official control over the prices charged for drinks in bars. The only legal requirement is that the proprietor must display the price where you can see it before you order. Prices for all drinks, soft or alcoholic, are very much higher in cities than in the country. You may have heard of visitors sitting outside a bar in central Paris and being charged 6 Euros for a beer. If they had stood at the bar to drink, it would probably have been only 3 Euros; if they had sought out a quiet back street place, it would have been half that price. So shop around.

Q: What happens if the meal you eat disagrees with you?

A: In France, a restaurant or other eating establishment must supply food which is clean, fresh and safe to eat. And its kitchens must be clean and hygienic. So, if you are ill, and you can establish a link between what you ate and the consequences, there will be a presumption that the restaurant is liable to you. That is all very well, of course, but retaining the evidence is usually the very last thing that is on your mind as you suffer. And when you are fit enough to get round to complaining, anything that might have been the cause of your illness will no longer exist. If the kitchens are generally filthy, of course that will be enough for the authorities (DDCCRFR) to take action and provide evidence for a prosecution. But, although you can ask for civil compensation when a criminal case is brought, that will be months later and you will have forgotten about it. The best advice is to take out proper holiday insurance against illness and cover for medical expenses.
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