Secure price reduction listings
You want to set up price reduction announcements for your consumer customers for the marketing of your products or services, and relay them by advertising messages on one or more media.
Ensuring the legality of these price reduction announcements is a key issue insofar as controls by the Economic Administration are very frequent, and penalties, particularly criminal ones, can be very heavy, in a context where regulations are changing rapidly.
The regulation of price reduction announcements
Price reduction announcements are regulated by the Order of 11 March 2015 (EINC1426951A), which repealed and replaced the Order of 31 December 2008 (ECEC0831181A) following a decision of the Court of Justice of the European Union (CJEU 10-7-2014 aff. 421/12), which meant that by also setting the conditions for determining the reference price, the decree of 31 December 2008 was contrary to Directive 2005/29/EC.
Thus, since the entry into force of the decree of 11 March 2015, the validity of price reduction announcements must be examined only with regard to the general prohibition of unfair commercial practices, the reference price being freely set by the advertiser.
However, this rule will change again following the adoption of Directive 2019/2161 of 27 November 2019 on the better application and modernisation of Union consumer protection rules, which will lead to a reversal of the French regulation with regard to the “reference price” .
What does the Omnibus Directive say about price reduction announcements and reference prices?
The so-called “OMNIBUS” directive provides that:
“1. Any announcement of a price reduction indicates the previous price applied by the trader for a fixed period of time before the price reduction is applied.
2. The previous price means the lowest price applied by the trader during a period that is not less than thirty days before the application of the price reduction.
As a result, the French legislation relating to the reference price will have to go backwards. The provisions of the Directive are similar to what was provided for in French law from 2008 to 2015, or even well before for those who knew Decree No.77/105 of 2 September 1977.
Indeed, the aforementioned decree and that of 31 December 2008 relating to announcements of price reductions for consumers already provided that the reference price could not exceed the lowest price charged by the trader for an article or a similar service during the last thirty days preceding the start of the advertisement.
The reference to the period of the last thirty days preceding the start of the reduction (admittedly this date may not be confused with that of the start of the advertising) is therefore taken up by Directive 2019/2161, which undoubtedly leads to a renewal of the reference price in French legislation.
Even if France, which will have to transpose the directive before 28 November 2021 for an effect of 28 May 2022, has not yet done so, the administration already applies, as we have seen in the control framework, the terms of the Directive.
Gouache Avocats assists you with your price reduction announcements
Legal
validation of price reduction announcements
Gouache Avocats supports you in the validation of your price reduction announcements, taking into consideration the evolution of the legislation.
In the design phase of your ads, Gouache Avocats supports you to secure your proposal by legally validating its content.
Our intervention that adapts to your timing will allow you to broadcast an advertisement in accordance with the applicable legislation and the doctrine of the administration.
We work in the form of subscriptions or packages, which allows you to have visibility on your costs while benefiting from our availability.
Litigation (ARPP, DGCCRF, ARCEP) relating to price reduction announcements
Gouache Avocats assists you in the event of checks by authorities or administrations (ARPP, DGCCRF, ARCEP) in connection with the dissemination of your price reduction announcements.
Our experience in this area has allowed us to develop a methodology to allow you to react effectively to this type of control:
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Upstream
- training of employees who will be the privileged interlocutors of the Economic Administration,
- Presence at your side to check the relevance of the required documents, to ensure their possible confidentiality,
- Assistance during interviews, proofreading of the minutes, formulation of any reservations,
- Responding to notifications,
- Appeal before the JLD to challenge the inspection and seizure operations,
- Appeal to the Administrative Judge to challenge the sanctions,
- Defend yourself in the event of criminal or civil proceedings.
Guillaume Gouachon
Avocat associé
Responsable "Consommation, produits et conformité"
Martine Behar Touchais
Professeur de droit Of counsel
Responsable "Distribution & Concurrence"
