Are your balances compliant with regulations?
You want to market your products on sale, and you wonder about the conditions to be respected to ensure the legality of the price reduction operations that you intend to practice in your points of sale or your online sales site.
Your goal is to:
- Proceed to an efficient disposal of your stock of goods,
- By relaying your operation through dynamic communication,
- By securing your advertising campaign and the display of your price reductions, to avoid any sanction from the Economic Administration.
The French regulations applicable to sales
Twice a year, you are allowed to sell some of your products.
The regulations governing this practice are strict, and must be respected under penalty of significant penalties.
Article L310-3 of the Commercial Code defines the balances, the authorised periods and the goods concerned.
It qualifies sales balances accompanied or preceded by advertising and advertised as tending, by a price reduction, to the accelerated disposal of goods in stock.
Article 16 of Law No. 2019-486 of 22 May 2019 on the growth and transformation of companies (Pacte) has modified the determination of sales periods: they are now fixed by order of the Minister in charge of the economy, for a period ranging from 3 to 6 weeks.
Balances are regulated sales:
• These sales are accompanied or preceded by advertising;
• they contribute to the accelerated disposal of goods in stock, copies of which have been offered for sale and paid for at least one month on the start date of the sale period in question;
• include a price reduction announcement (within the limit of the resale at a loss threshold) within the limit of the stock to be sold;
• balances are practiced for fixed periods of four weeks. Except for distance sales, different dates are planned in some departments to take into account a high seasonality of sales or commercial operations carried out in border regions.
Products advertised as sale must have been offered for sale and paid for at least one month on the start date of the relevant sale period. Price reduction announcements made during sales must not constitute an unfair commercial practice within the meaning of Article L. 121-1 of the Consumer Code.
In addition, regulations are evolving.
The OMNIBUS Directive and price reduction announcements
Indeed, 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.
France will have to transpose the directive before 28 November 2021 for effect on 28 May 2022.
Confirm that your balances comply with the regulations
Gouache Avocats supports you in setting up your sales operations, verifies that it does not constitute an unfair commercial practice, that it complies with the regulations relating to the threshold of resale at a loss, and the regulatory changes to be expected which are already taken into consideration by the Economic Administration as part of its very frequent controls in this area.
In the design phase of the campaign, and the display of the price reduction, Gouache Avocats accompanies you to secure your proposal by legally validating its content according to the distribution media.
Our intervention that adapts to your timing will allow you to broadcast fair advertising, understandable to consumers and adapted to the constraints of your distribution media while maintaining its attractiveness and dynamism.
We work in the form of subscriptions or packages, which allows you to have visibility on your costs while benefiting from our availability.
Defend
yourself in the event of a dispute over your sales practice
In the after-sales phase, Gouache Avocats assists you in the event of checks by authorities or administrations (ARPP, DGCCRF, ARCEP) in connection with the dissemination of your advertising.
Our experience in this area has allowed us to develop a methodology to allow you to react effectively to this type of control:
• Upstream training of employees who will be the privileged interlocutors of the Administration and sectoral regulatory authorities in the event of controls,
• Presence at your side to check the relevance of the documents required, to ensure their possible confidentiality,
• Assistance during interviews, proofreading of the minutes, formulation of any reservations,
• Response to notifications,
• Recourse before the JLD to challenge visit operations and seizures,
• 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"
Deliver a price reduction advertisement that is fair, understandable to consumers and adapted to the constraints of your distribution media
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Are your balances compliant with regulations?
You want to market your products on sale, and you wonder about the conditions to be respected to ensure the legality of the price reduction operations that you intend to practice in your points of sale or your online sales site.
You want to market your products on sale, and you wonder about the conditions to be respected to ensure the legality of the price reduction operations that you intend to practice in your points of sale or your online sales site.
