Jurisprudence

  • Informations concernant l’affaire
    • ID national: Court of Cassation, Judgement 19-80.496
    • État membre: France
    • Nom commun:N/A
    • Type de décision: Décision de la Cour suprême
    • Date de la décision: 28/01/2020
    • Juridiction: Cour de cassation
    • Objet:
    • Demandeur:
    • Défendeur:
    • Mots clés: unfair commercial practices, games of chance
  • Articles de la directive
    Unfair Commercial Practices Directive, link
  • Note introductive

    ECLI identifier: ECLI: FR:CCASS:2020:CR03046


    The material element of the offence of deceptive commercial practice is characterised merely by asserting that a product or service increases the chances of winning at games of chance, it being specified that such commercial practices relating to games of chance are considered unfair in all circumstances. Article L. 121-4 of the French Consumer Code defines deceptive commercial practices as the act of "asserting that a product or service increases the chances of winning at games of chance and gambling". In the commented judgement, the High Court gives details on the characterisation of the elements constituting the offence.

  • Faits

    In the present case, two spouses are being sued on the grounds of misleading commercial practice for having created an Internet site offering to purchase lotto and Euromillion game grids which, by virtue of the use of a scientific method of calculation, are supposed to maximise the chances of winning in comparison with those acquired outside the site. The wife was in charge, via her company, of the management of the website, the purchase of the grids and the distribution of the winnings, while her husband provided the grids sold.

     

    They were convicted in the first instance, a judgement that will be confirmed by the Court of Appeal. The judges of the second instance indicate that the efficiency evoked by the defendants has not been demonstrated. They add that the offence consists of the simple fact of alleging that the website increases the chances of winning, regardless of the reality of both the effectiveness of the calculations and the actual increase in the chances of winning.

  • Question juridique

    Are commercial practices relating to games of chance considered unfair in all circumstances?

  • Décision

    The Court of Cassation upheld the appeal judgement on the grounds that the court did not presume the guilt of the defendants. The judges of cassation define the material element of the offence as the mere fact that it is asserted that a product or service increases the chances of winning at games of chance. They also point out that it follows from Directive 2005/29/EC of the European Parliament and of the Council of the European Union of 11 May 2005 concerning unfair commercial practices that it is not necessary, in order to characterise the unfairness of a commercial practice, to show an alteration in the economic behaviour of a consumer who is normally informed and reasonably observant and circumspect. Such commercial practices relating to games of chance are considered unfair in all circumstances.

    URL: https://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/3046_28_44330.html

    Texte intégral: Texte intégral

  • Affaires liées

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  • Doctrine

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  • Résultat

    Until then, the Court of Cassation had had very few opportunities to rule on the characterisation of a deceptive commercial practice by asserting that a product or service increases the chances of winning at games of money and chance. The commented judgement thus has the merit of providing the necessary clarification to the process of characterising the offence.