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• Governing law

  Name	Law or Code?
  May 21, 1836 law, prohibiting lotteries, codified under articles L. 322-1 et seq of the Internal Security Code, as modified by March 17, 2014 law	Law
  Article L. 121-20 of the Consumer Code deals with promotional lotteries (loteries publicitaires). Unfair / misleading / aggressive commercial practices are governed by articles L. 121-1 et seq. of the Consumer Code.	Law
  Recommendations of French advertising self-regulatory organization (ARPP) and the International Chamber of Commerce (ICC) Code on Advertising and Marketing Communication Practice	Code
  Decree No. 92-280 of March 27, 1992 regarding broadcast advertising	Law
  Law No. 78 17 of January 6, 1978 on 'Information Technology, Data Files and Civil Liberty' (data protection act), as amended	Law
  Article 34-5 of the French post and electronic communications Code regarding electronic direct marketing	Law
  Recommendations of the French data protection authority (CNIL)	Code

  Last modified 10 Feb 2017

• Extra-territoriality

  If the promotion targets French consumers, then French consumer law applies.

  In order to determine whether the promotion targets French consumers, the regulator may take into consideration factors such as the eligibility criteria, advertising in local media, language, etc.

  Last modified 10 Feb 2017

• Skills competitions

  Yes, although the law is unclear and skill competitions could be risky in a B2B context.

  For B2B skill competitions, ensure:

  • The winner is picked on the basis of skill alone (eg, quality, accuracy, originality) not in any way by chance
    
    and
    
    
  • Criteria for awarding prizes are clear, objective and precisely defined

  Article L. 322-1 of the Code of Internal Security Code prohibits any and all operations (including skill competitions) offered to the public under any name whatsoever, that create an expectation of gain and the outcome of which is determined, even in part, by chance and for which a financial contribution from the participants is required by the organizer.

  Article L. 322-2-1 adds that the prohibition includes games the functioning of which relies on the player’s know-how. This could be interpreted as prohibiting skill competitions. However, there might be an argument that it means that the prohibition of chance-based games also applies when know-how is a factor in the determination of the outcome of the contest.

  That being said, article L. 322-2-2 provides that this prohibition does not apply to promotional lotteries mentioned in article L. 121-20 of the Consumer Code, which is why the risk that the skill competition be considered as unlawful is lower in a B2C context.

  For B2B, if the competition is totally skill-based and based on clear and objective factors that show that chance is not a factor, the competition would be lawful. If there is doubt as to whether chance is a factor, it would fall within the general prohibition of lotteries, except if participation is totally free. If reimbursement of the financial contribution is offered in the terms and conditions, this is not sufficient to make it lawful.

  Last modified 10 Feb 2017

• Prize draws

  Unlawful, unless:

  • No financial contribution from the participants is required by the organizer (irrespective of whether reimbursement of the financial contribution is offered in the terms and conditions)
    
    or
    
    
  • It is a promotional lottery as mentioned in article L. 121-20 of the Consumer Code that is not an unfair commercial practice under article L. 121-1 (which means in particular that entry conditions must at all time be clear, express and transparent)

  Under Section L. 121-20 of the Consumer Code, a chance-based prize draw consisting of a promotion organized by professionals to consumers is lawful to the extent it is not an unfair commercial practice.

  Unfair commercial practices are either:

  • Misleading practices (deemed - there is a list of 22 practices that are deemed misleading; or proven, under articles L. 121-2 et seq of the Consumer Code). For example, a promotional lottery would be deemed unfair if the prize or reasonable equivalent is not actually awarded, or if the promotion is presented as 'free' when in fact the consumer must pay anything other than the inevitable costs related to the response to the commercial practice and to taking possession of delivery of the item.
    
    
  • Aggressive practices (deemed- there is a list of 8 practices that are deemed aggressive; or proven, under articles L. 121-6 et seq of the Consumer Code). For example, repeated solicitations, physical or moral constraint and certain other practices are deemed aggressive.
    
    
  • 'Simply' unfair: when the practice is:
    
    
    • Contrary to professional diligence (not defined but see eg, recommendations of ARPP, ICC Code on Advertising and Marketing Communication Practice) and
      
      
    • Substantially alters the economic behavior of a reasonably careful and informed customer in respect of a good or service, under article L. 121-1 of the Consumer Code.
      
      These criteria leave it to the discretion of the French consumer protection authority (DGCCRF/DDPP) and of the courts, to determine whether the practice is unfair.
      
      or
      
      
  • It is a charity raffle (article L. 322-3 of the Internal Security Code ) or a traditional lottery, if organized for a limited amount of people and for a social, cultural, or educative goal (article L. 322-4), or within a funfair (article L. 322-5).

  Last modified 10 Feb 2017

• Selection of winners

  The conditions for the awarding of the prizes must be transparent for participants.

  Last modified 10 Feb 2017

• Judges

  No, although it is recommended that judges have sufficient capability to judge a skill competition and more generally be independent from the participants and objective.

  Last modified 10 Feb 2017

• Prizes

  The following cannot be awarded as prizes:

  • Weapons (article 5, July 12, 1985 Law)
    
    
  • Tobacco-related products (article L. 3512-4 of Public Health Code)
    
    
  • Anything contrary to public order or anything the distribution of which is prohibited or regulated (eg drugs)

  The trademark owner may object to its trademarked goods being offered as prizes if the organizer is not an authorized reseller. It may also be considered unfair competition.

  Last modified 10 Feb 2017

• Registration requirements and fees

  No.

  Last modified 10 Feb 2017

• Other local requirements

  No, although it is recommended to:

  • File the terms and conditions in the office of a court official, generally a bailiff (huissier de justice)
    
    
  • Obtain the express, opt-in acceptance of terms and conditions and all related documentation as a condition for entry or receiving a prize
    
    
  • Include some of the terms and conditions governing the promotion in any advertising presenting the promotion. This extract of the full length terms and documents should include a short description of the prize and the conditions of participation in the promotion. The extract should also indicate where and how the full length of terms and conditions can be obtained by the participants.

  Last modified 10 Feb 2017

• Timing

  Time should preferably be allowed to file the terms and conditions in the office of a bailiff, which may take a few hours up to a couple of business days.

  Time should also be allowed if the organizer has not yet made the appropriate filing with the French data protection authority (CNIL) for the management of the personal data collected and processed in connection with promotional operations.

  In France, the general principle is that each purpose for which personal data is processed must be filed with the CNIL. Therefore, it is not required to make a filing per promotional operation, but to have one filing for the management of the personal data collected and processed in the course of such operations. In some cases, the filing may be simplified if the conditions of Simplified Standard No. 48 are satisfied. Otherwise, a normal filing must be made. Once the declaration is filed, the CNIL issues a receipt of declaration within 4 days. If personal data is transferred outside of the EU, it may be necessary to obtain the CNIL’s authorization, which may take up to 4 months.

  As an exception to the foregoing, if a company appoints a data protection officer ('CIL' in French), it is not required to make any simplified or normal filings with the CNIL. However, authorizations must still be obtained and the information that would otherwise be included in a normal filing must be kept in the company's records' (the DPO is responsible for keeping these records up to date).

  Last modified 10 Feb 2017

• Translations

  Yes, into French (August 4, 1994 Law).

  Last modified 10 Feb 2017

• Penalties for non-compliance

  General prohibition of lotteries

  • Up to 3 years' imprisonment and a fine up to €90,000 for individuals and €450,000 for legal entities (or up to 7 years' imprisonment and a fine up to €200,000 for individuals and €1,000,000 for legal entities, if committed in an organized group)
    
    
  • Additional sanctions for individuals:
    
    
    • Loss of civil rights (eg right to vote and/or be elected to a public office)
      
      
    • Confiscation of the means used to commit the offense
      
      
    • Publication of the decision
      
      
    • Closing down of facility used to commit the crime, permanently or for up to 5 years, and
      
      
    • Prohibition from exercising certain activities
      
      
  • Additional sanctions for legal entities:
    
    
    • Dissolution
      
      
    • Prohibition for up to 5 years from operating a business, operating one or several establishments having been involved in the violation
      
      
    • Confiscation of the means used to commit the infraction
      
      
    • Publication of the decision, and
      
      
    • Prohibition for up to 5 years from obtaining or maintaining the license required to operate online gambling activities
      
      
  • A fine up to €100,000 for individual ticket sellers, or for those individuals advertising the lottery and up to €500,000 for legal entities such as companies. The court may raise fine to four times the amount spent to advertise the lottery.

  Promotional lotteries constituting misleading commercial practices

  • Up to 2 years' imprisonment and a fine up to €300,000 for individuals and €1,500,000 for legal entities such as companies
    
    
  • The fine may be set, for individuals, at up to 10% of the average annual turnover during the three preceding financial years or 50% of the cost of the practice constituting the offense
    
    
  • The fine may be set, for legal entities, at up to 50% of the average annual turnover during the three preceding financial years, or 250% of the cost of the practice constituting the offense
    
    
  • Possible additional sanctions for individuals: prohibition from any or all of the following for up to 5 years:
    
    
    • Exercising the activity in the context of which the violation was made
      
      
    • Exercising a commercial or industrial profession
      
      
    • Managing or controlling a commercial/industrial business or a commercial company
      
      
  • Possible additional sanctions for legal entities:
    
    
    • Prohibition for up to 5 years from:
      
      
      • Operating a business
        
        
      • Operating one or more establishments involved in the violation
        
        
      • Issuing securities to the public
        
        
      • Submitting public procurement bids
        
        
      • Issuing checks or using credit cards
        
        
    • Placement under judicial control for up to 5 years
      
      
    • Confiscation of the means used to commit the offense, and
      
      
    • Publication of the decision
      
      
  • In addition, a Court may order the cessation of the misleading practice.

  Promotional lotteries constituting aggressive commercial practices

  • Up to 2 years' imprisonment and a fine up to €300,000 for individuals and €1,500,000 for legal entities
    
    
  • The fine may be set, for individuals, at up to 10 % of the average annual turnover during the three preceding financial years
    
    
  • The fine may be set, for legal entities, at up to 50 % of the average annual turnover during the three preceding financial year
    
    
  • Possible additional sanctions for individuals: prohibition from exercising a commercial business activity for up to 5 years
    
    
  • Possible additional sanctions for legal entities:
    
    
    • Prohibition for up to 5 years from:
      
      
      • Operating a business
        
        
      • Operating one or several establishments involved in the violation
        
        
      • Issuing securities to the public
        
        
      • Submitting public procurement bids
        
        
      • Issuing checks or using credit cards
        
        
    • Placement under judicial control for up to 5 years
      
      
    • Confiscation of the means used to commit the offense, and
      
      
    • Publication of the decision
      
      
  • In addition, a Court may order the cessation of the aggressive practice

  Promotional lotteries constituting simply unfair commercial practices

  No specific criminal sanctions set forth in the Consumer Code.

  Civil sanctions

  Damages in case of unfair competition / parasitism claims.

  Breach of data protection rules

  • Up to 5 years' imprisonment and a fine up to €300,000 for individuals and €1,500,000 for legal entities
    
    
  • Deletion of all or part of the personal data concerned
    
    
  • Prohibition on a permanent basis or for up to 5 years from: operating a business, operating one or several establishments involved in the violation, submitting public procurement bids, issuing checks or using credit cards
    
    
  • Placement under judicial control for up to 5 years
    
    
  • Confiscation of the means used to commit the infraction
    
    
  • Publication of the decision
    
    
  • In cases of extreme urgency, the CNIL is entitled to issue a cease and desist to comply within 24 hours. When the infringing party does not comply, the CNIL may issue a warning, an injunction or a fine of up to €3,000,000 (the law specifies that when determining the amount of a fine the CNIL must take into account several factors, which largely echo those set forth in the General Data Protection Regulation). When it is not possible in fact for the infringing party to comply with the law, the CNIL can order a fine without first issuing a cease and desist (but due process must still be followed).

  Other sanctions may apply (eg, breach of electronic direct marketing rules, etc.)

  Last modified 10 Feb 2017

• Restrictiveness of regulations

  French rules have recently been simplified with respect to prize promotions, with less requirements, which are not unduly onerous (there are no registration or further formality requirements, and most prize promotion mechanics are allowed so long as it is not a prohibited lottery). The steps necessary to avoid falling into the category of prohibited lottery are (whilst important) not very restrictive.

  Last modified 10 Feb 2017

• Regularity of sanctions

  Enforcement is high. However, in practice, the risk of actual sanction is remote in that the French consumer protection authority (DGCCRF) would typically first request the sponsor who would be a first time infringer to comply with the law. If the organizer does not comply, then the DGCCRF would draft a report and send it to the public prosecutor. In case of successful prosecution, sanctions may be severe.

  Last modified 10 Feb 2017

• Key contacts
  

  Gregory Tulquois

  Partner DLA Piper France LLP [email protected] T +33 1 40 15 24 28 View bio

  

  Caroline Chancé

  Associate DLA Piper France LLP [email protected] T +33 1 40 15 66 41 View bio