Background
Viséo Customer Insights SAS (“Viséo”) organises a well-known French competition called “Élu service client de l’année” (“Voted Customer Service of the Year”), a commercial distinction that businesses use to promote themselves to consumers. Viséo alleged that a rival award — the “Meilleure relation client de l’année” (“Best Customer Relationship of the Year”) trophy — constituted an unfair commercial practice. The trophy had been organised by New Interactive Marketing SL (“New IM”), a Spanish company, until 2021, and thereafter by Gabaon Conseils SL (“Gabaon”), an Andorran company. Viséo brought proceedings seeking an injunction to stop the organisation of that competing award and compensation for the harm it claimed to have suffered.
The Paris Court of Appeal (Pôle 5, Chambre 2) rejected Viséo’s claims by judgment of 5 April 2024. It held that the practices challenged did not qualify as “commercial practices” within the meaning of Articles L. 121-1 and L. 121-2 of the French Consumer Code (implementing EU Directive 2005/29/EC on unfair business-to-consumer commercial practices), because New IM and Gabaon were not themselves in a direct relationship with consumers: their clients were the brands (“enseignes”) that participated in the competition, not the end consumers. It was those brands that then used the trophy in their own consumer-facing promotions. Viséo appealed to the Court of Cassation on two grounds.
Viséo’s principal argument was that the prohibition on unfair commercial practices should extend to the designers and creators of such practices — even where they do not deploy them directly toward consumers — on the basis that this approach would be more effective and would “kill the problem at the root.” It also argued that promoting a brand identity (“enseigne”) should be treated as promoting a product or service for the purposes of the Directive, given that a brand’s identity is an integral commercial asset that influences consumer purchasing decisions.
The Court’s Holding
The Court of Cassation rejected the appeal in its entirety. Applying Article L. 121-1(2) of the Consumer Code and Article 2(d) of Directive 2005/29/EC, the Court reaffirmed that a “commercial practice” subject to the unfair practices rules must be in direct connection with the promotion, sale, or supply of a product to consumers. It cited the settled case law of the Court of Justice of the European Union — specifically RLvS, C-391/12, 17 October 2013, paragraph 37 — to the effect that only practices that both emanate from traders and are directly related to the promotion, sale, or supply of their own products to consumers fall within the scope of the Directive.
The Court acknowledged the CJEU’s further clarification (same judgment, paragraph 38) that where a trader’s commercial practices are deployed by another company acting on its behalf, the Directive can in certain circumstances be invoked against both. However, it drew a clear distinction: that principle applies where one company acts as the agent of another in deploying practices toward consumers. Here, New IM and Gabaon were not acting on behalf of the participating brands vis-à-vis consumers; rather, they were providing an independent service — the organisation of a competition — to those brands, which then made their own consumer-facing use of the trophy. Because New IM’s and Gabaon’s own activities were not in direct relation to the promotion, sale, or supply of any product to consumers, those activities fell outside the statutory definition.
As a consequence of rejecting the first ground of appeal, the Court also dismissed the second ground, which had been premised entirely on a successful outcome under the first: Viséo had argued that, if the unfair commercial practices characterisation were restored, the lower court’s rejection of its related unfair competition claim should also be set aside. With the first ground failing, that derivative argument was rendered moot. The Court also declined to refer any question to the CJEU, holding that existing CJEU case law was sufficient to resolve the legal question presented.
Key Takeaways
- The scope of EU Directive 2005/29/EC on unfair commercial practices is limited to practices that are in direct connection with a trader’s own promotion, sale, or supply of products to consumers; it does not extend to upstream service providers who design or supply commercial tools to other businesses that then use them in consumer-facing contexts.
- A company that organises an industry award or trophy competition, whose paying clients are brands rather than end consumers, does not itself engage in a “commercial practice vis-à-vis consumers” within the meaning of the Directive, even if the award is ultimately used by participating brands to influence consumer behaviour.
- The CJEU’s RLvS principle — allowing the Directive to apply to both a trader and a third party that deploys the practice on the trader’s behalf — is confined to agency-type relationships and does not apply to independent service providers acting for their own account.
- Viséo was ordered to pay New IM and Gabaon a combined sum of €5,000 under Article 700 of the Code of Civil Procedure (costs contribution).
Why It Matters
This decision clarifies an important boundary in the application of the EU Unfair Commercial Practices Directive in France. It confirms that the prohibition on unfair commercial practices cannot be wielded against the upstream architects of a commercial tool simply because that tool is ultimately used by third-party businesses in ways that reach consumers. The claimant’s “strike at the root” theory — that targeting the creator of an allegedly misleading practice is a more efficient remedy than pursuing every business that uses it — was squarely rejected as incompatible with the Directive’s text and the CJEU’s interpretation of it.
For businesses operating in the competitive landscape of consumer-facing certifications, ratings, and award schemes, the ruling has practical significance: competing award organisers cannot use consumer protection legislation as a weapon against rivals unless they can demonstrate that the rival is itself in a direct commercial relationship with consumers. Claims of that kind will need to be pursued, if at all, under general unfair competition law — though here too Viséo’s claim failed as a result of its consumer-law argument collapsing.