By Paul Davies and Michael Green
In August 2015, the French government amended the French Energy Transition Law to include provisions rendering “planned obsolescence” a misdemeanour. In the latest wording of the provisions, article L.441-2 of the Consumer Protection Code (Code de la consommation) defines planned obsolescence as “… resorting to techniques whereby the entity responsible for the placement of a product on the market deliberately intends to shorten [that product’s] life span in order to increase its rate of replacement”. Interestingly, this is the French government’s second attempt to define planned obsolescence since introducing the provision two years ago.
Violation of the prohibition on planned obsolescence carries a potential two-year prison sentence and a criminal fine of up to €300,000. As an added deterrent, the law further provides that the courts may increase the fine to up to 5% of the annual turnover of the entity concerned (based on the average of the entity’s turnover in the three years prior to the date of the offence). The courts will therefore have the option of increasing a fine, provided the fine is proportionate to the infringing party’s gain (see Consumer Protection Code, art. L.454-6).
Since the provision’s enactment, consumer protection associations have complained about the vagueness of its terms. However, a matter involving ink-jet printers may soon put the provision’s meaning to the test before the French courts.
On 17 September 2017, the consumer protection association Halte à l’Obsolescence Programmée (HOP) — Stop Planned Obsolescence — filed a complaint with a public prosecutor on planned obsolescence and deceptive practices (tromperie) grounds. (Articles L.441-1 and L.441-2 both address penalties on deceptive practices grounds.)
Although HOP has labelled the complaint as being “against person unknown”, the complaint refers by name to the four leading companies responsible for placing personal and semi-professional ink-jet printers on the French market.
Technically, the complainant singles out two features for the prosecutor to consider:
- The stalling of the printers due to supposedly emptied ink cartridges, even though such cartridges would still contain ink
- Features, such as ink absorbing pads, which supposedly stall printers when saturated with ink (although no sensors actually measure their degree of ink absorption)
The complaint must satisfy the three constituent elements of the offense that render planned obsolescence a misdemeanour:
- A material element — the actual technique that is practised
- An intentional element — the intent to deliberately shorten the life expectancy of the printers (or elements of the printers, in the present case)
- A motive or expected result — i.e., the desire to increase the replacement rate of the products in question
The prosecutor will determine if sufficient evidence exists to warrant bringing this claim before the competent trial court.
Absent a “no further action” decision from the public prosecutor or a referral to the competent tribunal within three months from the filing of the complaint, HOP will be able to file a criminal complaint along with a civil claim for civil damages (plainte avec constitution de partie civile). The organization has already voiced its intent to make such a move — which would trigger a direct referral of the matter to a magistrate (juge d’instruction) and the launch of an inquiry (information judiciaire).
While the outcome of HOP’s complaint remains unclear, the potentially hefty penalties for a violation of the law mean that both manufacturers and opponents of planned obsolescence will observe unfolding events with keen interest.
This post was prepared with the assistance of David Desforges of Desforges Law.
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