- Requests to ban Black Friday, scheduled for the end of November, are increasing. After the federations of traders last Sunday, it was deputies who sent a letter to the Prime Minister, Jean Castex.
- The Minister of the Economy, Bruno Le Maire, replied that it was impossible for him to cancel this promotional operation.
- French laws do not define promotions, but frame them, and Black Friday seems to respect the rules.
“I don’t have the option to ban Black Friday. “Asked Monday on BFM TV, Bruno Le Maire wanted to be final about the now traditional giant promotion operation at the end of November. It responded to the request emanating from the federations of traders, undermined by this second confinement and the closure of businesses deemed non-essential, which published a column in the Sunday newspaper. A text supported by several deputies, including Cédric Villani, Matthieu Orphelin and Delphine Batho. The latter rely in particular on the law of 12 February, known as the “Anti-Waste Act”.
– Delphine Batho (@delphinebatho) November 9, 2020
In vain therefore, since Bercy, contacted by 20 Minutes, confirms the words of the Minister of the Economy. But why can this ban not be decided?
Do not confuse sales and promotions
First confusion to avoid: Promotions are not sales. These are defined by article L.310-3 of the Commercial Code, and their dates set by the prefects. Asked by 20 Minutes, Maître Julia Bricca, lawyer at the Lyon bar, makes the distinction: “Promotions are not defined but are nevertheless supervised. »Indeed, they can be offered at any time of the year, on condition that they remain occasional and of short duration. They can also be applied only to part of the customer base, as is the case with private sales, and are not prohibited from restocking. Finally, reselling at a loss as part of promotions is prohibited, which is an important difference with sales.
“Promotional operations are free, and therefore no legal basis makes it possible to ban them”, summarizes Julia Bricca. To offer promotions, a merchant simply needs to indicate the start and end dates in his advertisements, and the reference price crossed out.
Europe would not let it happen
And if French law fails to convince the most skeptical, Julia Bricca recalls that the European Union, too, plays a role in the impossibility of banning Black Friday. Directive n ° 2005/29 of May 11, 2005, relating to unfair commercial practices harmonized the applicable rules in this area and deprived Member States of the possibility of adopting, or maintaining, more restrictive measures than those it defines. This directive lists unfair commercial practices. Thus, no other practice can be presumed illegal, with exceptions.
According to this directive, transposed into French law in 2011, a commercial transaction cannot be legally prohibited, unless it can be demonstrated that it is of an unfair nature according to the criteria established by this same directive. Julia Bricca adds that the Court of Justice of the European Communities has taken a position on the issue on numerous occasions, and has confirmed that only listed commercial practices can be banned. However, Black Friday, authorized in Europe, does not seem to meet the necessary criteria to validate a ban. Julia Bricca sums up this situation: “If France took the decision to ban Black Friday, it would run the risk of being called to order by the Court of Justice of the European Communities. “
Complainants shouldn’t stop there
If Agnès Pannier-Runacher, Minister for Industry, announced the suspension of the pre-Black Friday campaign on Amazon, “because it was not at all appropriate at this time when 200,000 traders will have to close their doors” , that should not be enough to calm those who call for its ban. Whether it is the traders who suffer from the health situation and the resulting measures or the deputies.
The latter, in addition to brandishing the Anti-Waste Law, invoke the misleading advertisements that result from Black Friday. And are based in particular on a study carried out by the UFC-Que Choisir which suggests that despite the promises of significant reduction made by the advertisers, the average of the reductions actually practiced that day is less than 2%.