The texts published are drafted in their original language and are not subject to any translation.

Jointly with the action for cessation, the action for the removal of unfair terms was introduced to enable associations to act in order to make unlawful or unfair clauses “disappear,” as defined by the Scrivener Law (Law No. 1978-22 of 10 January 1978), a notion that has since evolved, and which are notably included in the “black” and “grey” lists.

​

If the clause constitutes a criminal offence, an accredited consumer association may rely on the action under Article L. 621-2, the autonomous action under Article L. 621-8 before the civil courts, or intervene in proceedings brought by a consumer or bring the action jointly with the consumer (Consumer Code, Article L. 621-9). Litigation concerning removal relates to unfair terms in contracts concluded with consumers as well as with non-professionals (Consumer Code, Articles L. 212-2 and R. 212-5). The court may request an advisory opinion from the Commission on Unfair Terms.

​

The preventive nature of the action allows it to be brought against any contract—regardless of its format—or type of contract offered or intended for the consumer, thereby enabling “model contracts” currently used or intended for future use to be targeted, as well as any contract in the course of performance (Consumer Code, Article L. 621-8). This avoids the difficulty arising from the removal of contested clauses during pending proceedings (Law No. 2015-990 of 6 August 2015, Article 40).

​

The court assesses the unfair nature of a clause by reference to the criteria set out in the Consumer Code. The court may order its removal subject to a penalty payment (Consumer Code, Articles L. 212-1, para. 2 and L. 621-8), and may also order the professional, at its own expense, to inform the consumers concerned by any appropriate means (Consumer Code, Articles L. 621-2 and L. 621-8). Since the Macron Law (Law No. 2015-990 of 6 August 2015, Article 40), a clause may be deemed unwritten in all identical contracts concluded by the defendant with consumers, thus moving from a relative effect to an ultra partes effect of the judgment.

​

Cross-border actions for cessation and removal may be brought in order to put an end to unlawful practices in light of the directives referred to in Article 1 of European Directive 98/27/EC and its “codified” version, Directive 2009/22/EC of 23 April 2009 (M. J. Azar-Baud, Les actions en cessation en matière de protection des intérêts des consommateurs, on Directive 2009/22/EC, Revue Européenne de Droit de la Consommation, Larcier, 2010/2), recently repealed by the Directive on Representative Actions.