Legal framework for free hearings

A free hearing under the French Consumer Code is not the beginning of an investigation but the culmination of it. According to Article L512-8 of the Consumer Code, agents have the authority to obtain documents of any nature, make copies of them by any means, or seize them regardless of whose hands they are in. The purpose of such hearings is not to discover activity but to verify pre-established hypotheses of qualification, focusing on whether actions fall under specific articles of the code, such as L121-2.

Legal basis and two regimes

The legal basis for these hearings is outlined in Article L512-10 of the Consumer Code, which allows authorized agents to conduct hearings of any person who may provide useful elements to their findings. This article also references Article 28 of the Code of Criminal Procedure, which applies when there are plausible reasons to suspect that the person heard has committed or attempted to commit an offense. This distinction creates two regimes under the same name: the "useful third party" and the "suspect." The former does not trigger the notification of rights, while the latter does, with the administration making this distinction.

Nature and consequences of free hearings

The term "free" in free hearing does not imply informality. It means that the individual is not under constraint, allowing them to come and go freely without any maximum duration for the hearing. However, unlike detention, no prior information from the public prosecutor is necessary, and no lawyer will be assigned to the individual unless they request it. Despite this, statements made during a free hearing have the same probative value as those collected during detention. This creates an asymmetry where individuals lose the guarantees of detention while retaining its consequences.

Statistics on influencer marketing checks

Statistical data from DGCCRF's 2022-2023 campaign on influencer marketing indicates that more than 300 professionals were checked, with 151 follow-ups, including 35 warnings, 81 injunctions, and 35 criminal procedures. For example, a home repair company with a turnover of 1.2 million euros faced penalties for deceptive pricing practices, with potential fines increasing based on the medium of dissemination rather than the gravity of the facts.

Interview techniques and question types

The mechanics of the interview typically follow a structured plan, starting with broad and comfortable questions before narrowing down to specific points of interest. Five categories of questions are particularly effective in shaping the file: questions with presuppositions, reformulation questions, questions outside the perimeter of the summons, open-ended questions at the end of the interview, and questions regarding the personal role of the manager. These questions are designed to establish a rhythm, fix a vocabulary, and obtain concessions that can later be used against the individual.

Notification of rights and interview minutes

Six rights must be notified if there are plausible reasons to suspect an offense, according to Article 61-1 of the Code of Criminal Procedure. However, the Court of Cassation has ruled that partial failure to notify these rights does not automatically nullify the proceedings unless it affects the interests of the person concerned. The minutes of the interview are crucial, as they must include the questions to which answers are given, not just the answers themselves. These minutes are not fixed at the time of printing and can be revised by the person heard, who can also have their observations recorded.

Impact of interview minutes on legal outcomes

The minutes of the interview serve as the foundational document for all subsequent actions, influencing whether the case leads to an administrative fine, settlement, or referral to the prosecutor. For example, an energy renovation company faced penalties for deceptive commercial practices, with the manager's answers during the interview determining the moral element and personal attribution.

Preparation and legal consequences

Preparation is essential before a free hearing. Understanding the scope of the summons and knowing what is already in the file is crucial. Reconstructing, backdating, or embellishing documents is strictly prohibited, as it can lead to penalties under the Penal Code. Refusing to cooperate can result in obstruction charges. Legal assistance should be sought as soon as the summons is received, as the consequences can be severe, including mandatory publicity of decisions and administrative sanctions. The amount of fines can be annulled if not based on a concrete examination of the accused's personal situation, as ruled by the criminal chamber.