Voluntary and mandatory application of standards in French law

By Yasmine EDDAM2 May 2025

Technical standards are an essential pillar of our economic and legal environment. They provide a framework for the production of goods and services by establishing recognised technical rules, but their legal status is often poorly understood. Although the voluntary application of standards is a fundamental principle of standardisation law, there are significant exceptions that transform their legal scope. This duality creates a complex framework that companies need to master in order to secure their business.

The fundamental principle of voluntary application

The voluntary nature of technical standards is expressly stated in Article 17 of Decree no. 2009-697 of 16 June 2009 on standardisation, which unambiguously states that "standards are voluntary". This principle fundamentally distinguishes standards from traditional legislative and regulatory texts.

This optional nature can be explained by the very origin of standards. Unlike traditional legal rules, technical standards are the result of a consensual process between economic and social players. The Association française de normalisation (AFNOR) and the accredited sectoral standards bodies coordinate their development, but they do not have the power of constraint of the public authorities.

In practice, this voluntary application means that, in theory, no direct penalty can be imposed on an economic operator who chooses to ignore a standard. The company remains free to develop its own methods and technical characteristics, as long as it complies with the applicable general regulations.

However, the optional nature of standards needs to be qualified. From a commercial point of view, failure to comply with standards can have major consequences: refusal of certain contracts, exclusion from certain procedures or loss of credibility. This is why standardisation, although voluntary in principle, exerts a considerable influence on professional practices, creating what lawyers sometimes refer to as "soft law".

Standards made directly mandatory

There are several major exceptions to the principle of voluntary application. The most direct exception is Article 17 of Decree no. 2009-697, which states that "standards may be made compulsory by an order signed by the Minister for Industry and the minister(s) concerned".

This transformation of the legal status of the standard therefore takes place through a specific administrative decision. The standard, originally optional, then becomes a genuine rule of law, non-compliance with which may be penalised. This is known as a "mandatory standard" or "standard made mandatory".

This mechanism is of undeniable practical interest to the public authorities. It makes it possible to quickly incorporate into the legal system technical provisions drawn up by the professionals themselves, without going through the traditional legislative or regulatory process. In this way, the State can draw on the expertise of economic players, while giving binding force to their recommendations.

It is essential to distinguish this process from the direct enactment of technical rules by public authorities. When a standard is made mandatory, its content remains as defined by the standards body. Autonomous technical regulations, on the other hand, are determined entirely by the competent public authority.

In practice, the standards made mandatory mainly concern areas where safety, health or environmental protection are at stake. These mandatory standards can be consulted free of charge on the AFNOR website, as specified in decree no. 2021-1473 of 10 November 2021, which amended the 2009 decree.

Mandatory standards by reference

A second category of exceptions to the principle of voluntary application arises from what are known as "mandatory standards by reference". In this configuration, the standard remains formally optional, but its application becomes mandatory in practice by virtue of its mention in a contract or regulatory text.

Contractual reference to standards

In the contractual context, the principle of contractual freedom allows the parties to include compliance with technical standards as a condition of performance of the contract. Such a stipulation transforms the standard, initially optional, into a contractual obligation, the violation of which may constitute a breach for which the debtor is liable.

This practice is extremely common in many economic sectors, including construction, industry and IT services. For example, a building contract may require compliance with NF DTU (Documents Techniques Unifiés) standards, transforming these technical documents into genuine contractual obligations.

The reference to standards may be explicit (mention of a specific standard) or implicit (general reference to "best practice" or "current standards"). The latter wording can be difficult to interpret, particularly when the standards change during the performance of the contract.

The courts generally consider that compliance with a contractually agreed standard constitutes an obligation of result. However, the case law is nuanced on this point, as we discuss in more detail in our article on legal liability linked to technical standards.

The benchmark in public procurement

Public procurement is an area in which reference to standards is particularly important. Article 6 of the Public Procurement Code expressly states that the services covered by a contract may be defined by reference to standards or other equivalent documents.

This reference de facto transforms the standards in question into obligations for tenderers and the contract holder. Failure to comply with the standards mentioned may then justify a refusal to award the contract or termination for misconduct.

It should be noted that, in accordance with the principles of Community law, public purchasers must accept bids based on other equivalent technical solutions. However, this equivalence must be demonstrated by the tenderer, which often puts compliance with standards in a strong position.

Reference in regulatory texts

Regulations can also refer to technical standards without making them directly mandatory. This technique, used in particular in the context of the European "new approach", consists of setting "essential requirements" in regulatory texts while referring to standards for detailed technical specifications.

In this scheme, compliance with the standards is not legally binding, but it confers a presumption of conformity with the essential requirements. The economic operator can theoretically choose other technical solutions, but will then have to demonstrate their compliance with the essential requirements, which is often complex and costly.

This system, which is widely used at European level, allows greater flexibility than direct obligation, while at the same time strongly orienting practices towards compliance with standards. A detailed presentation of this mechanism can be found in our guide on standardisation under french law.

Consequences of non-compliance with standards

The legal consequences of non-compliance with standards vary considerably depending on their status and context.

In the case of standards made mandatory by ministerial decree, their breach constitutes an offence liable to administrative or criminal penalties. Penalties depend on the area concerned and the specific texts applicable.

Failure to comply with standards that are mandatory by contractual reference may result in various contractual penalties: refusal of acceptance, termination of the contract, damages, etc. Case law generally considers that compliance with contractually agreed standards constitutes an obligation of result.

In addition to these aspects, failure to comply with standards can have significant consequences in terms of civil liability. If non-compliance causes damage to a third party, it may be considered a fault for which the person responsible is liable. The courts consider that standards are the minimum expression of "best practice", even when they are voluntary.

From a criminal point of view, the violation of a standard, even if optional, can constitute an element characterising imprudence or negligence in the context of unintentional offences (involuntary homicide, involuntary injuries). This dimension is particularly developed in proceedings relating to accidents.

Certification and marking add an extra dimension to this problem. A product or service presented as conforming to a standard when it does not may engage the responsibility of its producer or service provider. The aspects relating to certification are detailed in our article on product certification and marking.

Finally, in commercial matters, the Court of Cassation has sometimes held that unjustified non-compliance with a standard, even if voluntary, could constitute an act of unfair competition when it enabled a company to offer lower prices than its competitors who complied with the standards.

For a company, the choice of whether or not to comply with a standard, even an optional one, cannot therefore be reduced to a simple question of commercial expediency. It potentially engages its responsibility at several levels and must be the subject of an in-depth legal analysis.

If you are experiencing difficulties with the application of standards in your business, or if you are facing a dispute over compliance with a standard, our firm has the expertise to help you. Our lawyers in standardisation law will help you assess the legal risks and define the strategy best suited to your situation.