License classification in France

License classification

The business of selling alcoholic beverages is subject to the possession of a license of a level corresponding to the nature of the beverages sold. An operator can therefore only offer alcoholic beverages for sale if he holds a license.

Depending on how the establishment is sold and the nature of the drinks on offer, different categories of public house license may be issued.

On-site drinking establishments

General definition

Article L. 3331-1 of the French Public Health Code, amended by law no. 2011-302 of March 22, 2011 and then byorder no. 2015-1682 of December 17, 2015, classifies licenses for on-premises drinking establishments into two categories:

• ^3rd category licence, licence 3, or " restricted licence ": authorizes the holder to sell drinks from the 1st group and drinks from the^3rd group;
• Licence^4ème catégorie, licence 4 ou " grande licence " ou " licence de plein exercice ": authorizes the holder to sell drinks fromall the groups defined in article L. 3321-1.

What about licenses 1 and 2?

The^1st category license, license 1, or "non-alcoholic drinks license", which authorized its holder to sell only drinks from the first group, was abolished by the law of March 22, 2011 (effective June 1, 2011).

The^2nd category license, licence 2, or "fermented drinks license", which authorized its holder to sell drinks from the 1st and 2nd groups, was abolished byOrdinance no. 2015-1682 of December 17, 2015 (at the same time as the abolition of drinks from the 2nd group), the provisions of which came into force on January 1, 2016. By virtue of an uncodified provision contained in II of Article 21 of the ordinance, II licenses existing on January 1, 2016 become III licenses by operation of law - without, therefore, the holders of the former II license having to complete any formalities.

Restaurant licenses

General definition

In order to offer alcoholic beverages for sale or supply, restaurants that do not hold an on-trade license must hold one of the licenses referred to inarticle L. 3331-2 of the French Public Health Code:

• the "petite licence restaurant", which allows you to sell drinks from the 1st group and drinks from the^3rd group for consumption on the premises during main meals and as an accessory to food;
• the "restaurant license", which allows you to sell, for consumption on the premises, beverages in groups 1 to 5 during main meals and as an accessory to food.

The concept of a meal

Case law has held that a restaurant owner who does not hold a license IV and who serves unauthorized beverages outside the meal service, and not only on the occasion of and as an accessory to the food, commits the offence of unlawfully opening a public house: Cass. crim. 15 novembre 1966, Bull. crim. n° 257.

The two conditions are therefore cumulative: a restaurant holding one of the licenses listed in article L. 3331-2 may only serve alcoholic beverages to its customers during the main meal and as an accessory to the food.

• On the occasion of the main meals:
  This first condition is assessed according to eating habits. In France, this means lunch and dinner, or even supper. Breakfast does not constitute a main meal: for example, it was ruled illegal for a restaurant not holding a licence IV to serve a glass of rum at 7 a.m. with breakfast (Tribunal correctionnel de la Seine, December 10 1932, Gaz. Pal. 1933, 1, 256). The Court of Cassation has specified that the composition of meals should be taken into consideration, not the time of day (Cass. Crim 14 novembre 1965, JCP 65, IV, 142).
• As an accessory to the food:
  this second condition shows that the essential criterion is indeed the composition of the meals. Case law has ruled that an establishment serving alcohol with sandwiches (Cass. Crim. December 3, 1936, S. 1938, 1, 158), with fruit (Cass. Crim. 17 mars 1953, D. 1953, 357; Cass. Crim. 25 mars 1955, JCP 55, IV, 77), or with toast (Cass. Crim. 28 novembre 1926, S. 1928, 1, 79; Cass. Crim. 3 décembre 1946, Gaz. Pal. 1946, 2, 219). However, changes in eating habits must be taken into account: on May 26, 1936, the Criminal Court of Le Havre (Gaz. Pal. 1936, 2, 262) ruled that since a meal of crêpes was not a real meal, a crêperie could not serve cider. In the same way, a fast food restaurant is unquestionably a restaurant.
  However, a restaurant is not obliged to serve alcoholic beverages at the same time as the meal: they can be served immediately before (aperitif) or immediately after (digestif) the meal. Customers may also take their aperitif or digestif elsewhere than at the table, for example at the bar or in a restaurant outbuilding (patio, garden). However, if the restaurant has a coffee room separate from the dining room, and the establishment does not hold one of the licenses stipulated in article L. 3331-1 of the French Public Health Code (licence II, III or IV), to serve an alcoholic beverage to a customer who is not having a meal: in this case, we would be dealing with the unlawful opening of a drinks outlet for consumption on the premises referred to above (Cass. crim. 15 novembre 1966, Bull. crim. n° 257 précité).

The special case of a tapas bar

In the case of tapas bars, the question legitimately arises as to whether an on-premises consumption license is necessary, or whether a restaurant license is sufficient. This must be examined on a case-by-case basis, depending on the actual activity of the establishment. Some of these establishments, which specialize in these products, offer a meal consisting exclusively of tapas, served under the conditions of a "classic" restaurant. For this type of operation, a restaurant license is conceivable. On the other hand, an ancillary activity, such as "amuse-bouches", does not allow tapas to be considered as part of a main meal and ancillary to the food: in this case, an on-premises consumption license is required to dispense alcoholic beverages.

Takeaway licenses

General definition

To sell alcoholic beverages on a takeaway basis, an establishment must hold a license(article L. 3331-3 of the French Public Health Code).

Establishments already holding an on-license or restaurant license may, as of right, offer for takeaway sale the drinks corresponding to the category of their license.

In the absence of one of these two types of license, the establishment offering takeaway alcohol sales must hold one of the following two licenses:

• the "petite licence à emporter" (small takeaway license), which authorizes takeaway sales of drinks from the 1st group and drinks from the^3rd group;
• the "takeaway license", which authorizes the takeaway sale of all drinks authorized for sale.

Distance selling

Under the terms of the last paragraph ofarticle L. 3331-4 of the French Public Health Code, distance selling is considered to be takeaway sales. Businesses offering this service (notably via the Internet) must therefore hold a takeaway sales license. If drinks are dispensed between 10 p.m. and 8 a.m., the specific training mentioned in paragraph² ofarticle L. 3332-1-1 of the French Public Health Code is compulsory.

Temporary license

There is no legal definition of a temporary public house.
The French Public Health Code does, however, contain special provisions for this type of establishment. Based on the type of events envisaged by the Code, it is therefore appropriate to attempt to define their characteristics.
Case law on the subject is sparse. It has been ruled that temporary outlets are those opened "on the occasion of an exceptional public event of a well-defined type, such as a fair, sale or public celebration".
A contrario, the High Court adds that this is not the case for "balls and shows organized by the interested party outside of all patronal or other celebrations, for his exclusive benefit ".

A temporary public house would therefore be one whose activity is limited in time, and whose operation is linked to a special public event.
Such a definition would therefore require a combination of the criterion of the temporal aspect of the event and the criterion of the special nature of the event, which lacks regularity.
The parameter of time taken in isolation, i.e. the mere duration of the outlet's operation, proves insufficient. In fact, there are outlets that are only open for a limited period of time, but which do not constitute temporary drinking establishments: this is the case for outlets that are open exclusively on a seasonal basis, travelling salesmen, or even a theater refreshment stand serving drinks during the intermission.

Temporary refreshment stand in a sports facility

An association may not sell or distribute alcoholic beverages in a sports venue (stadium, gym, etc.).

However, temporary exemptions may be granted to offer Group 3 alcoholic beverages for a maximum of 48 hours.

The associations concerned by the derogations are :

• Approved sports associations, up to a limit of 10 authorizations per year ;
• Associations organizing tourist events, up to a limit of 4 authorizations per year;
• Associations organizing agricultural events, up to a limit of 2 authorizations per year.

Requests for exemptions must be submitted to the mayor of the municipality in which the public house is to be located at least 3 months before the planned date of the event. They must specify the date and nature of the planned event, as well as the operating conditions of the premises (opening hours, categories of drinks concerned).

For special events, requests must be made at least 15 days before the planned date.

Failure to comply with the prohibition on introducing alcoholic beverages into a sports venue by force or by fraud is punishable by a €7,500 fine and one year's imprisonment.

Temporary refreshment stand outside a sports facility

Installation at a trade fair or exhibition

An association may open a temporary refreshment stand at a fair or exhibition and may serve any type of beverage there if :

• the fair or exhibition is organized by the State, a public body or a non-profit association;
• it has received a favourable opinion from the general commissioner of the exhibition or fair;
• has submitted a request to open a temporary public house at least 15 days in advance to the mayor of the commune concerned, or in Paris, to the Préfecture de Police de Paris, accompanied by a favorable opinion from the general commissioner of the exhibition or fair.

Installation on the occasion of a sale or public festival

An association may open a temporary refreshment stand to sell drinks from the 1st group and drinks from the^3rd group, provided it has obtained authorization from the mayor of the commune in which the stand will be located:

• a public fair, sale or festival;
• or a self-organized event, up to a limit of 5 authorizations per year.

Private circle

If the temporary refreshment area is reserved for members (association drinks,^3rd half-time, buffet reception, etc.), there are no special steps to take, and no specific regulations to follow.