France

Status

Adopted 

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive into French law has been completed by introducing (through an ordinance adopted on 22 December 2021, see next column) amendments to the French Consumer Code.

As required by the Omnibus Directive, the new rules have come into force on 28 May 2022.

Implementation Act

Ordinance n° 2021-1734 amending the French Consumer Code, dated 22 December 2021 ("Ordonnance transposant la directive 2019/2161 du Parlement européen et du Conseil du 27 novembre 2019 et relative à une meilleure application et une modernisation des règles de l'Union en matière de protection des consommateurs").

(Envisaged) Implementation Date

As required by the Omnibus Directive, the new rules have entered into force on 28 May 2022.

Approach to implementation

Amendments to existing laws (see "Implementation Act" section).

Next steps

N/A

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

"Widespread infringements" and "infringements with a Union dimension" of national law are now subject to fines.

Under the new articles of the Consumer Code (132-1-A; 242-7-2, 242-14-1), fines can be imposed for widespread infringements and infringements with a Union dimension of inter alia:

• the use of unfair or illicite clauses (241-1-1 and 241-2);
• failure to reimburse within 14 days the amount due under the legal guarantee of conformity (242-7-1);
• violations of obligations related to electronic communication;
• violations of various information obligations, confirmation of the agreement; and
• violations of obligations to return goods after withdrawal of the contract.

The maximum limit of EUR 300,000 is set. A higher fine may be imposed without exceeding 4 % of the annual turnover. If there are no indications for an estimate of the annual turnover, the maximum fine is EUR 2,000,000.

Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.

France has refrained from acting on the option given by the Directive to set higher maximum fines than the fines mentioned above. Additionnaly, administrative fines of EUR 15,000 to 75,000 are set for breach of precontractual information obligation.

France has made use of the possibility provided for in the Omnibus Directive to limit penalties to cases where the contractual terms are expressly defined as unfair in all circumstances in national law or where a seller or supplier continues to use contractual terms that have been found to be unfair in a final decision in a class action brought by a consumer association (limited to EUR 15,000 for physical persons and EUR 75,000 for businesses, article 241-1-1).

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

Traders now must, whenever announcing a price reduction, indicate the lowest price of the product applied to consumer sales within 30 days prior to applying the price reduction (article 112-1-1-I).

This does not apply to:

• goods which are liable to deteriorate or expire rapidly (in particular food); or
• progressive, uninterrupted price reductions.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

There are no proper fines related to infringements on the indication of prices. However, such infringments will be sanctioned as an unfair practice and will be liable to the applicable sanctions set up in the French Consumer Code (see section A. for details).

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

Pursuant to an Ordinance dated 21 September 2021, digital services and content provisions were inserted into the Consumer Code as a specific category of contract.

However, EU provisions remain applicable to the provision of digital services, together with the following specific French rules:

• Right to terminate the contract or interrupt the payment (article L224-25-11 of the Consumer Code) in the event the digital service is non-compliant or fulfilled; and
• Right to claim a legal guarantee of conformity.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Traders who fall under the definition of "online market place operator", i.e. who enable the consumer to contract with third-parties through their own software, must now provide clear information on the main parameters used to rank products in online searches and their relative importance (121-3).

A similar obligation of information on ranking existed under French law for online platform operators (L111-7 and D111-7), defined as any natural or legal person offering, on a professional basis, whether paid or not, an online public communication service based on:

• The classification or referencing, by means of computer algorithms, of content, goods or services offered or put online by third parties; or
• Bringing together several parties in the context of the sale of a good, the provision of a service or the exchange or sharing of a content, good or service.

It is further forbidden for the trader to provide search results without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results (121-4-25).

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Traders who sell goods and services on online marketplaces are obliged to inform consumers whether an item is purchased from another consumer or a different trader.

For the pre-contractual information obligations with regard to online marketplace operators, see section D.IV. for details.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Yes, France has made use of the option to introduce new regulations with respect to doorstep sellings: "any unsolicited visit by a trader to a consumer's home for the purpose of selling products or providing services is prohibited where the consumer has clearly and unambiguously indicated that he does not wish to be visited" (221-10-1).

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders are obliged to inform the consumer about whether and how they ensure that reviews originate from consumers who are actual users/buyers (121-3-6).

This only covers traders who make consumer reviews accessible themselves. If traders merely refer via a link to consumer reviews published by third parties on the goods or services offered by them, the obligation does not apply.

It is forbidden for traders to:

• state that reviews are submitted by actual users/buyers without taking necessary steps to check authenticity (121-27); and
• submit or commission another person to submit false reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products (121-28).

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

The new unfair commercial practice provision of article 121-1-4 provides that marketing a good as identical to a good offered in other EU Member States is unlawful if the goods differ in their components or characteristics.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Pursuant to current French law, traders can be held liable for damages resulting from unfair commercial practices based on articles 131-1 et Seq.

Additionally, the new framework includes administrative fines for traders who will not comply with the French Consumer Code 's requirements.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

In addition to the possibility to claim damages, fines are implemented. In particular, "Widespread infringements" and "infringements with a Union dimension" of national law are now subject to fines.

Under the new articles of the Consumer Code (132-1-A; 242-7-2, 242-14-1), fines can be imposed for widespread infringements and infringements with a Union dimension of inter alia:

• the use of unfair or illicite clauses (241-1-1 and 241-2);
• failure to reimburse within 14 days the amount due under the legal guarantee of conformity (242-7-1);
• violations of obligations related to electronic communication;
• violations of various information obligations, confirmation of the agreement; and
• violations of obligations to return goods after withdrawal of the contract.

The maximum limit of EUR 300,000 is set. A higher fine may be imposed without exceeding 4% of the annual turnover. If there are no indications for an estimate of the annual turnover, the maximum fine is EUR 2,000,000.

Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.

France has refrained from acting on the option given by the Directive to set higher maximum fines than the fines mentioned above. Additionnaly, administrative fines of EUR 15,000 to EUR 75,000 are set for breach of precontractual information obligation.

France has made use of the possibility provided for in the Omnibus Directive to limit penalties to cases where the contractual terms are expressly defined as unfair in all circumstances in national law or where a seller or supplier continues to use contractual terms that have been found to be unfair in a final decision in a class action brought by a consumer association (limited to EUR 15,000 for physical persons and EUR 75,000 for businesses, article 241-1-1).

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services are now subject to the same rules as all other goods and services covered by the Consumer Rights Directive, with the following specific French rules:

• Right to terminate the contract or interrupt the payment (L224-25-11 of the Consumer Code) in the event the digital service is non-compliant or fulfilled.
• Right to claim a legal guarantee of conformity.

However, for goods with digital elements and digital content and digital services, additional pre-contractual information requirements for traders apply (221-5.-I). 

These stipulate that, before conclusion of the contract, the trader must inform the consumer about the following:

• where applicable, the functionality of the goods with digital elements or of the digital products, including applicable technical protection measures; 
• where applicable, and where material, the compatibility and interoperability of the goods with digital elements or digital products, to the extent that this information is known or ought to be known by the trader; and
• where applicable, the legal guarantees.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, the Consumer Rights Directive, like the Digital Content Directive, now also applies to contracts for the provision of digital services for which the consumer does not pay a price but provides personal data to the trader. This has been implemented in the French Consumer Code in Article 221-1-III.

This also applies to contracts for the provision of personal data which is not stored on a tangible medium, for which the consumer provides personal data in return.

No provision was implemented into French law regarding the application of the above rule to the collection of personal data through cookies or metadata.

However, the Consumer Rights Directive does not apply if the trader processes the personal data provided by the consumer for no other purposes than

• fulfilling its contractual obligation by supplying the digital content; or
• for complying with legal requirements to which the trader is subject.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

Traders must now always provide their telephone number to the consumer when concluding a distance or off-premise contract (article L221-5-I).The obligation to indicate the fax number, on the other hand, is no longer applicable.

There is a new information obligation: traders must inform the consumers if they have personalised the price of the specific product/service on the basis of automated decision-making. The information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

The operators of online marketplaces must provide information about:

• the main parameters for determining the ranking presented to the user (121-3);
• whether the third party offering their goods, services or digital product is a trader or not (121-3-6); and
• whether and how they ensure that reviews originate from consumers who are actual users/buyers (121-3-6).

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

Art. 221-26-1I stipulates that the trader may not continue to use content (that is not personal data) that was provided or created by the consumer when using the digital content or services (digital products) in case of a withdrawal by the consumer, unless the content in question:

• no. 1: has no use outside the context of the digital product;
• no. 2: results exclusively from the consumer's use of the digital product;
• no. 3: has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
• no. 4: was created by the consumer together with others, provided that other consumers can continue to use the content.

Additionally, the consumer may request the provision of his/her content by the trader (free of charge, within a reasonable period of time and in a common and machine-readable format).

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

With regard to contracts for the provision of services for which the consumer pays a price, the right of withdrawal does not expire until the services have been fully provided and the consumer has consented to the service before the expiry of the withdrawal period acknowledging the expiry of the right of withdrawal (Art. 221-28).

With regard to contracts for digital content, the right of withdrawal only expires if the consumer expressly consents to the performance during the withdrawal period confirming his knowledge about the expiry of the right of withdrawal and the consumer expressly confirms this consent to the trader.

VII. What penalties can be imposed for infringements of consumer rights?

Please see section A. for details.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b para. 2 Unfair Contract Terms Directive: France made use of the optional limitation of penalties for infringements of consumer rights related to consumer contracts.
• Art. 6a No. 3 to 5 Price Indication Directive: France has only used two out of the three options to exempt certain products or practices from the obligation to indicate the prior price when announcing a price reduction (i.e. in case of successive price reductions and in case of reduction on perishable products threatened by rapid deterioration.)
• Art. 3 para. 5 Unfair Commercial Practices Directive: France has made use of the option to regulate new obligations for consumer protection against unfair practices in the context of doorstep selling. No use was made of the option to do this in the context of commercial excursions.
• Art. 11a Unfair Commercial Practices Directive: France has not used the option to determine (further) conditions for the application and effect of remedies, as it was already adequately regulated under French Law.
• Art. 13 para. 3 Unfair Commercial Practices Directive: France made use of the optional limitation of penalties for infringements of consumer rights related to unfair contractual terms.
• Art. 6a para. 2 Consumer Rights Directive: No use was made of all the options to add additional precontractual information obligations to online marketplace providers (e.g. not integrated the option where the third party offering the goods, services or digital content is not a trader, that the consumer rights stemming from Union consumer protection law do not apply to the contract).
• Art. 9 para. 1a Consumer Rights Directive: No use was made of the option to extend the withdrawal period for consumer contracts concluded on occasion of doorstep selling or commercial excursions to 30 days.
• Art. 16 para. 2 Consumer Rights Directive: No use was made of the option to derogate from some of the exceptions of the right of withdrawal set out in Art. 16 para. 2 for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 para. 3 Consumer Rights Directive: France has made use of the option to provide the consumer from loosing his/her right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent.
• Art. 24 Consumer Rights Directive: France has not made use of the option to regulate higher maximum fines than the ones provided for in the Directive.

Noteworthy points arising from legislative changes

N/A