Adopted
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.
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").
As required by the Omnibus Directive, the new rules have entered into force on 28 May 2022.
Amendments to existing laws (see "Implementation Act" section).
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"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 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).
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:
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).
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:
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:
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).
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.
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).
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:
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.
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.
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 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).
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:
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:
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
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.
The operators of online marketplaces must provide information about:
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:
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).
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.
Please see section A. for details.
Optional provisions/deviations:
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