Retail and Consumer Brands Seminar
Out-Law Guide | 04 Apr 2014 | 8:41 am | 6 min. read
This guide was last updated in April 2014
The new law is stricter on sellers of goods or services. It increases sentences and gives authorities greater powers. While passing the law the French parliament took the opportunity to amend and clarify certain provisions to streamline their enforcement under French Law, especially regarding sales with bonuses or the renewal of contracts.
This guide covers some of the most important aspects of the new law.
'Consumer' is defined
The Consumer Law inserted definition of a consumer into the French Consumer Code. A consumer is "any individual who acts for purposes which do not enter in the scope of his/her commercial, industrial, artisanal or liberal activity".
The Consumer Law amended the Consumer Code to guarantee that consumers will be protected by an EU member state where a contract is closely connected with that EU member state.
Under the Consumer Law businesses must provide pre-contractual information that is detailed, clear and transparent to consumers.
Any breach of the obligations to provide pre-contractual information contained in the new law will result in fines of up to €3,000 for individuals and €15,000 for companies. The French Council of State will produce more specific guidance on the pre-contractual information to be provided to consumers.
The amended French Consumer Code also lists what information must be provided in distance selling contracts. The information that must be provided for other distance selling contracts is:
Telemarketing and commercial marketing
Under the new Consumer Code companies engaging in telemarketing must provide specific information at the beginning of a phone conversation and after phone canvassing if any resulting contract is to be valid. The consumer will only be bound by the offer after signing and accepting such offer in writing or after giving his/her consent by electronic means.
Companies cannot use concealed numbers. Companies cannot call consumers who are on a list of people who have opted out of receiving those calls, except where a contractual relationship already exists.
Alternative dispute resolution scheme
The Consumer Law creates a new right for consumers to be informed of their ability to follow a mediation procedure or any alternative dispute resolution scheme in the event of a dispute.
Pre-ticked box and additional payment
Companies will no longer be able to charge consumers based on 'pre-ticked boxes' consenting to additional payments. If there are costs over and above the price of the main goods or services then sellers will have to request express consent for those payments. If they don't the consumer can claim back the extra payments and the company can be fined up to €15,000.
Airline ticket sales
Passengers who don't take a flight but were charged taxes and fees that are due only when they actually board a plane can reclaim those charges from a seller, where the flight ticket is no longer valid and did not result in transportation, under the revised Consumer Code. The refund must take place within 30 days of a request, and fees must not represent more than 20% of the refunded sum.
Strengthening the powers of the DGCCRF
Under the Consumer Law broader investigation and sentencing powers have been granted to the French Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (DGCCRF).
The DGCCR will now be entitled to request before the French jurisdictions the deletion or in some cases delete an unlawful or abusive clause included by the seller in any contract or type of contract offered to consumers.
The DGCCRF will be entitled to request a declaration that such clauses are deemed unwritten in any identical contracts used by sellers with other consumers, including those which are no longer offered, and to order the seller to inform consumers at its own expenses and by any appropriate means.
Extended powers for the CNIL
Among its missions, CNIL, the French data privacy authority, has to control the conditions under which the databases are created and used.
Until now, depending on the context and nature of the verifications to be made, the law granted to the CNIL the power to proceed to:
The Consumer Law does amend the control and investigation powers of the CNIL by allowing its agents to conduct online controls. It will allow them to record remotely all breaches of the data protection regulation. These breaches will be listed in an official document that will be notified to the entity and individuals involved.
This will significantly improve CNIL’s power of investigation in particular concerning security issues over the internet, mandatory information on websites and commercial communications and collection of consent in relation to canvassing.
This new power will only allow CNIL to review information freely accessible online and does not give any power to the regulator to circumvent security measures to block access to specific content.
Term for delivery
The Consumer Law says that where there was no agreement on the date for delivery of goods or services they must be delivered in no more than 30 days.
Right of withdrawal
The Consumer Law made substantial changes in the legal framework applicable to consumers' right of withdrawal. These are:
Where the right of withdrawal does not apply
The Consumer Law indicated that the right of withdrawal does not apply in the following cases:
For more information contact Annabelle Richard
Retail and Consumer Brands Seminar