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:
- the price – the price must be clear. The new Code says that "where the nature of the goods or services is such that the price cannot be reasonably calculated in advance, the professional shall provide the manner in which the price is calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other potential costs. Where those charges cannot reasonably be calculated in advance, the professional shall mention the fact that such additional charges may be payable";
- payment obligation - the consumer must explicitly acknowledge their payment obligation;
- accepted forms of payment – no later than the beginning of the ordering process, on e-commerce websites consumers must be told which means of payment are accepted and whether any delivery restrictions apply;
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:
- On site controls, during which the CNIL has access to hardware and software on which data are stored. It is currently the majority of verifications made.
- Controls on document, that allowed the CNIL to obtained documents and files on demand.
- Controls by interviews, by summoning all persons undertaking data processing, or their representatives, in order to obtain all useful information, in the CNIL’s premises.
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:
- extension of the withdrawal period - the Consumer Law extended the withdrawal period from seven to 14 days. If the consumer has not been informed of his/her right of withdrawal, the time period to exercise such right shall be extended to 12 months from the expiration of the initial period, instead of three months as was previously the case.
- extension of the customer's obligations - once the customer has exercised their right of withdrawal they must return the product within 14 days. The seller is not required to reimburse additional costs if the consumer expressly opted for a type of delivery which is more expensive than the standard method of delivery offered by the seller.
- reduction and framework of repayment term - under the new law the seller must reimburse the consumer within 14 days from the consumer's withdrawal, rather than within 30 days. This reimbursement must cover all sums paid by the consumer, including delivery charges, and must be performed by the same means of payment used for the original transaction. In case of delay, the Consumer Law requires the enforcement of default interests which can vary depending on the length of delay.
Where the right of withdrawal does not apply
The Consumer Law indicated that the right of withdrawal does not apply in the following cases:
- services entirely performed before the end of the withdrawal period and the performance of which started after the consumer gave their prior express consent and expressly waived their right of withdrawal;
- the provision of goods or services whose price depends on market fluctuations which cannot be controlled by the seller and are likely to occur within the withdrawal period;
- goods made according to the consumer's specifications or clearly personalized;
- goods which are likely to be quickly deteriorated or expire;
- goods which were unsealed by the consumer after delivery and cannot be returned for hygiene or health protection reasons;
- goods which have been delivered and which by nature are inseparably mixed to other articles;
- alcoholic beverages, the delivery of which is delayed beyond 30 days and whose value as agreed in the contract depends on market fluctuations which cannot be controlled by the seller;
- maintenance or repair work to be carried out urgently, at the consumer's home, and specifically requested by them;
- contracts executed at a public auction;
- provision of accommodation services other than residential accommodation, transportation of goods, car rental services, catering or leisure services which need to be provided at a specific date or period;
- provision of digital content which is not provided on hardware support, the performance of which started after the prior express consent of the consumer and express waiver of their right of withdrawal.
For more information contact Annabelle Richard