On August 23 2001 the French government implemented Directive 97/7/EC of May 20 1997 on Distance Contracts. A new chapter dealing with the sale of goods and provision of services pursuant to distant contracts was added to the French Consumer Code. All its provisions came into force on August 25 2001.

The new rules significantly increase the level of protection enjoyed by French consumers by increasing the amount of information that must be provided to the consumer, expanding the consumer's right to withdraw from the concluded contract, and curtailing the seller's or provider's attempts to evade the French consumer protection rules by submitting the contracts to the laws of non-EU countries. Therefore, these rules are of primary importance for all companies offering products and services online to French consumers.

New rules apply to:

"any sale of goods or any provision of services concluded without the simultaneous physical presence of the consumer and a professional, which uses exclusively one or more means of distance communication in order to conclude this agreement."

Although the Consumer Code does not give examples of distance sales, it is clear that any sales made via mail order, catalogues, television shopping channels and the Internet - other than those specifically excluded by the provisions of the Consumer Code (ie, financial services, automatic vending machines, public payphones, construction and sale of real estate and sales at public auctions) - are subject to the new rules.

One of the major innovations under the amended Consumer Code is the expansion of the categories of information that must be provided to the consumer, both before and after the contract's conclusion. Until August 25 2001 the only information required was information about the 'essential characteristics' of the product or service, and its price. The new rules require that before a contract is concluded the consumer must be provided with the following additional information:

  • the name, address and telephone number of the seller;

  • delivery expenses;

  • arrangements for payment, delivery or performance;

  • the consumer's right of withdrawal;

  • the duration of the validity of the offer and price; and

  • the minimum term of the contract (for contracts performed permanently or recurrently).

This information must be provided to the consumer in the offer of a contract concluded through distance selling "in a clear and comprehensible manner in any way adapted to the means of distance communication used". Following the contract's conclusion the consumer should be provided with information on:

  • the first four items listed above;

  • conditions for terminating the indefinite duration contract or contract with a term of more than one year;

  • warranties and after-sales services; and

  • address for complaints.

This information must be provided "in writing or in another durable medium" at the time of delivery at the latest.

The new rules extend the consumer's right of withdrawal to all distance sales (not only those involving soliciting the consumer at his or her home or business address, as was the case under the previous rules). Thus, the consumer may withdraw for any reason from any distance contract within seven days of the receipt of the goods or acceptance of the offer for the performance of the service without any penalty (except for the cost of return shipment). This period is increased to three months if the consumer is not provided with the required information after the contract's conclusion. If the consumer exercises his or her right of withdrawal, than he or she must be refunded the price paid within 30 days. Unless otherwise agreed by the parties, the right of withdrawal does not apply to the following:

  • services contracts, the performance of which has begun with the consumer's consent before the expiration of the seven-day period;

  • supply of goods and services, the price of which varies depending on fluctuations in the financial market;

  • supply of goods made to the consumer's specifications or clearly personalized, as well as perishable goods;

  • supply of audio and video recordings and software unsealed by the consumer;

  • newspaper and magazine subscriptions; and

  • authorized gaming and lotteries.

The amended Consumer Code further sets forth the rules for the performance of the contract by the supplier.

The new rules expressly prohibit the use of automatic calling machines and faxes for marketing purposes without the consumer's prior consent. Other means of distance communications, which allow individual communications, may only be used if the consumer has not objected to this. A government decree will specify the conditions for obtaining the consumer's consent to the use of automatic calling machines and faxes, as well as the keeping of special registers listing consumers who object to the use of means of distance communication. In addition, at the beginning of any commercial communication by telephone or other similar means, the consumer shall be expressly informed of the identity of the supplier and commercial purpose of the call.

All of these rules are mandatory and may not be contractually waived by the consumer. If the parties, one of which is a consumer residing in the European Union, chooses the law of a non-EU country as governing law, the judge before whom such foreign law is invoked must refuse to apply it and instead apply the law of the country of the consumer's domicile.

For further information on this topic please contact Bradley L Joslove at Franklin by telephone (+33 1 45 02 79 00) or by fax (+33 1 45 02 79 01) or by email ([email protected]).