Act no. 2014-315 dated 11 March 2014 complements the existing anti-infringement legal context. It provides, without limitation, for strengthening the remedies available to the victims of infringement. In addition to damages for adverse economic impacts caused by breach of their rights as well as for their “moral harm”, victims can now obtain damages taking into consideration the profits made by the infringer, which includes the savings in terms of intellectual, financial and promotional investments resulting from the infringement.
Consumers and distance contracts. Consumer Act no. 2014-344 dated 17 March 2014 (popularly known as the “Hamon Law”) has been passed. It is aimed at improving consumers protection, in particular in the field of distance contracts. The main measures applicable to professionals (businesses) in the sector, e-merchants or e-service providers, will apply to all contracts entered into after 13 June 2014 and concern the following points:
- Pre-contractual information requirements: these requirements have been strengthened both as regards (i) the general duty to give information that applies to any sales or service agreement entered into on a BtoC basis, which requires the business to give information to the consumer about the good or service the consumer intends to buy, the identity of the vendor and the contractual terms and conditions, and (ii) information specific to distance contracts about the existence (or non existence) of the withdrawal right. The precise list and content of such information will be determined by a future decree taken by the Council of State.
- Withdrawal right: the current withdrawing period of 7 days has been increased to 14. This period can be extended by 12 months from the date of expiration of the initial period when the consumer did not receive information relating to the withdrawal right. The Hamon Law also introduces the use of a standard form (the presentation and wording of which will also be laid down by a decree taken by the Council of State) that can be used by consumers to exercise their withdrawal right. This form must either be made available to consumers online or sent to them before the contract is entered into. If a consumer exercises this right, the business must refund the consumer for all amounts paid, including delivery costs, within a period of 14 days.
- Ordering process: the business must ensure that the consumer is explicitly informed, when placing his order, of his payment obligation, by including (on penalty of invalidity) a clear and legible notice “order with payment obligation” or similar unambiguous wording. Also, e-commerce websites must clearly and legibly indicate, by no later than the start of the ordering process, the means of payment that are accepted and the possible restrictions that may apply to deliveries.
- Order confirmation: the business must send the consumer, on a durable medium and within a reasonable timeframe after the contract is entered into and by no later than the date of delivery of the good or commencement of fulfilment of the service, a confirmation setting out the main provisions of the contract.
- Pre-ticked boxes: the consumer is entitled to claim for a refund of any paying options that were billed to him and which he did not request.
- Fines: the DGCCRF (anti-fraud watchdog) will perform controls and apply, as appropriate, administrative fines to noncompliant websites. Failure to give the required information carries a maximum fine of €3,000 for vendors who are natural persons and of €15,000 for vendors who are legal persons. Breach of the obligations in relation to the exercise of the withdrawal right carries a maximum fine of €15,000 for vendors who are natural persons and of €75,000 for vendors who are legal persons. These administrative fines apply without prejudice to any possible criminal penalties.
Professional distance sellers will have to update their general terms and conditions and some of their online practices as of 14 June 2014 so as to comply with these new legal requirements.