Introduction

The new legal framework for distance selling resulting from French Law n° 2014-344 of 17 March 2014 relating to consumer contracts will be applicable to most contracts concluded at distance after 13 June 2014, with the exception of certain provisions applicable to certain specific sectors, goods or services which are subject to different effective dates. Certain legislative provisions relating more generally to all contracts concluded with consumers are even already in force.

You therefore have barely three months to bring your practices in line with the new legal provisions relating to protection of consumers in distance selling, particularly since failure to comply with such provisions can result in imposition of administrative sanctions by the French competition and consumer protection authorities (DGCCRF).

The changes to the law impact not only the content of your distance sales or services agreements, but also require changes to the formalities involved in concluding such agreements as well as to your internet sites or e-commerce applications. Here are some practical considerations you will want to take into account in carrying out such changes.

Bringing your contractual clauses and the formalism of your contract in line with the new provisions

In addition to dealing with the additional information which must be provided to consumers even before the conclusion of a contract pursuant to new article L. 121-17 of the Consumer Code, a comprehensive review of your general sales conditions and other contractual documents in light of the new provisions relating to consumer protection is indispensable, as the wording of a number of clauses which typically appear in general conditions of sale or supply of services are significantly impacted by the new law, as is illustrated by the examples below.

Right of withdrawal

One of the important modifications made by the new law relates to the conditions of exercise of the withdrawal right (droit de rétraction). In addition to increasing the withdrawal period to 14 calendar days, the law significantly modifies the conditions of exercise of such right as well as the exceptions to, or the conditions under which a consumer can formally waive, such right.

These changes require that (i) you verify whether, and, if so, how, this right applies from now on to your goods and services, and (ii) that you adapt your existing clauses, particularly as the law henceforth requires you to provide additional information with respect thereto.

However, such information can be made by means of a standard withdrawal form which must, from now on, be systematically provided to consumers. The law requires all e-merchants or e-services providers subject to the withdrawal right (and not only, as it was the case until now, door-to-door selling professionals, whose contracts are henceforth referred to as “off premises contracts”) to provide the consumer with a detachable withdrawal form attached to the contract itself, the conditions of presentation and the contents of which will be fixed in a subsequent decree to be promulgated by the French Conseil d’Etat (an entity which acts both as France’s highest administrative law court and also as a body which promulgates several implementing decrees).

Delivery and transfer of risk

Risk of loss of or damage to goods can no longer be transferred to the consumer at any time earlier than the time at which the consumer or a third party designated by the consumer (other than the transporter proposed by the professional seller) takes physical possession of the goods. These provisions are considered to constitute a matter of public policy and it will no longer be possible for a professional distance seller to discharge its liability concerning delivery and risks related to transport, even if the seller uses a third party delivery service.

In addition, failure to indicate in the general conditions or in contractual information supplied at the time the order is made, the date on or the period during which the professional undertakes to deliver the goods or services will result in automatic application of a period of 30 calendar days after conclusion of the contract.

Warranties

Contracts must henceforth inform consumers of the legal warranties to which they are entitled (such as the warranty of conformity and the warranty against hidden defects) and not only those warranties which are proposed as a commercial matter, as well as the conditions of implementation of such legal warranties.

Mediation

Pursuant to new article L. 133-4 of the Consumer Code, the consumer must henceforth be informed, at the time of conclusion of any written contract, including distance contracts, of the ability, in the event of a dispute, of obtaining mediation or any other form of alternate dispute resolution.  This obligation has been effective since 19 March 2014.

The reconfiguration of your internet site or your e-trading application

Internet sites and mobile applications will also need to be reconfigured in order to comply with the strengthened on-line information requirements introduced by the new law, whether with respect to obligatory pre-contractual information supplied by such media or information which must be supplied prior to and during the on-line ordering process.

These changes include notably the following:

  • removal of any pre-ticked boxes for any options or proposed additional services which give rise to payment of a price supplement;
  • adaptation of on-line ordering icons so that the consumer has a clear understanding that the making of an order results in an obligation to pay. The law henceforth requires that the function used by the consumer to validate an order include a clear and legible statement that it is an “order with an obligation to pay” or similar wording, or else the order will be null and void;
  • the provision, directly on the internet site if the professional seller so wishes, of a withdrawal form which can be filled in on line by the consumer, in addition to the form to be attached to the contract. If the consumer exercises its withdrawal rights on line, the professional must promptly provide a receipt of such withdrawal to the consumer on a durable medium (as defined below);
  • the express indication, at the latest at the commencement of the ordering procedure, of the means of payment proposed and the restrictions on delivery applicable.

It should also be noted that, although the law takes into account the cases where the technique of distance communication used imposes limits, with respect to the presentation of information, in terms of space (for example, the number of characters on certain mobile telephones) or time (this case relating more specifically to telemarketing), the consumer must nevertheless be supplied, prior to the conclusion of the contract, with, at the least, information relating to the essential characteristics of the goods or services, their price, the identity of the professional seller, the term of the contract and the withdrawal right.

Adaptation of the means of confirmation of the contract

All of the pre-contractual information which is required under the new law and the standard withdrawal form must be included in the confirmation of the contract, which must be supplied on a durable medium.

The law defines a durable medium as being “any instrument which enables the consumer or the professional to store information which is addressed personally to it in order to access such information subsequently within a time period adapted to the purposes for which such information is destined and which permits the identical reproduction of the stored information”.

Directive 2011/83/EU of 25 October 2011 relating to the rights of consumers provides some examples, such as “paper, USB keys, DVD, memory cards or hard disk drives, as well as emails.”

We remind you that the European Union Court of Justice has held, in a decision dated 5 July 2012, that the practice of providing a hypertext link to general conditions of sale on line does not comply with the requirements of the Directive (see our Newsletter n° 5, September-October 2012).

Pursuant to such decision and due to the transposition of such Directive into domestic French law with the law of 17 March 2014, some e-merchants and e-services providers will need to adapt the means by which they confirm their contractual terms, either by repeating all of the required information in the confirming email or by sending as an attachment, for example in a .pdf format, the applicable contractual terms.