Since October 1, 2022, new obligations relating to the warranties of conformity and of hidden defects, as well as new warranties for digital content and services, have come into force and require the update of the consumer Terms and Conditions.
The changes were made by the decree n°2022-946 of June 29, 2022, “relating to the statutory warranty of conformity for goods, digital content and digital services,” which came into effect on October 1, 2022.
This decree revises and completes the regulatory provisions of the French consumer code following the reform carried out by Ordinance No. 2021-1247 of September 29, 2021, which transposed European Directives (EU) 2019/770 “on certain aspects concerning contracts for the supply of digital content and digital services” and (EU) 2019/771 “on certain aspects concerning contracts for the sale of goods.”
The objective of these texts is to modernize the statutory warranty of conformity and consumer contracts to strengthen consumer protection and create a statutory warranty for the provision of digital content or digital services.
Information on warranties
The decree set out the mandatory text that is to appear in a text box in the Terms and Conditions of sale and relating to (i) the sale of goods or (ii) the sale or exchange of pets or (iii) the single act of supply or a series of individual acts of supply of digital content or services or (iv) for continuous supply over a period of time of digital content or services.
The consumer must also receive information about the existence and the implementation of the commercial warranty and any after-sales service.
The trader must use the terms “statutory warranty” and “commercial guarantee” when the latter is offered in addition to the statutory warranties.
Any separate commercial warranty contract must also include a box reminding consumers of the existence of the statutory warranties and the terms of their implementation.
Information relating to digital content
To adapt to digital products (software, subscription to a digital channel, mobile apps…), new information must be communicated by the trader in a visible and comprehensible way.
The trader must inform consumers, if applicable, of the functionalities of the digital content, including the applicable technical protection measures, and relevant compatibility and interoperability with certain digital goods, content or services, as well as with certain hardware or software, of which the trader has or should reasonably have knowledge.
The trader shall also provide information about software updates, including security updates (duration of supply, purpose of the updates, compatibility with operating systems, the storage space required by the update, and possible impacts of the update on the performance of the product).
The seller must specify the practical modalities of returning the good when its repairs or replacement cannot be performed at the place where it is located.
Other important regulatory requirement: Information on the consideration due by the consumer
Where applicable, the Terms and Conditions must specify the nature of the value/benefit granted by the consumer in lieu of, or in addition to, the payment of a price, in return for the supply of a good or service, by setting out the business model by which the trader derives an economic benefit.
Notably, the trader has to indicate how the consumer’s personal data is monetized by the trader. In regards to the use of the consumer’s personal data, the trader will also have to comply with data privacy regulations, such as the EU General Data Protection regulation and the French Data Protection regulations.