E-Commerce: publication of the decree of 29 June 2022 on the new pre-contractual information and compliance obligations
Publié le 4 Oct 2022
Par Jenny Waszek

Does your company sell products or services via an application or a website?

Since 1st January 2022, you are subject to the obligations stemming from Application order N°2021-1247 on the legal guarantee of conformity for goods, digital content and digital services, transposing the two European Directives 2019/770 and 2019/771 of 20 May 2019. 

The long-awaited Decree N°2022-946 of 29 June 2022 specifies the terms and conditions of the new pre-contractual information obligations (I) as well as of the digital conformity guarantee (II). 

This decree will come into force on 1st October 2022.

I.    Reinforcement of pre-contractual information obligations 

E-traders are required to include information on the product or service offered to enable the consumer to make an informed choice before finalising the sale.

Among this information, it was already compulsory to provide the consumer with the essential characteristics of the good or service, including the functionalities of the digital content, its price, the date of execution of the contract, information on legal guarantees and the possibility of recourse to a consumer ombudsman. 

The Application Order N°2021-1247 introduced new mandatory information in Article L.111-1 of the French Consumer Code, in particular :

The price or any other advantage provided instead of or in addition to the payment of a price“.

In practice: the consumer must now be informed, via a statement in the general terms and conditions of sale (hereinafter GTC) for example, of the use made of his personal data in addition to the price.  

The implementing decree of 29 June 2022 usefully clarifies this new obligation, which had raised many questions from professionals.

A new Article R.211-5 of the Consumer Code thus states that:

When, pursuant to Article L. 211-2(I)(1), a consumer provides the trader with an advantage instead of or in addition to a price, the trader shall explain the nature of this advantage by setting out in his general terms and conditions, in clear and comprehensible terms, the economic model showing the impact for him of this advantage on his income or economic profit. 

Where this benefit leads the trader to process personal data of the consumer, for processing carried out under the conditions mentioned in points a and f of paragraph 1 of Article 6 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, the trader shall specify in the general terms and conditions the manner in which the processing of the data is to be exploited for advertising or commercial purposes.” 

The text thus aims to oblige professionals to educate their customers or prospective customers about the economic benefits of using their personal data.

The obligation thus goes well beyond information on the future of the data, in particular their potential transmission to commercial partners, as was already required of professionals by the General Data Protection Regulation (GDPR). 

On a technical level, the order also provides for :

  • the obligation to state “the compatibility and interoperability of the good containing digital elements, digital content or digital service, as well as the existence of any restrictions on software installation” ;
  • the obligation to inform the consumer of the “period during which software updates remain compatible with the functionalities of the good” (see for this point the new Article L.111-6 of the French Consumer Code).

The decree of 29 June 2022 rewrites Article R. 111-1 of the Consumer Code and introduces new Articles D. 111-5-1 to D. 111-5-3 relating to the procedures for communicating information on security updates and their duration. 

II.    The new digital compliance obligation 

The Application Order N°2021-1247 also adapts the regime of the traditional legal guarantee of conformity in order to apply it:

1) connected objects (e.g. connected watch), 

2) digital content (e.g. renting a film on demand),

3) digital services (e.g. social networks)

Connected objects are integrated into the section of the French Consumer Code relating to the obligation of conformity of contracts for the sale of goods (Art. L.217-1 et seq. of the French Consumer Code), while digital content and services are covered by a new dedicated section (Art. L.224-25-1 et seq., spec. L.224-25-12 et seq. of the French Consumer Code).

What is new? 

The adaptations to the guarantee of conformity are similar for connected objects, digital content and digital services. The Consumer Code now lists numerous subjective and objective criteria of conformity. 

Among these, two innovations stand out:

1) when data processing is carried out in connection with the contract, the failure of the trader to comply with his obligations under the GDPR is deemed to be a failure to comply when this failure results in the non-compliance of one or more compliance criteria (see art. L.217-6 and L.224-25-15 of the French Consumer Code). 

  • In practice: in the event of a breach by a trader of its obligations under the GDPR, the consumer may now not only refer the matter to the CNIL, but also (potentially) demand that the contract, content or digital service be brought into compliance.

2) a connected object, content or digital service will not be compliant if it is not provided with “the updates that the consumer can legitimately expect“.

This new criterion transforms conformity into an evolving obligation: connected objects, digital content or services must not only be compliant on the day they are delivered, but must also remain so for at least two years thereafter…

  • In practice: This obligation requires the trader to take measures to regularly and sufficiently clearly inform consumers of the updates necessary for the conformity of the digital good, content or service. 

Finally, the decree of 29 June 2022 includes new boxes relating to the terms and conditions of the guarantee of conformity, which must be reproduced in the GTC. 

In addition to making the GTCs considerably more cumbersome, the length of the new boxes raises doubts as to their readability for consumers. 

The provisions of the decree come into force on 1st October 2022.  

Their compliance is monitored by the DGCCRF. 

We regularly carry out compliance audits of e-commerce platforms and online marketplaces. 

Do not hesitate to contact us for more information on the Application Order of 29 September 2021 on the legal guarantee of conformity for goods, digital content and digital services.