The application order N°2021-1734 of 22 December 2021 transposing the Directive 2019/2161 of the European Parliament and of the Council of 27 November 2019, known as the “Omnibus” Directive, concerning the better enforcement and modernization of Union consumer protection rules came into force on May 28, 2022.
This application order complements the application order 2021-1247 of 29 September 2021 on the legal guarantee of conformity for goods, digital content and digital services, which had transposed Directives 2019/770 and 2019/771 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services and on certain aspects concerning contracts for the sale of goods.
The order of 22 December 2021 strengthens the transparency obligations of online sales platforms (I) and increases the penalties applicable in the event of a breach (II).
I. Reinforcement of transparency obligations
The Application Order introduces new transparency obligations for online sales platforms, in particular concerning price reductions (A), the ranking of products on the basis of a query in the form of a keyword (B) and customer reviews (C).
A. The reintroduction of the obligation to provide information on price reductions
Since 28 May 2022, the French Consumer Code includes a new Article L.112-1-1, according to which:
“Any announcement of a price reduction shall indicate the prior price charged by the trader before the price reduction is applied.
This prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.“
This text does not apply to perishable products, in particular food.
The indication of the prior price had already been made compulsory in France by a decree of 31 December 2008, repealed since 2015.
At the time, the Court of Justice of the European Union considered that a national law could not impose “a general prohibition on announcements of price reductions which do not show the reference price when the price is marked or displayed, when no case-by-case assessment has been undertaken to determine whether the announcements are unfair”.
The Omnibus Directive, transposed in France by the Application Order of 22 December 2021, takes the opposite position by imposing a general transparency obligation on prior prices.
In order to resolve the uncertainties in the application of the new text, the European Commission has published interpretative guidelines to which e-traders may usefully refer.
B. The ranking of products
The Omnibus Directive also introduces obligations relating to the ranking of products presented to a consumer on the basis of a query in the form of a keyword, phrase or other input.
These obligations apply to all websites which allow consumers to search for products offered by different professionals or individuals.
In accordance with the new paragraphs of Article L.121-3 of the Consumer Code, websites are now required to inform consumers of the main parameters that determine the ranking of the products presented to them and their order of importance.
The text specifies that this information must appear in a specific section of the online interface, directly accessible from the page on which the results of the query are presented.
This information includes and extends the information already required of online platform operators by the law of 7 October 2016, which amended Article L.111-7 of the Consumer Code.
As a matter of fact, the latter text provides that:
“Any online platform operator is required to provide the consumer with fair, clear and transparent information on:
1° The general terms and conditions of use of the intermediation service it offers and the methods of referencing, ranking and de-referencing the content, goods or services to which this service provides access;
2° The existence of a contractual relationship, a capital link or a remuneration for its benefit, insofar as they influence the ranking or referencing of the content, goods or services offered or put online;
3° The status of the advertiser and the rights and obligations of the parties in civil and tax matters, when consumers are put in contact with professionals or non-professionals”.
In practice, e-traders may usefully include these details in their general terms and conditions of use (GTC).
C. The control of customer reviews
Finally, the Directive completes the provisions governing the publication of consumer reviews.
When an e-trader gives access to consumer reviews, he must now provide “information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product” (see Article L.121-3 of the French Consumer Code, last paragraph).
It should be remembered that companies whose business is the collection or online dissemination of consumer reviews are subject to the specific regulations set out in Article L.111-7-2 of the French Consumer Code.
In practice, the liability of an e-trader that merely republishes the opinions collected by another professional could thus be incurred in the event of insufficient information for consumers.
II. Stronger penalties
To ensure compliance with these provisions, the Order introduces new misleading commercial practices (A) and increases certain fines (B).
A. The introduction of new misleading commercial practices
The Order first broadens the scope of so called misleading commercial practices by omission.
Article L. 121-3 of the French Consumer Code defines this practice as one which “omits, conceals or provides unintelligible, ambiguous or untimely substantial information“.
By adding new information considered to be substantial, namely the aforementioned information relating to product classification methods and the monitoring of customer reviews (see Article L.121-3 of the Consumer Code), the Application Order correspondingly broadens the scope of commercial practices that are misleading by omission.
It also introduces new commercial practices deemed misleading in Article L.121-4 of the French Consumer Code.
These include the following practices:
- About the ranking of products :
– the practice of providing results on the basis of a query by a consumer without clearly informing the consumer of any payment made by a third party to obtain a better ranking (see Article L.121-4, 25° of the Consumer Code).
- About customer reviews:
– The practice of claiming that opinions on a product are disseminated by consumers who have actually used or purchased the product without having taken the necessary actions to verify this (see Article L.121-4, 27° of the Consumer Code).
– The practice of disseminating or having another legal or natural person disseminate false consumer opinions or recommendations or modify consumer opinions or recommendations in order to promote products (see Article L.121-4, 28° of the Consumer Code).
B. The Increase of Fines
Finally, the Order increases the penalty for the following offences:
– Any failure to comply with the pre-contractual information obligations mentioned in Article L.111-1, 5th of the Consumer Code, in particular on the existence and terms and conditions of legal guarantees of conformity, any commercial guarantees and any after-sales service;
– The use of “black” clauses, i.e. those presumed to be irrefutably unfair and therefore prohibited.
The order increases the penalty for legal persons for these offences from 15,000 euros to 75,000 euros.
These provisions came into force on 28 May 2022.
Their compliance is monitored in France by the DGCCRF.
We regularly carry out compliance audits of online platforms and marketplaces.
Do not hesitate to contact us for more information on the Application Order of 22 December 2021 or that of 29 September 2021 on the legal guarantee of conformity for goods, digital content and digital services.