French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Article L. 224-25-12 of the Consumer Code provides that the professional is liable for any lack of conformity that appears: - either within a time-limit of two years from the time of supply, where the contract provides for a one-off supply transaction of the digital content or digital service, or a series of separate supply transactions; - or during the period during which the digital content or d …

Conditions for application

Article L. 224-25-12 of the Consumer Code provides that the professional is liable for any lack of conformity that appears: - either within a time-limit of two years from the time of supply, where the contract provides for a one-off supply transaction of the digital content or digital service, or a series of separate supply transactions; - or during the period during which the digital content or digital service is supplied under the contract, where the contract provides for continuous supply, the applicable time-limit not depriving the consumer of his right to updates.

Within the same time-limit, the professional is also liable for lack of conformity resulting from the incorrect integration of the digital content or service into the consumer's digital environment , where this has been implemented by the professional or under its responsibility, or where the faulty integration implemented by the consumer results from shortcomings in the instructions provided by the professional.

Like amended Article L. 217-3 governing the legal guarantee of conformity of goods, new Article L. 224-25-12 provides that the time-limit for the guarantee applies without prejudice to Articles 2224 et seq. of the Civil Code, while providing that the starting point of the limitation period for the consumer to file an action runs from the day of his discovery of the lack of conformity.

As in the case of the guarantee of conformity of goods, the Consumer Code provides a definition of the contractual conformity of digital content or services (Art. L. 224-25-13)  and a more technical definition of conformity (Art. L. 224-25-14, I) .

Article L. 224-25-15 also treats as a failure to comply any failure by a professional who processes personal data in connection with the contract in disregard of his obligations under EU Regulation No 2016/679 of 27 April 2016 (RGPD) and French Law No 78-17 of 6 January 1978 on Information Technology and Civil Liberties, “where such failure results in non-compliance with one or more of the compliance criteria set out in this section”.

Finally, Article L. 224-25-16, I establishes a presumption of prior existence of the defect: “Defects of conformity that appear within a time-limit of twelve months from the provision of the digital content or service are presumed to exist at the time of this provision, unless proven otherwise”. In case of continuous supply of a digital content or service during a given period, the burden of proof of conformity lies with the professional when the defect occurs during that period. However, Article L. 224-25-16, II allows the professional to escape liability  if it can be demonstrated that the lack of conformity is directly attributable to the incompatibility between the digital content or service and the consumer's digital environment and that the professional had informed the consumer of the technical compatibility requirements of that content or service before the contract was concluded. The consumer's cooperation is required. Otherwise, the burden of proof of the lack of conformity lies with the consumer.

As in the case of guarantees for goods, specific provisions are dedicated to consumer information and the seller's obligations regarding updates to digital content or services , in Articles L. 224-25-25  to L. 224-25-26  of the Consumer Code, and failure to comply with those provisions is punishable by an administrative fine of up to EUR 3,000 for a natural person and up to EUR 15,000 for a legal person (Article L. 242-18-8).

New Article L. 224-25-1 of the Consumer Code defines the digital environment as “any computer hardware, software and network connection used by the consumer to access or use digital content or a digital service”.

Consumer Code, Article. L. 224-25-13: "The digital content or service conforms to the contract if it meets, inter alia, the following criteria, where applicable: 1° It corresponds to the description, type, quantity and quality, in particular as regards functionality, compatibility, interoperability, or any other characteristic provided for in the contract; 2° It is suitable for any particular use sought by the consumer, brought to the attention of the professional no later than at the time of conclusion of the contract, and which the latter has accepted; 3° It is supplied with all the accessories, including packaging, installation instructions and customer support, to be provided in accordance with the contract; 4° It is updated in accordance with the contract.

Consumer Code, Article L. 224-25-14: "In addition to the criteria of conformity provided for in the contract, the digital content or service is in conformity if it meets the following criteria:

1° It is suitable for the use usually expected of digital content or a digital service of the same type, taking into account, where applicable, any provisions of European Union law and national law as well as all technical standards, or in the absence of such technical standards, the specific codes of conduct applicable to the sector concerned ;

2° Where appropriate, it has the qualities which the professional has presented to the consumer in the form of a trial version or preview before the conclusion of the contract;

3. It is supplied in the latest version available at the time the contract is concluded, unless the parties agree otherwise;

4° In the case of continuous provision of digital content or a digital service during a given period, it is provided without interruption throughout that period;

5. Where applicable, it is provided with all the accessories and installation instructions and customer support that the consumer may reasonably expect;

6° Where applicable, it is supplied with the updates that the consumer can legitimately expect, in accordance with the provisions of Article L. 224-25-25 ;

7° It corresponds to the quantity, quality and other characteristics, including in terms of functionality, compatibility, accessibility, continuity and security, that the consumer can legitimately expect for digital content or digital services of the same type, taking into account the nature of this content or service as well as public statements made by the professional, by any person upstream in the transaction chain, or by a person acting on their behalf, including in advertising or on labelling (...)".

Article L. 224-25-14 of the Consumer Code, which provides that the conformity that the consumer can legitimately expect for digital content or digital services is assessed “having regard to the nature of such content or services as well as to public statements made by the professional, by any person upstream in the transaction chain, or by a person acting on their behalf, including in advertising or on labeling”, also provides, by way of exemption, that the professional is not bound by these public statements if he or she demonstrates:

1° That he/she was unaware of them and was not legitimately in a position to know of them;

2° That at the time of the conclusion of the contract, the public statements had been corrected in conditions comparable to the initial statements; or

3° That the public statements could not have influenced the decision to contract.

Furthermore, the same text states that “the consumer may not contest conformity by invoking a defect relating to one or more particular characteristics of the digital content or service, which he was specifically made aware of as deviating from the conformity criteria set out in this article, and to which he expressly and separately agreed at the time the contract was concluded”.

Pursuant to Article L. 224-25-24: “(...) updates are understood to mean updates or modifications aimed at maintaining, adapting or upgrading the functionalities of the digital content or service, including security updates, whether or not these updates are necessary to maintain the conformity of the digital content or service”.

Consumer Code, Art. L. 224-25-25: "I.-The professional shall ensure that the consumer is informed of the updates necessary to maintain the conformity of the digital content or digital service and that he receives them:

1° During a period which the consumer can legitimately expect, having regard to the type and purpose of the digital content or digital service and taking into account the circumstances and the nature of the contract, in the case of a one-off supply transaction or a series of separate supply transactions ;

(2) During the period in which the digital content or service is provided under the contract, where the contract provides for its continuous provision over a period of time.

II.-Where the consumer does not install, within a reasonable time-limit, the updates provided by the professional in accordance with section I, the professional shall not be liable for lack of conformity resulting solely from the non-installation of the updates concerned, provided that: 

(1) the professional has informed the consumer of the availability of the updates and of the consequences of their non-installation by the consumer; and

2° the non-installation or incorrect installation by the consumer of the updates is not due to shortcomings in the installation instructions provided to the consumer.

Consumer Code, Art. L. 224-25-26: "With regard to updates that are not necessary to maintain the conformity of the digital content or service, the professional shall respect the following conditions:

1° The contract permits the principle of such updates and provides a valid reason for them;

2. the professional shall inform the consumer, in a clear and comprehensible manner, and reasonably in advance and on a durable medium, of the planned update, specifying the date on which it will be implemented;

3. The update is carried out at no extra cost to the consumer;

4° The professional shall inform the consumer that he has the right to refuse the update or, where appropriate, to uninstall it, if the update has a negative impact on his access to or use of the digital content or the digital service.

In this case, the consumer may terminate the contract as of right and at no cost within a maximum time-limit of thirty days, unless the update has only a minor impact on the consumer. However, the consumer may not terminate the contract if the professional has offered to keep the digital content or service without the update, including by uninstalling the update, and if the consumer remains in compliance under the conditions set out in this section.

Where the consumer exercises his or her right to terminate the contract, Sections L. 224-25-22 and L. 224-25-23 shall apply.

This article is not applicable in the case of a grouped offer within the meaning of Article L. 224-42-2.

French Consumer Law

531. Conditions for application

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Les notions juridiques connexes

531. Conditions for application

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Les notions juridiques connexes

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