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

Under new Article L. 224-25-17 of the Consumer Code, when the conditions for implementing the legal guarantee are met, the consumer may seek redress for the damage he/she has suffered in various ways: he may ask for the digital content or service to be brought into conformity, or, failing that, for the price to be reduced or the contract to be rescinded. The consumer can also suspend the payment of the price or the delivery of the benefit provided for in the contract until the professional has fulfilled its obligations. He/she may also request the allocation of damages in addition to the applicable civil and administrative fines.

As with the bringing into conformity of goods governed by Article L. 217-11, the bringing into conformity of a digital content or service is carried out without cost to the consumer, nor undue delay following his/her request, nor major inconvenience for him/her given the nature of the content or service concerned and the use sought by the consumer. In addition, during the period when the content or service was not in conformity, consumers are not required to pay for the use they made of it ( Article L. 224-25-18). After sending a formal notice, the consumer may seek forced performance in kind of compliance in accordance with Articles 1221 et seq. of the Civil Code .

If compliance is impossible or would entail disproportionate costs in relation to the extent of the defect and the value of the digital content or service, the professional may refuse to comply, provided that the reasons are given in writing or on a durable medium ( Art. L. 224-25-19, paragraphs 1 and 3).

2° Reduction of the price or rescission of the contract  

Under Article L. 224-25-20, the consumer may seek either of these sanctions in kind:  

- when the professional refuses to comply ;

- when the bringing into conformity is delayed in an unjustified manner or causes expense or a major inconvenience for the consumer;

- when the defect persists despite an unsuccessful attempt to bring it into conformity;

- when the lack of conformity is so serious that it justifies an immediate reduction of the price or cancellation of the contract; in this case, the consumer is exempted from first seeking conformity of the digital content or service.

However, rescission is excluded, except in contracts in which the consumer does not pay a price, if the lack of conformity is minor, which the professional will have to prove.

Whichever option is chosen, the consumer must inform the professional thereof.

When the consumer demands a price reduction, it can only be proportional to the difference between the value of the digital content or service provided and its value in the absence of the defect ( Article L. 224-25-21). 

If the consumer opts for rescission under Article L. 224-25-22 , he must refrain from using the non-conforming digital content or service or from making it available to third parties. Where the digital content was provided on a physical medium, the consumer must return it without undue delay and at the expense of the professional, if the latter so requests within fourteen days of the date on which the consumer informed him of his decision to terminate the contract (Article L. 224-25-22, II). 

- refund  the price paid and return any other benefits received under the contract, or the portion of the price and benefits corresponding to the period during which the non-conforming content or service was provided if the contract provides for provision during a certain period;

- make available to the consumer, free of charge and within a reasonable time-limit, in a commonly used and machine-readable format, any content, other than personal data, provided or created by the consumer when using the digital content or service;

- refrain from using any content, other than personal data, provided or created by the consumer in the context of the use of the digital content or service, unless such content was generated jointly by the consumer and others, and if other consumers may continue to make use of it (Art. L. 224-25-22, III) .

Moreover, according to Article L. 224-25-28, when the consumer claims, within the context of the legal or commercial guarantee, a bringing into conformity, any period of immobilization or unavailability  of the contents or service, suspends the warranty period still to run. The time-limit for the guarantee is also suspended when the consumer and the professional enter into negotiations with a view to an amicable settlement.

In addition, as with the warranty on goods, the protection offered by the Consumer Code with respect to digital content or services does not deprive the consumer of the right to bring an action for warranty against latent defects or any other action of a contractual or tortious nature recognized by the law. Article L. 224-25-30 allows the professional who provided the content or service to seek redress against any person upstream in the chain of commercial transactions.

Without prejudice to the award of damages, a professional who in bad faith obstructs the implementation of the legal guarantee of conformity is liable to a civil sanction, the amount of which may not exceed EUR 300,000  and may be increased “in a manner proportionate to the benefits derived from the practices in question, to 10% of the average annual turnover, calculated on the basis of the last three annual turnovers known at the date of the ruling”, it being specified that the court hearing the case may order the publication, dissemination or posting of its ruling or of an extract thereof in accordance with the procedures set out by it ( Art. L. 242-18-1). A civil fine is also provided for against any professional who charges shipping costs to bring digital content into compliance  or who has not reimbursed all the sums paid by the consumer  . 

In addition, an administrative fine of up to EUR 15,000 for a natural person and up to EUR 75,000 for a legal person is provided for in the event of failure to comply with the provisions of Article L. 224-25-18 relating to the terms and conditions of compliance (Art. L. 242-18-6), Articles L. 224-25-22 and L. 224-25-23 relating to the obligations of the professional at the time of termination of the contract (Art. L. 242-18-7) and Article L. 224-25-28 relating to the suspension of the time-limit for the warranty (Art. L. 242-18-9).

Consumer Code, Art. L. 224-25-19, para. 2.

For contracts combining the provision of digital content and services falling within the scope of the this section and others that do not, and for bundled offers of electronic communications services or services and terminal equipment, governed by Article L. 224-42-2, the consumer has the right to terminate all related contracts.

Article L. 224-25-23 states: "The refund to the consumer of the sums owed by the professional, or of any other benefit received under the contract, shall be made without undue delay and at the latest within a time-limit of fourteen days from the day on which the professional is informed by the consumer of his decision to exercise his right to a reduction in price or to rescind the contract.

The professional shall reimburse those sums using the same means of payment as the one used by the consumer at the time of the conclusion of the contract, unless the consumer expressly agrees otherwise and in any event without any additional cost".

These obligations to make available and refrain from using do not apply if the digital content is of no use outside the context of its use, or if it only relates to the consumer's activity, or if it has been aggregated by the professional with other data and cannot be separated, or can only be separated by means of a disproportionate effort by the professional.

The period of immobilization or unavailability runs from the time of the consumer's demand for intervention or from the time of its provision, if this is a more favorable starting point.

This civil fine may be sought by the administrative authority responsible for competition and consumer affairs, acting on the basis of Article L. 524-2 or intervening in the proceedings, as well as by consumer protection associations acting on the basis of Articles L. 621-7, L. 621-9, L. 622-1 and L. 623-1, the public prosecutor's office or consumers.

Consumer Code, Article L. 242-18-2. L. 242-18-2: "A professional who has charged the cost of sending digital content on a physical medium to bring it into conformity with the law is obliged to reimburse it no later than fourteen days from the day on which the consumer is informed that the legal guarantee has been applied. The amount due is automatically increased by 10% if the refund is paid no later than fourteen days after that term, 20% up to thirty days and 50% thereafter.

Consumer Code, Art. L. 242-18-3: “When the professional has not reimbursed all the sums paid by the consumer in accordance with the conditions laid down in Articles L. 224-25-22 and L. 224-25-23, the total amount still due is automatically increased by 10 % if the reimbursement is made no later than fourteen days after this term, by 20 % up to thirty days and by 50 % thereafter”.

532. Legal rules