In a judgment of May 5, 2022 , the Court of Justice of the European Union (CJEU) ruled that third-party sellers on online sales platforms such as Amazon were not systematically required to inform consumers about the commercial guarantees relating to the products they offer.
According to the CJEU, this information obligation is only imposed on sellers when the commercial guarantees provided are central to the purchase decision for the consumer. An unconditional obligation to provide such information, in all circumstances, seems to be disproportionate due to the considerable work involved in collecting and updating such information for sellers.
This ruling calls into question the French regulation and its practical interpretation by the French authorities and courts in this area.
The position of the CJEU seems to create a difference in interpretation between (i) the European provisions on which the judgment relies[1]; and (ii) the provisions of French consumer law introduced in the Consumer Code on January 1, 2022, imposing a right to information relating to the commercial guarantee in distance contracts in a firmer and more complete way than the EU provisions and as follow:
“the commercial guarantee shall be provided to the consumer in a legible and comprehensible manner on any durable medium, and at the latest at the time of delivery of the goods. It specifies the content of the commercial guarantee, the terms of its implementation, its price, its duration, its territorial scope as well as the name and postal and telephone contact details of the guarantor (…)“.[2]
A forthcoming decree will set the terms of this information.
Before the introduction of these provisions in France, the French consumer authorities were already showing their willingness to firmly frame the information related to legal guarantees of conformity, following the example of the DDPP – departmental representative of the DGCCRF, French Authority in charge of Competition, Consumer matters and Fraud Control – which issued administrative injunctive measures against Micromania in December 2021, in order for the company to cease its misleading commercial practices in terms of commercial guarantees and related information.
In that case, Micromania offered its buyers an extended warranty on the products purchased. After a national investigation, the DDPP of the region Alpes-Maritimes accused Micromania of:
- not sufficiently informing the consumer about the fact that the said guarantee was offered by an insurance broker;
- presenting confusing information concerning the rights of consumers in terms of legal guarantee of conformity and commercial guarantee;
- to impose an activation of this guarantee to the consumer within 15 days after the purchase. Otherwise, the service was not activated but was still invoiced.
Unlike the CJEU ruling, this sanction was issued against a seller making a direct sale in store and/or online, and not using an intermediary online sales platform. In the case of an intermediary between the seller and the consumer, it is possible to imagine that the provision of such information would create additional constraints for sellers who do not have the link with the producers of the products in question. In such case, the information obligation provided for in French law could therefore be attenuated.
The difference in interpretation could then lies in this nuance, on which the next decisions of the DGCCRF will have to decide.
For further information, please contact:
Sacha Bettach, Bird & Bird
sacha.bettach@twobirds.com
[1] Directive 1999/44, Recital 21 and articles 1 and 6 ; Directive 2011/83, recital 4, 5 and 7 and articles 2, 3 and 6
[2] article L217-22 of the French Consumer Code
