On 29 June 2022, Decree n° 2022-946 (the Decree) supplemented the regulatory framework ensuing from the Ordinance n° 2021-1247 of 29 September 2021 on the authorized guarantee of conformity for items, digital content material, and digital companies (the Ordinance). Stakeholders have till 1 October 2022 to implement the next measures, aiming at defending customers of digital items.
GENERAL INFORMATION ABOUT THE ORDINANCE
Implementing two 2019 European directives on sure points of contracts for the provision of digital content material and digital companies and contracts for the sale of products (respectively Directives (EU) 2019/770 and 2019/771 dated 20 Might 2019), the Ordinance aimed to foster the security of customers when buying each bodily and digital items and, to a lesser extent, to scale back the environmental impression of digital items.
This Ordinance amended the French Shopper Code in depth, notably by increasing the authorized guarantee of conformity, which now covers digital services however can be relevant to each business-to-consumer (B2C) in addition to business-to-business contracts, when the latter are executed between professionals and non-professionals (i.e., authorized entities appearing outdoors of their direct skilled actions).
The Decree dietary supplements the regulatory provisions already in pressure in regards to the authorized guarantee of conformity for digital content material and digital companies.
It enshrines the final obligation of pre-contractual data for the skilled vendor to open up to the buyer and the non-professional the existence of the authorized guarantee of conformity and its implementation.
For that goal, customary packing containers containing these warranties are to be inserted inside the common phrases and situations. Much like bodily items, the purchaser of a digital good, content material, or service, which might not be compliant with the guarantee of conformity has a two-step treatment:
If the digital good will be introduced into conformity, it’ll then want (i) to be repaired or changed, (ii) freed from cost, (iii) with out inflicting main inconvenience for the purchaser, and (vi) inside an inexpensive time period (inside 30 days).
If the earlier situations usually are not met, the purchaser can get hold of a worth discount, or terminate the contract and acquire refund.
Will these additions of ordinary packing containers result in a extra knowledgeable client? With the shortcoming to make sure that phrases and situations are learn, and by loading the customers with an much more substantial set of compliance data, the target appears unlikely to be achieved.
Furthermore, the Decree additionally clarifies the necessities for informing the purchaser with regard to software program updates for digital items and companies, together with the interval of availability of such updates.
The producer of such digital items or companies will probably be required to speak to the vendor all data in regards to the compatibility of the updates with the functionalities of the digital items or companies. As well as, if the purchaser acquired a profit as a substitute of, or along with a worth (e.g., free entry to an choice of a cell software), the skilled vendor will now be compelled to point of their common phrases and situations how the skilled vendor advantages from it (e.g., use of private knowledge). If their private knowledge is used on this context, the skilled vendor is required to specify the strategies of exploitation of the info processing for promoting or industrial functions. Such place appears counterintuitive contemplating the tendencies of the European Union knowledge safety authorities to dismiss the knowledge lodged within the phrases and situations, and reasonably require a devoted privateness coverage.
Moreover, the producer will probably be required to tell the vendor (who will then must convey such data to the purchaser) concerning the penalties of the updates crucial for the correct operation of the software program supporting the digital good, each, in a typically intelligible method and freed from cost.
With a view to adjust to this new Decree, firms now have three months left to replace their B2C phrases and situations. Whereas the preliminary intent of this regulatory change was to guard customers, we are able to nonetheless wonder if these further compliance necessities will successfully drive a significant optimistic impression on customers or as a substitute add one more layer of complexity and contribute to data fatigue.
Louis Bégué co-authored this text.