Online platforms: changes as from 28 May 2022

Since 28 May 2022, newly identified misleading commercial practices resulting from Ordinance No. 2021-1734 of 22 December 2021 transposing European Directive 2019/2161 of 27 November 2019, (also known as the “Omnibus Directive”), have been added to the list of misleading commercial practices provided in the French Consumer Code.

In line with the Regulation of 20 June 2019, entitled the “Platform to Business” Regulation and through the adoption of the Omnibus Directive, the European legislator has strengthened the requirements of transparency and fairness in relations between online platforms and their consumers. This regulation places new information obligations on all online platform operators and sets out  specific misleading commercial practices in this marketplace.

As a precursor, French law had already taken up the issue in 2015 by imposing a number of information obligations on online platforms as codified in Articles L.111-7 et seq. of the French Consumer Code.

No amendments to the French Consumer Code have been made regarding this earlier position.

New definitions have been made on the concept of « the online marketplace »

The French Consumer Code has added new definitions of what constitutes an online marketplace. The introductory article of this Code defines:

• An online marketplace as that “[...] of a service using software, be this a website, a part of a website or an application, which is operated by a professional or operated by another party on his behalf, and which enables consumers to conclude transactions at a distance with other professionals or consumers”;
• An online marketplace operator as “[...] any professional who provides consumers with access to an online marketplace within the meaning of Article L. 111-7, point 2 of the first paragraph”.

The latest definition of “online marketplace” has been added to the introductory French definition of “online platform” under Article L.111-7 I of the Consumer Code. Under the new terms of this article, an online platform operator is now defined as “any natural or legal person offering an online communication service to the general public on a professional basis, be it remunerated or not, and based on :

1° The classification or referencing by means of computer algorithms, the content, goods or services offered or put online by third parties;

2° Or the establishment of a connection between two or more parties for the purpose of selling a good, providing a service or the exchanging or sharing of a content, good or service.”

As such, 1° of Article L.111-7 I of the French Consumer Code covers the entire scope of all online platform operators be they online marketplaces, online comparators or search engines, whilst the Omnibus Directive covers only online marketplaces. This thereby widens the application scope of both the new information obligations and the appreciation of potentially misleading commercial practices which until now were limited only to the online marketplaces covered by 2° of Article L.111-7 I of the Consumer Code.

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