The Directorate General for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF) is a branch of the French administration under the aegis of the Ministry of the Economy. The DGCCRF monitors commercial exchanges to ensure the fairness of transactions with the view of protecting consumers. The DGCCRF scrutinizes the compliance of goods offered for sale in France, including online, through its e-commerce monitoring center. In the course of 2020, the national investigation service of the DGCCRF carried out an operation lasting several months to verify the conformity of the goods offered for sale on Wish.com, operated by ContextLogic. On November 30, 2020, the DGCCRF announced that it had sent the Prosecutor at the Paris Court of Justice the conclusions of its investigations concerning ContextLogic’s practices. These practices consisted of the following:
“– to allege in a generalized manner significant price reductions, particularly attractive for consumers (up to 90% reduction) but devoid of any economic reality (they are in particular calculated based on misleading reference prices);
– to highlight well-known products, some of which are not available on the platform; and
– to offer products with logos and distinctive signs similar to those of well-known registered trademarks (in particular sports brands, prestigious perfumes, etc.) likely to mislead consumers” (economie.gouv.fr/dgccrf, 2020-11-30).
On July 15, 2021, the DGCCRF ordered ContextLogic to comply with French law based on Articles L. 521-3 et seq. of the French Consumer Code (resulting from Law No. 2020-1508 of December 3, 2020, on various provisions for adaptation to European Union law in economic and financial matters: legifrance.gouv.fr). In addition to this power of injunction, these provisions also confer on the DGCCRF the power to order third parties to dereference the interface concerned (article 521-3-2°-a), to limit access to the said interface (article 521- 3-2°-b), to block the domain name for a period not exceeding three months, or to transfer the domain name to the administrative authority if the offense continues (article 521-3-2°-c ). Article L. 513-3-1 specifies that “these measures are implemented within a time limit, set by the administrative authority, which may not be less than forty-eight hours”. On November 23, 2021, the French administration ordered Google, Qwant, Microsoft, and Apple to delist Wish.com based on article 521-3-2°-a) of the French Consumer Code.
Subsequently, ContextLogic seized the urgent applications judge of the Paris administrative court with the aim, on the one hand, of having the execution of the decision of November 23, 2021, suspended and, on the other hand, of having the Conseil d’État (the administrative supreme court) a priority question of constitutionality relating to Article L. 521-3-1-2°a) of the French Consumer Code. ContextLogic criticized this provision “for allowing the administration to order the delisting of an online interface, without making such a measure subject to the authorization of a judge or providing that it must be limited in time and only on the content of a manifestly illegal nature. Given the consequences that this measure would entail for the operator of the interface and its users, it would result in a breach of the freedom of expression and communication as well as the freedom of enterprise” (wording taken up in the decision of the Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 2 : conseil-constitutionnel.fr).
By order of December 17, 2021, the court rejected ContextLogic’s requests. The case was therefore brought before the Conseil d’État which, by a judgment of July 22, 2022, i) annulled the decision of December 17, 2021, insofar as it had refused to refer the priority question of constitutionality (QPC) to the Constitutional Council, ii ) sent the QPC back to the latter and iii) suspended ruling on the delisting of Wish.com until the decision of the Constitutional Council had been delivered (Conseil d’État, 9ème – 10ème chambres réunies, 22 juillet 2022, N° 459960 : conseil-etat.fr).
On October 21, 2022, the Constitutional Council decided that Article L. 521-3-1-2°a) of the Consumer Code complies with the French constitution.
Concerning freedom of expression and communication, the constitutional judge recalled that by adopting the contested provisions, “the legislator [had] intended to strengthen consumer protection and ensure the fairness of online commercial transactions,” which is “an objective of general interest” (Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 8 : conseil-constitutionnel.fr). The Constitutional Council also recalled that the contested measure responded to offenses punishable by an imprisonment term of at least two years (Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 9 : conseil-constitutionnel.fr), which is the case, in particular, of the criminal aspects of counterfeiting. In addition, the Council recalled that “the disputed provisions can only be implemented if the author of the fraudulent practice observed on this interface could not be identified or if he did not defer to an injunction of brought into conformity after an adversarial procedure and which may be challenged before the competent judge” (Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 10 : conseil-constitutionnel.fr). Article 521-3-2°-a) of the Consumer Code could, therefore, when the circumstances allow it, be used wisely to delist, within a short time, all or part of a merchant site offering manifestly counterfeits without it being possible to identify the author of the offense. However, one should note the limits of the sole delisting measure given the seriousness of the facts and the urgency required. Finally, the constitutional judge also pointed out that the 48-hour period provided in article L. 521-3 is sufficient for the operator concerned to challenge the judge’s decision (Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 11 : conseil-constitutionnel.fr).
The Constitutional Council also did not challenge the provisions of article L. 521-3-1-2°a) for violating freedom of enterprise. The Council recalled, in this regard, that the contested provisions “do not have the effect of preventing the operators of these interfaces from carrying out their commercial activities, their addresses remaining directly accessible online” (Conseil constitutionnel, 21 octobre 2022, QPC n° 2022-1016, para. 15 : conseil-constitutionnel.fr). On the contrary, by an a contrario reading, one could raise the question of the constitutionality of Article 521-3-2°c) consisting in deleting or transferring the domain name to the administrative authority. On the other hand, the mere blocking of the domain name for a period not exceeding three months, also provided for by article 521-3-2°c), brings a dose of proportionality meeting the requirements of constitutional principles.
It should be noted that the DGCCRF, therefore, has the power to order service providers to delist an operator that does not make the efforts required to comply with French legislative provisions, particularly regarding dangerous products and counterfeits. Refractory operators could also be imposed a blocking measure on their domain names.
