French Senate unanimously passes law guaranteeing consumers’ free choice in cyberspace

Over to you, National Assembly… (Translation by Google.)

No. 2701
_____
NATIONAL ASSEMBLY
CONSTITUTION OF 4 OCTOBER 1958
FIFTEENTH LEGISLATURE
Registered at the Presidency of the National Assembly on February 20, 2020.
LAW PROPOSITION ADOPTED BY THE SENATE,
aimed at guaranteeing consumers’ free choice in cyberspace,

TRANSMITTED BY THE PRESIDENT OF THE SENATE to
THE PRESIDENT OF THE NATIONAL ASSEMBLY
(Referred to the Committee on Economic Affairs, in the absence of a special committee within the time limits provided for in Articles 30 and 31 of the Rules.)

The Senate adopted, at first reading, the bill, the content of which is as follows:
See numbers:

Senate: 48, 301, 302 and T.A. 62 (2019-2020).

– 1 –
Chapter I
Free choice of terminal user

Article 1

Title I of Book III of the Postal and Electronic Communications Code is amended as follows:

1 ° At the beginning, a chapter I is added entitled: “Registered, electronic identification and safe” which includes articles L. 100 to L. 100-3;

2 ° A chapter II is added as follows:

“Chapter II
“Protection of the free choice of the terminal user

“Art. L. 104. – Within the framework of their respective attributions, the minister responsible for digital technology and the regulatory authority for electronic communications, postal services and press distribution take, under objective and transparent conditions, reasonable measures and proportionate in order to achieve the objective of protecting the freedom of choice of users of terminal equipment, under the conditions provided for in this chapter.

“Art. L. 105. – I. – An operating system supplier is any person who, in a professional capacity, edits or adapts the operating system of terminal equipment allowing access to online communication services to the public. or which edits or adapts any other software controlling access to the functionalities of said equipment.

“II. – The operating system supplier ensures that the operating systems and software mentioned in I of this article, including the application stores, offered to non-professional users located on French territory, do not limit unjustified exercise, by non-professional users of any terminal equipment within the meaning of 10 ° of Article L. 32, of the right, on the internet, to access and distribute the information and content of their choice, as well as to use and provide applications and services.

“Are not considered as restricting in an unjustified way the exercise, by non-professional users, of the right mentioned in the first paragraph of this II the practices which are strictly necessary for the implementation of legislative or regulatory obligations, for safety terminal equipment and the content and data managed by it, or the proper functioning of terminal equipment and services available for the benefit of non-professional users and to which practices less restrictive of the law set out in the same first paragraph cannot to substitute.

“After consulting the stakeholders and the public, the Regulatory Authority for Electronic Communications, Posts and Press Distribution establishes and publishes guidelines, recommendations or repositories relating to the application of this article. “

Article 2

Chapter II of Title I of Book III of the Postal and Electronic Communications Code, as it results from Article 1 of this Law, is supplemented by Articles L. 106 to L. 108 worded as follows:

“Art. L. 106. – The minister responsible for digital technology and the regulatory authority for electronic communications, postal services and press distribution may, in a manner proportionate to the needs linked to the performance of their missions and on the basis of a reasoned decision, collect from the operating system suppliers mentioned in I of article L. 105 the information or documents necessary to ensure that these persons comply with the obligation provided for in II of the same article L . 105.

“Art. L. 107. – I. – The Regulatory Authority for Electronic Communications, Posts and Press Distribution encourages the making available, while respecting the secrets protected by law, of information likely to promote the freedom of choice of non-professional users of terminal equipment. It sets up or supports the setting up by third parties, under the conditions provided for in II of this article, tools for evaluating and comparing the practices implemented by the operating system suppliers mentioned in I of the Article L. 105.

“II. – In accordance with the provisions of this code and its implementing regulations, the Regulatory Authority for electronic communications, postal services and press distribution encourages the making available, in respect of secrets protected by law, of information likely to promote the freedom of choice of non-professional users of terminal equipment. It sets up or supports the setting up by third parties, under the conditions provided for in II of this article, tools for evaluating and comparing the practices implemented by the operating system suppliers mentioned in I of the Article L. 105.

“II. – In compliance with the provisions of this code and its implementing regulations, the Regulatory Authority for electronic communications, postal services and press distribution specifies the rules concerning the content, conditions and modalities of transmission or make available, including to third-party bodies identified by the authority, reliable information relating to terminal equipment and their operating systems, to the extent that this proves to be justified for the achievement of the objective mentioned in Article L. 104.

“Art. L. 108. – I. – In the event of a dispute between a professional user and an operating system supplier on the implementation of the obligations provided for in article L. 105, the regulatory authority for electronic communications, posts and distribution of the press can be entered by either party.

“The authority decides, within the time limit set by the Council of State decree mentioned in the second paragraph of I of Article L. 36-8, after having enabled the parties to present their observations and, if necessary, if necessary, carried out technical, economic or legal consultations, or expert opinions respecting the secrecy of the investigation of the dispute under the conditions provided for by this code. The costs generated by these consultations and expertise may be charged to the losing party, unless the specific circumstances of the dispute justify them being charged to another party or shared between the parties. Its decision is reasoned and specifies the fair and non-discriminatory conditions, of a technical and financial nature, in which the exercise of the right mentioned in II of Article L. 105 by non-professional users of any terminal equipment must be ensured. The authority may, at the request of the party seizing it, decide that its decision will take effect on a date prior to its referral, without however that date may be prior to the date on which the dispute was formally raised by the ‘one of the parties for the first time and, in any event, without this date being more than two years prior to its referral. When the facts at the origin of the dispute are likely to significantly restrict the offer of audiovisual communication services, the authority obtains the opinion of the Superior Audiovisual Council which decides within a time limit set by the decree in Council of State mentioned in the second paragraph of I of Article L. 36-8.

“The Regulatory Authority for Electronic Communications, Postal Services and Press Distribution may refuse to disclose documents involving trade secrets. These documents are then withdrawn from the file.

“In the event of a serious and immediate violation of the right mentioned in II of Article L. 105, the authority may, after hearing the parties concerned, order provisional measures. These measures must remain strictly limited to what is necessary to deal with the emergency.

“The authority makes its decisions public, subject to secrets protected by law. It notifies them to the parties.

“II. – Decisions taken by the regulatory authority for electronic communications, postal services and press distribution in application of I may be the subject of an appeal for annulment or reform within a period of one month from of their notification.

” The appeal is not suspensive. However, suspension of execution of the decision may be ordered if it is likely to lead to manifestly excessive consequences or if new facts of exceptional gravity have arisen after its notification.

“The precautionary measures taken by the Regulatory Authority for Electronic Communications, Posts and Press Distribution may, at most ten days after their notification, be the subject of an appeal for annulment or reform. This appeal is tried within one month.

“III. – Appeals against decisions and precautionary measures taken by the regulatory authority for electronic communications, postal services and press distribution in application of this article fall within the jurisdiction of the Paris Court of Appeal.

“The president of the Regulatory Authority for Electronic Communications, Posts and Press Distribution may make observations to the Court of Cassation on occasion
n an appeal in cassation lodged against a judgment in which the Paris Court of Appeal ruled on a decision of the authority.

“The cassation appeal, if any, against the judgment of the court of appeal is exercised within one month of the notification of this judgment. “

Article 3

Chapter II of Title I of Book III of the Postal and Electronic Communications Code, as it results from Articles 1 and 2 of this Law, is supplemented by an Article L. 109 as follows:

“Art. L. 109. – The regulatory authority for electronic communications, postal services and press distribution may, either ex officio or at the request of the minister responsible for digital technology, an approved association of users or ” a natural or legal person concerned, penalize the breaches that it finds on the part of the operating system suppliers mentioned in I of article L. 105. This power of sanction is exercised under the conditions provided for in this article.

“I. – In the event of a breach by an operating system supplier mentioned in I of article L. 105 with the provisions of this chapter in respect of which the authority is responsible for monitoring or the texts and decisions taken in application of these provisions, the supplier is put on notice by the authority to comply with them within a time limit that it determines.

“The formal notice may be accompanied by obligations to comply with intermediate stages within the same time limit. It is motivated and notified to the person concerned. The authority may make this formal notice public.

“When the authority considers that there is a risk that an operating system supplier mentioned in I of Article L. 105 does not meet its obligations, resulting from the provisions and prescriptions mentioned in present I, it can give notice to the operator or supplier to comply with it within this deadline.

“II. – When an operating system supplier mentioned in I of article L. 105 does not comply within the time limits set with the formal notice provided for in I of this article or with the intermediary obligations attached to it, the The regulatory authority for electronic communications, the post office and the distribution of the press may, after investigation conducted by its services, notify the grievances to the person in question. It then sends the investigation file and the notification of grievances to the restricted committee.

“III. – After the person in question has received the notification of grievances and has been enabled to consult the file and to present his written observations, and before pronouncing a sanction, the restricted panel proceeds, according to an adversarial procedure, to the hearing of the representative of the regulatory authority for electronic communications, postal services and press distribution in charge of the investigation and of the person in question.

“The restricted formation can also hear any person whose hearing it considers useful.

“The restricted committee may pronounce against the operating system supplier in question a financial penalty the amount of which is proportionate to the seriousness of the breach and to the advantages which are derived from it, without being able to exceed 2% of the amount of the figure. ” highest tax-free worldwide business carried out by the company in question during one of the financial years ending since the financial year preceding the one during which the practices were implemented, a rate which is increased to 4% in the event of new violation of the same obligation. If the accounts of the company concerned have been consolidated or combined under the texts applicable to its corporate form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining company. In the absence of activity enabling this ceiling to be determined, the amount of the penalty may not exceed € 150,000. This amount is increased to € 375,000 in the event of a new violation of the same obligation.

“When the breach constitutes a criminal offense, the total amount of penalties imposed may not exceed the amount of the highest penalty incurred.

“When the restricted panel has pronounced a financial penalty that has become final before the criminal judge has ruled definitively on the same or related facts, the latter may order that the financial penalty be deducted from the fine he pronounces.

“The conditions for the application of this III are determined by the decree mentioned in Article L. 36-11.

“The pecuniary penalties are collected like the debts of the State foreign to the tax and the domain.

“IV. – In the event of a serious and immediate violation of the rules mentioned in the first paragraph of I of this article, the Regulatory Authority for electronic communications, postal services and press distribution may order, without formal notice feasible, precautionary measures valid for a maximum of three months. These measures may be extended for a further period of up to three months if the implementation of the enforcement procedures is not completed, after giving the person concerned the opportunity to express his point of view and to propose solutions.

“V. – The regulatory authority for electronic communications, posts and press distribution and restricted training cannot be seized of facts dating back more than three years, if no act has been made to to their research, their observation or their sanction.

“VI. – The decisions of the restricted committee are motivated and notified to the person concerned. They may be made public in the publications, newspapers or electronic communication services to the public chosen by the restricted body, in a format and for a duration proportionate to the sanction imposed. They may be the subject of an appeal with full jurisdiction and a request for suspension submitted in accordance with Article L. 521-1 of the Code of Administrative Justice, before the Council of State.

“VII. – When a breach noted within the framework of the provisions of this article is likely to cause serious prejudice for a company or for the entire market, the president of the Regulatory Authority for Electronic Communications, Posts and distribution of the press may request the president of the litigation section of the Council of State ruling in summary proceedings that the person responsible be ordered to comply with the applicable rules and decisions and to remove the effects of the breach; the judge can take, even ex officio, any precautionary measure and impose a fine for the execution of his order. “

Chapter II
Platform interoperability

Article 4

I (new). – After 9 ° of Article L. 32 of the Postal and Electronic Communications Code, a 9 ° bis is inserted as follows:

“9 ° bis Interoperability.

“Interoperability is the ability of a product or system, the interfaces of which are fully known, to work with other existing or future products or systems without restriction of access or implementation. “

II. – Title I of Book III of the Postal and Electronic Communications Code is completed by Chapter III as follows:

“Chapter III
“Interoperability of online platforms

“Art. L. 110. – Within the framework of their respective attributions, the minister responsible for digital technology and the regulatory authority for electronic communications, postal services and press distribution take, under objective and transparent conditions, reasonable measures and proportionate in order to achieve the objective of interoperability of the services offered by the operators of online platforms within the meaning of Article L. 111-7 of the Consumer Code, under the conditions provided for in this chapter.

“Art. L. 111. – When the ability of non-professional users to access services offered by operators of online platforms within the meaning of Article L. 111-7 of the Consumer Code and to communicate through them is compromised by due to a lack of interoperability of data and protocols for reasons other than those aimed at ensuring compliance with legislative or regulatory obligations, the security, integrity or proper functioning of such services, the Regulatory Authority electronic communications, postal services and press distribution may impose, after consultation with the National Commission for Informatics and Liberties, obligations on the providers of these services in order to make them interoperable.

“The obligations mentioned in the first paragraph of this article can only be applied to online platform operators whose activity exceeds a threshold of number of connections defined by decree.

“They are reasonable and proportionate. They can consist of:

“1 ° The publication of relevant information;

“2 ° The authorization of the use, modification and retransmission of this information by the Regulatory Authority for Electronic Communications, Posts and Press Distribution or other operators of online platforms;

“3 ° The implementation of technical interoperability standards identified by the authority.

“The decisions of the authority taken pursuant to this article shall be the subject of the consultation provided for in V of Article L. 32-1.

“The terms of application of this article are set by decree of the Council of State. 

Article 5

Chapter III of Title I of Book III of the Postal and Electronic Communications Code, as it results from Article 4 of this Law, is supplemented by an Article L. 112 as follows:

“Art. L. 112. – The minister responsible for digital technology and the regulatory authority for electronic communications, postal services and press distribution may, in a manner proportionate to the needs linked to the performance of their missions and on the basis of a reasoned decision, collect from the operators of online platforms the information or documents necessary to ensure that these persons comply with the obligations laid down in order to ensure the interoperability of these services in application of article L. 111. “

Article 6

I. – Chapter III of Title I of Book III of the Postal and Electronic Communications Code, as it results from Articles 4 and 5 of this Law, is supplemented by Article L. 113 as follows:

“Art. L. 113. – The regulatory authority for electronic communications, postal services and press distribution may, either ex officio or at the request of the minister responsible for digital technology, an approved association of users or ” a natural or legal person concerned, penalize any breaches it finds on the part of the online platform operators mentioned in Article L. 111. This power of sanction is exercised under the conditions provided for in this article.

“I. – In the event of failure by an online platform operator referred to in Article L. 111 to comply with the provisions of this chapter for which the authority is responsible for monitoring or the texts and decisions taken in application of these provisions , the supplier is put on notice by the authority to comply with it within a time limit that it determines.

“The formal notice may be accompanied by obligations to comply with intermediate stages within the same time limit. It is motivated and notified to the person concerned. The authority may make this formal notice public.

“When the authority considers that there is a risk that an online platform operator referred to in Article L. 111 does not meet its obligations, resulting from the provisions and requirements mentioned in this I, by the date initially provided for, it can put the operator or the supplier on notice to comply with this deadline.

“II. – When an online platform operator mentioned in Article L. 111 does not comply within the time limits set with the formal notice provided for in I of this article or with the intermediary obligations to which it is attached, the Regulatory Authority electronic communications, post and press distribution may, after investigation conducted by its services, notify the grievances to the person in question. It then sends the investigation file and the notification of grievances to the restricted committee.

“III. – After the person in question has received the notification of complaints, has been enabled to consult the file and to present his written observations, and before pronouncing a sanction, the restricted committee proceeds, according to an adversarial procedure, to the hearing of the representative of the regulatory authority for electronic communications, postal services and press distribution in charge of the investigation and of the person in question.

“The restricted formation can also hear any person whose hearing it considers useful.

“The restricted committee may pronounce, against the online platform operator in question for non-compliance with the obligations decreed in application of Article L. 111, a financial penalty the amount of which is proportionate to the seriousness of the breach and the benefits derived therefrom, without being able to exceed 2% of the amount of the highest worldwide turnover excluding taxes achieved by the company in question during any of the financial years ending since the financial year preceding that in during which the practices were implemented, a rate which is increased to 4% in the event of a new violation of the same obligation. If the accounts of the company concerned have been consolidated or combined under the texts applicable to its corporate form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining company. In the absence of activity enabling this ceiling to be determined, the amount of the penalty may not exceed € 150,000, increased to € 375,000 in the event of a new violation of the same obligation.

“When the breach constitutes a criminal offense, the total amount of penalties imposed may not exceed the amount of the highest penalty incurred.

“When the restricted panel has pronounced a financial penalty which has become final before the criminal judge has ruled definitively on the same or related facts, the latter may order that the financial penalty be deducted from the fine he pronounces.

“The conditions for the application of this III are determined by the decree mentioned in Article L. 36-11.

“The pecuniary penalties are collected like the debts of the State foreign to the tax and the domain.

“IV. – In the event of a serious and immediate breach of the rules mentioned in the first paragraph of I of this article, the Regulatory Authority for electronic communications, postal services and press distribution may order, without prior notice, measures conservatories which are valid for a maximum of three months. These measures may be extended for a further period of up to three months if the implementation of the enforcement procedures is not completed, after giving the person concerned the opportunity to express his point of view and to propose solutions.

“V. – The regulatory authority for electronic communications, posts and press distribution and restricted training cannot be seized of facts dating back more than three years, if no act has been made to to their research, their observation or their sanction.

“VI. – The decisions of the restricted committee are motivated and notified to the person concerned. They may be made public in the publications, newspapers or electronic communication services to the public chosen by the restricted body, in a format and for a duration proportionate to the sanction imposed. They may be the subject of an appeal with full jurisdiction and a request for suspension submitted in accordance with Article L. 521-1 of the Code of Administrative Justice, before the Council of State.

“VII. – When a breach noted within the framework of the provisions of this article is likely to cause serious prejudice for a company or for the entire market, the president of the Regulatory Authority for Electronic Communications, Posts and distribution of the press may request the president of the litigation section of the Council of State ruling in summary proceedings that the person responsible be ordered to comply with the applicable rules and decisions and to remove the effects of the breach; the judge can take, even ex officio, any precautionary measure and impose a fine for the execution of his order. “

II. – Article L. 130 of the Postal and Electronic Communications Code is amended as follows:

1 ° In the first sentence of the fifth paragraph, the reference: “and L. 36-11” is replaced by the references: “, L. 36-11, L. 109 and L. 113”;

2 ° The sixth paragraph is amended as follows:

a) After the reference: “L. 36-8”, the end of the first sentence reads as follows: “, I and II of Article L. 36-11, Article L. 108, and I and II of Articles L. 109 and L. 113. ”;

b) In the last sentence, the words: “of Article L. 36-11” are replaced by the words: “of Articles L. 36-11, L. 109 and L. 113”;

3 ° The seventh paragraph is amended as follows:

a) In the first sentence, the references: “and of I and II of article L. 36-11” are replaced by the references: “, of I and II of article L. 36-11, of article L. 108 and of I and II of articles L. 109 and L. 113 ”;

b) In the last sentence, the words: “of Article L. 36-11” are replaced by the words: “of Articles L. 36-11, L. 109 and L. 113”.

Chapter III
Fight against so-called “predatory” acquisitions

Article 7

I. – After Article L. 430-2 of the Commercial Code, an article L. 430-2-1 is inserted as follows:

“Art. L. 430-2-1. – I. – The Competition Authority establishes a list of structuring companies.

“To determine whether a company is structuring, the authority takes into account, at French and European or global levels, several of the following indices: its dominant position on one or more markets, in particular multi-sided, the number of unique users of the products or services it offers, its vertical integration and its activities in other related markets, the benefit it derives from the operation of major network effects, its financial valuation, its access to essential data for access to a market or the development of an activity, the importance of its activities for the access of third parties to markets and the influence that it consequently exerts on the activities of third parties.

“II. – The structuring companies mentioned in I of this article inform the Competition Authority of any concentration within the meaning of article L. 430-1 likely to affect the French market within one month before its completion .

“III. – The chairman of the Autorité de la concurrence or a vice-chairman appointed by him may order a systemic company mentioned in I of this article which is part of a concentration operation to submit it, before its completion, to the procedure provided for in Articles L. 430-3 to L. 430-10.

“IV (new). – When the Authority of the 
In the event that this occurs, an in-depth examination of an operation notified pursuant to this article is initiated, the structuring company must provide proof that the operation is not likely to adversely affect competition. “

II (new). – The last paragraph of Article L. 450-3 of the Commercial Code is supplemented by a sentence worded as follows: “They also have access to the principles and methods of designing algorithms as well as to the data used by these algorithms. “

Chapter III bis
Fight against deceptive interfaces

(New division and title)

Article 8 A (new)

The consumer code is thus amended:

1 ° After article L. 111-7-2, an article L. 111-7-3 is inserted as follows:

“Art. L. 111-7-3. – Online platform operators refrain from designing, modifying or manipulating a user interface the object or effect of which is to subvert or alter the consumer’s autonomy in his decision-making or to obtain his consent. “;

2 ° The first paragraph of Article L. 131-4 is amended as follows:

a) The words: “information” are deleted;

b) The words: “in Article L. 111-7 and in Article L. 111-7-2” are replaced by the words: “in Articles L. 111-7, L. 111-7-2 and L. 111-7-3 ”;

3 ° (new) Article L. 512-11 is supplemented by a sentence worded as follows: “They also have access to the principles and methods of designing algorithms as well as to the data used by these algorithms. “

Chapter IV
Miscellaneous

Article 8

The financial consequences resulting for the State from this law are compensated, up to the amount, by the creation of an additional tax to the rights provided for in Articles 575 and 575 A of the General Tax Code.

Article 9

This law comes into force on the first day of the third month following its publication in the Official Journal.

Deliberated in public session, in Paris, on February 19, 2020.

President,
Signed: Gérard LARCHER