Criteria for the qualification of distance contracts by the Cour de Cassation

(Civ. 1, August 31, 2022, n°21-13.080)

Article L. 221-1 of the French Consumer Code defines a distance contract as: “any contract concluded between a professional and a consumer, within the framework of an organized system of remote sale or provision of services, without the simultaneous physical presence of the professional and the consumer, by the exclusive use of one or more remote communication techniques until the conclusion of the contract.

The conclusion of a distance contract, as defined by the French Consumer Code, implies the application of a protective regime for consumers, both in terms of pre-contractual information and the right of withdrawal.

The qualification of a distance contract is at the center of the decision of the first civil chamber of the Cour de Cassation commented here.

In this case, in February 2017, a professional individual had contacted consumer individual in order to proceed with fitting out, furnishing and decorating an apartment. Several deposit payments were made and, in July 2017, the professional issued an invoice for the work carried out. The consumer sued for the restitution of amounts unduly paid and, in the alternative, for compensation.

The Douai Court of Appeal, in a decision dated January 14, 2021, rejected the request for cancellation of the contracts by rejecting the qualification of a distance contract on the grounds that the professional had not put in place an organized system of remote service provision.

An appeal was lodged against the judgment of the Douai Court of Appeal by the consumer. The consumer argued that the Court of Appeal, by rejecting the qualification of a distance contract, when it had noted that the contract had been concluded without the simultaneous presence of the parties and by the exclusive use of distance communication techniques, had violated article L. 221-1 of the French Consumer Code. It did not matter, according to the consumer that the professional practiced individually, outside of an organized system of distance service provision.

The Cour de cassation dismissed the appeal and reaffirmed the three cumulative criteria for qualifying a distance contract under Article L. 221-1 of the French Consumer Code. The distance contract must have been concluded: 1) by a professional and a consumer without their simultaneous presence, 2) by the exclusive use of one or more techniques of distance communication until the conclusion of the contract and 3) within the framework of an organized system of sale or provision of distance services.

The criteria being cumulative, the Cour de cassation validated the reasoning of the Court of Appeal which had rejected the qualification of a contract concluded remotely in the absence of an organized system of sale or provision of services at a distance despite the finding of the first two criteria mentioned above.

It remains to be clarified what exactly is meant by “organized system of distance selling or provision of services” in the absence of case law clarifying this concept.

Directive 2011/83/EU of 25 October 2011 on consumer rights has defined this as to “those schemes offered by a third party other than the trader but used by the trader, such as an online platform. It should not, however, cover cases where websites merely offer information on the trader, his goods and/or services and his contact details.“

This is a rare decision of the Cour de cassation dealing with the qualification of distance contracts and not with their regime; the significance of this decision being demonstrated by its publication in the Official Journal of the French Supreme Court.