The beginnings of a reinforced information obligation for intermediation platforms.

March 17th 2017

The Decree no. 2017-126 was adopted on the 2nd of February 2017, concerning the information obligation relating to the tax issues and social contributions for users of on-line connection platforms.

This decree concerns companies which connect “individuals on-line, for the sale of property, the provision of service or an exchange or share of property or a service” which, in this regard, are bound by a reinforced information obligation, in accordance with Article 242 bis of the French General Tax Code, to:

provide, upon each transaction, fair, accurate and genuine information on the tax and social obligations to be assumed by the individuals who engage in commercial transactions through their (your) connection to the platform”,

2° send a summary statement to the users in January each year, indicating the gross amount of the transactions which have been registered and received through their platform for the previous year,

3° have certified by an independent third party, before the 15th of March each year, the respect of the aforementioned obligations for the previous year.

The Decree no. 2017-126 of February 2, 2017 specifies the extent of these obligations.

I.         The information obligation for platforms

The company conceiving the platform has the obligation, “on each transaction”, to communicate to the “seller, provider or the parties to the exchange or share of property or a service” when the latter has received remuneration for transactions:

  • the information relating to the tax regimes and
  •  the social regulations applicable to such amounts,
  • the declaratory obligations and resulting payment to the tax administration and social contribution collection authorities and
  • the sanctions applicable in the event of non-compliance with these obligations.

Whilst this information may appear to be complex, the decree specifies that this obligation is deemed to be satisfied if the messages sent to the parties of the transactions (and not solely to the seller or service provider), legibly include the following hypertext links:

https://www.impots.gouv.fr/portail/node/10841

http://www.securite-sociale.fr/Vos-droits-et-demarches-dans-le-cadre-des-activites-economiques-entre-particuliers-Article-87

In practice, these hypertext links must be communicated upon the completion of the transaction on the platform, and also in the electronic confirmation emails which shall be sent to the parties via the platform.

As an administrative concession, the inclusion of these hypertext links on the websites edited by the electronic connection platforms and in the messages sent to the users shall only become obligatory as from March 1, 2017.

II.        The communication obligation for the platforms

Each year in January, the company which edited the platform must provide its French users with a summary statement indicating the gross amount of the transactions registered and completed through its platform. This obligation also applies to a property or service delivered in France.

This summary statement must include the following mentions (appendix 2 of the French General Tax Code, Article 171 AX, III):

1° Its date of issuance;

2° The full name and address of the company editing the platform as well as its intra-community VAT number or failing that, the SIRENE number; 

3° The full name and electronic address and, as the case may be, the user’s postal address and, if the latter is a company, its intra-community VAT number or failing that, its SIRENE number or, for the companies
non-resident, their registration number with the tax administration of their country of residence;

4° The number of transactions made;

5° The total amount received by the user for the transactions completed on the given platform, for which the latter was informed, excluding the commissions.

As an administrative concession, the deadline for the communication of this summary statement is extended to the 31st of March, 2017.

It must be emphasized that most platforms invoice a commission to their user, which must be subject to a specific declaration on the user’s DAS2.

III.      The certification obligation for the completion of the aforementioned obligations

The completion of these aforementioned obligations must be certified before the 15th of March each year by an independent third party.

The latter must be an entity presenting guarantees of independence[1], integrity and repute and accomplish his mission by avoiding any conflict of interests and shall not be subject to any subordination by your company.

The failure to produce a certificate certifying the respect of the obligations defined in Article 242 bis of the French General Tax Code is sanctioned by a fine of 10 000 €, according to Article 1731 Ter of the French General Tax Code.

IV.     Complete information…for the time being

It must be recalled that this decree makes reference to the information obligation set by Article 242 Bis of the French General Tax Code.

Yet, a similar information obligation is already provided in Article L.111-7 of the French Consumer Code which sets forth that:

“I.- An on-line platform operator shall be defined as any individual or legal entity, proposing an on-line communication service to the public, professionally, whether remunerated or not, based on:

1° The classification or referencing of content, property or services proposed or posted on-line by third parties, by computer algorithms;

2° Or the connection of several parties for the sale of property, the provision of a service or the exchange or share of content, property or a service.

II.- Any on-line platform operator is obliged to issue fair, accurate and genuine information to the consumer concerning:

1° The general conditions of use of its intermediation service and on the terms of referencing, classification and dereferencing of content, property or services accessible through this service;

2° The existence of a contractual relation, equity participation or remuneration, if they have an influence on the classification or referencing of the content, property or services proposed or posted on-line;

3° The capacity of the party posting on-line and the parties’ rights and obligations for civil matters and tax issues, when the consumers are connected with professionals or non-professionals.

The conditions for the application of this Article are specified in a decree taking into consideration the nature of the activity of the on-line platform operators.

This decree also specifies for any on-line platform operator, which provides information for a comparison of the costs and characteristics of the property and services proposed by professionals, the information communicated to the consumers that relate to this comparison and those which are promotional within the meaning of Article 20 of the law no. 2004-575 of June 21, 2004 for the confidence in the digital economy.

This decree also fixes the terms according to which the professionals, sellers or service providers are connected to the consumers and the on-line platform operator provides a dedicated area to communicate the information to the consumers in accordance with Articles L. 221-5 and L. 221-6 of the French Consumer Code.”

It must be emphasized that these obligations would appear to include any on-line connection platform and not solely a transaction-based platform.

Nevertheless, the decree specifying the conditions for this specific information obligation has not been published – it is scheduled for publication on September 1, 2017 – therefore this is not a mandatory obligation.

 

[1]The entity must not be subject to a subordinate link with the company to which it provides certification as defined in the second paragraph of 12 of Article 39 of the French General Tax Code.”

Jérôme SujkowskiCyril Fabre