Dahir n° 1-11-03 of February 18, 2011 promulgating law n°31-08 with respect to consumer protection (Official Gazette n° 5932 of April 7, 2011)
Law n° 31-08 with respect to consumer protection (the “Law”), published in the Official Gazette n° 5932 dated April 7, 2011, has been under discussion and review since 2000. This Law was enacted to reinforce existing levels of consumer protection mentioned in several and distinct Moroccan laws and regulations, sometimes relatively old.
Without officially forming a consumer code, the new Law, throughout the adoption of 206 articles under one act, refers to the major existing consumer protection laws, including notably advertising rules (stated in law n° 77-03 of 2005), provisions with respect to fraud prevention (law n° 13-83 of 1985) or sales provisions in relation to information to consumers as referred to in the Dahir (Bill) forming the obligations and contracts’ Code (the “Moroccan Civil Code”). However, Law n° 31-08 also introduced new legal provisions in connection with consumer credit, prohibition of unreasonable clauses (in French “clauses abusives”), distance selling and consumers’ associations’ right of action.
Consumer Protection against unreasonable clauses
Law 31-08(1) refers to 17 types of clauses which are deemed to be considered as unreasonable clauses and which may lead to the corresponding sale’s voidance. Indeed, these unreasonable clauses are those intended to (i) suppress or reduce the consumer’s right to be indemnified, (ii) enable the supplier to unilaterally amend the features of the good or service to be provided, (iii) allow the supplier to assign the contract while such assignment may lead to decrease the consumer’s warranties without the consumer’s prior consent.
As for the current contracts presently in effect and entered into with consumers, suppliers shall ensure that their practices comply with all provisions of the Law within a six (6) month delay; otherwise, the concerned consumer will be entitled to terminate the contract.
Consumer Protection against new commercial practices
Throughout provisions of Title IV of the Law, the legislator has taken into account newly implemented selling practices in Morocco, such as distance selling and e-selling. Indeed, the legislator specifies the compulsory contractual clauses to be inserted as well as the consumer’s retraction delays which apply to such trade. In addition, the Law forbids pyramid(2) selling (in French “vente de la boule de neige”) that is precisely defined and for which criminal sanctions are provided in case of infringement.
Besides, any agreement entered into while taking advantage of the consumer’s weakness or ignorance shall be void(3). In this regards, note that although such protection is already applicable under the Moroccan Civil Code, the Law expressly refers to contractual relationships between a supplier and a consumer and between a lender and a borrower.
Finally, the Law has introduced provisions with respect to sweepstakes which provide that the sweepstake’s corresponding rules shall be subject to a prior submission and control process(4).
Consumer Protection against indebtedness
Title VI of the Law sets up new provisions with respect to consumer credit operations, in addition to the previously enacted provisions in relation to credit transactions. Indeed, Title VI provides a definition of consumer credit operations(5) as being hire purchases, leases with purchase options, leases with an offer to purchase, sales with installments and sales with deferred or divided payments.
Therefore, any consumer credit operation defined under Title IV of the Law shall be previously formalized through a credit offer whose terms must be in accordance with the initial offer’s terms.
Moreover, if the said credit offer allows the consumer to use a credit card in order to get access to the borrowed funds in a divided manner, the credit contract’s duration must not exceed one (1) year. As a consequence, the supplier shall contact the consumer for the contract’s renewal before the expiry of the contract’s duration. Should the consumer chooses not to renew the contract, this contract will be deemed to be terminated and the loan’s total payments will be due by the borrower(6).
Eventually, the Law provides additional protection for consumers who have been laid-off from their jobs. Indeed, such consumers may be granted with forbearance but only under a Court order(7).
Title VII of the Law expands the rights of consumers’ associations in Morocco. The Law provides the criteria which preclude an association from been qualified as such. Indeed, associations (i) whose members are legal entities exercising activities with a purpose of gain and profit, (ii) benefiting from donations or corporate/group subsidies while selling products or goods or providing services to consumers, (iii) issuing commercial advertisings, etc (8).
In addition, the Law involves the constitution of a National Fund for the protection of consumers aimed at consumers’ associations support. These associations as well as national federations are entitled to exercise a right of action, to intervene during an existing lawsuit or to become a party to a lawsuit brought before an examining judge. Nevertheless, in order to exercise such rights, the said consumers’ association shall obtain the approval of the concerned present party under specific conditions to be stated through application decrees.
Furthermore, any consumers’ association acknowledged as a public utility association would be entitled, in the event that several consumers have been subject to individual damages caused by the same supplier and due to common grounds, to seek legal remedies before any court on behalf of the concerned consumers, provided such consumers’ association has been appointed by at least two (2) of these consumers. Note that following the example of France, the consumers’ associations are prohibited to canvass consumers in order to initiate a class action.
Effective date of the Law and obligation of compliance borne by the suppliers and lenders
The Law came into force since its publication at the Official Gazette (April 7, 2011). However, some provisions of the Law, for instance provisions with respect to sweepstakes or the provisions in relation to packaging shall be determined through the adoption of application decrees; these regulations being currently under development process. Besides, it is worth noticing that credit institutions, as it is the case for suppliers of goods and services, have the obligation to comply with the Law within a period of six (6) months following its publication date. In fact, they must ensure that their contracts (i.e. consumer loans) are in compliance with new provisions of the Law except if these contracts’ terms and conditions are more favorable to the consumers.
Finally, as per article 204 of the Law, a Superior Advisory Board of Consumption will be established as an independent body aimed at “promoting the consumerist culture and increasing consumer protection levels”.
In addition, it should be noted that a new law has been published in the Official Gazette of October 6, 2011, that also aims to protect consumers: Law n°24-09 relating to the safety of products and services. This law also completes the Moroccan Civil Code by inserting a new chapter on liability for defective products.
1. Article 18 of the Law
2. Article 58 of the Law
3. Title IV, Chapter 8
4. Title IV, Chapter 9
5. Article 74 of the Law
6. Article 79 of the Law
7. Article 149 of the Law
8. Article 153 of the Law