The 1993 Loi Sapin1 pertaining to the prevention of corruption and transparency in the economical life and public proceedings significantly modified the rules and regulations pertaining to advertising space brokerage in France. It sets the principle that advertising space purchase may only be made by an intermediary acting on behalf of an advertiser and pursuant to a written contract.
The material scope of the Loi Sapin has been extended by the Loi Macron dated August 6, 2015, to include within its scope of application the purchase of advertising spaces "whatever the medium" so that digital ad services are now clearly covered by the Loi Sapin. The Loi Macron also provides that, where digital ads are concerned, specific duties (in particular reports to the advertisers) must be complied with.
A Decree has recently been enacted in order to detail the duties to be fulfilled by the intermediary acting in the field of the purchase of digital ads.
Territorial scope of the Loi Sapin
The Loi Sapin is enforceable whatever the place where the intermediary is established where "the advertising message is made to the benefit of a French company and it is mainly received on the French territory".
Consequently, two cumulative conditions must be met: a French advertiser and an ad "mainly received" on the French territory.
Transparency obligations as set by the Loi Sapin (overview)
The Loi Sapin does provide for several obligations, to be complied with, in particular by the ad agency, acting as an intermediary between the media (seller of advertising spaces / the "support") and the client/advertiser.
Independence of the intermediary vis-à-vis the support : As a general rule, the intermediary is not entitled to receive any payment from the support; indeed the intermediary is entitled to receive a payment only from the advertiser; this with the aim of having the remuneration of the intermediary negotiated only between the intermediary and its client, the advertiser.
This does not prevent the support from offering rebates on the purchases made by the intermediary, but any rebate or advantage allocated by the support must benefit to the advertiser2 and be mentioned on the invoice issued to the advertiser by the support.
General information of the advertiser : The invoice to be issued by the support must set forth the rebates allocated in connection with the purchase of the advertising spaces; this invoice being sent to the advertiser.
Further, the intermediary (ad agency) must...