Canvassing for banking and financial services is a commercial practice governed by a strict set of rules designed to protect savers and borrowers. Often perceived as intrusive, this sales method is nevertheless legal if it complies with a set of precise obligations. Our firm has observed that many disputes arise from a lack of understanding of this framework, both by consumers and by certain professionals. Understanding the rules governing this activity, detailed in the law governing credit institutionsThis is the first step in asserting your rights. For personalised assistance, our team of lawyers with expertise in banking and finance law can analyse your situation.
What is banking and financial canvassing? Definition and scope
The law leaves little room for interpretation when defining canvassing. It is a precise legal concept based on factual criteria and not on the commercial intent of the canvasser. The aim of this rigour is to subject a wide range of practices to a regime that protects consumers.
Unsolicited contact: the key criterion (art. l. 341-1 cmf)
The French Monetary and Financial Code is particularly clear on this point. The act of canvassing is any contact that has not been solicited by the person being canvassed. The contact must therefore be initiated by the professional. It is irrelevant whether the customer has previously shown a vague interest in a particular type of product. If the professional is at the origin of the active and personalised approach with a view to obtaining an agreement, the operation falls under the canvassing regime. Article L. 341-1 of the Monetary and Financial Code also covers physical visits to the home, workplace or any other place not intended for the marketing of financial products, even if the initial contact comes from the customer.
Targeted means of contact (telephone, internet, physical)
The regulations take a broad view of communication channels. It specifies that canvassing is defined as "by any means whatsoever". This includes telephone calls, personalised e-mails, contacts via social networks, and visits to the home or workplace. This broad approach means that protection can be adapted to new technologies and new commercial strategies. A simple unsolicited e-mail offering a specific financial product can thus be classified as canvassing.
Banking and financial services and transactions concerned
The material scope of canvassing is also very broad. The law covers any approach aimed at obtaining an agreement to carry out a banking transaction, within the meaning of articles L. 311-1 and L. 311-2 of the French Monetary and Financial Code. This includes :
- Receiving funds from the public (opening deposit accounts).
- Credit transactions (consumer loans, mortgages).
- Payment services.
- Related transactions such as foreign exchange, gold and precious metals, and wealth management advice.
- The provision of investment services (portfolio management, investment advice).
- Transactions involving miscellaneous assets.
In short, almost all the services offered by a bank or financial institution fall within the scope of these regulations when they are offered via unsolicited contact.
Transactions expressly excluded from the doorstep-selling regime
In order not to paralyse the normal commercial activity of financial institutions, the legislator has provided for exceptions to the strict rules governing doorstep selling. These exclusions are interpreted strictly and apply to situations where the consumer is presumed to be less vulnerable.
Contacts in banking or insurance premises
Any approach made in the branches or premises of a credit institution, investment firm or insurance company is excluded from the canvassing regime. The law considers that customers who physically visit these premises are taking a voluntary approach and are not taken by surprise. They are therefore in a position that does not require the enhanced protection of doorstep selling.
Contacts with existing customers for similar transactions
When a professional contacts one of his existing customers, the approach is not classified as canvassing if it relates to a transaction of the same nature as those already covered by an existing contract. For example, a bank that contacts a customer with a securities account to offer them a new security is not carrying out a canvass. The idea is that the customer is already familiar with this type of transaction and the associated risks.
Specific services and appropriations (art. l. 341-2 cmf)
Article L. 341-2 of the French Monetary and Financial Code provides for several other notable exclusions. Approaches aimed at offering earmarked loans (for example, a loan for the purchase of a car offered at the point of sale) are not subject to this regime. Similarly, hire-purchase or hire-purchase agreements, including those for business purposes, are not covered by this regime. These exceptions are explained by the specific commercial context in which these offers are made, which is already governed by other provisions, in particular those of the Consumer Code.
Rules of good conduct and obligations for direct marketers
Canvassing is not just a question of definition; it is above all a set of ethical and legal obligations incumbent on professionals. These rules are designed to restore balance to the relationship by ensuring that customers give their informed consent. Failure to comply with these obligations can result in misleading commercial practices.
The duty to provide prior information (financial situation, experience, objectives) (art. l. 341-11 cmf)
Before making any offer, direct marketers are obliged to find out about the personal situation of the person they are dealing with. Article L. 341-11 of the French Monetary and Financial Code requires them to gather information about the customer's financial situation, investment experience and objectives. This stage is fundamental: it should enable the professional to ensure that the product or service being offered is well suited to the profile of the person being canvassed. It would be a mistake to offer a high-risk financial product to a person with no experience and a modest income.
The duty of transparency and clarity of information (art. l. 341-12 cmf)
All information must be clear, accurate and not misleading. The direct seller must provide a number of documents and information, including his identity, the name of the company he is acting for and the precise characteristics of the proposed transaction. Article L. 341-12 of the French Monetary and Financial Code stresses the need to present the risks, charges and conditions in an understandable way. The aim is to prevent customers from committing themselves on the basis of a partial or biased presentation of the product's advantages.
The canvassed customer's right of withdrawal: procedures and deadlines (art. l. 341-16 cmf)
Consumers who have signed a contract as part of a direct marketing campaign have a right of withdrawal. They have a period of fourteen calendar days in which to change their mind, without having to provide any justification or pay any penalties. This period, provided for in article L. 341-16 of the French Monetary and Financial Code, begins on the day the contract is concluded or, if later, the day the customer receives the contractual terms and conditions. Exercising this right terminates the contract. The direct seller must inform the customer of the existence of this right and provide a standard form to facilitate its use.
Who can canvass? Authorisation and database
The activity of banking and financial canvassing is not open to everyone. Because of the risks it entails for public savings, it is reserved for precisely identified persons and entities subject to strict conditions of good repute and competence.
Authorised persons and entities (art. l. 341-3 et seq. cmf)
Only certain categories of professionals are authorised to canvass. These are mainly credit institutions, investment firms, insurance companies and their employees. Intermediaries in banking and payment services (IOBSP) may also be authorised. legal obligations are specific. This restrictive list ensures that canvassing is carried out by operators supervised by regulatory authorities such as the ACPR or the AMF.
Registration in the direct marketers' database (decree no. 2004-1018)
A single database of direct marketers has been set up to ensure the traceability and control of individuals involved in direct marketing. Managed by ORIAS (Organisme pour le registre unique des intermédiaires en assurance, banque et finance), this file lists all authorised individuals. Registration is a prerequisite for carrying on business. It makes it possible to check that the direct marketer meets the age, good repute and professional competence requirements. Members of the public can consult this register to check that the person contacting them is authorised to do so.
Canvassing mandate: conditions and limits (art. l. 341-4 cmf)
Authorised entities may appoint natural persons or, in certain cases, legal entities to carry out canvassing activities in their name and on their behalf. The mandate must be in writing and specify the nature of the products and services that the agent is authorised to offer. The principal, i.e. the financial institution, remains entirely responsible for the actions of its agent. It must ensure that the agent complies with all the rules of good conduct and holds a valid canvassing licence.
Penalties for non-compliance with regulations on doorstep selling
The legislator has provided for an arsenal of penalties to punish breaches of the rules on canvassing. These sanctions, which may be disciplinary or criminal, are aimed at both the direct marketer and the institution that employs or mandates him. They serve as a reminder that investor protection is a priority and that aggressive commercial practices are severely repressed.
Disciplinary penalties (acpr, amf) (art. l. 341-17 cmf)
The regulatory authorities, such as the Autorité de Contrôle Prudentiel et de Résolution (ACPR) for banks and the Autorité des Marchés Financiers (AMF) for financial products, can impose disciplinary sanctions. These may range from a simple warning or reprimand to more severe measures such as a temporary or permanent ban on carrying on business. Significant financial penalties may also be imposed on the offending institution, pursuant to article L. 341-17 of the Monetary and Financial Code.
Criminal penalties (art. l. 353-1 cmf)
Failure to comply with canvassing regulations may also constitute a criminal offence. Article L. 353-1 of the French Monetary and Financial Code makes it a punishable offence to carry out canvassing activities without being authorised to do so, without holding a canvassing card, or by failing to respect the customer's right of withdrawal, punishable by six months' imprisonment and a fine of €7,500. Other offences, such as fraud or abuse of weakness, may also be considered depending on the circumstances.
A lawyer's advice on banking and financial canvassing
The complexity of the rules applicable to canvassing and the technical nature of the financial products on offer can place consumers in a vulnerable position. A commitment made as a result of an insistent approach or incomplete information can have serious financial consequences. A lawyer can help you analyse the situation in the light of the law, check that all the professional's obligations have been met and, if necessary, challenge the validity of the contract. This may involve asserting a belated right of withdrawal in the event of a lack of information, bringing an action to have the contract declared null and void for failure to comply with the rules of form, or seeking to hold the direct seller and his principal liable for breach of the duty to advise. If you believe that you have been the victim of abusive canvassing practices, our firm, experts in banking and finance lawis at your disposal to defend your interests.
Sources
- French Monetary and Financial Code, articles L. 341-1 et seq.
- French Monetary and Financial Code, articles L. 353-1 et seq.
- Decree no. 2004-1018 of 28 September 2004 on the file of persons authorised to carry out banking or financial canvassing.
- Decree no. 2004-1019 of 28 September 2004 on banking and financial canvassing.