On 27 February 2018, the European Council adopted a new regulation (Regulation (EU) 2018/302), better known as the 'Geo-blocking Regulation' which has come into effect today. (See our colleague's previous commentary here on our franchising, advertising and commercial IP sister blog FACTs).
As a quick re-cap, the Geo-blocking Regulation addresses the problematic situation where customers (consumers and businesses) cannot buy goods and services from a trader located in a different Member State as a result of their nationality, place of residence or place of establishment. A large number of us will be able to relate to this situation and recall some frustrating attempts trying to purchase something on a website in another Member State, only to be prevented from completing the transaction process at some stage, e.g. when entering a billing address, delivery address or payment details. The Regulation aims to provide for an obligation to treat EU customers (including consumers and other end-users) in the same manner when they are in the same situation, regardless of their nationality, place of residence or place of establishment. It sets out directly applicable provisions to prevent geo-blocking practices in certain situations where there is no objective justification for different treatment based on nationality, residence or place of establishment.
The European Commission has produced some very helpful guidance based on a series of Q&A and aimed at: (i) traders who may need to adapt their commercial practices in accordance with the Geo-blocking Regulation, (ii) consumers and customers who need to be informed about the provisions of the Regulation and their impact on everyday purchases, and (iii) authorities in the Member States who will be responsible for enforcing the Regulation. The guidance also sets out clearly which services are excluded from the scope of the Regulation e.g. electronically supplied services whose main feature is to provide access to and the use of copyright protected works, such as streaming or downloading of music, e-books, or on-line videogames (although with the EU Commission reserving the right to review the position by March 2020). It is also important to be aware that the Regulation applies to all traders offering their goods or services to consumers in the EU, regardless of whether they are established in the EU or in a non-EU country. Therefore, traders established in non-EU countries that operate in the EU are subject to this Regulation.
Traders need not panic that they must now immediately adapt their online interfaces into different formats suitable for all Member States. However, the interfaces should not be designed in a way that would, in practice, prevent customers from other Member States from easily completing their orders.
This Regulation is part of the wider digital single market package set out by the European Commission back in 2016 to attempt to break down barriers to cross-border online activity. This follows on from the EU's Regulation on the cross-border portability of online content services ((EU) 2017/1128) which came into effect on 1 April 2018. That Regulation introduced a common approach in the EU to cross border portability of online content services, by ensuring that subscribers to portable content services which are lawfully provided in their member state of residence can access and use those services when temporarily present in another member state (i.e. allowing you to access your favourite television programmes or films on Netflix when travelling abroad to another EU Member State).
It will be interesting to see how this plays out in practice as it should now be easier for us to purchase our Disney Land, Paris tickets from a French website and under the same terms as those in France!