Last December 3rd, 2018, came into force the new Regulation (EU) 2018/302 that amends Regulation (EC) No. 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market.
The Regulation (EU) 2018/302 foresees the obligation to offer the same treatment to all EU customers (including consumers and other final customers) when they are in the same situation, without taking into consideration their nationality, place of residence or place of establishment.
In order to do so, the Regulation adopts specific measures against unjustified geo-blocking through the elimination of specific barriers to the functioning of the internal market, specifically related with the access to online interfaces, with the access to products and services and with the non-discrimination for reasons related to the payment.
Access to online interfaces
Regarding online interfaces, it is established as main obligation the allowance of access to any EU citizen, without considering its nationality or residence. In this sense, the Regulation (EU) 2018/302 expressly prohibits traders from blocking or limiting the access of customers to web pages or applications, using technological measures or from any other type, for reasons related with nationality, the place of residence or the place of establishment of the customer.
It is prohibited in this way the redirection of the customer from the trader to an interface which is different to the one the customer wished to access to, unless he obtains his express consent to do so. Thus, it prohibits the use of technological measures to determine the physical location of the customer, among them the monitoring of this location through an IP address or the coordinate obtained through a worldwide satellite navigation system, with the aim of preventing the access of a customer to a web specific version.
Access to products and services
Regarding the access to products and services offered, the Regulation (EU) 2018/302 prohibits the application of general conditions of access, which are different to its products and services for reasons related with the nationality or with the place of residence or establishment of the customer. Thus, it prohibits the prevention of acquisition of products and services through a webpage to Member States which are different to the one of the traders, when the customer has intention to acquire from a trader products and services, either delivered in a place of a Member State in which the trader offers delivery services in a framework of the general conditions of access, or collected in an agreed place between the trader and the customer in a Member State in which the trader offers that option in the framework of the general conditions of access.
In this way, it is permitted that customers of other Member States access to the trader's webpage and purchase products and services offered, sharing identical conditions with the nationals of the specific webpage version, and subject to the same terms and conditions.
Non-discrimination for reasons related with the payment
In relation with payment methods, the Regulation (EU) 2018/302 prohibits that a client of a different Member State is not allowed to pay thought one of the systems admitted by the conditions of the webpage, because the payment title is issued in a Member State different to one of the traders.
Specifically, among the different payment methods accepted, the trader will not be allowed to apply different payment conditions to a payment operation for reasons related to:
- nationality, place of residence or place of establishment of a customer,
- location of the payment account,
- place of the establishment of the payment service provider, or
- place of issuance of the payment instrument in the EU.
In any case, this Regulation does not apply to the purely internal situations, in which all pertinent elements of the transaction are circumscribed within a unique Member State. In the same way, are excluded from its scope of application financial services, transport services, game activities, sanitary services and audio-visual services such as sports retransmissions generally limited by territorial licences.
This new regulation will be very discussed in the coming months. So far, few days after the Regulation (EU) 2018/302 came into force, the European Commission imposed a fine to the well-known clothes company GUESS, due to the blocking that this company made since 2014 to the trans-border sales and having restricted the competition in its selective distribution contracts with its retailers, limiting the advertisement and online trans-border sales to consumers from other Member States.
These practices would have allowed the company to falsify the prices and maintain substantial differences in the prices of its products in several Member States, when the European Commission considered that these practices supposed a geo-blocking prohibited by the Regulation (EU) 2018/302.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.