New EU regulation on geo-blocking

On 3 December 2018, the Regulation (EU) 2018/302 of the European Parliament and of the Council on addressing unjustified geo-blocking within the internal market became effective as a part of the EU’s digital single market strategy. Through this Regulation, the EU is responding to the current practice of some e-shops that prevented customers from other member states from accessing their online shops and subsequently from purchasing goods and services. The Regulation at hand aims to eliminate discrimination based on the customer’s EU nationality, place of residence or place of establishment, the pursued objective is to increase the internal market trade, to enable access to a wider range of products and to improve conditions for customers form EU member states. Furthermore, the Regulation is concerned with the sales and payment conditions applicable to cross-border online shopping within the EU. Services related to copyrighted content and other non-material works such as on-line TV, music streaming services and other similar services, as well as financial, audiovisual, transport, health and social services are on the other hand do not fall within the Regulation’s scope.

The Regulation focuses on three main areas, namely on the access to online interfaces (such as websites, apps etc.), on the access to goods or services and on non-discrimination for reasons related to payment.

First of all, the Regulation grants equal access to goods and services by prohibiting blocking or limiting customer access to the trader’s online interface. Concurrently, customers may not be redirected to a different interface specifically targeted at customers of a particular nationality, place of residence or place of establishment (and which often offers the goods and services under different conditions) without their explicit consent. Should they agree to being redirected, the original page must still remain easily accessible. The prohibition of blocking, limitation or redirection shall not apply where necessary to comply with national or EU law. However, in such cases the trader must provide a clear explanation to the customer.

Regarding the actual access to goods and services, the Regulation imposes that the traders refrain from applying different general conditions of access to end customers between EU nationalities in the following cases:

• purchase of goods where the trader either already provides or offers delivery or where the good may be collected at a location agreed with the customer
• electronically supplied services
• other services provided in specific physical location in the trader’s state, such as accommodation reservation or a car hire.

Nevertheless, the traders may offer different general conditions, including different prices, when offered to customers within a member state or to specific customer groups, given that the choice is on a non-discriminatory basis.

Finally, the Regulation prohibits unjustified discrimination of customers regarding the payment methods accepted by the trader, in cases where the payment is made through an electronic transaction, bank transfer or a card-based payment if the authentication requirements are met and the transaction is carried out in the currency the trader accepts.

The Regulation explicitly states that it does not affect the agreements restricting active sales, however, the provisions set out in passive sales agreements contrary to the abovementioned prohibitions became void with the effectiveness of the Regulation.