What has happened so far
On 27 February 2018, a heated debate on a draft regulation banning geoblocking ended with the EU Council’s favourable decision. The Regulation will apply from 3 December 2018 (see full text here).
What is covered by the Regulation
The Geoblocking Regulation protects consumers who are nationals of a Member State or resident in a Member State and companies established in a Member State. It only takes effect when they want to purchase goods or use services for final use (i.e. not within a distribution chain).
Digital copyrighted content such as music and e-books as well as health, financial and transport services are explicitly excluded from the scope of application.
Furthermore, the Regulation does not apply to purely domestic matters in which all aspects of the contractual relationship such as nationality, domicile or place of establishment of the customer and the provider, place of performance, means of payment and website used are limited to a single Member State.
Content of the Regulation
The Regulation is directed against unjustified, discriminatory geoblocking. This includes access restrictions and special conditions based on the customer’s nationality, resi-dence or place of business.
On the one hand, the Regulation prohibits customers from being redirected to another website version (different layout, language, etc.) without their express consent. The original website version must remain easily accessible. According to the recitals of the Regulation, a consent once granted will also be valid for future visits, but must be revocable at any time.
On the other hand, a supplier who delivers goods to or offers to collect them in a Member State must enable customers from other Member States to collect the goods at that place or to organise a cross-border delivery of the goods at their own expense.
Electronic service providers such as cloud services must provide these services to customers in a non-discriminatory manner. Providers must also allow customers to benefit from services provided by them at a given location within a Member State on non-discriminatory terms. The means of payment accepted by providers must also be open to all customers.
Providers can continue to offer special conditions (also different prices) to customers in a certain area or customer groups. However, they must do so on a non-discriminatory basis. How such price differentiations are to be justified will probably only be explained in future guidelines of the EU Commission.
The Effects on Choice of Law and Jurisdiction
Providers can feel relieved in one respect: the Geoblocking regulation has no effect on the law applicable under Rome I and the court competent under Brussels Ia. The regulation expressly states that a “directing of activities to a Member State” – which normally determines the law and jurisdiction applicable to consumers – cannot be assumed simply because a provider fulfils their obligations under the Geoblocking-Regulation.
What is next
By 23 March 2020, the European Commission is to review whether the scope of the Geoblocking-Regulation should be extended to include digital copyrighted content. So the regulation of geoblocking remains an exciting topic.
(13 March 2018)