Regulation (EU) 2018/302 (geoblocking)

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Regulation (EU) 2018/302

Title: Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on measures against unjustified geoblocking and other forms of discrimination based on nationality, place of residence or place of establishment of the customer within the internal market and amending the regulations ( EC) No. 2006/2004 and (EU) 2017/2394 as well as Directive 2009/22 / EC
Designation:
(not official) 		Ordinance against unjustified geo-blocking and other forms of discrimination
Scope: EEA
Legal matter: civil right
Basis: TFEU
Procedure overview: European Commission
European Parliament
IPEX Wiki
Date of issue: February 28, 2018
Release date: 2nd March 2018
Come into effect: March 22, 2018
To be used from: 3rd December 2018
Reference: OJ L 60, March 2, 2018, p. I / 1 ff
Full text Consolidated version (not official)
basic version
Regulation has entered into force and is applicable.
Please note the information on the current version of legal acts of the European Union !

The Ordinance against Unjustified Geoblocking and Other Forms of Discrimination (EU) 2018/302 of February 28, 2018 (also called Geoblocking-VO or Geoblocking-Ordinance or GB-VO ) regulates unjustified geoblocking and other forms of discrimination based on nationality, the place of residence or the place of establishment of the (end) customer within the European internal market .

In the future, online access or online content may therefore no longer be blocked solely on the basis of the nationality, place of residence or place of establishment of the (end) customer or consumer . Example: An online shop operator from Union member state X may not block Union citizens from Union member state Y from their offer because they do not live in Union member state X.

Objective and purpose of the regulation

The main objective of the Geoblocking Regulation is to fully guarantee the potential of the European internal market as an area without internal borders in which the free movement of goods and services, among other things, is guaranteed. The dismantling of national barriers between the member states of the European Union is not sufficient for this, as private parties can create or maintain obstacles that are incompatible with the freedoms of the internal market .

This is e.g. This is the case, for example, when providers operating in a Union Member State block or restrict access to their online user interfaces, such as websites and applications, or different general terms and conditions for access to theirs for customers from other Member States who want to do cross-border business Use goods and services that can not be objectively justified. This practice is known as geoblocking .

The Geoblocking Regulation specifies the cases in which different treatment of this type is not justified, and thus clarity and legal certainty must be created and ensured for all parties involved in cross-border business transactions , so that the non-discrimination provisions can be effectively applied and enforced throughout the internal market . It is also intended to stimulate growth and expand customer choice across the single market .

The Geoblocking-VO therefore aims to prevent unjustified geoblocking and other forms of discrimination that are based directly or indirectly on the nationality, place of residence or place of business of the customer .

Application or non-application of the regulation

Basically

Providers of services within the meaning of the Geoblocking Regulation are generally not allowed to prevent customers based on their nationality, place of residence or place of business from having full and equal access to online user interfaces, also in the form of mobile applications, through the use of technical means or in any other way .

Such technical measures, which under certain circumstances inadmissibly prevent such access, can in particular be technologies

  • which serve to determine the physical location of the customer, including the tracking of this location using an IP address or using coordinates recorded via a global navigation satellite system,
  • the discriminatory operate different versions of online user interfaces for customers from different member states,
  • discriminatory blocking, access restrictions or redirection of the customer to another version of a given online user interface without the customer's express consent.

However, providers of services within the meaning of the Geoblocking Regulation may impose restrictions based on nationality, place of residence or place of establishment in order to guarantee legal obligations under EU or EU law to which the provider is subject. If such legal provisions exist, customers' access to certain goods or services may be restricted.

However, this must in no way restrict the freedom of expression and the freedom of the media and their diversity, including the freedom of the press (see e.g. Articles 11, 16, 17 and 38 of the Charter of Fundamental Rights of the European Union , Articles 9 bis 11 of the European Convention on Human Rights ).

Worldwide application

The regulation applies - because of the often global dimension of these providers of online services - regardless of where z. As the online services settled are or headquarters have and regardless of the otherwise applicable law, the party provided its services to the EU internal market has aligned wholly or partially.

Non-application

The Geoblocking Regulation does not apply if:

  • it is a purely domestic issue in a member state ,
  • the process is limited to a single member state in all relevant aspects, in particular nationality, place of residence or place of business of the customer or the provider, place of execution, the means of payment used in the context of the process or the offer and the use of an online user interface and on
  • non-economic services of general interest,
  • Electronic communications services and networks as well as associated facilities and services in the areas regulated in Directives 2002/19 / EC, 2002/20 / EC, 2002/21 / EC, 2002/22 / EC and 2002/58 / EC ,
  • Temporary employment agency services,
  • Health services, regardless of whether they are provided by health care institutions, and regardless of how they are organized and financed at national level, and whether they are public or private services,
  • Games of chance that require a monetary stake, including lotteries, casino games of chance and betting,
  • social services in connection with social housing, childcare and support for families and persons in permanent or temporary need, which are provided by the state, by service providers commissioned by it or by institutions recognized by it as non-profit,
  • private security services,
  • Activities of notaries and bailiffs appointed by government agencies,
  • Audiovisual services, including services the main purpose of which is to provide access to broadcasts of sporting events and which are provided on the basis of exclusive territorial licenses,
  • Regulations in the field of copyright and related rights and the
  • Access to retail financial services, including payment services , and may not include
  • Discrimination in connection with transport services and on
  • Intermediaries, landlords, industrial companies, craft businesses, general contractors who are not end customers, and does not apply to
  • Regulations in the field of taxes and activities connected with the exercise of official authority
  • Legal acts of the European Union on judicial cooperation in civil matters remain unaffected.

When selling books, special rules apply with regard to the price (see fixed book prices ).

Non-discrimination on payment-related reasons

According to Article 5 of the Geoblocking Regulation , a provider is generally prohibited within the framework of the payment methods he accepts

  • based on nationality ,
  • of residence or
  • the location of the customer's place of business ,
  • the location of the payment account ,
  • the place of establishment of the payment service provider or
  • the place of issue of the payment instrument within the Union

to apply different conditions for a payment transaction . However, the provider is permitted, under certain circumstances, to charge fees for the use of card-based payment instruments. These fees may not be higher than the direct costs incurred by the provider for using the payment instrument in question .

No equal treatment requirement

No general requirement of equal treatment can be derived from the Geoblocking Regulation . It applies in prohibition of discrimination against end customers, but no obligation of a company to do business with every customer in the European single market. For example, a provider does not have to deliver to a member state of the Union if, in principle, it does not offer delivery there. However, if the customer picks up the goods himself in this EU member state to which the delivery is made, the same conditions apply to him as to the end customers in this EU member state.

If an entrepreneur is active on the EU internal market within the meaning of the Geoblocking Regulation , he must ensure that customers are treated equally objectively. So z. B. all versions of an online user interface are easily accessible to all customers at all times. A restriction to just one or a few online user interfaces is generally not permitted unless there is an objective justification that does not mean any discrimination against customers.

Priority effect

The Geoblocking Regulation takes precedence over Directive 2006/123 / EC on services in the internal market . Unjustified geoblocking and other forms of discrimination based on nationality, place of residence or place of establishment can also result from actions by providers established in third countries because these do not fall within the scope of Directive 2006/123 / EC.

Remedies and Law Enforcement

In accordance with Article 7 of the Geoblocking Regulation, the EU member states must enact provisions on the measures that are applicable in the event of violations of this regulation, and they must ensure their implementation. These measures must

  • effective,
  • proportionate and
  • deterrent

be.

According to Article 8 of the Geoblocking Regulation , the Member States of the Union must designate one or more bodies that are responsible for providing practical support to consumers in the event of disputes between consumers and providers that arise from the application of this Regulation .

Legal basis and effect of the regulation

The Geoblocking Regulation is based in particular on Article 5 TEU ( subsidiarity clause ) and Article 114 TFEU . Article 114 TFEU stipulates that the European Union can enact provisions that contain measures for the approximation of the legal and administrative provisions of the member states, if these have as their object the establishment and functioning of the internal market and are necessary for this functioning of the internal market.

The ordinance was issued in the ordinary legislative procedure .

Structure and content of the regulation

  • Article 1 (purpose and scope)
  • Article 2 (definitions)
  • Article 3 (access to online user interfaces)
  • Article 4 (access to goods or services)
  • Article 5 (non-discrimination on grounds related to payment)
  • Article 6 (Passive Sale Agreements)
  • Article 7 (enforcement)
  • Article 8 (support to consumers)
  • Article 9 (review clause)
  • Article 10 (amendments to Regulations (EC) No. 2006/2004 and (EU) 2017/2394 and Directive 2009/22 / EC )
  • Article 11 (final provisions)

Signing, entry into force, validity

The geoblocking Regulation entered under Article 11 on 22 March 2018 and shall apply - with the exception of certain provisions - from 3 December 2018th

It is binding in its entirety and is directly applicable in every EU member state.

Web links

Individual evidence

  1. ↑ English Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 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 and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22 / EC , French Règlement (UE) 2018/302 du Parlement Européen et du Conseil du 28 février 2018 visant à contrer le blocage géographique injustifié et d'autres formes de discrimination fondée sur la nationalité, le lieu de résidence ou le lieu d'établissement des clients dans le marché intérieur, et modifiant les règlements (CE) no 2006/2004 et (UE) 2017/2394 et la directive 2009 / 22 / CE .
  2. ↑ See also Article 20 of Directive 2006/123 / EC .
  3. ↑ For the term provider see Article 2 no. 18 of the Geoblocking Regulation.
  4. ↑ See Article 1 and 3 Paragraph 1 and Recitals 1, 2 and 6 of the Geoblocking Regulation.
  5. ↑ See Recital 2 of the Geoblocking Regulation.
  6. ↑ See Article 1, Paragraph 1 and Recitals 3 and 6 of the Geoblocking Regulation.
  7. ↑ See Recital 18 of the Geoblocking Regulation.
  8. ↑ See recitals 18 to 31 of the Geoblocking Regulation.
  9. ↑ See Article 3 Paragraphs 1 and 2 of the Geoblocking Regulation.
  10. ↑ See Article 3 Paragraph 3 and Article 4 Paragraph 5 subparagraph. 1 of the Geoblocking Regulation.
  11. ↑ See also recitals 21 and 43 of the Geoblocking Regulation.
  12. ↑ See Recital 17 of the Geoblocking Regulation. See also the relevant case law of the Court of Justice of the European Union on Article 17 paragraph 1 letter c of the Brussels Ia Regulation and Article 6 paragraph 1 letter b of Regulation (EC) No. 593/2008 ( Rome I Regulation ).
  13. ↑ See recitals 7 to 11, 13, 16 of the Geoblocking Regulation. See also Article 1 Paragraph 3 Geoblocking Regulation in conjunction with Article 2 Paragraph 2 Directive 2006/123 / EC .
  14. ↑ See also Article 1, Paragraph 2 of the Geoblocking Regulation.
  15. ↑ Directive 2002/19 / EC
  16. ↑ Directive 2002/20 / EC
  17. ↑ Directive 2002/21 / EC
  18. ↑ Directive 2002/22 / EC
  19. ↑ Directive 2002/58 / EC
  20. ↑ See also Article 2 Paragraph 2 lit. g) Directive 2006/123 / EC . See also, in particular, the statement by the Commission at the end of the Geoblocking Regulation.
  21. ↑ See the regulations of Directive 2001/29 / EC . See also, in particular, the statement by the Commission at the end of the Geoblocking Regulation.
  22. ↑ See also Article 2 Paragraph 2 lit. b) Directive 2006/123 / EC.
  23. ↑ See Regulation (EC) No. 1008/2008 , Regulation (EU) No. 1177/2010 and Regulation (EU) No. 181/2011 as well as Article 2 Paragraph 2 lit. d) Directive 2006/123 / EC. See also, in particular, the statement by the Commission at the end of the Geoblocking Regulation.
  24. ↑ See also Article 1 Paragraph 4 Geoblocking Regulation and Article 2 Paragraph 2 lit. i and Article 2 Paragraph 3 of Directive 2006/123 / EC .
  25. ↑ See also Article 1 Paragraph 6 Geoblocking Regulation and z. E.g .: Regulation (EC) No. 593/2008 and Regulation (EU) No. 1215/2012 .
  26. ↑ See Article 4 para. 5 subpara. 2 of the Geoblocking Regulation.
  27. ↑ See Recital 23 of the Geoblocking Regulation.
  28. ↑ See also recitals 18 to 20 of the Geoblocking Regulation.
  29. ↑ See also Recital 4 of the Geoblocking Regulation.
  30. ↑ For the development of these provisions on the various treaty versions since 1957, see: Antonius Opilio (ed.): Treaty on European Union and the Treaty on the Establishment of the European Community and on the Functioning of the European Union. In a synoptic comparison of the status of these contracts up to 1992, from 1992, 1997 and 2001 and the Lisbon Treaty 2007 . 2nd Edition. Edition Europa, Dornbirn 2008, ISBN 3-901924-27-2 ( limited preview in the Google book search).
  31. ↑ See Article 11 and Recital 41 of the Geoblocking Regulation.