Competition law: Regulation (EU) 2018/302 against unjustified geoblocking enters into force

Regulation (EU) 2018/302 of the European Parliament and of the Council of February 28, 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 (the “Regulation”) entered into force on December 3, 2018.

Scope of application

The scope of the Regulation covers all providers of goods or services operating in the European Union. However, individual sectors are expressly excluded from the scope of the Regulation, such as financial services, health services, audiovisual services (in particular streaming and download services), gambling and social services.

Content of the Regulation

The Regulation covers three areas where barriers to cross-border trade are to be removed:

• access to dealers' websites,
• the price and delivery conditions of the dealers, and
• the terms of payment.

Access to the provider's website may not be restricted or blocked on grounds of nationality, residence or place of establishment of the customer. The customer must be free to choose which version of a dealer's Internet shop to access. Automatic forwarding is prohibited, as is the blocking of individual contents of the website. Forwarding remains permissible if the customer has expressly agreed to it. This can be done, for example, by setting a check mark. However, it must remain possible for the customer to return to the page originally called up without further ado. Excluded from the prohibition are cases in which the blocking or automatic forwarding is carried out in order to comply with national legal provisions, e.g. for reasons of trademark law or special health protection requirements.

In addition, suppliers may not apply different general terms and conditions, including net sales prices, to customers from other member states. A customer accessing a website from abroad must be able to purchase the products at the same conditions as a customer from the home country of the provider. However, suppliers are not obliged to deliver their products abroad. They do not have to offer their products throughout Europe at the same prices. Unlawful discrimination against customers only exists if the supplier offers different conditions in the same shop version depending on the customer's country of origin. It remains permissible to offer the products in the respective national shop versions at different conditions, in particular at different prices, and to restrict the delivery area accordingly.

Finally, the terms of payment must not differ for reasons of nationality or place of residence or business. The provider does not have to accept all possible means of payment. However, the means of payment offered must in principle be open to all customers on the same terms. The only exception is when the payment service provider's offer is limited to individual countries. It is also permitted to accept different means of payment in different shop versions.

Consequences of a violation

A violation of the Regulation may be prosecuted by competitors and competition associations by way of warning letters and actions for an injunction. On the other hand, the violation of the Regulation represents an administrative offence, which can be punished with a fine up to EUR 300,000. Responsible for the enforcement of the Regulation in Germany is the Federal Network Agency (“Bundesnetzagentur”).