In a previous blog the new Regulation on geo-blocking was discussed [1]. This new Regulation applies to both traders and customers. There are four methods of geo-blocking that are – under certain circumstances – prohibited under this Regulation. This article will focus on these four methods of geo-blocking.

1. Blocking or limiting access to an online interface:

A trader shall not block or limit a customer’s access to the trader’s online interface for reasons related to a customer’s nationality, place of residence or place of establishment.

Exception: this rule shall not apply where the blocking or limiting access is necessary in order to ensure compliance with a legal requirement laid down in Union law, or in the laws of a Member State in accordance with Union law, to which the trader’s activities are subject. In that case: the trader shall provide an explanation – in the language of the online interface the customer initially sought access to – to customers regarding the reasons why the blocking or limitation of access is necessary in order to ensure such compliance.

2. Redirection to a different online interface:

   The trader shall not redirect a customer to a different online interface than the online interface that the customer originally sought access to for reasons related to a customer’s nationality, place of residence or place of establishment.

   Exception: this rule does not apply in two situations:

   1. the customer has explicitly consented to be redirected (provided that the initial interface shall remain easily accessible to that customer).
   2. the blocking or the redirection is necessary in order to ensure compliance with a legal requirement laid down in Union law, or in the laws of a Member State in accordance with Union law, to which the trader’s activities are subject.

Yet again, the trader shall then provide an explanation – in the language of the online interface the customer initially sought access to – to customers regarding the reasons why the blocking or limitation of access is necessary in order to ensure such compliance.

3. Applying different general conditions of access:
   
   The trader shall not apply different general conditions of access to goods or services – For reasons related to a customer’s nationality, place of residence or place of establishment – where the customer seeks to: 
   1. buy goods from a trader and:

a. Those goods are delivered to a location of a Member State to which the trader offers delivery in the general conditions of access or;
(an example: the goods are delivered to Germany and the trader also offers delivery in Germany in his general conditions of access)

b. Those goods are collected at a location agreed upon between the trader and the customer in a Member State in which the trader offers such an option in the general conditions of access;

2. receive electronically supplied services from the trader;

3. receive services from a trader in a physical location within the territory of a Member State where the trader operates.

The trader is not obliged to deliver in a different country if that option of delivery is not offered in the general conditions of access. For example: if a national of the Netherlands wishes to order a good on a German website, yet delivery in the Netherlands was not offered in the general conditions of access of the German website, the trader is not obliged to deliver this good in the Netherlands. However, the trader cannot refuse to offer to the customer who wants the good to be delivered in Germany (because that is a delivery option in the general conditions of access).Though, the trader could refuse to sell his goods in the end, because of the obligatory nature of the agreement. A seller can choose to sell to whoever he wants, but he cannot always choose to whom he will offer! The regulation requires that all EU members are offered the same products and services, but does not require the trader to actually deliver.

The situation wherein a customer would rather want a good to be delivered outside of his geographical location might occur if the customer could benefit (economically) from buying those goods in a foreign country. Some goods (for example luxury goods) can vary in selling price, depending on their geographical location. Therefore, it might be cheaper to make cross-border purchases.

Exception: this rule shall not apply in so far as a specific provision laid down in Union law, or in the laws of Member States in accordance with Union law, prevents the trader from selling the goods or providing the services to certain customers or to customers in certain territories.

4. Apply different conditions for a payment transaction:

    

   The trader shall not apply different conditions for a payment transaction [2], where:

   1. The payment transaction is made through an electronic transaction by credit transfer, direct debit or a card-based payment instrument within the same brand and category, and;
   2. Authentication requirements are fulfilled, and;
   3. The payment transactions are in a currency that the trader accepts.

This means that the trader only has to accept ways of payment that he offers in his own general conditions of access.

The new Regulation grant customers certain rights and certainties concerning cross-border purchases of goods and services, which makes it more difficult for traders to discriminate and make distinguishments between customers online. In the next article concerning geo-blocking a schematic overview of the prohibitions for traders will be given.

[1] Regulation (2018/302)

[2] With the exception of services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, including the selling of copyright protected works or protected subject matter in an intangible form.