Ecommerce Europe has recently updated its Position Paper on Geo-blocking in order to take into account and analyze the new legal texts, remaining issues and proposed solutions of the past months. The updated position of Ecommerce Europe can be summarized in a few key recommendations for European legislators, which represent the online merchants’ perspective on this important dossier:
- Endorse online merchants right to economic and contractual freedom in the geo-blocking debate
- Provide clarity on the applicable law in cases of sales to consumers resident in countries not targeted by the trader
- Do not require explicit consent for rerouting of websites
- Ensure no obligation for traders to cover costs of postage beyond the contractually agreed place of delivery
- Ensure that any assessment of whether a product has a non-conformity has to be based on the legal obligations in the country where the products are supplied
- Provide coherence between legislation on geo-blocking and developments in the online payments landscape.
Progress made by EU policymakers on the draft Geo-blocking Regulation and remaining issues
On 25 May 2016, the European Commission published its Proposal for a Regulation addressing geo-blocking. The Proposal did not impose an obligation on online merchants to deliver cross-border to all the EU, which would have been an unreasonable burden in the view of Ecommerce Europe. However, from the perspective of Ecommerce Europe, the Proposal was nonetheless sub-optimal in several ways, especially in terms of providing clarity of applicable law and in imposing a requirement for explicit consent for re-routing to another website, based on the location of the consumer.
On 21 November 2016, the Council of the EU adopted a general approach on the Proposal. In some areas, the Council general approach goes in the right direction. For example, there has been an effort to improve the clarity with regards to the applicable contract law in cases where the trader does not target the country where the consumer is established. Specifically, Ecommerce Europe welcomes the inclusion of a new provision in the Council general approach, clarifying that the trader will not have to bear any additional transport costs other than those foreseen in the contract. However, in other ways, notably in terms of the requirement for explicit consent for re-routing, the general approach has not resolved some of the issues in the original Proposal.
On 19 December 2016, MEP Roza Thun, the European Parliament’s Rapporteur for the file, published her draft report. Ecommerce Europe welcomes many elements of MEP Thun’s text. In particular, the removal of the obligation to seek consumers’ explicit consent for re-routing, as well as the clarification that, in practice, the contract law of the country of the trader will prevail in cases where the traders sells to consumers based in countries that are not targeted by the trader.
Further explanation on our position and on the policy recommendations can be found in our new Position Paper on Geo-blocking (March 2017), available for download here.