At the the Competitiveness Council on 28 November, it is possible that a political agreement will be reached on unjustified geo-blocking of content on the internet. This was suggested by the draft agenda adopted on 9 November by the Committee of Permanent Representatives (Coreper).
The Slovak Presidency of the Council prepared a new draft compromise after the debate held on 7 November (see EUROPE 11662). So far, neither of these two options that it put on the table for clarifying the question of what law should apply to cross-border contracts for goods and services sold on the internet has has obtained qualified majority support from the member states.
The draft regulation presented on 25 May obliges traders to make their goods and services available to consumers from all EU member states, without discrimination in terms of access to prices, sales or payment conditions. The only possible derogations involved those relating to objective reasons, such as VAT or certain legal provisions involving the public interest. The text, however, does not oblige traders to deliver their products in a country other than the one in which they are established.
This apparently simple idea, however, raises the question of what regime is applicable. The Brussels 1 and Rome 1 regulations stipulate that a trader who delivers his goods or services in another member state must respect the law and jurisdiction of the consumer’s country. The Pammer and Hotel Alpenhof ruling says that this principle applies when there is a wish to direct a professional activity towards another member state.
These provisions are therefore causing concern to a significant number of member states, which fear that an end to geo-blocking will create a tangle of different legal interpretations. In its recent draft compromise, the Slovak Presidency proposed two options: either clarifying the fact that a trader who sells his services abroad is not as such involved in a “directed activity”, or providng for an explicit provision in each contract, validated by the consumer and stating that the right of the country of the trader applies. These two options, however, did not obtain a clear majority from the member states on 7 November. Certain small countries are in favour of Option 2, while a larger number of states support Option 1.
Consequently, the Slovak Presidency is preparing a new draft compromise, which is expected to substantiate the definition of “directed activity” (Article 1) as well as that for “passive sales” (Article 6). Other questions pending focus on French requests regarding the question of content protected by copyright.
The new Presidency proposal will be discussed on 16 November during the working group, after which Coreper will decide whether there is enough support for a general approach at the Council on 28 November.
The draft compromise analysed on 7 November is available at: http://data.consilium.europa.eu/doc/document/ST-13787-2016-INIT/en/pdf . (Original version in French by Sophie Petitjean)