A third meeting planned for the evening of 27 June between Council, Parliament and Commission representatives provides a final opportunity for the Maltese President of the Council of the EU to reach an agreement on unfair geo-blocking. The question of the agreement’s scope could, however, paralyse the negotiations.
It should be pointed out that the draft regulation makes it incumbent on traders to make their goods and services accessible to all EU consumers, without discrimination in terms of access to prices, sales or payment conditions (see EUROPE 11558). It seeks to end discrimination based on nationality, place of residency or place where customers are established and to stimulate e-commerce. Nonetheless, the proposal does not cover the goods and services listed in the “services” directive (Directive 2006/123/EC), which excludes social, transport and audiovisual services.
Parliament wants to include shared non-audiovisual content
Moreover, in its negotiating position adopted on 25 April (see EUROPE 11774), the European Parliament expressed its wish for non-audiovisual content protected by copyright to also be included in the regulation’s scope, in compliance with the draft texts that had been leaked in the press a few months previously. To be more exact, it called for the inclusion of books, video games, music and online applications. The Council’s general approach dated 28 November 2016 (see EUROPE 11677), did not advocate any changes of this kind.
During the most recent meeting of the Committee of Permanent Representatives to the EU (Coreper), on Friday 23 June (see EUROPE 11806), the Maltese Presidency proposed to member state representatives to make their position more flexible and suggested the inclusion, two years after the entry into force of the regulation, of non-audiovisual content protected by copyright, with the exception of online music. In exchange, it recommended maintaining business to business relations (B2B) in the scope of application, as initially proposed by the Commission and not relations between consumers and businesses, as sought by Parliament. According to the information we have received, “a majority of member states” are said to be opposed to this proposal on the pretext of there not having been any impact studies carried out and that this encroaches on the territoriality principle.
Jurisdiction and passive sales
The other questions pending involve the jurisdiction applicable (article 1.5) and the restrictions on passive sales (article 6).
Jurisdiction: the two institutions agree on the statement that it is not because a trader is not applying discrimination vis-à-vis a foreign purchaser that he is necessarily targeting this purchaser. They also agree on applying the law of the trader. Nonetheless, MEPs would like to add a reference to after sales services in an effort to clarify that a trader that provides assistance or information after the sale of their goods or services, is not always targeting the consumer and, therefore, should not be held responsible under the terms of consumer law. During the most recent trialogue on 13 June, the European Commission attempted to “facilitate” a compromise by proposing that all information and assistance relating to the contract should be authorised but without necessarily coming under the scope of consumer law. Discussions on this subject, however, are still ongoing.
Passive sales: the proposal suggests that the agreements on passive sales requiring traders to act in breach of the new rules are automatically void. Although this approach is supported by Parliament, the Council suggests an opposite formulation, namely, that certain exemptions allowed under EU competition law should remain in force. According to one source close to the dossier, this request follows a demand made by the French perfume industry. During the Coreper meeting on 23 June, the Maltese Presidency suggested to Coreper that they removed this article and replace it with a clause.
The two institutions’ redlines are now well known. The question is now one of knowing to what extent the co-legislators are prepared to be flexible in order to obtain an agreement. The Commission, in any case, would like to move forward on this dossier. The Maltese Presidency would prefer to end its time as the head of the Council by striking an agreement. Nonetheless, according to one source close to the dossier, there is “no guarantee” that the co-legislators will reach an agreement. At this stage, no new trialogue is planned. (Original version in French by Sophie Petitjean)