European Union: Restrictions of Online Sales

Introduction

The Digital Single Market constitutes one of the key political priorities of the European Commission (EC) through which it seeks to improve access to cross-border e-commerce for consumers and businesses throughout the European Union.^[2] To achieve its ambitions, the EC:

• has intensified the enforcement of competition law with regard to restrictive practices related to online sales; and
• has been updating and modernising the applicable legislative framework as well as creating new legislative instruments^[3] with a view to lessen and ultimately remove barriers impeding the increased use of online trade.

These initiatives assume additional importance given the exponential growth of online trade as a result of the covid-19 pandemic.

It is against this background that this chapter:

• analyses the current state of the law and summarises the latest decisional practice concerning: (1) online sales restrictions and third-party platform bans; (2) dual pricing in online sales; and (3) resale price maintenance (RPM) in online sales;
• provides an overview of the latest changes brought forward by the revised Vertical Block Exemption Regulation (the new VBER),^[4] the accompanying revised Guidelines on vertical restraints (the new Vertical Guidelines)^[5] and the Digital Markets Act (DMA);^[6] and
• unbundles the key provisions of the Geo-blocking Regulation while reconciling the relevant case law.

New regulatory regime on vertical restraints

On 10 May 2022, the EC published its new VBER and new Vertical Guidelines, which entered into force on 1 June 2022. The new legislation will be valid for 12 years with an evaluation report after eight years. The new VBER provides for a transitional period for existing agreements until 31 May 2023, by which time those agreements must be aligned with the new regime.

The EC’s revisions to the previous regime reflect changes in market dynamics and the platform economy since the VBER was adopted in 2010 and come after an extensive public consultation process that began in 2019. The final version of the new VBER and Guidelines follows an earlier draft published by the EC in July 2021.^[7]

One of the main objectives of the revisions was to provide up-to-date guidance on online restrictions and ensure a harmonised approach across the EU, as the previous set of rules did not offer sufficient clarity. As a result, national authorities and courts had interpreted the prior legal framework with wide discretion, which led to contradictory and often inconsistent enforcement practices.

Although the new VBER and Guidelines clarify the applicable legal framework concerning exclusive and selective distribution and online sales restrictions, uncertainty still arises, especially with regard to the new online sales hardcore restriction.^[8] As the Guidelines constitute soft law, national authorities and courts are still susceptible to interpret the views expressed by the EC differently.

Analysis of restrictive practices

Online sales restrictions

Outright bans on internet sales constitute by-object restrictions of competition within the meaning of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and correspond to hardcore constraints under the new VBER. Such practices survive antitrust scrutiny only where the four criteria under Article 101(3) TFEU are cumulatively met.

The Court of Justice of the EU (CJEU) first addressed restrictions on online sales through its judgment in Pierre Fabre. Members of Pierre Fabre’s selective distribution system were required to sell cosmetics and personal care products only at brick-and-mortar stores and in the presence of a trained pharmacist:^[9]

• The CJEU held that a general and absolute ban on internet sales in the context of a selective distribution network constitutes a restriction of competition by object within the meaning of Article 101(1) TFEU. It reasoned that such a ban ‘considerably reduces the ability of an authorised distributor to sell the contractual products to customers outside its contractual territory or area of activity. It is therefore liable to restrict competition in that sector.’
• The CJEU further held that the restriction in question could not be justified on the basis of any safety and public health grounds and that maintaining a prestigious image does not qualify as a legitimate aim for limiting competition.
• The CJEU also found that the measures under review could not benefit from the VBER. A general internet ban operates as a limitation on active and passive sales within the meaning of Article 4(c) VBER.
• The CJEU nonetheless left it open whether such measures could benefit from the individual exemption under Article 101(3) TFEU.

Online sales restrictions also constitute a high priority for national enforcers.

By way of example, in 2018 (prior to Brexit), the UK Competition Appeal Tribunal (CAT) found against an online sales ban imposed by the golf club manufacturer Ping10 and upheld the CMA’s infringement decision of 2017.11 Ping relied on its long-standing practice of offering face-to-face custom fitting and prevented retailers in its selective distribution system from selling golf clubs online.

The CAT's findings are as follows:

• First, the CAT, siding with the CMA, found that the online sales ban under review amounted to a restriction of competition by object, as it: (1) restricted consumers’ access to retailers outside their local area; and (2) reduced or even removed the ability and incentives of retailers to compete over business through the internet.
• Second, the CAT considered that the imposed restriction was not justified since Ping could still compete with other manufacturers on non-price parameters even absent the ban.
• Third, the CAT dismissed Ping’s argument that the CMA had erred in finding the ban as disproportionate and considered that the alternative measures proposed by the CMA would not damage Ping’s brand image.
• Last, but not least, the CAT held that the ban in question could not be exempted pursuant to Article 101(3) TFEU.

Online sales restrictions under the new VBER

Contrary to the old VBER, which did not explicitly mention online sales, the new VBER introduces a new category of defined hardcore restrictions with regard to online sales. In particular, Article 4(e) identifies as a hardcore restriction any vertical agreement that, directly or indirectly, has as its object ‘the prevention of the effective use of the internet by the buyer or its customers to sell the contract goods or services, as it restricts the territory into which or the customers to whom the contract goods or services may be sold’.

Permissible exemptions to this hardcore restriction are: (1) other restrictions of online sales, such as restrictions intended to ensure the quality or appearance of the buyer’s online store, requirements regarding the display of the goods or services; and (2) restrictions of online advertising that do not have the object of preventing the use of an entire online advertising channel. Essentially, resellers must not be banned from using the internet as a sales or advertising channel.^[12]

The new Guidelines make sure to provide guidance and examples of hardcore online sales restrictions other than the obvious outright bans;^[13] nevertheless, some uncertainty remains. For instance, because restricting the effective use of the internet is now a hardcore restriction, there is a necessity to conduct an individual assessment to ascertain whether a restriction has as its object the effective use of the internet. This requirement not only leaves meaningful interpretative room on what restrictions – other than the obvious – would prevent the effective use of the internet, but it also seems to defeat the purpose of a block exemption, which is to provide an automatic safe harbour without the need for an individual assessment.

Third-party platform bans

Marketplace bans do not constitute hardcore restrictions of competition within the meaning of both the old and the new VBER. According to the EC, such practices ‘do not generally amount to a de facto prohibition on selling online or restrict the effective use of the internet as a sales channel irrespective of the markets concerned’.^[14]

The CJEU assessed the legality of third-party platform bans in its judgment in Coty.^[15] The case arose out of a request for a preliminary ruling posed by the Frankfurt Court of Appeal. Coty, a producer of luxury cosmetics in Germany, disseminated its products through a selective distribution system. Parfümerie Akzente, an authorised distributor, sold Coty’s products through different channels, including its own online shop and Amazon Germany.

Coty revised the terms of its selective distribution system and allowed its authorised distributors to make online sales only through ‘electronic shop windows’. Conversely, sales through third-party undertakings not previously authorised by Coty, such as online marketplaces, were banned. Coty argued that this updated policy was necessary to protect the luxurious nature of its cosmetics products and by extension its brand value.

Faced with these facts, the CJEU reasoned first that selective distribution systems for luxury goods are compatible with Article 101(1) TFEU so long as these meet the criteria under the Metro case law.^[16] It applied these conditions to the facts of the case and confirmed that these were indeed met.

First, the CJEU considered that the nature of the products in question justified the organisation of their sales through a selective distribution system. In so doing, it:

• affirmed, in line with its previous case law under Copad, that the quality of luxury goods is not just the result of their material characteristics but also encompasses their ‘aura of luxury’.^[17] Consequently, any impairment of the product’s luxury aura can negatively affect consumers’ perception on their corresponding quality; and
• clarified that Paragraph 46 of its previous judgment under Pierre Fabre^[18] must be read in the light of the context of that judgment and related solely to the goods at issue and the contractual clause in question in that case (i.e., a prohibition of online sales) rather than the selective distribution system in its entirety or selective distribution in general.

Second, the CJEU held that the measure under review was appropriate since:

• the restriction sought to ensure that the goods in question would be exclusively associated with the authorised distributors;
• the marketplace was not bound by contractual obligations of any sort obliging them to respect the manufacturer’s quality sales conditions; and
• sales through third-party platforms are generally liable to harm products’ luxury image.

Third, the CJEU also found that the measures under review were proportionate to the extent that:

• these did not amount to an absolute ban on internet sales; and
• any predefined quality sales conditions could not be effective alternatives to achieve the aims pursued.

Last but not least, the CJEU provided guidance on how to approach online marketplace bans where the Metro criteria are not met and Article 101(1) TFEU is therefore applicable. The CJEU found that marketplace bans do not amount to hardcore restrictions of competition and can therefore benefit from the VBER. This is so for two reasons:

• First, such bans do not exclude online sales entirely. They restrict certain specific types of internet sales while sales through their individual web shops or non-discernible third-party platforms remain possible.
• Second, third-party platform customers are not a definable customer group within the meaning of Article 4(b) of the old VBER; hence, marketplace bans do not exclude sales to a certain category of customers as a whole.

The CJEU’s reasoning in Coty is convincing on the surface; however, the court left a number of issues unresolved, especially concerning the scope of the judgment’s application. It therefore comes as little surprise that different national enforcers have taken strikingly diverging views on how to substantiate the notion of luxury goods as well as whether the CJEU’s findings under Coty apply beyond luxury products.^[19] Fortunately, the new Vertical Guidelines have addressed some of the issues identified in the judgment, including clarifying the position regarding marketplace bans in a number of ways:^[20]

• First, they define marketplaces as online platforms, which connect merchants and potential customers with a view to enabling direct purchases.^[21]
• Second, the EC explains that a restriction or ban of sales in online marketplaces concerns the manner in which the buyer may sell online and does not restrict sales to a particular territory or customer group. While such a ban restricts the use of a specific online sales channel, other online sales channels remain available to the buyer; therefore, marketplace bans do not amount to hardcore restrictions so long as they do not ban online sales altogether but just limit certain modalities of online sales.^[22]
• Third, seizing the opportunity to end the debate on the correct application of the Coty judgment, the new Vertical Guidelines expressly stipulate that online marketplace restrictions may be block exempted provided that the relevant market share thresholds are met, irrespective of the nature of the products concerned or the distribution regime.^[23] The EC also provides guidance for the case-by-case assessment of online marketplace restrictions where the market share thresholds provided for in the VBER are exceeded.^[24]

Dual pricing

Dual pricing under EU competition law in general

Dual pricing, outside the online sales context, mainly concerns practices through which manufacturers price products differently depending on the geographic market where the products are sold. Such practices seek to discourage cross-border sales – no rational consumer would enter into a cross-border transaction for a product priced cheaper in their domestic market – and essentially amount to export bans inhibiting parallel trade, contrary to the common market objective. Dual-pricing measures constitute by-object restrictions of competition, which are nonetheless capable of meeting the Article 101(3) criteria.

Dual pricing and online sales under the old regime

The old Vertical Guidelines defined dual pricing as a practice through which ‘the distributor [shall] pay[s] a higher price for products intended to be resold by the distributor online than for products intended to be resold off-line’ and classified such relevant practices as hardcore restrictions.^[25] The relevant decisional practice regarding dual pricing in the field of e-commerce mainly comes from national competition authority decisions.

The first type of dual-pricing cases concerns setting a different wholesale price for the same product to the same retailer depending on whether the resale channel is online or offline. In 2013, the Bundeskartellamt investigated the rebates schemes of Gardena^[26] and Bosch Siemens Hausgerate,^[27] which favoured offline sales, and reached the preliminary conclusion that these practices constituted hardcore restraints of competition. The enforcer was not prepared to accept that the measures were justified pursuant to Article 101(3) TFEU, and the investigations closed with the investigated companies committing to remove the offending provisions.^[28]

The second type of dual-pricing case concerns setting a different wholesale price for the same product to different retailers, some of which may be present only online. The EC recently clarified that such practices do not qualify as hardcore restrictions and that this classification is only applicable to dual pricing concerning the same retailer.^[29]

The most recent enforcement activity in this field comes from the French Competition Authority (FCA).^[30] Lego implemented a discount policy that de facto put its online retailers at a disadvantage. The applicable rebate scheme system offered additional discounts to reward certain qualitative physical store features, such as extra shelf space. Naturally, pure online resellers could not have access to these discounts. This practice amounted to dual pricing since Lego essentially charged pure offline or hybrid dealers a better sales price post-discount compared to pure online resellers.

The FCA considered first that the scheme was capable of constituting an anticompetitive agreement. It then reached the preliminary conclusion that although the agreement did not amount to a by-object restriction of competition or a hardcore restraint, it was nonetheless ‘likely to have anticompetitive effects, by disadvantaging the pure players and reducing the competitive pressure they could exert’.

Importantly, the FCA did not see any objective justification for the price differentiation and held that Lego had failed to demonstrate that its pricing scheme was indispensable and proportionate to the objectives of building awareness of the brand among children, ensuring the availability of products and the quality of the overall shopping experience. Following the above, Lego agreed to change its rebate system, and the investigation was closed based on the company’s commitments.

Dual pricing under the new regime

The EC’s review of the old VBER and the old Vertical Guidelines concluded that online sales have now grown into a well-operating sales channel that no longer requires special protection compared to offline sales channels.^[31] As a result, the new Vertical Guidelines stopped treating dual pricing as a hardcore restriction.

In particular, Paragraph 209 recognises that the ‘requirement that the buyer pays a different wholesale price for products sold online than for products sold offline’ can benefit from the block exemption as ‘it may incentivise or reward an appropriate level of investments in online or offline sales channels, provided that it does not have the object of restricting sales to particular territories or customers’.

Dual pricing is considered a hardcore restriction only where the difference in the wholesale price for products sold online has the object of preventing the effective use of the internet by the distributor to sell the contract goods or services to particular territories or customers. The EC further explains that this would be the case where the difference in wholesale price makes selling online unprofitable or financially unsustainable, or where dual pricing is used to limit the quantity of products made available to the buyer for sale online.^[32]

Equivalence principle

The new Vertical Guidelines also abandoned the principle of equivalence between offline and online sales. Paragraph 235 recognises that within the context of a selective distribution system, a supplier ‘may impose on its authorised distributors criteria for online sales that are not equivalent to those imposed for sales in brick and mortar shops’ so long as the lack of equivalence in the criteria imposed does not ‘indirectly have the object of preventing the effective use of the internet by the buyer to sell the contract goods or services to particular territories or customers’. The purpose of the revised text is to take account of the specific characteristics of the two sales channels, as often criteria important for one cannot be implemented in the other respective channel.

RPM

RPM under EU competition law in general

Article 101(1)(a) TFEU specifically prohibits agreements that ‘directly or indirectly fix purchase or selling prices or any other trading conditions’. Moreover, Article 4(a) of the new VBER specifically excludes from the block exemption agreements that include:

the restriction of the buyer’s ability to determine its sale price, without prejudice to the possibility of the supplier to impose a maximum sale price or recommend a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties.^[33]

This covers all behaviour on the part of the seller intended to constrain the buyer to resell the contract products at or above a certain price. Paragraph 187 of the new Vertical Guidelines gives a non-exhaustive list of practices that are tantamount to price maintenance.^[34] The EC further refers to practices, the combination of which tends to indicate price maintenance, such as coupling a resale price recommendation with incentives to apply a certain price level.^[35] The new Vertical Guidelines also provide specific guidance on setting minimum advertised prices that is considered a form of RPM.^[36]

Paragraph 196 of the new Vertical Guidelines explains how RPM restricts intra-brand or inter-brand competition by setting out the anti­competitive effects following from RPM practices.^[37] The new Vertical Guidelines also recognise that there are situations where RPM restrictions may lead to efficiencies and be justified pursuant to Article 101(3) TFEU.^[38] By way of example, it can be legitimate to impose RPM for a short period in the context of the promotion of a new product.

RPM and online sales

Algorithms and other electronic surveillance technologies further facilitate RPM practices in online sales and exacerbate the anticompetitive impact resulting therefrom. The relevant technologies: (1) allow prices to be automatically adopted and adjusted, ensuring that the imposed RPM is followed at all times; and (2) render monitoring compliance with any imposed RPM practices easier and, therefore, increase any corresponding sanctioning. This explains why RPM practices in the e-commerce field have recently come under the enforcers’ spotlight.

On 24 July 2018, the EC closed its investigation on consumer electronics manufacturers Asus, Denon & Marantz, Philips and Pioneer by imposing a total fine of €111 million.^[39] The EC found that the infringing parties had limited price competition among retailers ‘by restricting the ability of their online retailers to set their own retail prices for widely used consumer electronics products such as kitchen appliances, notebooks, and hi-fi products’, leading to an increase in consumer prices. The use of algorithms to implement and enforce the RPM practices under review was a central piece of the EC’s analysis. As the EC explained at the time the investigation was opened:

The effect of these suspected price restrictions may be aggravated due to the use by many online retailers of pricing software that automatically adapts retail prices to those of leading competitors. As a result, the alleged behaviour may have had a broader impact on overall online prices for the respective consumer electronics products.^[40]

Similarly, national competition authorities have been increasingly active in investigating and sanctioning RPM practices in online sales.

By way of example, in May 2016, the CMA fined a supplier of commercial refrigeration equipment over £2 million^[41] and a bathroom fittings manufacturer over £780,000^[42] for preventing retailers from advertising or selling products online below a certain price. The CMA held that these practices, in essence, restricted retailers’ freedom to set the price for online sales individually and, therefore, amounted to illegal RPM.

Following these cases, the CMA published further guidance on restrictions of online resale prices in the form of an open letter, noting the growing importance of online sales channels and reiterating that the CMA ‘takes RPM seriously and is focused on tackling anti-competitive practices that diminish the many benefits of e-commerce’.^[43]

In June 2017, the CMA fined a supplier of domestic light fittings £2.7 million for having dictated the minimum prices at which its resellers could sell products online.^[44] National Lighting Company’s agreements with its resellers prevented the sale of its Endon and Saxby brands below a certain minimum at the retail level. The infringing agreements were not memorialised in writing. Resellers nonetheless understood these restrictions as being a necessary condition and part of the agreement they entered into with the National Lighting Company allowing them to use the manufacturer’s brand and image.

The CMA continued to focus on RPM-related practices in 2019 and 2020:

• In August 2019, the CMA fined the digital piano and keyboard supplier Casio £3.7 million for online RPM infringements over a five-year period between February 2013 and April 2018.^[45]
• In January 2020, the CMA fined guitar maker Fender Musical Instruments Europe Limited and its US parent company, Fender Musical Instruments Corporation, £4.5 million.^[46]
• In June 2020, the CMA fined Roland, a supplier of electronic drum kits, and Korg, a supplier of synthesisers and high-tech music equipment, £4 million and £1.5 million respectively.^[47]
• Later in June 2020, the CMA also fined retailer of musical instruments GAK £278,945.^[48]

UK approach to vertical restraints

Concurrently to the EC’s consultation on the old VBER and Vertical Guidelines, the CMA and the Department for Business, Energy and Industrial Strategy (BEIS) also reviewed the Vertical Agreements Block Exemption Regulation, which was retained under UK law following the UK’s exit from the EU (the retained VABER). In May 2022, the BEIS published the final version of the Vertical Agreements Block Exemption Order (VABEO),^[49] which came into force on 1 June 2022 and will be in effect for six years, until 31 May 2028.

In July 2022, the CMA also published its guidance^[50] on the application of the VABEO to help businesses assess their vertical agreements and determine whether they benefit from the block exemption provided by the VABEO. Although the VABEO closely mirrors the EC’s new rules, there are a number of points of divergence. Consequently, businesses operating in both the UK and the EU will have to consider both regimes.

DMA

Another important development in the field of e-commerce is the EC’s proposal for a regulation on contestable and fair markets in the digital sector, the DMA.^[51] On 24 March 2022, the European Council and the European Parliament reached a provisional agreement on the DMA proposal. On 5 July 2022, the European Parliament approved the final text of the DMA, followed by the European Council’s approval on 18 July 2022.^[52] The regulation is set to enter into force 20 days following its publication in the Official Journal of the European Union and will start to apply six months after that (i.e., approximately mid-2023).^[53]

The DMA lays down harmonised rules aimed at regulating the behaviour of digital platforms that act as ‘gatekeepers’. It represents a significant shift of regulatory powers from ex post antitrust intervention to ex ante regulation in the form of a set of self-executing obligations imposed on those gatekeepers, namely providers of core platform services with a significant impact on the internal market, a core platform service that is an important gateway for business users to reach end users, and an entrenched and durable position in the market.^[54]

The DMA also sets forth an exhaustive list of ‘core platform services’, which includes online intermediation services, online search engines, online social networking services, video-sharing platforms, number-independent interpersonal communications services, operating systems, web browsers, virtual assistants, cloud computing and advertising.^[55]

Article 5 of the DMA sets out a number of ex ante ‘blacklist’ self-executing prohibitions for gatekeepers,^[56] and Article 6 of the DMA provides a list of ex post potentially prohibited behaviour that needs to be further specified depending on the different core platform services on offer.^[57]

Interestingly, the DMA requires gatekeepers to inform the EC of any contemplated M&A activity involving another provider of core platform services or digital services, irrespective of whether the proposed transaction is reportable under the applicable EU or Member State merger control regime.^[58]

The DMA allows the EC to take enforcement actions similar to those concerning the application of its antitrust rules. The EC may, therefore, initiate formal investigations, conduct on-site inspections, send out requests for information, adopt infringement decisions and impose fines, order the application of interim measures and accept commitments in relation to infringements of the DMA.^[59]

The CMA has been moving along similar lines. In 2019, it published its Digital Markets Strategy setting out its priorities in the field,^[60] following which it undertook an in-depth market study into online platforms and digital advertising in July 2020^[61] and announced its intention to introduce stricter regulation of digital players in November 2020.^[62]

In this context, the CMA set up in April 2021 a specialised Digital Markets Unit (DMU) charged with overseeing a new pro-competition regulatory regime for digital platforms with strategic market status, as well as monitoring the competitive conditions prevailing in digital markets more widely.^[63] In May 2022, the UK government published its response to its public consultation on the new pro-competition regime for digital markets^[64] and announced its plan to adopt new competition rules for digital markets as part of the Digital Markets, Competition and Consumer Bill, which will reinforce the DMU with statutory status.^[65]

The developments set out above reflect the enforcers’ intention to supplement the current enforcement regime and ensure a level-playing field in digital markets with an ex ante system of regulating the market conduct of key players. This observation naturally reinforces the strategic importance of digital markets for both the EC and the CMA and, as a matter of fact, for the current economy. It will be interesting to see the interplay of these two parallel enforcement systems in practice.

Geo-blocking and geo-filtering

What is geo-blocking and geo-filtering?

Geo-blocking encompasses various practices through which online sellers restrict cross-border sales based on consumers’ nationality, residence or place of establishment. Frequently, online sellers allow consumers to access and purchase goods or services cross-border, but nonetheless extend different terms and conditions if the customer is in a different Member State (geo-filtering).

Geo-blocking may take many forms, including but not limited to:

• blocking users access to websites if they are located in another Member State;
• automatically rerouting users to another website of the same or a different service provider (possibly with a different price);
• refusing the delivery of goods or services based on the user’s location or place of residence; and
• refusing certain payment methods based on geographic criteria related to the location of the user, their bank or credit account, or their banking institution.

It clearly follows from the above that such practices essentially constitute a form of discrimination based on unjustified geographic criteria: online sellers treat EU consumers differently for reasons related to the users’ nationality, place of residence or establishment.

By blocking or, at the very least, restricting EU consumers’ access to cross-border trade, those practices de facto amount to geographical market segmentation and, therefore, contravene the EU’s core free movement principles as well as the digital single market objective.

The EC’s Final e-Commerce Sector Inquiry Report published in May 2017 documented the extensive use of geo-blocking: 38 per cent of the responding retailers selling consumer goods online and 68 per cent of the responding digital content providers affirmed that have made recourse to geo-blocking measures.^[66]

Geo-blocking Regulation

On 28 February 2018, the EU adopted Regulation (EU) 2018/302 (the Geo-blocking Regulation), which entered into force on 22 March 2018 and became applicable as of 3 December 2018.

The Geo-blocking Regulation seeks to remove unwarranted, discriminatory restrictions to users’ access to cross-border trade and services and obliges online sellers to treat similarly situated EU consumers in the same manner, irrespective of their nationality, place of residence or establishment.

Scope

The Geo-blocking Regulation, as it currently stands, excludes from its scope the following industries:

• audiovisual services, including services providing access to film and television content;
• financial services; and
• transport-related services.^[67]

Non-audiovisual, electronically supplied services protected by copyright – such as music, e-books and games – generally fall within the Regulation’s ambit,^[68] subject to certain exceptions discussed below.^[69]

That said, the EC recently reviewed the application of the Geo-blocking Regulation pursuant to Article 9. In so doing, it considered the possibility of extending its scope to encompass audiovisual services and fully cover copyright-protected content.^[70] The EC identified the clear benefits following from the availability of a wider choice of audiovisual content across the EU and found that the details and conditions for extending the Regulation’s content in this direction must be further assessed in the context of a stakeholder dialogue with the audiovisual sector.

Conversely, the EC concluded that extending Article 4 of the Geo-blocking Regulation to capture online copyrighted content would not bring additional benefits to consumers in terms of access to new content. The catalogues of online content available throughout the EU are generally homogenous.

The Geo-blocking Regulation applies to:

• business-to consumer transactions; and
• business-to-business transactions so long as these:
  • are conducted on the basis of general conditions (i.e., are not individually negotiated); and
  • are intended for end use (i.e., made without the intention to resell, transform, process, rent or subcontract).

The key features under the Geo-blocking Regulation

Access to online interfaces (Article 3)

Article 3 of the Geo-blocking Regulation prohibits traders from:

• blocking access to their interfaces (websites or apps) for reasons related to the customer’s nationality, place of residence or establishment; and
• rerouting users to an interface different than the one the customer initially sought access to, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or establishment, unless the customer has explicitly consented to such redirection.

Non-discrimination in access to goods or services (Article 4)

Traders are obliged to grant users access to goods and services under the same conditions as those applied to local, national customers (‘shop like a local’) in respect of:

• the sale of goods with delivery or pickup in an area already served by the trader;
• the sale of electronically supplied services (e.g., cloud services, data warehousing and website hosting); and
• the sale of services provided in a specific physical location, including when booked online (e.g., ticketing services, accommodation and car rental services).

Article 4 does not currently apply to non-audiovisual, electronically supplied services protected by copyright (e.g., e-books, video games, music and software). These services, nonetheless, remain subject to the rest of the Regulation’s prohibitions. The EC is still assessing the possibility of extending the scope of the Regulation as part of its short-term review.

Non-discrimination for reasons related to payments (Article 5)

Traders are free to choose the means of payment (i.e., credit cards, debit cards, card-based payment instruments of the same brand and category of cards) that they make acceptable through their online websites or platforms and apps. They are nonetheless prohibited from discriminating against customers who use the acceptable payment methods based on unjustified geographic criteria (i.e., customer’s nationality, place of residence or place of establishment, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument).

Discriminatory practices may take various forms, including refusal of certain transactions (e.g., refusal to accept certain cards) and different payment conditions (e.g., implementing additional transaction costs) for any of the reasons listed above. The non-discrimination prohibition under Article 5 applies provided that the payments are made through electronic transactions, in a currency accepted by the trader, and pursuant to applicable authentication requirements.

Agreements on passive sales (Article 6)

Article 6 renders as outright null and void any vertical arrangements prohibiting traders from responding to unsolicited requests from consumers throughout the EU (passive sales) in the specific situations covered by the Regulation. This is an absolute prohibition that applies irrespective of the trader’s market position.

Enforcement activity in the field

Geo-blocking practices in the field of video games

On 2 February 2017, the EC launched an investigation into Valve, owner of the online PC gaming platform Steam, and five video game distributors (Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax) for violations of geo-blocking rules. The EC concluded on 20 January 2021 that the investigated undertakings had restricted the cross-border sales of certain PC video games on the basis of the geographical location of users and imposed a total fine of €7.8 million.^[71] More specifically, the EC found that:

Valve and the publishers had entered into bilateral agreements and/or concerted practices through which they restricted the cross-border purchases of certain video games for the period from September 2010 to October 2015. The parties implemented geo-blocking keys to bar the activation of specific video games outside certain Member States. They therefore prevented passive sales in the regions where activation was blocked.

Certain publishers introduced clauses in their licensing and distribution agreements with some of their respective PC video games distributors in the European Economic Area (other than Valve) restricting passive sales within the EU from March 2007 until November 2017.

Geo-blocking practices in the field of TV broadcasting

On 13 January 2014, the EC opened an investigation into possible restrictions affecting the provision of pay-TV services within the EU. More specifically, the EC took the preliminary view that certain clauses in film licensing contracts for pay TV between Paramount (among other studios) and Sky UK were in breach EU antitrust rules since they:

• required Sky UK to block access to Paramount’s films through its online pay-TV services or through its satellite pay-TV services to consumers outside its licensed territory (UK and Ireland); and
• required Paramount to ensure that broadcasters outside the UK and Ireland were prevented from making their pay-TV services available in the UK and Ireland.

The EC considered that these provisions essentially restricted the ability of broadcasters to accept unsolicited requests for their pay-TV services from consumers located outside their licensed territory. Concomitantly, the EC took the preliminary view that each of Disney, NBCUniversal, Sony, 20th Century Fox and Warner Bros had put in place similar contractual restrictions in their agreements with Sky UK.

On its part, Paramount offered commitments to ban and no longer enforce the territorial protection provisions in question. The EC adopted its commitments decision on 26 July 2016.^[72] Disney, NBCUniversal, Sony, 20th Century Fox and Warner Bros refrained from offering any commitments until 2018. The EC eventually adopted a commitments decision in respect of these undertakings in March 2019.^[73]

By way of reminder, EC commitments decisions do not establish a positive infringement finding and do not hold addresses liable for any breach of EU competition rules. It is important to highlight in this connection that audiovisual content is outside the scope of the Geo-blocking Regulation as it currently stands.

On 8 December 2016, French TV broadcaster Canal+ challenged the EC commitments decision on Paramount, arguing before the General Court that the EC had violated its intervention rights as an interested third party. On appeal, the CJEU sided with Canal+ and annulled the EC’s decision on procedural grounds related to the way in which Paramount’s proposed commitments were accepted.^[74] The CJEU held, among other things, that when analysing commitments in the context of Article 9, the principle of proportionality requires that the EC verify that the remedies correspond to its preliminary competition concerns and takes into account the interests of third parties.

The CJEU went on to reason that the EC must verify whether any proposed commitments are proportionate in respect of the contractual rights of implicated third parties and held that any failure to do so cannot be remedied by any review undertaken by national courts on a domestic level.

Following the CJEU’s judgment, the EC withdrew its commitments decision in March 2021.^[75] This aligns the status of the case law with the actual scope of the Geo-blocking Regulation, which expressly excludes audiovisual services and content from its scope.

Notes