In three weeks, an EU regulation banning geophysical obstruction / © 123RF / Picsel
After the nine-month vacatio legis, on 3 December 2018, the European Parliament and the Council of the European Union 2018/302 of 28 February 2018 will begin to apply unjustified geographical exclusion and other forms of discrimination to customers due to their nationality, or their headquarters. on the internal market and amendments to Council Regulations (EC) 2006/2004 and (EU) 2017/2394 and Directive 2009/22 / EC (OJ L 201, p. 60). In the biggest sign, it prohibits so-called geoblocking. The changes will mainly concern larger retail chains. But it is also important, on the part of the small Polish companies in the trade that are trying or wanting to conquer Europe.
The idea of tackling the geophysical phenomenon will be born to EU decision-makers in 2016 and will already be in place in early 2018. Geophysical foreclosure means restricting access to goods due to the buyer's geographic location or the creation of different conditions for buyers from different countries.
Examples? The British e-shop has exclusive footwear of twelve brands. After entering the Polish IP store, the customer finds that he can buy only two shoe brands. The rest are only available to Britons and Francivts. Or a German toy store: a Polish internet user for the cost of a German colleague who costs 40 euros, has to pay over 300 zlotys and a radical example: a Spanish online store, which informs that customers from Poland, Russia and Ukraine do not support. From 3 December 2018, the Spanish businessman will introduce these discriminatory rules for Russian and Ukrainian citizens, but for the Poles.
Finally, an example from our shipyard: a patriotic clothing store has several language versions of its website selling in more than twelve countries. On the occasion of Flag Day on May 2, an offer is made, which allows you to make purchases with a 40% discount through the Polish version of the website. value of the commodity. After the entry into force of the new regulations, the business will still be misty but will not make it impossible for foreign buyers to buy goods at a lower price through the Polish version of the website.
The cloud of the EU regulation is based on the introduction of the principle that every customer from the European Economic Area (belonging to the EU and Norway, Iceland and Liechtenstein) will make purchases at all online shops operating in the EU on an equal footing. Entrepreneurs will not be able to discriminate against their customers: they will not be allowed to refuse to execute orders or raise their prices depending on the buyer's geographic location.
EU decision-makers have decided to use the simplest possible mechanisms. The entrepreneur running the online store will not use automatic redirection to the appropriate store version for a specific country. Redirection will only be allowed for the customer's consent, which can be withdrawn at any time. The prospective buyer must also be able to freely move around the default version of the site for customers from the state where the store operates the main activity.
Simple rules, a bunch of doubts
Based on a simple rule, however, it can raise many detailed questions from the point of view of entrepreneurs. For example, as of 3 December 2018, the prices of goods for residents of individual Member States should be the same? This is, moreover, absurd, that different countries have different purchasing power. The Regulation – unlike the content of some analyzes made over the last few months on the Internet – does not imply an obligation to use a price. The bottom line is that the customer should be able to choose the site version and thus have access to goods such as citizens of other EEA countries. Just as part of a site version, the price will not differ depending on where the customer sites are from.
Another thing: if from December 3, 2018, any Polish e-commerce will have to send the goods abroad? The answer is no. The decree does not prohibit marketing in the territory of its Member State. If so, who offers supplies only to Poland, it is not mandatory to send an English merchandise to England for example. But it is already mandatory to dispatch the goods the Englishman bought in a place he chose in Poland.
And the next question: If the Polish businessman has a distribution agreement for part of the goods signed in such a way that he can only sell goods to the Poles, will he continue to make mistakes under this distribution agreement? Here the answer is clear: no. Entrepreneurs need to ensure that they change their contracts with their business partners. Otherwise, they are accused of using restrictive agreements. the issue is the issue of the sanction imposed by the European Commission on the japosk spk Pioneer (decision of July 2018). The Commissioners have come to the conclusion that the Asian RTV manufacturer, by restricting its distributors the ability to conduct cross-border trade, will be penalized by a restrictive agreement. In this case, only the equipment manufacturer was punished, however, in accordance with the regulations, it is easy to imagine a situation in which distributors are punished for specific EU Member States.
Small industry scale
Lawyers stress that the scope of EU regulations is modest and can frustrate many consumers. EU law will be applied mainly in the area of e-commerce.
Bartosz Mysiak, legal advisor to LSW Lenodorski Lusarek and Wsplnica, explains that the new power regulation does not cover the audiovisual market (as well as other services consisting of granting access to works protected, inter alia, by copyright), transport services , financial resources, which are governed by separate EU regulations.
– This means that in fact the ban on geophysical foreclosure will not affect much of the EU market for which cross-border growth is possible. Expectations are directed towards the purchase of intellectual property (including music, movies, sports), where the use of barriers is allowed by fear of disturbances in the market for producers and distributors of these projects – understands Mysiak.
Talk about slingshots: For example, Netflix, Showmax or sports gates that place race matches will still be able to differentiate their bids depending on the user's country of origin. As of December 3, 2018, the decree does not change anything in their case.
– From a consumer perspective, the decree is a partial success and remains open if and when and how the Union will decide to introduce an absolute ban on geophysical foreclosure for the most sensitive industries. It remains to be hoped that this is not the last word of the EU legislator and that solutions will be developed over time that will take into account the interests of all the groups concerned in areas not previously covered – Bartosz Mysiak points out.
Patryk Sowik, Joanna Pieczykowska, Dominik Jdrzejko