The European Commission’s Geo-blocking Proposals and the Future of EU E‑commerce Regulation
Vol.11,No.1(2017)
As part of its Digital Single Market strategy, the European Commission envisages to take action aimed at eradicating the practice of blocking one’s website to persons established or residing in a particular EU Member State. To that extent, a 2015 proposal for a regulation on the portability of online streaming services and a 2016 proposal for a regulation on geo-blocking outside the audio-visual context have been presented, the scope of which will be analysed in this paper.
Although the proposed Regulations would tackle topical problems in EU e commerce and thus offer a necessary step forward in enhancing cross-border trade in the European Union, their envisaged regulatory approach raises important concerns from enforcement and rules’ circumvention points of view.
Taking stock of those two concerns, the paper will reflect upon ways to mitigate their detrimental effects. Arguing that the geo-blocking proposals already contain the basic tools for such mitigation, the paper advocates the adoption of a more streamlined EU competition law and e-commerce regulation enforcement strategy, complemented by a “technologically more pro-active” EU law interpretation stance to e-commerce at the EU level.
Digital Single Market; E-commerce Regulation; Geo-blocking; Online Content Portability; Enforcement; Competition Law
p. 39–62
Pieter Van Cleynenbreugel
Liège Competition and Innovation Institute Université de Liège
[1] Ackermann, T. (2010), Vodafone: Price Regulation as a Substitute for Intervention under Article 102 TFEU.Journal of European Competition Law & Practice, 1(5), pp. 426- 428. https://doi.org/10.1093/jeclap/lpq046
[2]Ayres, I. and Braithwaite J. (1995) Responsive Regulation – Transcending the Deregulation Debate. Oxford: Oxford University Press.
[3] Betlem, G. (2007), Public and private transnational enforcement of EU consumer law. In: W. van Boom and M. Loos (eds.) Collective enforcement of Consumer Law. Securing compliance in Europe through private group action and public authority intervention, Groningen: Europa Law Publishing, pp. 37-62.
[4] Brotman, S.N. (2016) the European Union’s Digital Single Market Strategy: a conflict between government’s desire for certainty and rapid marketplace innovation? Centre for Technology Innovation at Brookings Working Papers, pp. 1-7. Available from: https://www.brookings.edu/wp-content/uploads/2016/07/digital-single-market.pdf [Last accessed 11 June 2017].
[5] Council of the European Union. (2016) Portability of digital content: Council agreement on mainprinciples. [press release 26 May]. Available from: http://www.consilium.europa.eu/en/press/press-releases/2016/05/26-portability-digital-content [Accessed 11 June 2017].
[6] Council of the European Union. (2016) Proposal for a Regulation of the European Parliament and of the Council on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) no 2006/2004 and Directive 2009/22/EC – general approach. 2016/0152 (COD). Available from: http://data.consilium.europa.eu/doc/document/ST-14663-2016-INIT/en/pdf [Accessed 11 June 2017].
[7] European Commission. (2015) ADigital Single Market Strategy for Europe.COM/2015/192 final, section 2. Available from: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/uri=CELEX:52015DC0192&from=EN [Accessed 11 June 2017].
[8] European Commission. (2015) Proposal for a Regulation of the European Parliament and of the Council on ensuring the cross-border portability of online content services in the internal market. COM/2015/627 final. Available from: https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-627-EN-F1-1.PDF [Accessed 11 June 2017].
[9] European Commission. (2016) Issues paper presenting initial findings of the e-commerce sector inquiry conducted by the Directorate-General for Competition. SWD(2016) 70 final, recital 32.Available from: http://ec.europa.eu/competition/antitrust/e-commerce_swd_en.pdf [Accessed 11 June 2017].
[10] European Commission. (2016) Proposal for a Regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment withIn the internal market and amending Regulation (EC) no 2006/2004 and Directive 2009/22/EC. Available from: https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-geo- blocking [Accessed 11 June 2017].
[11] European Commission. (2016) Proposal for a Regulation of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws. Available from: http://ec.europa.eu/consumers/consumer_rights/unfair-trade/docs/cpc-revision-proposal_en.pdf [Accessed 11 June 2017].
[12] European Commission. (2016) Antitrust e-commerce sector inquiry finds geo-blocking is widespread throughout EU. [press release] 18 March. Available from: http://europa.eu/rapid/press-release_IP-16-922_en.htm [Accessed 11 June 2017].
[13] European Commission. (2017) Digital Single Market: EU negotiators agree on new rules allowing Europeans to travel and enjoy online content services across borders. [press release] 7 February. Available from: http://europa.eu/rapid/press-release_IP-17-225_en.htm [Accessed 11 June 2017].
[14] European Commission. (2017) Final Report on the E-commerce Sector Inquiry. Available from: http://ec.europa.eu/competition/antitrust/sector_inquiry_final_report_en.pdf [Accessed 11 June 2017].
[15] European Parliament. (2016) Watch your online films anywhere in the EU: MEPs back cross-border portability. [press release] 29 November. Available from: http://www.europarl.europa.eu/news/en/news-room/20161128IPR53511 [Accessed 11 June 2017].
[16] Gerard D. (2011) The ECN – Network antitrust enforcement in the European Union. In: I. Lianos and D. Gerard (eds.) Research Handbook on EU competition law. Cheltenham: Edward Elgarpp. 181-226.
[17] Lessig, L. (1999) Code and other laws of Cyberspace. New York: Basic Books.
[18] Mataija, M. (2016) Private Regulation and the Internal Market. Sports, Legal Services,and Standard Setting in EU Economic Law. Oxford: Oxford University Press
[19] Mazziotti, G. (2015), Is geo-blocking a real cause for concern in Europe? EUI Law Working Papers, (2015)43. Available from: http://cadmus.eui.eu/handle/1814/38084 [Accessed 11 June 2017].
[20] Micklitz, H. W. (2016) the economic efficiency rationale and European private law. In: G. Comparato, H. W. Micklitz and Y. Svetiev (eds.) European regulatory private law – Autonomy, competition and regulation in European private law. Florence: EUI Law Working Papers 2016(6). Available from: http://cadmus.eui.eu/handle/1814/40376[Accessed 11 June2017].
[21] Peifer, K.-N. (2016) the Proposal of the EU Commission for a Regulation on Ensuring the Cross-Border Portability of Online Content Services in the Internal Market. In:A. De Franceschi (ed.) European Contract Law and the Digital Single Market. The Implications of the Digital Revolution. Antwerp: Intersentia, pp. 163-172.
[22] Svantesson, D.J.B. (2016) Nostradamus Lite – Selected speculations as to the future of internet jurisdiction, Masaryk Journal of Law and Technology, 10(1), pp. 47-72. https://doi.org/10.5817/MUJLT2016-1-3
[23] Trimble, M. (2012) the Future of Cybertravel. Legal implications of the evasion of geolocation. Fordham Intellectual Property, Media and Entertainment Law Journal, 22(3), pp.567-655.
[24] Trimble, M. (2016) Geoblocking, Technical Standards and the Law. In: R. Lobata and J. Meese (eds.) Geoblocking and digital video culture. Amsterdam: Institute of Network Cultures,, pp. 54-63.
[25] Waelde, C. (2005), Article 3, ECD: Internal Market Clause. International Private Law, Consumers and the Net: a Confusing Maze or a Smooth Path Towards a Single EuropeanMarket? In: L. Edwards (ed.) the New Legal Framework for E-Commerce in Europe. Oxford: Hart Publishing, pp. 3-30.
[26] Wils, W. (2011) Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement, World Competition, 34(3), pp. 353-382.
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