In many cases, divergent legal environments, the legal uncertainty involved and the associated risks as regards the applicable consumer protection and environmental or labelling laws, taxation and fiscal issues, delivery costs or language requirements contribute to the traders’ unwillingness to engage in commercial relations with consumers from other Member States. In other cases some traders are fragmenting the market in order to increase consumer prices.
This Regulation aims to address geo-blocking by removing a barrier to the functioning of the internal market. However, account needs to be taken of the fact that many differences in Member States’ legislation, such as those resulting in different national standards or a lack of mutual recognition or harmonisation at Union level still constitute significant barriers to cross-border trade. Those barriers continue to lead to the fragmentation of the single market, often forcing traders to engage in geo-blocking practices. Therefore the European Parliament, the Council and the Commission should continue to address these barriers with a view to reduce market fragmentation and complete the single market.
This Regulation should not apply to purely internal situations in which no cross-border elements can be presumed to exist and all relevant activities related, inter alia, to nationality, place of residence or temporary location, access to an online interface, access to goods or services or payment transactions are confined within one and the same Member State. Given the specific nature of cultural works and the specific commercial models for their distribution, this Regulation should not affect the principle of the territoriality of copyright in cultural sectors.
Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events which are provided on the basis of exclusive territorial licenses, should be excluded from the scope of this Regulation.
In the case of dual-purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer. In order to ensure the equal treatment of consumers and to avoid discrimination in practice, traders’ websites, mobile applications and all other interfaces should be designed to allow data entry in forms from a Member State other than that of the trader.
Traders should not be under the obligation to require consumer’s explicit consent each time the same consumer visits the same online interface. Once the consumer’s explicit consent has been given, it should be deemed to be valid for all subsequent visits of the same consumer to the same online interface. The use of a language in a trader’s online interface cannot in itself be adduced as indicating that the trader is intent on selling to consumers from another Member State.
In addition, the laws of Member States may require that electronically supplied publications should be able to benefit from the same preferential VAT rate treatment as publications on any means of physical support, as provided for in the proposal for a Council Directive amending Directive 2006/112/EC, as regards rates of value added tax applied to books, newspapers and periodicals.
This Regulation should be regularly evaluated, in particular, on the possible extension of the scope of this Regulation to other sectors. This should take due account of the specificities of each sector. In particular, the evaluation of the extension to audio-visual services should be based on detailed price and cost data which only service providers possess. Therefore, those providers should cooperate in the evaluation in order to facilitate the assessment of whether the inclusion of those services within the scope of this Regulation would lead to the evolution of business models which are more efficient than those currently used.
Online marketplace means a digital service that allows consumers to conclude online sales or service contracts with traders either on the website of the online marketplace or on a trader’s website that uses computing services provided by the online marketplace.
A trader shall not apply different general conditions of access to his or her goods or services, for reasons related to the nationality, place of residence or temporary location of the consumer, where the consumer seeks to receive electronically supplied services the main feature of which is the provision of access to and use of copyright-protected works or other protected subject matter in respect of which the trader has the requisite rights or has acquired the licence to use such content for the relevant territories.
Amendments are included in the text whether in a form of a wording, replacing initial text, or in a form of a text included in initial draft.