Post-Brexit changes to e-commerce
UK e-commerce traders making sales in the European Economic Area (‘EEA’ – the 27 EU Member States plus Norway, Iceland and Liechtenstein) and EEA traders selling into the UK need to be aware of the implications of Brexit for the application of the EU Geo-Blocking Regulation (2018/302) and the EU eCommerce Directive (2000/31/EC).
However, if a trader decides to do so, it cannot then discriminate between EEA customers since the regulation applies to all traders making such sales in the EEA, regardless of where they are established including UK traders.
The regulation only applies to sales to EEA businesses if they are purchasing a service or good “for the sole purpose of end use”.
If this is the case, business customers have the same rights as consumers in terms of non-discrimination (except with respect to guarantees or the right to withdraw, which will depend upon the agreement between the supplier and the customer).
However, sales to businesses are outside the scope of the regulation if they resell, transform, process, rent or subcontract the goods. If this is the case, sellers are free to discriminate between such customers located in different countries in the EEA.
Post-Brexit, this no longer applies to UK providers, who must now comply with the national regulations in each individual EEA country where they make sales, including the national rules on online information, advertising, shopping, contracting and, in some cases, ‘prior authorisation’ such as licensing.
Similarly, EEA providers must now comply with UK national regulations when making sales to UK customers.
‘Information society services’ are defined very broadly and include most economic activities that take place online including selling goods and services, advertising, the transmission of information via a communication network (but not TV or radio broadcasting), hosting information or providing commercial communications by email.
Since UK customers are no longer within the scope of the EU Geo-Blocking Regulation, EEA online providers may treat them differently from EEA customers. Those that make sales in the UK now need to comply with UK legal requirements though.
A customer in Northern Ireland may now be treated differently from customers elsewhere in the EEA when they buy goods or services from an EEA trader.
However, a UK e-shop may allow access to Northern Ireland customers without also having to allow access to EEA customers and it may discriminate in the terms it offers to customers in Northern Ireland, on the one hand, and those in the EEA on the other.
Fieldfisher's Brexit taskforce can help you understand the impact of these changes on your business and help to manage your online services, whether selling into the UK or the EEA.
Geo-Blocking Regulation
This prohibits discriminating between EEA customers based on their location, such as blocking access to a website, automatically redirecting customers away from a website or charging different prices. It applies when customers are buying:- goods online (except copyrighted material such as e-books);
- electronically supplied services (such as web hosting or cloud storage); or
- services provided in a physical location (such as tickets to a theme park).
However, if a trader decides to do so, it cannot then discriminate between EEA customers since the regulation applies to all traders making such sales in the EEA, regardless of where they are established including UK traders.
The regulation only applies to sales to EEA businesses if they are purchasing a service or good “for the sole purpose of end use”.
If this is the case, business customers have the same rights as consumers in terms of non-discrimination (except with respect to guarantees or the right to withdraw, which will depend upon the agreement between the supplier and the customer).
However, sales to businesses are outside the scope of the regulation if they resell, transform, process, rent or subcontract the goods. If this is the case, sellers are free to discriminate between such customers located in different countries in the EEA.
e-Commerce Directive
This enables EEA ‘information society services’ providers to make sales in any EEA country while only having to follow the regulations in the country where they are established (the ‘Country of Origin principle’).Post-Brexit, this no longer applies to UK providers, who must now comply with the national regulations in each individual EEA country where they make sales, including the national rules on online information, advertising, shopping, contracting and, in some cases, ‘prior authorisation’ such as licensing.
Similarly, EEA providers must now comply with UK national regulations when making sales to UK customers.
‘Information society services’ are defined very broadly and include most economic activities that take place online including selling goods and services, advertising, the transmission of information via a communication network (but not TV or radio broadcasting), hosting information or providing commercial communications by email.
Services from the EEA to UK customers
Since UK customers are no longer within the scope of the EU Geo-Blocking Regulation, EEA online providers may treat them differently from EEA customers. Those that make sales in the UK now need to comply with UK legal requirements though.Northern Ireland
Unlike most other EU Single Market legislation, the revocation of these rules applies across the whole of the UK including Northern Ireland.A customer in Northern Ireland may now be treated differently from customers elsewhere in the EEA when they buy goods or services from an EEA trader.
However, a UK e-shop may allow access to Northern Ireland customers without also having to allow access to EEA customers and it may discriminate in the terms it offers to customers in Northern Ireland, on the one hand, and those in the EEA on the other.
Fieldfisher's Brexit taskforce can help you understand the impact of these changes on your business and help to manage your online services, whether selling into the UK or the EEA.