Online distribution – Restrictions of online sales: latest decisions

13 1 月 2019

欧洲
德国

分销协议

The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

Change the name of the contract

The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

Limitation of compensation in the contract

Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

Linking different agency contracts

Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

Submitting the agreement to a foreign law

In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

Submit the contract to non-national rules and judges

Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

Submit the contract to arbitration

The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

Mediation in the agency contract

Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

Imputing to the agent a previous breach

When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

“Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

Luxury products justify platform bans

According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

Also other high-quality goods may allow platform bans

The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

Practical conclusions

The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

„The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

– the positioning as a retailer (platform, product range, communication)

– the design of the website (quality, look & feel, etc.)

– the content and product offer of the website,

– the processing of online purchases,

– the consulting and customer service, as well as

– the advertisement.

It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
Further details can be found in German in the following Law Journals:

– Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

– Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

– Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

– Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

Europe

Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

The race to regulating DLT in Europe

Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

Conclusions

To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

The author of this post is Alessandro Mazzi.

When considering the requirements for online food distribution in the European Union the first question to address is: does the food product in question fall under the definition of “food”?

Almost every food product fall under this definition.

“Food” (or “foodstuff”) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans (according to Article 2 of Regulation (EC) No 178/2002).

“Food” includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. This definition includes also food supplements and dietary food products.

It does not include amongst others: feed, medicinal products and cosmetics.

Is there any requirement of applying for a license in order to sell food products online over the internet on the EU market?

The only general requirement for all foodstuffs in this respect is the registration with the competent food control authority as any other food business which distributes its products offline is obliged to do.

According to article 6 par. 2 of Regulation (EC) Nr. 852/2004 every food business operator, and this includes also the online-shop retailers (E-retailers), shall notify the appropriate competent authority, of each establishment under its control that carries out any of the stages of production, processing and distribution of food, with a view to the registration of each such establishment.

This means, that even storerooms which are used only for a certain time have to be notified with the competent authority.

Food business operators shall also ensure that the competent authority always has up-to-date information on establishments. This includes the notification of any significant change in activities and any closure of an existing establishment. There are also some exceptions to this rule.

Food businesses distributing their products online are controlled in a risk-based manner in the same way as conventional retailers.

What applies to food businesses trading in food of animal origin?

A large number of companies which place food of animal origin on the market are subject to a duty to obtain authorisation. The companies authorised by the competent authorities of the German federal states are recorded in a respective database in accordance with Regulation (EC) No 853/2004.

The corresponding lists, with companies from other Member States and from third countries, which export food of animal origin into the EU, can be found on the European Commission’s website.

This way, all parties, including consumers, who are interested in the manufacturing and trading of foodstuffs, are able to obtain information about the current state at any time.

Free movement of goods in the single European market vs. national regulations

The principle of free movement of goods applies in the European Union. What does this mean?

It means, for example, that products which do not conform with German regulations but which can be legally placed on the market in other Member States must also be legally distributed on the German market and other Member States.

Nevertheless, in the case of Germany, this regulation is limited by Section 54(1) Sentence 2 Point 2 of the German Food and Feed Code. According to this stipulation products which do not conform with German legal provisions can only be brought to market if they have been granted an appropriate general permission.

These general permissions must be applied for from the German Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit). This office then checks, together with other authorities, whether there are health objections to the product. Finally, they may accept the application or reject it.

In case a general permission was issued for one food business, then it also applies to alike products which are already on the market in EU Member States. Other importers can therefore refer to already issued general permissions and introduce their products to Germany under the conditions named in the general permission.

With what other laws and regulations do the food products have to comply with, when placed on the market?

There are a lot of EU-provisions as well as German laws and regulations to be met.

Roughly, one can differentiate between horizontal and vertical regulations.

Horizontal provisions apply to all foodstuffs and Vertical provisions apply only to specific food products, such as pastries, non-alcoholic beverages, gourmet food, meat, honey, spicery, chocolates, milk products, cheese products, potato products, food supplements, ice-cream, fruit processing products, tea, coffee, sugar and so on.

What happens if national food control authorities discover a “transnational infringement”?

A “transnational infringement” arises when a food control authority in one members state (e.g. Germany) concludes that a foodstuff could include health risks or does not comply with the legal requirements and this foodstuff originates from another EU Member State or a third country. This could happen when the food control authority takes a sample of the respective foodstuff and comes to this conclusion.

In such cases, the respective complaint of the authority, including all files (laboratory results, official reports etc), is forwarded via the German Federal Office of Consumer Protection and Food Safety to the competent authorities in the respective country of origin for the foodstuff.

The measures effected locally are generally disclosed to the Federal Office of Consumer Protection and Food Safety by the competent authority of the Member State or third country and forwarded to the federal states by the Federal Office of Consumer Protection and Food Safety.

What kind of marketing tool can an E-retailer use in order to distinguish himself from others?

Four existing seals meet the quality criteria of the so-called D21 initiative. These seals are thought to help consumers in order to reliably identify reputable suppliers. Food businesses can purchase one of the following four seals only if they are registered. Like this, they identify themselves to the consumer as being a store under official control.

The author of this post is Olga Dimopoulou

地域封锁是一种歧视性做法，由于客户的国籍或其居住地或营业地，阻止客户（主要是网上客户）从另一欧盟成员国的网站获取和（或）购买产品或服务。

欧盟条例在2018年2月28日颁布的关于解决基于客户国籍、居住地或营业地在国内市场上的不合理的地域封锁和其他形式的歧视的欧盟第2018/302号条例将于2018年12月2日生效。

当前情况

欧盟委员会对欧盟的1万多个电子商务网站进行了“秘密购物”调查。地域封锁指数相当高！63%的网站不允许购物者从另一个欧盟国家购买商品（甚至包括86%的家用电器和79%的电子和计算机硬件）。

另一方面，当电子商务的价值和数量就全球来说，年复一年地大幅增长时，只有50%的欧洲客户从设在另一个欧盟成员国的网上商店购买产品，但这种现象只是在国内范围而非整个欧洲。

2017年6月23日，欧洲理事会要求切实执行数字单一市场战略的所有内容，包括跨界交付、消费者保护和禁止不当地域封锁。

现行法律框架的缺失

欧洲联盟指令（欧盟第2006/123/CE号指令）和TFUE第101条已经解决了基于国籍、地区或住所或营业地的歧视做法。

根据欧盟指令第20(2)条，欧盟成员国必须确保专业人员不因客户的居住地、营业所或国籍而区别对待（客观例外情况除外）。另一方面，关于纵向限制的欧盟竞争法(《欧盟运行条例》第101条和集体豁免条例及其指南)认为，对被动销售的限制是违反欧盟竞争规则的核心限制。然而，这两套规则(欧盟指令和竞争法框架)在实践中似乎并不完全有效。

在这方面，欧盟委员会在最近关于电子商务部门竞争调查的报告中表明，地域封锁尤其在欧洲电子商务部门内得到了大规模使用。

地域封锁条例的目的

地域封锁条例的目的是防止专业人员在处理跨国界电子商务交易时，基于国籍、居住地或客户营业地而实施的直接或间接歧视。

地域封锁条例的范围

新的条例将只适用于企业与最终用户或企业之间的网上销售。

新条例将适用于在欧盟内运作的网站或在欧盟以外运作但向设立在欧盟内的客户提供货物或服务的网站。

电子网站的管理新规是什么？

关于访问网站的问题

根据该条例，企业不得以与互联网用户的国籍、居住地或营业地有关的理由，通过使用技术措施来阻止或限制其进入网络接口。然而，只要客户明确同意，并且仍然可以轻松访问他们原先试图访问的网站版本，企业就有权将客的访问方向改变到他们试图访问的网站之外的另一个网站。

关于网站的销售条款和条件

该规则禁止企业在下列三种情况下，根据客户的国籍、居住地或营业地（特别是他们的IP地址），提供不同的一般条件来取得货物或服务：

提供送货服务的企业将售出的商品送达到另外的欧盟成员国交付（或在企业与客户共同商定的地点收取货物）的；

企业提供的电子化服务，如云、数据存储、主机服务等。（但不提供访问受版权保护的内容的服务，如流媒体或在线游戏服务）；

顾客获得的在各个国家均可运行的商务服务（如汽车租赁和旅馆住宿服务或体育或文化活动的票务服务）。

关于网站上的付款方式

该条例禁止企业以与客户的国籍、居住地或营业地、支付账户所在地或支付服务提供者的设立地有关的理由，对已接受的支付手段适用不同的支付条件（条件是必须符合认证要求，付款交易必须以企业接受的货币进行）。

这项规定对电子零售商有什么影响？

尽管在形式上被排除在该条例范围之外，但供应商与分销商或批发商之间的关系仍将受到该条例的影响，因为根据分销商之间的协议规定，分销商承诺不进行被动销售（例如，阻止或限制进入网站），由于与客户的国籍、居住地或营业地有关的原因“将自动无效”。

因此，地域封锁条例对分销商的影响是双重的：第一，在与客户（最终用户或用户企业）的关系中产生直接影响；第二，在其根据独家分销协议所承担的义务方面产生间接影响。

地域封锁条例必须与现行竞争法框架相协调，特别是与制定适用于网上销售的具体规则的纵向限制指导方针相协调。网上销售被比作被动销售。指导方针中提到4个实践中为了间接保证地方保护主义，在供应商和独家分销商同意的情况下被禁止的例子：

独家经销商应阻止另一地区的客户访问其网站，或自动将其转到供应商或其他经销商的网站，

如果买方的信用卡数据显示买方不是独家经销商的专有区域，独家经销商应终止网上销售。

限制独家分销商通过互联网销售的份额（但合同可规定按绝对值计算的最低线下目标，并规定与离线销售相比，网上销售保持一致）。

独家分销商对在互联网上销售的货物支付的价格，应高于对准备在离线销售的货物支付的价格。

制造商将必须决定是采用一个独一无二的欧洲门户网站报价还是多个地方商业报价，众所周知，每个范畴的客户端是有可能存在价格差异的。

事实上，新规定并没有强制电子零售商协调其价格政策，它们只是必须允许欧盟消费者自由和容易地访问其网站的任何版本。同样，该条例并没有规定电子零售商必须将产品运往欧洲各地，而只是允许欧盟消费者从他们想要的任何网站购买商品，并在必要时自行安排发货。

最后，在更为契约性的层面上，尚不十分清楚新的地域封锁规则如何直接或间接地影响适用于消费者合同的冲突法规则，根据罗马第1号规定(Rome I Regulation)，特别是在允许消费者在本网站所在国的外国网站上购买产品时（这意味着在消费者所在国无特定交货制度已建立。）

因此，B2C网站的一般条款和条件需要在营销和法律两方面进行审查和调整。

We have cross-border posting of workers when an employer from a State provides its services in another State, sending there its employees.

The phenomenon has been spreading out in Europe in the last 20 years, mostly since Eastern countries, with lower labour costs, joined the EU. Therefore various legislative measures have been discussed with regard to this subject at European and national level and it has been dealt with in some major decisions of the European Court of Justice too.

Indeed, the cross-border posting of workers involves many fundamental rights recognised by the EU and requires a careful balancing of the interests at stake.

Free movement of workers, capitals and goods and especially free provision of services (art. 56 TFEU) shall be granted, but also fair competition and workers’ protection are to be ensured.

In 1996 the European Parliament and the Council adopted a first directive on the matter (Directive 96/71/EC, implemented in Italy with D. Lgs. 72/2000); in 2014 another directive was adopted (Directive 2014/67/EU, implemented in Italy with D. Lgs. 136/2016) in order to better enforce the principles set out in the first one.

European and national rules pursue two main goals:

– to prevent and combat fictitious postings through letterbox companies, ensuring a level playing field for the service providers in Europe;

– to ensure uniform treatment and protection of posted workers, avoiding ‘social dumping’ phenomena.

To achieve these goals the 1996 Directive laid down a nucleus of mandatory rules to provide a minimum protection for posted workers all over Europe. To enforce this protection, the 2014 Directive strengthened the cooperation system among national authorities and set out a series of factual elements to be considered in order to determine whether a posting is ‘genuine’ or not.

Art. 4 of the 2014 Directive (transposed into art. 3 of Italian Law) details many of these elements concerning the companies involved and the posted workers.

As far as the companies are concerned the following elements are deemed relevant:

a) the place where the company has its registered office and its head office, where it uses premises, pays taxes and social security contributions and where it is registered with the Chamber of Commerce;
b) the place where posted workers are recruited and from which they are posted;
c) the law applicable to the contracts concluded both between the company and its workers and between the company and its customers;
d) the place where the company carries out its main business activity and where its administrative staff is employed;
e) the number of contracts performed and/or the turnover of the company in the Member State of establishment, taking into account the specific situation of newly established companies and of SMEs.

As far as the workers are concerned, the following elements should be taken into consideration:

a) whether the work is carried out for a limited period of time in another Member State;
b) the date on which the posting starts;
c) whether the work is usually carried out in the country of origin;
d) whether the posted worker will resume work in the Member State from where he has been posted;
e) the nature of activities performed;
f) whether travel, board and lodging costs are reimbursed by the employer;
g) any previous period during which the activities have been carried out by the same or by another posted worker.

None of these elements shall be deemed final; it’s up to the national authorities to make an overall assessment of all factual elements and decide whether a posting is genuine or not.

If it proves not to be genuine, financial administrative penalties and fines can be imposed both on the posting and on the host company; moreover both of them are held responsible for the workers’ credits.

Italian law has also strengthened that provision, confirming its hostility towards any kind of labour brokering. If the Italian authorities assess that the posting is not genuine, the “posted worker is considered in all respects a direct employee of the company taking advantage of his work (art. 3 of Italian Law).

To protect posted workers and ensure a level playing field, art. 3 of the 1996 Directive (art. 4 of Italian law) requires that each Member State grants posted workers employment conditions comparable to those granted to local workers, whatever the laws applicable to the working relationship are. In particular, posted workers shall be entitled to equality of treatment concerning the following matters:

– maximum work and minimum rest periods;

– minimum paid annual leave;

– minimum rates of pay;

– health, safety and hygiene at work;

– protective measures for mothers, children and young people;

– equal treatment of women and men and non-discrimination.

As a matter of fact, the most challenging aspect is the ‘minimum rates of pay’. Actually, in each Member State wages are made up of many different entries, not always easy to be compared, and are defined from different sources (law / administrative provisions / collective agreements). By the way economic issues are obviously crucial to companies and workers when they have to decide whether the posting is worthwhile.

For these reasons, the European Court of Justice set out that the rates of pay granted to posted workers shall be compared with those of the host country workers on an overall basis and not by comparing individual entries. Besides, the ECJ has specified that the only elements to be taken into consideration for such comparison shall be those strictly connected to the work performed, thus excluding bonuses or cost refund. European case-law has also made clear that the pay items to be taken into account shall be transparent and available to posting employers.

Lastly, European Provisions impose to the Member States to allow access to the legal protection instruments provided for local workers to the workers posted within their territory.

For that purpose, art. 5 of Italian Law enables workers posted in Italy to call on the competent administrative authorities and to take judicial action to defend their rights.

一般数据保护条例（欧盟第2016/679号条例）于2018年5月25日生效。它适用于所有的数据处理，不管是自动化的还是非自动化的。然而，条例中最特别的部分是其领土适用范围。许多人认为，虚拟世界已经消除了边界，互联网世界的最大参与者已经形成了大量的争论，特别是在税收问题上逃避地方立法的行为。因此，欧盟决定澄清事实。欧盟传递出的信息很清楚，不管你是在美国、亚洲还是其他地方，在处理欧盟居民的个人数据时，你都必须遵守这些规则。制裁的高昂代价意味着，这一新的法律框架必须被非常认真地对待。最高罚款额定为上一年度营业额的4%，对任何在2018年度被制裁的企业来说上一年度均为2017年度。例如，对于GAFA（谷歌、苹果、Facebook和亚马逊）来说，如果他们不遵守规定，最大制裁罚款金额可估计如下：亚马逊约为1780亿美元营业额中的71亿美元(高于利润……)，苹果约为1410亿美元营业额中的56亿美元，谷歌约为1000亿美元营业额中的40亿美元，Facebook约为320亿美元营业额中的12.8亿美元。

前项指令之有限地域适用范围

1995年10月24日第95/46EC号欧洲指令，2004年8月6日法国第2004-801号法律，对1978年1月6日第78-17号法国数据保护法进行了更新。

该指令当然可适用于不在欧盟境内设立的数据控制器，但该指令要求它们使用位于欧盟境内的处理手段。

后来发现，许多处理器都是基于其处理的治外法权而设法规避欧洲数据保护条例的。

多年来，谷歌一直声称，其在法国和欧洲收集的数据不受法国法规的制约，而是受加州法规的制约，因为该公司及其服务器都位于加州。

由于欧洲委员会的宗旨是保护个人数据，新条例应纠正这一缺陷。

条例的境外适用范围

从2018年5月25日起，欧洲条例将适用于在欧盟内设立了数据控制器或数据处理器（一般是信息技术服务供应商）的所有个人数据的处理，而不论数据处理本身是否在欧盟内进行。

条例还规定，如果控制器或处理器不在欧盟内设立，而处理的对象是位于欧盟内的一个数据主体，则不论有关人员的国籍如何，都应适用条例。

在欧盟内设立的控制器或处理器

该条例没有界定设立的概念。法国和欧洲法院对此作了广泛的解释，它们优先考虑通过稳定的安排，以有效而真实的活动为基础来对设立作出解释。

设立这一概念已经（在2015年10月1日欧盟法院 Weltimmo案中）被认定为，在有关会员国有一名代表、一个银行账户和一个信箱。

此外，这种设立的法律形式并不是绝对的。因此，一个没有法人资格的简单的分支机构，用非欧洲籍管理器进行的个人数据的处理，也必须遵守条例执行。

未在欧盟内建立的控制器或处理器

如果控制器或处理器并非在欧盟内建立，也没有在欧盟内设立机构，则适用该条例的情况是，处理数据与位于欧盟境内的居民有关，处理活动与欧盟28个成员国（包括5.2亿名居民）的因特网用户有联系。

(i) 向用户提供物品或服务，无论这些服务是免费的还是付费的

该条例没有关于提供货物和服务的任何定义，但它提供了一些指示，使人们有可能将这种提供定性（第23条），例如用在一个或多个欧盟成员国内通常使用的语言或货币来订购货物和服务，或者是提及欧盟内的客户或用户。

然而，仅仅是访问一个网站、电子邮件地址或其他联系方式则不足以定性。

换言之，必须核查数据管制员对有关人员的意图。他是否打算向欧洲联盟的有关人员提供货物或服务。

(ii) 对用户的行为进行监测，如果这种行为发生在欧盟内。

特别是，该条例规定对自然人进行观察，以便就其作出决定，或分析或预测其个人偏好、行为和态度。

这两个条件(i)和(ii)是可变的，而非累积的。

在欧盟之外的个人数据的转移又如何呢？

原则上，禁止在欧盟之外转移个人数据。其目的是保护个人数据免受数据避风港的影响，在这方面适用更灵活的规定。

这项原则有很多例外：

向欧洲经济区国家转移数据

这些国家已与欧盟签署了一项协议，通过这些协定，他们通过了个人数据保护条例。

向订有适足协议的国家转让数据

欧洲联盟承认，某些国家有与欧洲条例相当的关于保护个人资料的条例。这些条例相当于欧洲法规。

向已签署标准合同条款或BCR（“有约束力的公司规则”）的国家转让数据

这些国家尚未作出充分的决定，或没有关于个人数据保护的条例。因此，其想法是通过标准条款或公司集团内部的协议，对数据建立合同保护而不是法律保护。

标准合同条款

标准条款已由欧洲委员会起草，可通过其网站查阅。这些协议是数据管制员和在国外设立的处理器之间在信息技术服务协议的框架内缔结的，或者是在向集团子公司或实体发送个人数据方面订立的协议。

目前，在使用这些条款之前，数据管制员可以从法国的国家管理机构（CNIL）获得授权。这项授权申请将从2018年5月25日起停止。

约束性公司规则（BCR）

BCR只关注公司集团。集团内部通过章程，所有子公司和实体承诺遵守欧洲数据保护条例。

宪章一经起草，将通过相互承认制度提交欧洲数据保护当局批准。

这项授权请求将在2018年5月25日之后继续。

向美国转移个人数据：“隐私保护”系统

这是欧洲联盟和美国联邦贸易委员会（FTC）之间的一项国际协议，美国公司可以自由遵守。根据该协议的条款，FTC会承诺确保签署该系统的公司遵守这一国际协议所载的数据保护规则。

总之，欧洲个人数据保护条例的目的是适用于处理欧洲居民个人数据的世界各地的公司。

它结束了所有的线上服务选择最有利和最不严格的国家来发展公司的经济模式，以及捉迷藏式择地行诉的做法。

制裁的程度消除了人们对这一新框架将要实施的坚定性的怀疑。它产生的风险很难被认为是次要的。

它要求使用欧洲联盟28个居民5.2亿人的个人数据的任何公司深思熟虑并遵守条例。

这篇文章的作者是ThierryAbuléa.

Pursuant to the European Directive on administrative cooperation in the field of taxation (2011/16/EU), Member States must cooperate with each other with a view to exchanging information relevant for tax purposes. The directive allows, inter alia, that a Member State (the requesting Member State) requests another Member State (the requested Member State) to provide information concerning a specific taxpayer. The requested information must be ‘ foreseeably relevant ‘ to the tax authorities of the requesting Member State.

Based on the aforementioned directive, the tax authority of the requested Member State may request information from e.g. an affiliated company, a financial institution, an employer, … of the taxpayer. The tax authority of the requested Member State forwards the collected information to its counterpart in the requesting Member State.

A question that arises is whether that affiliated company, financial institution, employer, … may ask its national courts to verify the legality of the sanction imposed by its tax authority because of an incomplete answer and whether it may ask to vary the penalty. Another question is whether a court in the requested Member State may verify the relevance for tax purposes of the requested information.

These questions were raised in the Berlioz case of the Court of Justice (judgement of 16 May 2017): Berlioz (a Luxembourg company) only partially answered the request for information from the Luxembourg authorities (at the request of France). Berlioz stated in this regard that certain questions were irrelevant for tax purposes in the requesting Member State.

The answers to the questions raised are not obvious, as the starting point is that the requesting State has a margin of discretion as to what is foreseeably relevant for its tax purposes. This explains why (in this case the Luxembourg) courts doubted whether a relevance test was possible. The questions were referred for a preliminary ruling to the Court of Justice.

In its assessment, the court took into consideration the EU Charter of Fundamental Rights and, more specifically, the right to a fair hearing by an impartial judge.

The Court of Justice ruled that courts in the requested Member State may review the foreseeable relevance for tax purposes of the requested information and that they may vary the penalty imposed. The courts in the requested Member State should be reluctant however upon review of the legality of the request for information: the review is limited to verification whether the requested information manifestly has no relevance for tax purposes.

To this end, the courts must have access to the request for information. The affiliated company, financial institution, employer, … is only entitled to receive the identity of the person under investigation and to be informed about the tax purpose for which the information is sought. The Court of Justice indeed emphasizes in the interest of the investigation the principle that the request for information must remain secret.

Relevance of the judgment: When requested by a national tax authority to respond to a request for information from another Member State, it is important to check the relevance for tax purposes of the requested information. If the information requested is irrelevant to the tax investigation, a proceeding against the request for information or against the penalty may succeed. Regarding the foreseeable relevance for tax purposes, the national courts may only review whether the requested information manifestly has no relevance to the tax investigation in the requesting Member State.

Benedikt Rohrssen

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