Presidency of the Council of Ministers
Decree-Law
Regulation (EU) 2018/302 of the European Parliament and of the Council, of 28 February 2018, which seeks to prevent unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market (Regulation), has as an objective to prevent traders operating in a Member State from unjustifiably blocking or restricting access to their online interfaces, in particular electronic websites and mobile applications.
The purpose of the Regulation is to prevent traders from applying different general conditions of access to their goods and services to customers from other Member States wishing to enter into cross-border transactions by prohibiting discrimination in relation to means of payment and to deny distribution agreements prohibiting sales in the specific situations covered by its scope.
The notion of customer, as set out in the Regulation, covers individual consumers and companies whose sole purpose is the end use of the intended goods or services.
According to the Regulation, companies may continue to apply differentiated conditions of access, but these must be objectively supported, such justification being found in the differences in legislation between Member States, in the legal uncertainty involved, in the difficulties associated with the application of legislation on consumer protection, the environment or labelling, in tax or fiscal matters, delivery costs or language requirements.
Directive No. 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, on services in the internal market, commonly known as the Services Directive, contains in its article 20 a clause based on non-discrimination of nationality, place of residence or place of establishment. The purpose of the Regulation is to clarify this provision of the Directive by laying down the circumstances in which disparities in treatment based on nationality, place of residence or place of establishment cannot be justified.
The Services Directive was transposed into the national legal system through Decree-Law no. 92/2010, of 26 July, which establishes the principles and rules that simplify free access and exercise of service activities. Accordingly, in view of the material scope of application of the aforementioned Regulation, for reasons of consistency and uniformity of schemes, it is understood that the rules of implementation should be included in the Decree-Law transposing the Services Directive.
In particular, the Regulation contains two provisions requiring the adoption of implementation acts by the national legislature: the designation of bodies responsible for the enforcement, supervision and provision of assistance to consumers; and the definition of a penalty regime that, in an effective, proportionate and dissuasive manner, ensures compliance. In this context, given that some of the conduct prohibited by the Regulation may constitute evidence of an infringement of the competition law regime, approved by Law no. 19/2012, of the 8 May, in particular those relating to distribution agreements prohibiting passive sales (referred to in article 6 of the Regulation), the bodies responsible for implementing the Regulation are obliged to inform the Competition Authority of the existence of evidence capable of determining the opening of an offence case.
This Decree-Law designates the European Consumer Centre as the competent body to provide practical assistance to consumers in the event of disputes between a consumer and a trader arising from the application of the Regulation. Since companies are not considered consumers but can act as such, any assistance to companies in the context of the Regulation will be provided by the General Directorate of Economic Activities, under the general terms.
Lastly, the experience acquired with the application of Decree-Law no. 92/2010, of 26 July, revealed the need to clarify the process of notification to the European Commission of new legislative, regulatory and administrative provisions carried out by the Directorate-General for Economic Activities, with a view to detecting, simplifying or eliminating disproportionate, excessive and costly requirements and burdens for economic operators.
The Competition Authority was heard.
The hearing of the National Consumer Council and the National Communications Authority was promoted.
Like this:
Pursuant to item a) of paragraph 1 of article 198 of the Constitution, the Government decrees the following:
Article 1
Object
1. This Decree-Law shall implement in the internal legal order the obligations arising from Regulation (EU) 2018/302 of the European Parliament and of the Council, of 28 February 2018, aimed at preventing unjustified geo-blocking and other forms of discrimination based on customer's nationality, place of residence or place of establishment in the internal market, and amending Regulations (EC) Nos. 2006/2004, of 27 October, (EU) 2017/2394, of 12 December, and Directive 2009/22/EC, of 23 April.
2 - For the purposes of the preceding paragraph, this decree-law makes the first amendment to Decree-Law no. 92/2010, of 26 July, which transposes Directive 2006/123/EC of the European Parliament and of the Council, of 12 December, on services in the internal market into domestic law.
Article 2
Amendment to Decree-Law no. 92/2010, of 26 July
Articles 11, 19, 21 and 23 to 25 of Decree-Law no. 92/2010, of 26 July, shall be replaced by the following:
"Article 11
Assumptions, requirements and conditions prohibited and subject to evaluation
1 - [...]
2 - [...]
3 - The requirements identified in items i) to q) of paragraph 1 and in items a) to i) of the previous paragraph may, exceptionally, for justified reasons in the public interest, be imposed on service providers established in the national territory, or on providers legally established in other Member States who move to Portugal under the freedom to provide services, provided that they comply cumulatively with the following principles:
a) Non-discrimination - the requirements cannot be, directly or indirectly, discriminatory due to the nationality, or in the case of legal persons, of the place of establishment;
b) Necessity - the requirements must be justified by an overriding reason of public interest:
i) For reasons of freedom of establishment, the public interest grounds are those listed in paragraph 8 of article 4 of Directive 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, on services in the internal market;
ii) For the purpose of freedom to provide services, public safety, public health and environmental protection shall be considered as reasons of public interest;
c) Proportionality - the requirements must be adequate to ensure the pursuit of the objective sought, not going beyond what is necessary to achieve this objective and not being able to achieve the same result through other, less restrictive measures.
4. The Directorate General for Economic Activities (DGAE) shall be the entity responsible for notifying the European Commission provided for in paragraph 7 of article 15 and paragraph 5 of article 39 of Directive 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, on services in the internal market.
Article 19
Non-discrimination of recipients and customers
1 - The recipients of the services may not be discriminated against because of their nationality, place of residence or place of establishment.
2. The general conditions for the service provision defined by the service provider may not be discriminatory according to the nationality, place of residence or place of establishment of the recipient of the service, unless the differentiation is directly justified by objective criteria, in the terms of paragraph 3 of article 3, paragraphs 2 to 5 of article 4 and paragraphs 2 and 3 of article 5 of Regulation 2018/302 of the European Parliament and of the Council, of 28 February 2018, aimed at preventing unjustified geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment of customers in the internal market.
3 - [...]
4 - [...]
Article 21
Assistance to recipients and customers
1 - [...]
2 - [...]
3 - [...]
4 - The European Consumer Centre is, in accordance with article 8 of Regulation (EU) 2018/302 of the European Parliament and of the Council, of 28 February 2018, the body responsible for providing practical assistance to consumers in case of disputes between a consumer and a trader arising from the application of that regulation.
Article 23
Supervision and monitoring
1 - The enforcement of compliance with the rules of this decree-law is the responsibility of the Food and Economic Safety Authority (ASAE), as well as the administrative authorities that have supervisory powers resulting from specific legal regimes regulating service activities in relation to the providers of these services, and covers the following supervisory actions:
a) [...]
b) [...]
2 - [...]
3. For the purpose of applying paragraph 1 of article 7 of Regulation (EU) 2018/302, of the European Parliament and of the Council, of 28 February 2018, ASAE shall be responsible for its implementation.
4 - In the scope of the supervision of the regulation referred to in the preceding paragraph, the detection by ASAE, of conduct likely to lead to the opening of judicial proceedings under items e) to g) of paragraph 1 in article 24 must be communicated to the Competition Authority.
5 - It is for the DGAE to prepare and publish, by the end of 2022 and thereafter, on a triennial basis, a report on the application of Regulation (EU) 2018/302 of the European Parliament and of the Council, of 28 February 2018, on the basis of data and information provided by the European Consumer Centre and ASAE.
6. The bodies referred to in the preceding paragraphs shall provide the counterparts of other Member States with information requested by them in connection with the application of Regulation (EU) 2018/302, of the European Parliament and of the Council, of 28 February 2018, as soon as possible.
Article 24
[...]
1 - The violation of the provisions is a serious infraction as provided in:
a) Paragraphs 1 and 2 of article 19;
b) Paragraphs 1, 3, 4 and 5 of article 20;
c) Paragraphs 2 and 3 of article 22;
d) Paragraph 2 of article 23;
e) Paragraphs 1, 2 and in the second part of paragraph 3 of article 3 of Regulation (EU) 2018/302, of the European Parliament and of the Council, of 28 February 2018;
f) Paragraph 1 of article 4 of Regulation (EU) 2018/302, of the European Parliament and of the Council, of 28 February 2018;
g) Paragraph 1 of article 5 of Regulation (EU) 2018/302, of the European Parliament and of the Council, of 28 February 2018.
2 - [...]
Article 25
[...]
1 - [...]
2 - [...]
3 - [...]
4 - [...]
5 - [...]
6 - [...]
7 - ASAE shall be responsible for applying the penalties provided for in paragraphs 1 and 2.
8 - [...]
a) [...]
b) 30% for the entity that carried out the proceedings;
c) 10% for the entity which imposed the fine.
9 - [...]"
Article 3
Systematic change
The heading of chapter III is renamed 'Administrative permissions and other requirements for access to or exercise of service activities'.
Article 4
Revoking rule
Item d) of paragraph 1 and paragraph 2 of Article 30 of Decree-Law no. 92/2010, of 26 July.
Article 5
Entry into force
This decree-law shall enter into force on the day following its publication.
Seen and approved by the Council of Ministers on 16 May 2019. - António Luís Santos da Costa - Augusto Ernesto Santos Silva - Mariana Guimarães Vieira da Silva - Pedro Gramaxo de Carvalho Siza Vieira.
Promulgated on 6 June 2019.
To be published.
The President of the Republic, Marcelo Rebelo de Sousa.
Ratified on 10 June 2019.
The Prime Minister, António Luís Santos da Costa.
