In the new year there will be some legislative changes affecting trade. Luna Journal lists the most important ones and points out what needs to be taken into account.

The year begins with some legal innovations for trade. Many changes already took place in December 2018. Luna Journal summarizes the most important laws and regulations.

Geoblocking – Regulation since 2018

The Geoblocking Regulation came into force on 23 March 2018.. It stipulates that EU foreigners must no longer be discriminated against and is intended to ensure that cross-border trade is strengthened. This means, for example, that customers can no longer be redirected on the basis of their IP address and have unrestricted access to all online shops, regardless of which country they want to buy from.

This also affects B2B trade.The lawyer Rolf Becker, partner of Wienke & Becker, notes: “Difficulties can arise in credit checks depending on the type of payment. Here the necessary data is not always available in order to grant EEA foreigners the same payment options as nationals. In principle, however, this is one of the duties of the GeoblockingVO”. Non-compliance can lead to warnings and severe fines.

Packaging law as of January 2019

The Packaging Act that has come into force replaces the Packaging Ordinance that had previously been in force and stipulates that retailers must register with the “Stiftung Zentrale Stelle Verpackungsregister” (Central Packaging Register Foundation) based in Osnabrück in a registration that can be viewed by the public. This applies to all retailers who manufacture packaging or place it on the market, regardless of the size of the company. This also includes shipping packaging. Controllability is ensured by the publicly accessible register, which is also intended to ensure fair competition.

Becker sums up what this means for retailers and customers: “Expenditure means above all the double registration and reporting obligation. Registration or participation in a dual system is no longer sufficient. In principle, a contractual relationship for taking back and recycling packaging must still be concluded with a so-called dual system (e.g. Der Grüne Punkt). For this purpose, a contract must be concluded with one of the dual system operators (currently 9) by 15 January of each year at the latest. Later conclusions become more expensive. Penalty surcharges at a value of approx. 1/3 of the sum are intended. In addition penalty payments, which are to be measured from the conversion of the respective enterprise, come. Dealers must also check whether their suppliers have already registered sales packaging, for example. It is best to agree guarantees with the supplier. Customers are more likely to be affected indirectly. Due to the increased work and cost expenditure, it is to be expected that costs will partly passed on to the customer.”

ePrivacy regulation at the end of 2019

The ePrivacy Regulation (EPVO: Regulation on respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC), is an EU regulation currently in the legislative process and originates from an initiative of the EU Commission in January 2017. The EPVO is an extension of the basic data protection regulation. The main focus here is on protection during end-to-end exchange. However, data protection and business interests are in conflict with each other, which is why the Regulation is not expected to enter into force until 2021 at the earliest. This could mean that above all marketing measures such as tracking or targeting are no longer permitted without clear consent.

Becker summarises: “The regulation is currently still in the coordination phase between the EU Commission, the EU Council of Ministers and the European Parliament. In addition, a transitional period of two years is planned so that the ePrivacy Regulation would not enter into force until 2021. However, it is unlikely that those involved will completely abandon the ePrivacy Regulation after all. However, it is precisely the questions of the need for consent or probably more the way in which consent is given that could be dealt with alternatively or in a more moderate way, depending on the pressure exerted by the lobby associations. The Federal Government has already indicated that it would like to soften the so-called tying ban in Article 8 of the ePrivacy Regulation. The use of advertising-financed online services should be made dependent on the user’s consent to the setting of cookies for advertising purposes.”

Becker continues: “Companies should already now check their consent management. Information and consent must be transparent and easy to use for the user. Service partners based in the EU should be preferred. Partners outside the EU must be carefully selected, especially with regard to guarantees for secure and legally compliant data processing. Entrepreneurs should always ask themselves whether they really need the concrete data collections and whether they are being used. Superfluous things entail liability risks and should not be continued.”

Advertising at WhatsApp

At the end of February 2019, an agreement between the previous founders of the app and Facebook ends. This could lead to end-to-end encryption being softened and advertising being allowed on WhatsApp. Similar to Instagram, the messages will then be examined for advertising triggers. However, Facebook and WhatsApp have not yet issued a statement on this.

“WhatsApp is now so widespread and used by so many as a primary means of communication. Therefore, according to reports, this scenario is already in concrete planning and would represent an opportunity for companies. However, the legal prerequisites under which contact or promotional information transfer to the users may be established are not easy to fulfil,” Becker states.

Liability for turnover tax

From March 2019, platforms in e-commerce will be liable for VAT for providers from third country companies and from 1 October 2019 for domestic and EU companies. The law serves to avoid VAT losses when trading goods on the Internet and to amend further tax regulations. This means that in future the platforms will have to document the master data of their users. If this is not the case, they are liable for the unpaid tax of the third-party providers. This is intended in particular to counter VAT fraud.

“Online traders should already now start with the documentation of the trader data and apply for the necessary certificates, since the operators of the platforms have to keep the records according to § 22f UStG-E in principle already with the entry into force of the law since 01.01.2019. There is therefore already an obligation”, emphasises Becker.


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