Tell me where you come from and I will tell you the price: Ambiguous expansion of prohibited geographical price discrimination in the EU

Abstract

This article outlines some of the ambiguities arising from the endeavours of EU legislators to tackle the problem of direct and indirect price discrimination based on nationality or residence of the customer – in this article referred to as geographical price discrimination (GPD) under EU free movement law. It is submitted that prohibiting direct and indirect GPD on the sale of goods and services with an unclear system of derogations potentially covers a variety of established pricing practices (including uniform prices and de minimis price differences). While it is submitted that Article 20(2) of the Services Directive should be repealed, a cautious approach towards interpreting and applying Article 4 of the new Geo-Blocking Regulation is suggested in order to avoid disproportional restrictions of parties’ contractual freedom, especially in respect of traders with insignificant market power.