Agreement reached on EU portability regulation


Written on 8 February 2017

What’s happened?

After 14 months of negotiation, the European Parliament, Council and the Commission have finally reached agreement on the portability regulation. This will require providers of online content services, including online television, video games and music services, to allow their subscribers to access their service whilst temporarily in another EU Member State. Practically speaking, this will allow EU citizens to take their digital subscriptions, like Amazon Prime and Netflix, with them on holidays and business trips outside their home countries. “Everyone can benefit from having their content available all across Europe,” said French liberal MEP and Parliament’s lead negotiator Jean-Marie Cavada.

Although this regulation was supposed to be one of the DSM’s “easy wins”, perhaps ominously for some of the more complex proposals, it has proved difficult to agree, and the agreed text will be awaited with much interest. It will be particularly interesting to see how the text deals with the key areas of contention, which will impact how businesses implement the regulation, such as:

  • what it means to be “temporarily present in another Member State”. The Commission’s initial proposal appeared to define “temporarily present” as any length of absence from a subscriber’s Member State of residence. The Council proposed amendments that would narrow that definition, in particular by requiring that a subscriber has to return regularly to their Member State of residence; and
  • how service providers are to verify a subscriber’s Member State of residence or their temporary residence.

What’s next?

The full Council and Parliament still have to sign off on the text, but the proposal is expected to be finalised and published in the EU’s official journal by March or April.

What about Brexit?

On the proposed timeframe, the regulation will be implemented before the UK exits the EU, so UK providers will have to comply with this, at least in the short term, even though it could subsequently be overturned by an independent UK.

What should we do?

Content owners and providers of online content services should:

  • keep watch for the final text – if you would like us to keep you informed about latest developments, please let us know;
  • review your contracts – provisions that prevent the delivery of content cross-border within the EU may well become unenforceable once the Regulation starts to apply;
  • notify your technical and operational teams they will have to make changes – subscribers’ Member State of residence will have to be verified and cross-border access must only granted to subscribers who are only present in another Member State on a temporary basis; and
  • review and amend your terms and conditions with subscribers.

Read our previous updates on the portability regulation here and here.

Like this article?

Register now for more insights, news and events from across Osborne Clarke, or to receive our dedicated newsletters for US companies expanding overseas.

*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.