What is the impact of Brexit on domain name portfolios of UK natural and legal persons? In this context, it seems useful to explore the opportunities that businesses and non-EU nationals can take to establish or maintain a presence in the European Union digital space. Indeed, the EU ccTLDs (.eu and .ею) are only one layer of the cyberspace’s naming system corresponding to the EU. It is also necessary to consider the registration/eligibility policies adopted by the national registries of the Member States (ccTLDs) and by the registries of other geoTLDs, in particular cityTLDs.
ccTLDs of the European Union: .eu et .ею
According to Article 4(2)(b) of Regulation (EC) No 733/2002 of the European Parliament and of the Council of April 22, 2002,
« 2. The Registry shall:
(a) organise, administer and manage the.eu TLD in the general interest and on the basis of principles of quality, efficiency, reliability and accessibility;
(b) register domain names in the.eu TLD through any accredited.eu Registrar requested by any:
(i) undertaking having its registered office, central administration or principal place of business within the Community, or
(ii) organisation established within the Community without prejudice to the application of national law, or
(iii) natural person resident within the Community » (eur-lex.europa.eu).
There is no doubt that UK natural and legal persons are no longer eligible for .eu and .ею. The only exception concerns natural persons who reside in one Member States, although not European citizens.
On November 20, 2020, Eurid unveiled the final timetable for the consequences of Brexit on the eligibility of legal persons and UK nationals to register domain names in the .eu and .ею zones:
« On 1 October 2020, EURid notified by email all UK registrants and their registrars that they would lose their eligibility as of 1 January 2021 unless they demonstrated their compliance with the .eu regulatory framework by updating their registration data before 31 December 2020. They could do so by indicating a legally established entity in one of the eligible Union Member States, or updating their residence to a Union Member State, or proving their citizenship of a Union Member State irrespective of their residence.
On 21 December 2020, EURid notified by email all UK registrants who did not demonstrate continued compliance with the eligibility criteria and their registrars about the risk of forthcoming non-compliance with the .eu regulatory framework.
On 1 January 2021, as of 00:00:00 CET, EURid notified by email all UK registrants and their registrars that their domain name was no longer compliant with the .eu regulatory framework and therefore, it would be moved to the so-called « SUSPENDED » status until 31 March 2021. A domain name in the « SUSPENDED » status can no longer support any service (such as website and email), but may still be reinstated if registration data is updated to meet the eligibility criteria.
On 1 April 2021, 00:00:00 CET, EURid will once again notify by email all UK registrants and their registrars that their domain name is no longer compliant with the .eu regulatory framework and consequently is moved to the so-called « WITHDRAWN » status. A domain name in the « WITHDRAWN » status is not in the zone file and cannot support any service.
On 1 January 2022, as of 00:00:00 CET, all the domain names in the « WITHDRAWN » status, formerly assigned to UK registrants, will be REVOKED and subsequently, become AVAILABLE for general registration. Their release will occur in batches for security reasons. » (eurid.eu, 2020-11-20).
The use of the « proxy » or « trustee » practice is not authorized under section 5 of the Eurid Domain Name Registration Policy « (Eurid.eu).
As European Union ccTLDs are no longer available to British natural and legal persons (with the exception for natural persons residing in the territory of the EU), are there any alternatives which would allow them to maintain a digital presence, would it be partial, on the territory of the European Union?
ccTLDs of the Member States
A ccTLD can be considered as an attribute of state sovereignty it designates. It follows that each state is free to enact the eligibility rules for access to domain names created in its ccTLD area.
At the European Union level, territorial restrictions cannot apply to European Union’s businesses and citizens. Conversely, they apply to legal persons who do not have their registered office in the Union and to natural persons who, depending on the case, do not have European citizenship or do not reside in one of the Member States. As the table below shows, such restrictions are in place in many EU member states.
Thus, British natural persons (with the exception indicated above) and legal entities will be able to keep the domain names they hold in certain zones: Austria (.AT), Belgium (.BE), Cyprus (.CY), Denmark (.DK), Estonia (.EE), Finland (.FI), Germany (.DE), Greece (.GR and .ΕΛ), Lithuania (.LT), Luxembourg (.LU), Malta (.MT), Poland (.PL), Portugal (.PT), Romania (.RO), Spain (.ES) or Sweden (.SE).
It should be noted that Slovakia (.SK) has modified its eligibility rules in order to guarantee the continuity of the accessibility of its ccTLD to British legal and natural persons. As for Croatia (.HR), only legal entities remain eligible to register .HR domain names, upon presentation of an identification number issued by the UK authorities.
For some other ccTLDs, including Ireland (.IE) and the Netherlands (.NL), domain names’ maintenance may be subject to additional conditions.
Also, Brexit de facto places the British outside the eligibility criteria of several national zones, namely Bulgaria (.BG), the Czech Republic (.CZ), France (.FR), Hungary (. HU), Italy (.IT), and Lithuania (.LT).
These restrictions may be lifted, where the registries so permit, through a trustee/proxy service.
Le .ccTLD britannique .UK
Nominet -the UK registry responsible for the administration of .UK-, does not currently consider restricting the eligibility requirements for access to UK domain names. The status quo is therefore maintained so that European natural and legal persons remain eligible to register .UK domain names under the same conditions as before the entry into force of Brexit.
Other geoTLDs
In addition to ccTLDs, the territory of the EU includes several other top-level domains: cityTLDs (.BERLIN, .MADRID or .PARIS), administrative regions (.ALSACE, .BZH, .CAT and .CORSICA) and cultural communities (.ALSACE, .BZH, .CAT, .CORSICA and .IRISH).
These extensions aim to magnify a metropolis, a region, or a cultural community. To achieve this objective, the registries require two types of conditions: i) territorial eligibility and/or ii) the website’s content must correspond to the objectives set by the registry.
Opportunities et strategies
The availability of domain names held by British natural and legal persons presents an inconvenience for some, an opportunity for others. It seems reasonable for eligible natural and legal persons to use monitoring tools and domain name portfolio audits to identify .eu and .ею domain names that could prove useful. A resale strategy for some, and acquisition for others, must be developed and implemented as soon as possible. Besides, it may be, in some instances, that the transfer of domain names requires a coexistence agreement. It is essential to keep in mind that this approach concerns ccTLDs in the European Union and geoTLDs requiring a local presence (BAYERN, .BERLIN and .HAMBURG).
