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No 15 (December 98/Dcembre 98/Dezember 98)
A proposal for a Directive to establish a coherent legal framework for the development of electronic commerce within the Single Market has been put forward by the European Commission. The proposed Directive would ensure that information society services benefit from the Single Market principles of free movement of services and freedom of establishment and could provide their services throughout the European Union if they comply with the law in their country of origin. Such services are defined as those provided normally against remuneration, at a distance, by electronic means and in res ponse to the individual request of a customer. The proposed Directive would establish specific harmonised rules only in those areas strictly necessary to ensure that businesses and citizens could supply and receive information society services throughout the EU, irrespective of frontiers. These areas include definition of where operators are established, electronic contracts, commercial communications, liability of intermediaries, dispute settlement and role of national authorities. In other areas the Directive would build on existing EU instruments which provide for harmonisation or on mutual recognition of national laws. The Directive would apply only to service providers established within the EU and not those established outside.
"The Single Market's legal framework, combined with the single currency, provide the European Union with a unique opportunity to facilitate the development of electronic commerce", commented Single Market Commissioner Mario Monti. "Electronic commerce adds a new dimension to the Single Market for consumers in terms of easier access to goods and services of better quality and at lower prices. Electronic commerce will promote trade, stimulate innovation and competitiveness and create sustainable jobs. This proposal should ensure that the Union reaps the full benefits of electronic commerce by boosting consumer confidence and giving operators legal certainty, without excessive red tape."
The proposal for a Directive, which was foreseen in the Commission's April 1997 electronic commerce Communication (see SMN N°8), covers all information society services, both business to business and business to consumer services, including services provided free of charge to the recipient - e.g. funded by advertising or sponsorship revenue and services allowing for on-line electronic transactions such as interactive teleshopping of goods and services and on-line shopping malls. Examples of sectors and activities covered include on-line newspapers, on-line data-bases, on-line financial services, on-line professional services (such as lawyers, doctors, accountants, estate agents), on-line entertainment services such as video on demand, on-line direct marketing and advertising and services providing access to the World Wide Web.
The proposal would define the place of establishment as the place where an
operator actually pursues an economic activity through a fixed establishment,
irrespective of where websites or servers are situated or where the operator
may have a mail box. This definition is in line with the principles
established by the EU Treaty (Article 52) and the case law of the European
Court of Justice. Such a definition would remove current legal uncertainty and
ensure that operators could not evade supervision, as they would be subject to
supervision in the Member State where they were established. The proposal would
prohibit Member States from imposing special authorisation schemes for
information society services which are not applied to the same services
provided by other means. It would also require Member States to oblige service
providers to make available to customers and
Rather than inventing new rules, the proposal would seek to ensure that existing EU and national legislation were effectively enforced. The development of a genuine Single Market - based on mutual confidence between Member States - is stimulated by strengthening enforcement mechanisms. The proposal would seek to do so by encouraging the development of codes of conduct at EU level, by stimulating administrative co-operation between Member States and by facilitating the setting up of effective, alternative cross-border dispute settlement systems.
The proposal would also require Member States to provide for fast, efficient legal redress appropriate to the on-line environment and to ensure that sanctions for violations of the rules established under the Direct ive were effective, proportionate and dissuasive.
The proposed Directive would clarify that the Single Market principle of mutual recognition of national laws and the principle of control in the country of origin must be applied to information society services so that such services provided from another Member State are not restricted for reasons falling within the scope of the proposal which would not cover taxation, personal data (covered by Directive 95/46 - see SMN N°14), the activities of notaries, representation and defence of clients before a court, gambling activities. Further more, the proposed Directive would not interfere with the application of the Brussels Convention on jurisdiction, recognition and enforcement of judgements in civil and commercial matters and the Rome Convention on the law applicable to contractual obligations.
The proposed Directive would also allow Member States on a case by case basis to impose restrictions on information society services supplied from another Member State if necessary to protect the public inter est on grounds of protection of minors, the fight against hatred on grounds of race, sex, religion or nationality, public health or security and consumer protection. However, such restrictions would have to be proportionate to their stated objective. Moreover, such restrictions could only be imposed (except in cases of urgency) after:
In cases of urgency, the reasons for the restrictions (and the urgency) would have to be notified in the shortest possible time to the Commission and to the Member State of the service provider. Where the Commission considered proposed or actual restrict ions were not justified, Member States would be required to refrain from imposing them or urgently put an end to them.
The proposed Directive will be forwarded to the European Parliament and the EU's Council of Ministers for adoption under the co-decision procedure.
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La Commission vient de proposer une Directive visant à mettre en place
un cadre juridique cohérent pour le développement du commerce
électronique dans le Marché unique.
Die Europäische Kommission hat eine Richtlinie zur Schaffung eines
kohärenten Rechtsrahmens für den elektronischen Geschäftsverkehr