No 21 (May 2000/Mai 2000/Mai 2000)

On 4th May 2000, the European Parliament approved the Electronic Commerce Directive, which clears the way for this important measure to become law within the next 18 months. The Lisbon Summit identified this Directive as a top priority in preparing Europe's transition to a knowledge-based economy and boosting competitiveness.
The Directive will ensure that Information Society services benefit from the Internal Market principles of free movement of services and freedom of establishment and can be provided throughout the European Union if they comply with the law in their home Member State. It establishes specific harmonised rules only where strictly necessary to ensure that businesses and citizens can supply and receive Information Society services throughout the EU, irrespective of frontiers.
These areas include definition of where operators are established, transparency obligations for operators, transparency requirements for commercial communications, conclusion and validity of electronic contracts, liability of Internet intermediaries, on-line dispute settlement and the role of national authorities. In other areas the Directive builds on existing EU instruments which provide for harmonisation or mutual recognition of national laws (see SMN 15 &18).

The speed with which the proposal has been adopted represents a high degree of co-operation between Commission, Council and Parliament. Internal Market Commissioner Frits Bolkestein hopes that "it will serve as a model for future decision-making concerning the Internal Market, where legislative change must keep pace with technological developments and innovation in order to be timely and effective”.

As the Parliament decided not to propose any amendments to the Common Position adopted formally by the Internal Market Council in February 2000, the Directive is now definitively adopted in accordance with the co-decision procedure (Article 251 of the EC Treaty). No further consideration by Council is necessary. Member States will have 18 months in which to implement the Directive into national law following its publication in the EU's Official Journal. "In order for business and consumers alike to benefit fully from the Directive as soon as possible, I will pay particular attention to ensuring that Member States implement the Directive in national legislation correctly and on time", comments the Commissionner Bolkestein.

On-line services
The global electronic commerce market is growing extremely fast and could be worth $ 1.4 trillion by the year 2003 (source: Forrester Research). In Europe, electronic commerce is already worth 17 billion and is expected to reach 340 billion by 2003.
The Directive covers all Information Society services, both business to business and business to consumer, and 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 tele-shopping of goods and services and on-line shopping malls.
Examples of sectors and activities covered include on-line newspapers, on-line databases, 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 Directive applies only to service providers established within the EU and not those established outside. However, the Directive takes particular care to avoid incompatibility and inconsistency with legal developments in other parts of the world so as to avoid obstacles to global electronic commerce. Moreover, in some areas the Directive provides for solutions that may serve as a model at international level, thus reinforcing Europe's influence on the development of an international legal framework.

Establishment
The Directive defines the place of establishment as the place where an operator actually pursues an economic activity through a fixed establishment, irrespective of where web-sites or servers are situated or where the operator may have a mail box. This definition is in line with the principles established by the EC Treaty and the case law of the European Court of Justice. Such a definition will remove current legal uncertainty and ensure that operators cannot evade supervision, as they will be subject to supervision in the Member State where they are established. The Directive prohibits Member States from imposing special authorisation schemes for Information Society services which are not applied to the same services provided by other means. It also requires Member States to oblige Information Society service providers to make available to customers and competent authorities in an easily accessible and permanent form basic information concerning their activities (name, address, e-mail address, trade register number, professional authorisation and membership of professional bodies where applicable, VAT number).

On-line contracts
The proposal obliges Member States to remove any prohibitions or restrictions on the use of electronic contracts. In addition, the proposal will ensure legal security by imposing certain information requirements for the conclusion of electronic contracts in particular in order to help consumers to avoid technical errors. These provisions will complement the recently adopted Directive on electronic signatures (see SMN 19).

Liability of intermediaries
To eliminate existing legal uncertainties and to avoid divergent approaches between Member States, the Directive establishes an exemption from liability for intermediaries where they play a passive role as a "mere conduit" of information from third parties and limits service providers' liability for other "intermediary" activities such as the storage of information. The Directive strikes a careful balance between the different interests involved in order to stimulate co-operation between different parties and so reduce the risk of illegal activity on-line.

Commercial communications
The Directive defines commercial communications (such as advertising and direct marketing) and makes them subject to certain transparency requirements to ensure consumer confidence and fair trading. So that consumers may react more readily to harmful intrusion, the Directive requires that commercial communications by e-mail are clearly identifiable. In addition, for regulated professions (such as lawyers or accountants), the Directive lays down the general principle that the on-line provision of services is permitted and that national rules on advertising shall not prevent professions from operating Web-sites. However, this will have to respect certain rules of professional ethics which should be reflected in codes of conduct to be drawn up by professional associations.

Implementation
The Directive seeks to strengthen mechanisms to ensure that existing EU and national legislation is enforced. This includes encouraging the development of codes of conduct at EU level, stimulating administrative co-operation between Member States and facilitating the setting up of effective, alternative cross-border on-line dispute settlement systems. The Directive also requires 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 Directive are effective, proportionate and dissuasive.

Restrictions
The Directive clarifies that the Internal Market principle of mutual recognition of national laws and the principle of the country of origin must be applied to Information Society services. This will ensure that such services provided from another Member State are not restricted. The Directive does not deal with the application of the Brussels Convention on jurisdiction, recognition and enforcement of judgements in civil and commercial matters. The Directive does not interfere with the Rome Convention as regards the law applicable to contractual obligations in consumer contracts or with the freedom of the parties to choose the law applicable to their contract.
On a case by case basis, Member States will be allowed to impose restrictions on Information Society services supplied from another Member State if necessary to protect the public interest on grounds of protection of minors, the fight against hatred on grounds of race, sex, religion or nationality (including offences to human dignity concerning individual persons), public health or security and consumer protection (including the protection of investors).

However, such restrictions will have to be proportionate to their stated objective. Moreover, such restrictions can only be imposed after the Member State where the service provider is established has been asked to take adequate measures and failed to do so and the intention to impose restrictions has been notified in advance to the Commission and to the Member State where the service provider is established.
In cases of urgency and in cases of court actions, including preliminary proceedings and criminal investigations, the reasons for the restrictions (and the urgency) will have to be notified in the shortest possible time to the Commission and to the Member State of the service provider. Where the Commission considers proposed or actual restrictions are not justified, Member States will be required to refrain from imposing them or urgently put an end to them.

Le 4 mai 2000, le Parlement européen a approuvé la Directive sur le commerce électronique. Elle est donc définitivement adoptée et devrait être transposée en droit national dans les 18 mois. Identifiée à Lisbonne comme une priorité essentielle, cette Directive veillera à ce que les services de la société de l'information bénéficient des principes de libre circulation et de liberté d'établissement, et qu'ils puissent être fournis dans toute l'Union européenne s'ils sont conformes à la loi dans leur Etat membre d'origine. Elle établit des règles harmonisées spécifiques seulement là où elles sont strictement nécessaires. Les domaines couverts par la Directive concernent la détermination du lieu d'établissement des opérateurs, les communications commerciales, les contrats électroniques, la responsabilité des intermédiaires et le respect des droits.
Dans d'autres domaines, la Directive s'inspire d'instruments communautaires existants en matière d'harmonisation ou de reconnaissance mutuelle (voir SMN 15 &18).

Am 4. Mai hat das Europäische Parlament der Richtlinie über den elektronischen Geschäftsverkehr zugestimmt, die nun binnen 18 Monaten in nationales Recht umgesetzt werden muß. Mit der vom Europäischen Rat in Lissabon als äußerste Priorität eingestuften Richtlinie wird erreicht, daß für Dienste der Informationsgesellschaft die Binnenmarktgrundsätze der Dienstleistungs- und Niederlassungsfreiheit gelten und solche Dienste in der gesamten EU angeboten werden können, sofern sie den im Land des Anbieters geltenden Vorschriften entsprechen. Besondere harmonisierte Regeln sieht sie nur dort vor, wo dies unerläßlich ist. Die Richtlinie deckt u.a. folgende Bereiche ab: Definition des Niederlassungsortes von Diensteanbietern, Transparenzpflicht der Anbieter, Transparenz kommerzieller Kommunikation, elektronische Verträge, Haftung von Vermittlern. Ansonsten baut sie auf vorhandenen EU-Rechtsinstrumenten auf, die eine Harmonisierung oder die gegenseitige Anerkennung nationaler Rechtsvorschriften vorsehen (siehe SMN 15 & 18).

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