Forwarded from cyberia-l -- The EU's latest attempts to make electronic commerce convenient while ensuring tax collection and preventing collapse of governments :-) ========= ==== ]] THe text of the new draft is not on line yet, but will probably appear at ]] http://europa.eu.int/comm/dg15/en/index.htm in the next few days (there is ]] a what's new button on the left hand bar)
Should be on line on Nov 23rd } Another URL to remember to get acces to european documents } concerning Internet law is : } http://www2.echo.lu/legal/en/labhome.html and for "what's new : } http://www2.echo.lu/legal/en/labnew.html
=============== http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/98/999|0|RAPID&lg=EN IP/98/999 Brussels, 18 November 1998 Electronic commerce: Commission proposes legal framework 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 (EU) 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 response 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, 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 global electronic commerce market is growing extremely fast and could be worth ECU 200 billion by the year 2000. Worldwide, 86 million people were connected to the Internet by the end of 1996 and by 2000, this is expected to reach 250 million individuals. Within the EU, it is estimated that more than 400,000 jobs related to the information society were created between 1995 and 1997 and that one in four news jobs is derived from these activities. Scope The proposal for a Directive, which was foreseen in the Commission's April 1997 electronic commerce Communication (see IP/97/313), 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. Establishment/supervision/transparency 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 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 For electronic commerce to develop its full potential, it must be possible for contracts to be concluded on-line unrestricted by inappropriate rules (such as a requirement that contracts be drawn up on paper). The proposal would therefore oblige Member States to adjust their national legislation to remove any prohibitions or restrictions on the use of electronic media for concluding contracts. In addition, the proposal would ensure legal security by clarifying in certain cases the moment of conclusion of the contract, whilst fully respecting contractual freedom. These provisions would complement the proposal for a Directive on electronic signatures (see IP/98/423). Liability of intermediaries To facilitate electronic commerce, it is necessary to clarify the responsibility of on-line service providers for transmitting and storing information from third party (i.e. when service providers act as "intermediaries"). To eliminate existing legal uncertainties and to avoid divergent approaches at Member State level, the proposal would establish an exemption from liability for intermediaries where they play a passive role as a "mere conduit" of information from third parties and limit service providers' liability for other "intermediary" activities such as the storage of information. The proposal 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 Commercial communications such as advertising and direct marketing, which are an essential part of most electronic commerce services, would be subject to clearly defined rules under the proposed Directive. The proposal defines what constitutes a commercial communication and makes it subject to certain transparency requirements to ensure consumer confidence and fair trading. In order to allow consumers to react more readily to harmful intrusion, the proposal requires that commercial communications by e-mail are clearly identifiable. In addition, for regulated professions (such as lawyers or accountants), the proposal 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, these would have to respect certain rules of professional ethics which should be reflected in codes of conduct to be drawn up by professional associations. Implementation 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 Directive were effective, proportionate and dissuasive. Mutual recognition/derogations 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 (the free movement of which is covered by Directive 95/46 see IP/98/925), the activities of notaries, representation and defence of clients before a court, gambling activities. Furthermore, 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 interest 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: * the Member State where the service provider was established had been asked to take adequate measures and failed to do so and * the intention to impose restrictions had been notified in advance to the Commission and to the Member State where the service provider was established. 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 restrictions were not justified, Member States would be required to refrain from imposing them or urgently put an end to them. The proposal for a Directive on a legal framework for electronic commerce will be forwarded to the European Parliament and the EU's Council of Ministers for adoption under the co-decision procedure. ==========================================