in the Single Market Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL,
6 2. 1 Description of e-commerce in the economy...6 2. 2 The regulatory framework...
12 2. 2. 1. 3 Commercial communications and regulated professions (Articles 6-8 ECD. 13 2. 2. 1. 4 Electronic contracting (Articles 9-11 ECD...
53 4. 1. 2. 1 Personal data protection in the online environment...53 2 4. 1. 2. 2 Spam and the eprivacy Directive...
Article 20 (2) of the Services Directive...67 4. 3. 2 Access to capital for SMES...
69 4. 3. 3 Domain names...69 4. 3. 4 Net neutrality...70 4. 3. 5 Intellectual property rights...
75 4. 3. 8 Competition...76 4. 3. 8. 1 General...76 4. 3. 8. 2 Vertical distribution agreements...
89 4. 6. 1 Delivery services in an e-commerce environment...89 4. 6. 2 Delivery problems...
90 4. 6. 3 Parcel and express delivery services under the Postal services Directive...91 4. 6. 4 Market trends and enhanced application of the EU postal legislation...
94 4. 7 Dispute resolution in an online environment...96 4. 7. 1 Alternative Dispute Resolution and Online Dispute Resolution...
The"Single Market Act"1 identifies information society services, including e-commerce, as one of the measures which can boost economic growth
and drive forward the Internal Market of the 21st century. They also have a major role to play in achieving the objectives of smart,
By contrast, during 2008,24%of enterprises were purchasing and 12%selling electronically volumes that equalled
Information society services (ISS) or online services can contribute to achieving crucial policy objectives in a number of ways:
-Information society services are key to growth. Over the past decade, these new activities have generated jobs
and created enterprises, thus adding value and representing a major engine for European growth, even in a time of crisis.-E-commerce is seen as the best way to transcend national borders
and services for citizens and businesses located in isolated areas. -E-commerce can enhance the quality of life of vulnerable populations:
and allow them to have access to an extensive range of services and products not easily 1 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Single Market Act,
PDF. 2 Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive growth, COM (2010) 2020 final, 03.03.2010;
PDF. 3 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of the Regions, A Digital Agenda for Europe, COM (2010) 245 final/2, 26.08.2010;
Moreover, information society services and e-commerce can contribute to meeting the demographic challenge of an ageing European population.
-E-commerce can help protect the environment: e-commerce has a role to play in achieving the objectives of sustainable growth,
Ten years after the adoption of the Directive on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) 6, e-commerce is limited still to less than 4%of total European trade.
As announced in the Communication"Towards a Single Market Act"7, the European commission wants to explore the various reasons for the limited take off of retail ecommerce outlined in the retail market monitoring report:
Towards more efficient and fairer retail services in the Internal Market for 2020.8 In addition, the Commission is using this Staff Working Document to present its evaluation of the implementation of the E-commerce Directive (hereafter:
and as announced in the Communication"Towards a Single Market Act.""9 The analysis presented below covers information society services,
defined as those services provided at a distance, electronically and at the request of a recipient of services against remuneration10,
and also the much wider domain of e-commerce transactions in goods and services. 11 Online retailing, online press, search engines, social networks, blogs, media streaming, online gambling and e-health
are included in our analysis. The main focus, 5 E g. Estia et Médiamétrie//Netratings pour la FEVAD, Etude de l'impact environnemental de l'achat sur internet et dans le commerce
society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce, hereafter ECD), OJ L 178/1, 17.07.2000;
HTML. 7 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Towards a Single Market Act, For a highly competitive social market economy, 50 proposals for improving our work
of the Regions, Retail market monitoring report, Towards more efficient and fairer retail services in the internal market for 2020, COM (2010) 355, OJ C 84/19, 17.03.2011;
and the Communication is partly based on the results of an open public consultation carried out between August and November 2010.
1) the level of development, both national and cross-border, of information society services;(2) issues concerning the application of Article 3 (4) by the Member States (administrative cooperation;(
4) cross-border online commercial communications, in particular from regulated professions;(5) the development of online press services;(
6) the interpretation of the provisions concerning the liability of intermediary information society service providers;(
This Staff Working Document also draws on other sources of information available e g. studies, participation in conferences, interviews with stakeholders and the deliberations of the expert group on e-commerce etc.
This document constitutes one of the two annexes to the Communication"A coherent framework to boost confidence in the Digital Single Market of e-commerce
The second annex to the Communication identifies the latest trends in business-to-consumer e-commerce in the EU
state of play E-commerce and online services are some of the most significant innovations in the economy in recent decades
and many other pieces of subsequent EU legislation. 2. 1 Description of e-commerce in the economy Online services play an increasingly important role in the everyday life of EU citizens.
These services help to reduce the time spent on paperwork and increase activity online (reading newspapers, consulting bank accounts
Electronic commerce continues to grow substantially, even in the current economic crisis. It plays an important role in B2b exchanges as 27%of European enterprises purchase online and 13%sell online.
Nevertheless, it is limited currently to 3. 4%of retail sales in the 27 Member States.
From a wider perspective, the internet economy has generated 21%of the GDP growth of the last 5 years22
"20 Opinion of the European Economic and Social Committee on the‘Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A Digital Agenda for Europe, COM
http://www. bcg. com/documents/file84709. pdf 24 How the Internet is transforming the economy, a series of studies by the Boston Consulting Group commissioned by Google, 2010-2011;
http://www. economie. gouv. fr/files/rapport-mckinsey-company. pdf 8 in France since 2000.25 Overall, the Internet economy creates 2. 6 jobs for every
"2. 2 The regulatory framework The E-commerce Directive (ECD) is the main legislative tool dealing with information society services.
and to provide legal certainty to administrations, businesses and customers. It was drafted in a technologically neutral manner
The Directive harmonises for instance certain information requirements, commercial communications, electronic contracting and the liability regime for online intermediaries.
Market clause aims to ensure the free movement of information society services between the Member States.
a. Each Member State must ensure that information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field (Article 3 (1) ECD;
for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State (Article 3 (2) ECD).
The terms"information society services"and"coordinated field"are crucial for a proper understanding of the Internal Market
"information society services"is defined not in the ECD but in the Transparency Directive 98/38/EC as amended by Directive 98/48. 29 The basic definition of"information society services"covers any service normally provided, for remuneration, at a distance,
by electronic means and at the individual request of a recipient of services. 30 The definition of a"service
"and"normally provided for remuneration"derives from Article 57, first paragraph, of the TFEU31, as interpreted by the European Court of Justice (hereafter:
"32 However, certain telemedicine services may be covered because they are provided by definition in situations where the healthcare professional
which characterises information society services and sets them apart from other services that are sent without a request from the recipient being necessary.
or television broadcasting services. 34 29 Directive 98/34/EC of the European parliament and the Council of 22 june 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ
"Pay-per-view"services to watch movies at the times indicated on the 10 This is a broad definition spanning a variety of online activities.
but defines a"coordinated field"in the context of which the mechanism in Article 3 must allow information society services to be, in principle, subject to the law of the Member State in
which are applicable to information society service providers or information society services, regardless of whether the requirements are of a general nature
or in a programme guide are provided not services"at the individual request"of a recipient
http://ec. europa. eu/enterprise/policies/europeanstandards/files/standards policy/vademecum/doc/98 34 ec consolidated version en. pdf 36 See Recital 22 in the preamble of the ECD,
and their services subject can guarantee the full effect of the free provision of those services.
contractual obligations concerning consumer contracts and the permissibility of unsolicited commercial communications by e-mail. The conditions under which Member States may derogate from the Internal Market clause must be regarded as exhaustive. 41 In the public consultation on e-commerce there were relatively few responses to the Annex as a whole.
Some of the respondents (mostly business organisations and enterprises) had doubts about the added value of all or some of the derogations in the Annex.
Many other stakeholders took the opposite view and identified the present copyright situation within the EU as a major barrier to the availability of content beyond the national borders
and may even be vital for customers claiming their rights. The country of origin of the web trader can have major consequences, for example, for their right of withdrawal.
Moreover, Article 5 requires the online service provider to establish an effective direct communication channel with its customers.
directly and permanently accessible"to both recipients of services and the competent authorities"the details of the service provider, including its electronic e-mail address,
requests the latter to provide access to another, non-electronic, means of communication"."46 The judgment implies that service providers cannot limit themselves to offering an e-mail address accessible for their customers through the website.
They must also provide for other forms of direct communication. 47 44 The information requirements do not prevent Member States from imposing additional information requirements
but these are nowadays often harmonised or unified at EU-level. See for example the new Consumer Rights Directive,
where information society services refer to prices, to provide a clear and unambiguous indication of the prices,
whether the VAT was included in the price presented. 2. 2. 1. 3 Commercial communications and regulated professions (Articles 6-8 ECD) Article 6 of the ECD emphasises the need for transparency when advertisements are displayed on the Internet.
It obliges the Member States to ensure that online commercial communications (including promotional offers, discounts, premiums,
promotional competitions or games) meet certain transparency requirements. Both the commercial communication and the natural or legal person responsible for it must be clearly identifiable,
and any conditions attached to the offers, discounts etc. must be easily accessible. For example, advertising originating from the operator of an online marketplace
or allow the sending of unsolicited commercial communications("spams")by e-mail. Those Member States permitting unsolicited commercial communication must ensure that such communication is clearly and unambiguously identifiable,
and that service providers respect the opt out registers to which natural persons not wishing to receive such commercial communications can sign up.
In practice it is not always easy to define notions such as"unsolicited"and"commercial"."For example, not every unsolicited e-mail may be classified as"spam".
"The term"unsolicited"has posed particular problems in the context of"tell-a-friend"services. These popular services allow an internet user to enter the e-mail address of one
or more"friends"who then receive a standard message e g. inviting them to visit a particular website.
language=en. 14 Unsolicited commercial communication is covered also by other consumer rules such as the Unfair Commercial Practices Directive. 50 One of the practices which Annex
The ECD rule requirement for the commercial communications to be"clearly and unambiguously identifiable"remains applicable.
Article 8 of the ECD obliges the Member States to ensure that members of regulated professions may use commercial communications online,
This provision has forced Member States to abolish restrictions on online commercial communications for such professions.
The Services Directive complements the rules on online commercial communications set out in the ECD. According to Article 24 (1) of Directive 2006/12352, Member States shall remove all total prohibitions on commercial communications by the regulated professions.
The obligation to remove all"blanket"prohibitions also covers national legislation which only prohibits a particular form of commercial communiation.
In a judgment of 5 april 2011, the ECJ ruled that a ban on accountants'canvassing (direct marketing) must be regarded as a total prohibition of commercial communication,
which is allowed not under Article 24 (1) of the Services Directive. 53 50 Directive 2005/29/EC of the European parliament
HTML As revised by Directive 2009/136/EC of the European parliament and of the Council of 25 november 2009.52 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in the internal market
language=en. 15 Article 8 of the ECD encourages regulated professions to develop codes of conduct at EU level related to the use of commercial communications.
The opportunity to review the details of the order before placing the order was offered not in 11%of purchases.
Commission services do not have further reliable and detailed information on the practical application of the formation of contracts.
It would welcome the opportunity to learn more about the experiences of both internet consumers
for three categories of services: mere conduit operators,"caching"providers and hosting services. The details of the application of this regime are discussed in Chapter 3. 4. 56 With the exception of the contract terms and conditions,
these transparency requirements do not apply to contracts concluded exclusively by e-mail or by equivalent individual communications. 57 The acknowledgement of receipt and the revision mechanism do not apply to contracts concluded exclusively by e-mail or by equivalent individual communications. 58 ECC-Net, Online Cross-border Mystery Shopping:
State of the E-Union, September 2011, available at: http://ec. europa. eu/consumers/ecc/docs/mystery shopping report en. pdf 17 2. 2. 1. 6 Implementation and application (Articles 16-20 ECD
the Services Directive61 (2006) and the new Consumer Rights Directive62 (2011)( see Chapters 4. 2. 3 and 4. 4. 1). In the area of Intellectual Property rights,
PDF 61 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in the internal market, OJ L 376/36, 27.12.2006;
and regulates confidentiality of communications (See Chapter 4. 1. 2. 2). The UCP Directive68 (2005) is also relevant for the application of Articles 6 and 7 E-commerce Directive (see Chapter 4. 2. 3). In addition,
the prohibition of any commercial communications for regulated professions according to Article 24 Services Directive69 has supplemented the provision of Article 8 of the ECD (see Chapter 4. 2. 2)
The ban on discrimination in Article 20 Services Directive (see Chapter 4. 3. 1). Various new developments in the area of payment services (see Chapter 4. 5. 1
). New rules on the application of VAT to digital services (see Chapter 4. 8. 1). New rules on vertical distribution agreements (see Chapter 4. 3. 8. 2). Developments in private international law
The results of the public consultation and the analysis of the Commission services show that,
2006 on services in the internal market; OJ L 376/36, 27.12.2006; available at: http://eurlex. europa. eu/Lexuriserv/Lexuriserv. do?
the Commission services will increase their screening of the actual implementation and application of the ECD in the Member States (see Chapter 3. 2. 1). A conformity assessment will be carried out of the transposition in each of the 27 Member States,
which includes information society services, using the new NACE Rev. 2 classification on economic activities. However, it is not possible to directly measure the share of employment, GDP,
or the value added of electronic commerce activities. The information society services financed by advertising but provided for free on the Internet are even more difficult to assess.
Eurostat conducts surveys to measure the extent to which businesses and households use the Internet,
Additional data are necessary to measure the progress of online services in the European economy. Some data are available in private research institutes
This lack of information calls for a new framework for measuring the value of the Internet including services provided via the Internet.
The Commission services will, together with the E-commerce Expert Group, explore means of improving (public) statistics on electronic commerce and of developing tools to collect more detailed statistics about internet sales volumes. 3. 2 Need
three levels of administrative co-operation can be identified between Member States and the Commission services. 3. 2. 1 Transparency Directive 98/48/EC Directive 98/34/EC70,
PDF 20 services. The Directive is intended to help avoid the creation of new barriers to trade within the EU. The Directive requires Member States to notify their rules on information society services in draft form,
and generally observe a standstill period of at least three months before formal adoption, in order to allow other Member States
Where notified drafts are liable to create barriers to the free provision of information society services under primary or secondary EU law,
Private stakeholders can submit comments thereby assisting the Commission and national authorities in identifying possible trade barriers at an early stage.
whereby proposed national rules can affect new business models, as shown in the case ofe-books. 74 However,
Member States do not always respect the obligation to notify draft laws on information society services under the Transparency Directive.
Commission services will remain vigilant to ensure that unlawful barriers to online services are detected at the earliest possible stage. 3. 2. 2 Case-by-case derogations of Article 3 (4) ECD Article 3 (4
http://ec. europa. eu/enterprise/tris/reps 2008 2006/EN. pdf 73 For example, the Commission received notifications from France on the"Loi Hadopi",from Spain on the so-called"Ley Sinde,
"and from the UK on the"Digital economy Act",available at http://ec. europa. eu/enterprise/tris/pisa/app/search/index. cfm?
see TRIS notification numbers 2010/616/F and 2010/710f, http://ec. europa. eu/enterprise/tris/default. htm?
In the last decade, the Commission services have received only 30 notifications, mainly dealing with measures to protect consumers.
when requested to do so by the 75 See the Communication from the Commission to the Council,
A lack of awareness on the part of the administrative services of Member States may be a reason for the small number of measures adopted.
The Commission services will raise awareness about the obligation to notify draft measures. They will also explore with the Member States ways in which to strengthen administrative cooperation by integrating the notification systems under the ECD in the Internal Market Information (IMI) system. 3. 2. 3 Administrative cooperation under Article 19
andthe Commission services make presentations on both new and ongoing (legislative) initiatives relevant for the e-commerce sector.
Commission services consider the expert group a good forum for the exchange of views, experiences and best practices amongst the Member States and between them and the Commission.
Commission services will, together with the Member States, closely monitor the system of notifications and invite the expert group to reconsider
The use of the Internal Market Information system (IMI) for Article 19 ECD could also be explored. 3. 3 Need for better enforcement of the ECD Under the co-ordination of Commission services,
and is carried out on an annual basis. Commission services will continue coordinating and monitoring the sweep activities carried out by the CPC-Network.
Commission services are also supporting the online enforcement capacities of the CPC-Network through financing projects that aim to develop a common platform at EU-level of e-enforcers
when they provide one of the so-called intermediary services set out in Articles 12 to 14 of the Directive.
Moreover, Article 15 of the Directive prohibits Member States from imposing on providers of these services a general obligation to monitor content that they transmit or host.
The Directive provides for a technologically neutral framework and the liability regime strikes a balance between the several interests at stake, in particular between the development of intermediary services,
Stakeholders, by means of the public consultation on e-commerce, indicated that these provisions are essential for the provision of intermediary activities.
"This stakeholder further stated that in the absence of liability exceptions, offering a video-sharing site would probably be too great a commercial risk.
Moreover, the responses to the public consultation on e-commerce indicated that a wide variety of stakeholders face a high degree of regulatory uncertainty about the application of the intermediary liability regime of the ECOMMERCE Directive.
The main question is to what extent new services that have not been mentioned explicitly in these articles (e g
Each review will describe the main obstacles that have been raised by stakeholders, the interpretation of the Directive by national judges and the state of EU law.
several new services and activities have emerged that the legislators could not have foreseen, such as video-sharing sites, selling platforms, social networks and peer-2-peer services.
in particular as regards their applicability to services that are mentioned not explicitly in those provisions, but that could
some Member States have provided for specific liability exemptions for information location services (search engine services) and hyperlinking services.
Despite the frequent literal transposition of Articles 12-14 ECD, divergent national case law has emerged particularly in regard to the application of liability exemptions to"new services"
location tool services and hyperlinking services. This has resulted in a degree of regulatory 85 Joined cases C-236/08 to C-238/08, Google vs.
Respondents to the e-commerce consultation called on the Commission to clarify the status of these new services in view of often contradictory national case law.
Where specific exemptions from liability for search engine services and hyperlinking services have not been included explicitly in national legislation
these services have either been classified as mere conduit services, caching services or hosting services, or courts have excluded them from the scope of any exemption.
For instance: in the UK case"TV Links"(R v Rock and Overton), 86 the court without further reasoning ruled that a hyperlinking website was a mere conduit activity that could benefit from the liability exemption
of Article 12 ECD; the Belgian court in the"Copiepresse"case (Copiepresse et al vs. Google Inc.)stated that the Directive was not relevant for the liability of a news search service
The Paris Commercial Court considered that ebay might not benefit from a liability exemption for its hosting activities. 92 The court considered that the sellers on ebay's website (recipients of ebay's services in terms of the E-commerce Directive) act under the authority
because ebay plays an active role in promoting sales with the objective of increasing profits by,
"In the L'oréal vs. ebay case93 the Paris Civil Court considered that ebay could offer its clients various services on the same site without losing the right to benefit from a liability exemption.
National jurisprudence on file sharing services also diverges. For instance The Italian Court of Cassation102 considered that Piratebay,
whether certain services can benefit from a liability exemption. First recital 42 mentions that an activity should be"of a mere technical, automatic and passive nature".
It is only in two recent preliminary rulings that the European Court of Justice has had the opportunity to provide more clarity on the scope of Article 14.
In order to attract new customers to its website, ebay had bought keywords, including trademarks held by L'oréal,
from paid internet referencing services (such as Google's"Adwords")."In parallel to this, L'oréal had identified several infringements of its trademarks through/by the selling platform ebay.
"That is not the case where the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers,
and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France and Google, paragraph 116).
but also by some ISPS and other stakeholders. The underlying argument is twofold: On the one hand, it is argued that it would not be legitimate
"Stakeholders sometimes defend a differentiated approach on the basis that the means by which actual knowledge can be obtained depends on the kind of illegal activity or information.
Some stakeholders who defend the first interpretation (actual knowledge can only be obtained through a court order) make an exception for child pornography or manifestly racist content.
"A wide variety of stakeholders expressed concerns that ISPS would be reluctant to take voluntary measures to prevent illegality as this could make it more difficult to claim an absence of actual knowledge.
117 Some stakeholders, in particular intermediaries, therefore suggested that the Commission should propose a so-called"Good samaritan clause".
which in the US has been introduced in the Communications Decency Act118, would ensure that taking voluntary actions would in principle not be punished.
The AG claims to"have some difficulties"with the conclusion of the Court that recital 42 would contain conditions for all intermediary services for benefiting from a liability exemption
Some stakeholders expressed fear that defining"expeditious"could increase pressure on ISPS to take down content on notice even before correctly assessing the alleged illegality of the information.
Some stakeholders (and national judgments) consider that the extent to which information or activity is manifestly illegal seems to be essential.
according to some stakeholders, be interpreted as selecting or modifying. Recital 43 of the Directive provides in this regard that the requirement of not modifying information"does not cover manipulations of a technical nature
it is in the interest of all parties involved in the provision of information society services to adopt
For example, the Directive on the enforcement of intellectual property rights124 (Enforcement Directive) provides in its Articles 9 and 11 that Member States shall ensure that right holders are in a position to apply for an injunction against intermediaries whose services are being used by a third party to infringe intellectual property rights.
PDF 125 Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Single Market for Intellectual Property Rightsboosting creativity and innovation to provide economic growth
, high quality jobs and first class products and services in Europe, COM (2011) 287 24.05.2011; available at http://ec. europa. eu/internal market/copyright/docs/ipr strategy/COM 2011 287 EN. pdf. The Communication announces a review of the Enforcement Directive that should in particular find ways to combat infringements of IPR via the internet more effectively"by"tackling the infringements
at their source and, to that end, foster cooperation of intermediaries, such as internet service providers while respecting all fundamental rights recognised by the EU Charter of Fundamental Rights, in particular also the rights to private life, protection of personal data, freedom of expression and information and to an effective remedy".
however, that most NTD procedures are not based on agreements between stakeholders, but result from the unilateral policy of individual companies.
In the responses to the public consultation, some stakeholders, in particular civil rights organisations, complained about a lack of transparency and democratic oversight with the policies of individual companies.
Some stakeholders are worried that intermediaries are in a position, for the sake of simplicity and to avoid liability claims,
The Commission services have been made aware of the following national laws (see Annex II of this Staff Working Document for a more detailed description:
The Finnish Act on provision of information society services (transposing the ECOMMERCE Directive) contains a detailed notice
and information society services (transposing the E-commerce Directive) provides for a notice -and-takedown for mere conduit and caching providers as regards infringements of intellectual property rights;
The Lithuanian law on information society services (transposing the E-commerce Directive) also provides for a notice
The french Law on the performance of internal security also puts in place a mechanism for blocking child pornography. 3. 4. 4. 3 Persisting issues According to a majority of stakeholders that responded to the public consultation,
Certain stakeholders also consider it socially undesirable that the takedown of manifestly illegal information (for instance child pornography) is sometimes less fast than the takedown of illegal information where there is a financial gain involved in the takedown (for instance phishing websites.
"Many stakeholders consider it important that the provider of allegedly illegal information should be given the opportunity to submit a counter-notice
Moreover, as indicated by stakeholders, offering the possibility of submitting a counter notice is perhaps not appropriate in the context of manifestly illegal information.
because they would normally need to seek legal advice or translation and eventually make a judgment
Some stakeholders consider that intermediaries should not be held liable for taking down"illegal"information if it turns out that the information was provided not illegal
on the Economics of Information security (WEIS 2008), June 25 28 2008; available at: http://www. cl. cam. ac. uk/rnc1/takedown. pdf 46 Many stakeholders consider that the legitimacy of private operators deciding on the takedown of content without the intervention of a court depends on the extent to
which the alleged illegal information is manifestly illegal (see Chapter 3. 4. 3. 1). For instance,
many stakeholders do not consider that the intervention of a court is required to takedown manifest child pornography.
Other stakeholders, in particular intermediaries, also favour a focus on prevention, but in the form of offering attractive, accessible and legal services on the Internet.
Moreover, some intermediaries, in particular video-sharing sites, argue that right holders should favour"monetisation"over takedown."
Stakeholders to be consulted include Member States, internet intermediaries, right holders, child protection organisations, civil rights organisations and citizens in general.
when providing the services covered by Articles 12,13 and 14, to monitor the information which they transmit or store,
It aims to avoid placing a disproportionate burden on intermediaries that would seriously restrict them in providing their intermediary services.
must be interpreted as precluding an injunction imposed on an ISP to introduce a system for filtering all electronic communications passing via its services,
which applies indiscriminately to all its customers; as a preventive measure; exclusively at its expense;
"As regards the above-mentioned question it notes that"it must be held that the injunction imposed on the ISP concerned requiring it to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers
"may also infringe the fundamental rights of that ISP's customers, namely their right to protection of their personal data and their freedom to receive
with the result that its introduction could lead to the blocking of lawful communications"(paragraph 52).
For this reason, the public consultation on e-commerce consulted stakeholders on the effectiveness and efficiency of filtering techniques ten years after the 142 BGH,
A wide variety of stakeholders mentioned several disadvantages of filtering techniques and confirmed that Article 15 is still relevant today.
A variety of stakeholders raised concerns about significant traffic speed reductions as a result of certain filtering techniques.
Second, stakeholders also expressed concerns about the costs associated with filtering techniques. ISPS tend to argue that implementing filtering techniques would be a significant financial burden.
a variety of stakeholders raised concerns about tensions between the protection of fundamental rights and filtering techniques.
starting with the willingness to engage in ecommerce and following through the process of gathering of information on products and services on offer,
the actual access to products and services, the issues surrounding the conclusion of a contract,
the payment and delivery of the products and services bought/sold, ending with redress if things go wrong.
and business models and provide different guarantees of service. To overcome such fragmentation, the Commission announced in the Digital Agenda for Europe (2010) its intention to create a stakeholder platform by 2012 for EU online trustmarks,
especially for retail websites. 145 See in particular the Commission Communication"A Digital Agenda for Europe",COM (2010) 245 of 19.5.2010, available at:
http://ec. europa. eu/information society/digital-agenda/documents/digital-agendacommunication-en. pdf 146 See: http://www. thuiswinkel. org/engelstalig/-new/home/homepage-thuiswinkel 147 See:
stakeholders and experts to carefully analyse the implementation process for setting up the EU trustmark scheme. 149
the Commission services organised a workshop on"trust and confidence in the Internal Market"during the first Digital Agenda Assembly (June 2011).
and benefits of (different models) for setting up an EU online trustmark stakeholder platform. 4. 1. 2 Personal data protection 4. 1. 2. 1 Personal data protection
in the online environment It is acknowledged widely that trust is the currency of the digital economy.
buyers of goods and services provide often without much thought-their bank or credit card details when paying for their purchase.
The use and exchange of personal data have become essential factors in the online economy. 150 Professional players are aggregating massive amounts of data for professional use,
in particular for behavioural advertising. 151 In situations where hosting services are requested to take down illegal material such as pirated
and respective stakeholders and analyse the steps required to improve E-commerce, enhance consumer confidence and develop a European Trustmark.
The next frontier for innovation, competition and productivity, May 2011; available at: http://www. mckinsey. com/mgi/publications/big data/index. asp. 151 Behavioural targeting
and provide for specific regime applicable to the processing of personal data carried out solely for freedom of expression purposes. 153 The ECD does not apply to questions relating to information society services covered by the EU legislation on the protection of personal data (Article 1
and the eprivacy Directive Recent studies suggest that unsolicited commercial communication or spam accounts for more than 90%of global e-mail traffic. 159 Spam is popular
Spam can seriously harm the development of online services. Their costs do not only relate to the unnecessary use of broadband capacity or the purchase of expensive anti-virus software.
and users'rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws,
or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC), OJ L 105/54, 13.04.2006;
item id=7022.160 Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or"spam",COM (2004) 28 final
Article 13 contains an"opt-in"approach to unsolicited commercial communications. Users must give their prior consent before communications for the purposes of direct marketing may be addressed to them.
This opt-in system applies to e-mail as well as text messages and other electronic messages received on any fixed or mobile terminal.
Exceptions are foreseen in the context of already established customers for the direct marketing of its own similar products or services by the same provider.
whose behalf the communication is made. It requires the disclosure of a valid address to exercise the right to request that such communications cease.
Also, Article 13 (6) allows any legal person adversely affected by spam, such as internet service providers, to protect their business
and their customers by taking legal action against spammers. 4. 1. 2. 3 Cookies and the eprivacy Directive Cookies are hidden information exchanged between an internet user and a web server,
almost 80%of online service providers interviewed are collecting data from cookies. 161 Business representatives indicated in the public consultation that today's internet economy
"Commission services have issued a guidance document on the implementation of Article 5 (3) on cookies. 162 161 See http://www. enisa. europa. eu 162 DG INFSO/B2 Communications
"The Commission services understand this in their guidance document as follows: The user concerned must be informed163,
and"for the sole purpose of carrying out the transmission of a communication over an electronic communications network,
and/or notified the Commission the measures ensuring the full transposition of the new rules. 166 Some of the proposed national laws have already been criticised for being unworkable in practice. 167 Commission services will closely monitor the process of transposition of the new eprivacy Directive in those Member States
Ref=CM/Rec (2010) 13&language=lanenglish&ver=original&backc olorinternet=C3c3c3&backcolorintranet=EDB021&BACKCOLORLOGGED=F5d383 171 See the Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee
This is particularly an issue in the digital environment. Several provisions of the Directive have given rise to divergent interpretations
The development of the Internet and the increased supply of online gambling services are posing challenges for the co-existence of differing regulatory models,
http://ec. europa. eu/internal market/services/gambling en. htm 61 Member States prohibit the online sale of"over-the-counter"(OTC) medicines or medical devices.
There is an increasing demand for buying medicines online for a number of reasons. The greatest benefit for consumers is the convenience of buying online
but internet services can provide quick and easy access to medicines in particular for chronically ill people, less mobile citizens, the elderly, working people or inhabitants of rural areas.
otherwise be reluctant to approach their pharmacists for in front of other customers in a physical pharmacy environment.
Other EU initiatives also contribute to the realization of a safe and legally secure Internal Market for online health services.
the Commission Communication on the benefits of telemedicine for patients, healthcare systems and society, 178 aims at enabling the wider deployment of telemedicine services through building confidence, bringing legal clarity,
This Communication will be complemented by a Staff 175 Directive 2011/62/EU of the European parliament and of the Council of 8 june 2011 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use,
PDF 63 Working Paper on the applicability of the existing EU legal framework to telemedicine services in the first half of 2012.
and unfair commercial practices should be tackled. 4. 2. 1 Price comparison websites As outlined in the Staff Working Document"Bringing e-commerce benefits to consumers"accompanying the Communication on e-commerce,
only a low proportion of price comparison websites (17%)give customers the option of offers available from other Member States.
181 Commission services will work closely with product testing and other organisations providing information on product quality comparisons/price/best value for money
Virtually all online businesses reach clients through advertising or other forms of commercial communications. Many small and emerging companies depend on online advertising to facilitate their market entry and build competitive and successful businesses.
Different tools for approaching online customers exist. The classical way is for the traders or service providers to create their own website in the hope that clients will find their business
and commercial blogs offer content and services to consumers for free, earning revenue by selling advertising space on their sites to businesses that intend to reach those customers.
Third, online enterprises such as travel planning sites sell both advertising space and their (own) services directly to consumers.
In all those business models, the use of search engines has become widespread. Customers rely increasingly on search engines to find their preferred product or service.
Search engines charge advertisers on a pay-per-click basis. The trend is towards direct-response type advertising instead of display advertising.
which account for 50%of newspaper revenues in the printed environment and almost 100%in the digital area.
Regulated professions still face restrictions when developing online commercial communications. In this context, Article 24 (1) of the Services Directive requires Member States to remove total bans in so far as such bans concern a particular form of advertising such as advertising over the Internet. 184 It has also been reported that contractual prohibitions (e g. on data portability) complicate multi-platform advertising campaigns.
Finally the application of data and privacy protection rules on cookies and behavioural targeting has sometimes been perceived as excessive by internet companies.
The Commission services will continue to monitor and analyse the national regulatory and contractual developments in the Member States
promote and protect fair competition in the area of commercial practices. Based on full harmonisation, it has four key elements:
regulation or administrative action in Member States concerning the provision of audiovisual media services(‘Audiovisual Media Services Directive'),OJ 15.4.2010,
The restrictions and bans are applicable to linear and on-demand services. All audiovisual commercial communications (TV and on-demand) must be readily recognizable;
not use subliminal techniques; not use surreptitious techniques; respect human dignity; not include/promote discrimination (e g. based on sex, nationality, religion;
not encourage behavior harmful to health (see codes of conduct on fatty food), safety or the environment;
The Directive covers television, on-demand services and emerging advertising techniques. The question has been raised to what extent the commercial communications rules of the Audiovisual Media Services Directive also apply to new services such as the online social networks. 183 See recently for example the Ker-Optika judgment,
Case C-108/09. 184 See Case C-119/09, Société fiduciare nationale d'expertise comptable v Ministre du Budget, des Comptes publics
joint surveillance actions("sweeps")have been carried out on the basis of UCP provisions (websites selling airlines tickets, online mobile phone services, websites selling consumer electronic goods;
which should summarize existing digital user rights in the EU in a clear and accessible way way to inspire trust and confidence among users of e-communications and online services.
The Code will build on the prototype of the eyou Guide, the online information tool for internet users and consumers explaining the digital rights
The Commission will contribute to a more proactive policy by using its existing networks such as the European Enterprise Network and/or the European Consumer Centres Network,
when selling crossborder and also to create more awareness about the opportunities offered by selling in other EU countries
Article 20 (2) of the Services Directive There is a growing tendency for businesses to use the Internet to foster the sales of their goods
and services by exploiting the global availability of their websites. However, most online traders still serve a very limited number of Member States.
The most frequent cases concern web shops that either refuse to sell items or services to residents 187 http://ec. europa. eu/information society/eyouguide/navigation/index en. htm 188 European commission
or sell identical items or services at a (much) higher price due to the consumer's country of residence.
and the European Consumer Centres indicate that such practices exist for a wide range of services such as the sale of electronic goods,
Article 20 (2) of the Services Directive189 prohibits discrimination on grounds of nationality or residence in B2c and B2b relationships.
In accordance with Article 20 (2) of the Services Directive Member States have an obligation to ensure that the above-mentioned non-discrimination principle is implemented in their national legal orders.
Further to this implementation, it is for the competent national authorities to ensure that general conditions of access to a service made available to the public by online traders falling under the scope of the Services Directive comply with the national provisions implementing Article
20 (2) of the Services Directive. The application of these national provisions will require a case-by-case assessment of the possible"objective reasons"for the different treatment.
Recital 95 of the Services Directive gives examples of such objective circumstances. Additional costs may be justified because of the distance involved
or lower demand influenced by seasonal factors; pricing by different competitors, or extra risks linked to having to comply with rules different to those of the Member State of establishment.
Member States had to implement the Services Directive into their national legal orders by 28 december 2009.
a majority of Member States have implemented Article 20 (2) of the Services Directive through a provision in the horizontal law transposing the Services Directive.
when trying to buy services in other Member States. However, to the Commission's knowledge there have been very few cases of administrative application of the 189 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in the internal market, OJ L
376/36, 27.12.2006; available at: http://eurlex. europa. eu/Lexuriserv/Lexuriserv. do? uri=OJ: L: 2006: 376: 0036: 0068:
PDF 69 national provisions implementing Article 20 (2) of the Services Directive and as yet no instances of judicial application in any Member State190.
The Commission is currently assessing the completeness and correctness of the implementation of Article 20 (2) of the Services Directive.
Based on the outcome of this research, it will establish guidelines to assist national authorities on the proper application of the national provisions implementing Article 20 (2) Services Directive (adoption in 2012). 4. 3
. 2 Access to capital for SMES Small and Medium Sized Enterprises (SMES) play an important role in fostering growth and innovation and this holds in particular for the online services market.
and disadvantages of different forms of finance and knowledge of how best to present their investment projects.
in particular through venture capital. Venture capital markets are, however, not sufficiently developed in Europe as they encounter significant difficulties in raising capital abroad
and in operating across borders because of a multiplicity of national regulatory regimes and tax barriers.
On 7 december 2011, the Commission adopted an action plan on access to finance for SMES. 191 The action plan includes measures to facilitate the cross-border provision of venture capital services in view of the existing multitude of national regulatory regimes
and tax barriers. 4. 3. 3 Domain names For many online services, obtaining a national top level domain name (TLD) is a major asset for reasons of trust and reputation.
when their customers are using search tools. However, the Commission services have received complaints from companies frustrated in their attempts to obtain TLDS
because certain Member States require natural and legal persons to be established within their territory, and/or have a"real and substantive"connection with the country.
freedom to provide information society services). The Commission services will monitor the establishment requirements for obtaining TLDS
and their compatibility with the Internal Market freedoms and other applicable EU acquis. 4. 3. 4 Net neutrality Net neutrality is the principle according to
on the one hand, techniques like packet differentiation and IP routing guarantee a minimum quality to end-users for services that require a differentiated network speed (such as videoconferencing),
however, also be misused by internet providers to prevent access to information society services, in particular when they are competing with the services of the internet provider (such as telephony or television services).
This can be done either by blocking certain services outright or by making it very unattractive to access them,
usually by using a technique called"throttling"that degrades network quality. The Commission Communication on the open Internet and net neutrality in Europe193 reports several instances of blocking of legal services (in particular of Voice-over-Internet-Protocol services by mobile internet providers),
but stresses that more exhaustive evidence is needed before policy conclusions can be drawn at the European level.
The Communication furthermore recalls that the Commission reserves its right to assess under Articles 101 and 102 TFEU any behaviour related to traffic management that may restrict
or distort competition. In the first half of 2012 the Commission will publish evidence from investigations by the Body of European Regulators for Electronic communications (BEREC.
more stringent measures to ensure competition and access to certain online services are excluded not. 192 See:
http://ec. europa. eu/information society/policy/ecomm/library/public consult/net neutrality/index en. htm 193 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee
On that basis, the Commission will assess the need for more stringent measures to achieve competition
and services that have a distinct characteristic independence from any physical medium. Music, films and books can be downloaded
Today, with the availability of adequate computer support for reading text, books have become services
Businesses have developed new business models to promote transactions in online digital goods . Although this new form of trade creates huge expectations on the part of consumers,
the online content-related (legal) services are normally not available in all Member States and tend to concentrate in a limited number of Member States.
These services also tend to target specific territories and limit the possibility for consumers to use them across borders.
when they wish to provide cross-border digital content services which are protected copyright, resulting in their needing toenter into licence agreements outside their home country.
whereas counterfeiting distorts the Single Market because of the unfair competition between businesses. One of the crucial means of combating piracy is the development of legal offers by providers.
In parallel, the development of cross-border trade should also help increase the income of authors by attracting potential customers from all Member States.
On 24 may 2011 the Commission published a Communication with the aim of boosting the Single Market for Intellectual Property Rights. 197 The new Intellectual Property Strategy announces a number of EU initiatives:
Second, the creation of a clear and well-functioning legal framework for the multi-territorial licensing of musical works for online services will encourage the uptake of new business models that provide online services to European consumers 2
and a broadcaster constitute a restriction on competition prohibited by Article 101 TFEU where they oblige the broadcaster not to supply decoding devices enabling access to that rightholder's protected subject-matter with a view to their use outside the territory covered by that licence agreement (See:
Case C-430/08, Football Association Premier League Ltd v QC Leisure and C-429/08, Karen Murphy v Media Protection Services Limited
meaning investments are made not. Cross-border access to cultural goods and services, however, helps European citizens to better know
and understand each other's cultures, to appreciate the richness of cultural diversity and to see for themselves what they have in common. 197 Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Single Market for Intellectual Property rights.
Boosting creativity and innovation to provide economic growth high quality jobs and first class products and services in Europe, COM (2011) 287 final, 24.05.2011, available at:
http://ec. europa. eu/internal market/copyright/docs/ipr strategy/COM 2011 287 EN. pdf 73 digitisation and making available of"orphan works".
"198 Orphan works are works such as books, newspapers or films that are protected still by copyright but
M. Antonio VITORINO, tasked with resolving differences amongst relevant stakeholders and finding workable solutions to resolve outstanding issues that should lay the ground for comprehensive legislative action at EU level by 2012.
in order to overcome Digital Single Market barriers and stimulate the European audiovisual sector as regards issues such as video-on-demand (Vod) services and cross-border broadcast services (2012). 198
Commissioner for Justice and Home affairs, was appointed to take up the mission of mediator to lead the process of stakeholder dialogue on private copying levies.
Mr. Vitorino's task will be to moderate stakeholder discussions with the objective of exploring possible approaches to harmonisation of both the methodology used to impose levies and the systems of administration of levies.
and provide an opportunity to examine the feasibility of an optional"unitary"copyright title to provide right holders with the flexibility to choose
involving the stakeholders most concerned by this phenomenon (right holders and internet platforms). In this context, a Memorandum of Understanding was signed by major internet platforms and right holders on 4 may 2011.203 Over the coming twelve months,
these stakeholders will review and measure progress under the auspices of the Commission services. The Commission is also working on a review of the IPR Enforcement Directive 2004/48/EC,
204 inter alia identifying ways to create a framework allowing more effective combating of IPR infringements via the Internet. 7. Journalists are authors
and publishers have over the use of their works on the Internet, in particular in view of the rise of news aggregation services.
Commission services will continue to examine these issues in the light of new legal and technical developments. 4. 3. 6 Grey markets In its application report on the implementation of Directive 98/84/EC (on the protection of conditional
access services) 205 the Commission noted that European citizens are restricted in their cross-border access to audiovisual services
whether this be on demand, Internet or satellite. The inadequacy of rules governing the provision of digital cultural goods,
including across borders, an area of importance given increasing mobility of European citizens in the 202 The Commission will examine these issues in a report on the application of Directive 2001/29/EC of 22 may 2011 on the harmonization of certain aspects
on the legal protection of services based on, or consisting of, conditional access, COM (2008) 593 final, 30.09.2008;
It held that the practice of holders of intellectual property rights to forbid broadcasters from supplying cross-border services
the Commission services will publish a study on the economic potential of crossborder pay-to-view audiovisual media services. 4. 3. 7 Reuse of public information Public information can be defined as all the information
and currently untapped potential for reuse in new products and services and for efficiency gains in administrations.
This results in fragmentation in the internal information market for PSI based products and services.
and the non-availability of the information in a machine-readable format make it impossible to reap maximum benefits from the new opportunities that the data offer.
QC Leisure and Karen Murphy v Media Protection Services Limited judgment of 4 october 2011, available at http://curia. europa. eu/juris/recherche. jsf?
On 12 december 2011, the Commission adopted the strategy in a Communication to the European parliament and to the Council.
The Communication is accompanied by a proposal for modifying the PSI Directive (the main element of the legal framework for reuse),
and the revised Commission's decision on the reuse of information. 208 4. 3. 8 Competition 4. 3. 8. 1 General Competition is of key importance in ensuring a well-functioning digital Single
It is fostered by the application of general EU competition rules 209 as well as by interoperability and efficient standards.
Commission services closely monitor the information and internet sectors to ensure that market players comply with EU competition law.
For instance, in spring 2010 the Commission launched two investigations into business practices by Apple involving the iphone.
Apple had made warranty repair services available only in the country where the iphone was bought, thereby potentially partitioning the Internal Market.
Stakeholders in the responses to the public consultation on the future of electronic commerce in the Internal Market and the implementation of the ECD also raised the issue of the provision of online press services being hampered allegedly by conditions set by certain"application platforms".
in which case the application platform would receive 30%of the transaction value. 4. 3. 8. 2 Vertical distribution agreements Competition rules on vertical restraints have been crucial in removing the unjustified restrictions on e-commerce contained in distribution agreements
reference=IP/11/1509 213 See announcement of this decision on DG Competition's web-page:
http://ec. europa. eu/competition/elojade/isef/case details. cfm? proc code=2 m 5529 214 European commission, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European union to horizontal co-operation agreements, OJ C11, 14.1.11, available at:
http://europa. eu/legislation summaries/competition/firms/l26062 en. htm 215 For instance, the Commission has on several occasions (Yves saint laurent, 2001;
language=en), the ECJ 78 stakeholders responding to the public consultations expressed their concerns about manufacturers imposing"brick
which may restrict competition and create barriers to the Internal Market to the detriment of consumers.
Since the Internet allows distributors to reach different customers and different territories, certain restrictions on the use of the Internet by distributors are dealt with as hardcore restrictions.
For example, any obligation on distributors to automatically reroute customers located outside their territory, or to terminate consumers'transactions over the Internet
which would constitute compliance with competition rules. The Commission services will closely monitor the e-commerce
and other digital sectors to ensure that market players comply with EU competition law 4. 4 Contracting 4. 4. 1 Contract law The E-commerce Directive contains basic provisions
on online contracting. It contains precontractual information requirements for business and consumer contracts and ensures through the"equivalence principle"that contracts concluded electronically are valid (see Chapter 2. 2. 1. 2). Respondents to the e-commerce consultation,
but certain areas such as healthcare services, passenger transport and gambling will be excluded. The new rules of the Consumer Rights Directive will have to be transposed into national laws by 13 december 2013.
nor is it applicable to gambling and healthcare services. Furthermore, it allows Member States to impose linguistic requirements on consumer contracts.
The Commission services will closely monitor the transposition of the Consumer Rights Directive. They will also look into the most appropriate ways to ensure that businesses
and the Enterprise Europe Network226 confirm that businesses with an interest in 223 On 16 november 2011 the Commission hosted a seminar to discuss consumer problems with digital products, such as e-mail, social networks, music, films, e
-books or e-learning services. Problems include incomplete or incomprehensible information, interrupted access to content and faulty products.
The transaction costs may be dissuasive, particularly for micro and small enterprises, as they constitute a greater share of their annual turnover.
and fairer retail services in the Internal Market for 2020"232 underlined the existence of unfair commercial practices throughout the retail supply chain.
in order to avoid competition from pure e-commerce players. As mentioned in the Single Market Act, the Commission will adopt (in 2012) a Communication on unfair B2b practices in the (retail) supply chain with the particular aim of pinpointing where there are problems.
In addition, it will list the various existing national regulatory frameworks and evaluate their implementation, involving an examination of any 230 Joined cases C-585/08 and C-144/09, Peter Pammer v Reederei Karl Schlüter Gmbh & Co. KG and Hotel Alpenhof Gesmbh
PDF 232 Report from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of Regions, Retail market monitoring report, Towards more efficient and fairer retail services in the internal market for 2020
In addition, certain anti-competitive or unfair practices may exist in the area of information society services beyond retailing, for example,
as outlined in the recent Communication on Internet network neutrality. In the first half of 2012, it will report on its analysis of the implementation of the Framework Directive"telecom"(2002/21/EC) 233
and prepare a report on standards for e-signatures. 233 Directive 2002/21/EC of the European parliament and the Council of 7 march 2002 on a common regulatory framework for electronic communications networks and services, OJ L
PDF 234 Directive 2009/140/EC of the European parliament and the Council of 25 november 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19
and 2002/20/EC on the authorisation of electronic communications networks and services, OJ L 337/37, 18.12.2009;
It will also cover the cross-border functioning of certain other trusted services and provide legislation for the mutual recognition of electronic identification and authentication services.
The tools proposed in the framework should be general and open to all sectors, especially where electronic identification is concerned.
including the Internet and mobile communications. As a first step a public consultation on e-identification
A large majority of stakeholders confirmed the need for regulatory measures regarding the mutual recognition and acceptance of e-identification and authentication throughout the EU. In 2012,
the Commission will propose legislation ensuring the mutual recognition of electronic identification and authentication across the EU and a revision of the Directive on Electronic signatures. 237 Communication from the Commission to the Council,
PDF 238 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Single Market Act, Twelve levers to boost growth
For micro-payments, the issue of cost seems to be a major obstacle to the development of low value information society services such as online newspapers, music, movies, video games,"premium rate service",directories,
which was left to the arbitration of Member States by the Payment Services Directive241, affects consumers who,
241 Directive 2007/64/EC of the European parliament and of the Council of 13 november 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC,
2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, OJ L 319/1, 05.12.2007 (hereafter‘Payment Services Directive'),available at:
The Payment Services Directive243 (PSD) in its Articles 60 et sequ. addresses the liability for payments, especially in cases of unauthorized payment transactions,
and stipulates that the cost is borne by the providers of payment services. By contrast, the payer shall bear the losses,
More competition More choice and transparency for consumers More innovation More payment security and customer trust Each of these objectives would benefit from a more integrated European market for card,
which measures could best contribute to improvements in the above-mentioned four areas. 242 A separate issue is the blocking of payments by financial institutions for example in situations of alleged intellectual property rights infringements or online gambling. 243 Payment Services
05.12.2007.88 As regards the level of competition in the payments market, the Paper examines factors
The pricing of payment services is analysed from two angles, namely the relationship between the consumer and the merchant and the relationship between the merchant and the payment service provider.
including surcharges, the lack of competition, standardization, and micropayments. On 11 january 2012, the Commission has adopted a Green Paper on card payments,
both in terms of the regulatory and technical environment. 244 See http://ec. europa. eu/internal market/payments/index en. htm 245 Capgemini Consulting, SEPA:
http://ec. europa. eu/internal market/payments/docs/sepa/sepa-capgemini study-final report en. pdf 89 In its Communication"Reaping the benefits of electronic invoicing for Europe,
defined priorities for their resolution and proposed a set of concrete future actions for all stakeholders involved.
1. Ensuring a consistent legal environment for e-invoicing 2. Achieving mass market adoption by getting SMES onboard 3. Ensuring maximum use of e-invoicing 4. Promoting a common e-invoicing standard Member States
In turn, the Commission established a European Multi-Stakeholder Forum on e-invoicing to identify common hurdles
Commission services will, together with the European multistakeholder forum, take action to encourage the maximum use of e-invoices exchange. 4. 6 Delivery Many surveys
especially its cross-border dimension. 247 4. 6. 1 Delivery services in an e-commerce environment With the exponential growth and use of electronic means of communication,
customers increasingly need to send or receive physical goods that they sell or buy online.
As a response to emerging needs, new alternative ways of delivery are being developed such as parcel consolidators who arrange the direct transport of items from the online retailer to the postal operator of the country of destination. 246 Communication from the Commission
Enhancing the trust in delivery services to promote consumers'overall confidence in using the electronic-commerce services can contribute to its further growth.
This is especially the case when talking about parcel delivery and express delivery services, which have traditionally been open to competition. 248 The European parcel
and express market is today a highly consolidated market, after a decade of mergers and acquisitions.
and all these operators are today competing against each other to offer their customers an improved product portfolio.
showing that customers (senders) are increasingly using alternative delivery providers. The main reasons for this choice could be:(
(ii) better range of services and (iii) better quality and/or reliability of delivery services provided by alternative operators. 4. 6. 2 Delivery problems Delivery emerges from the various consultations and studies as one of the the major obstacles
to the development of electronic commerce253. 248 Green Paper on the development of the single market for postal services, COM (91) 476 final, 11.06.1992, available at http://ec. europa. eu
based on their integrated business model. 250 ITA Consulting/WIK Consult, The evolution of the European Postal market since 1997, August 2009, available at:
The evolution of the European Postal market since 1997 252 Copenhagen Economics, Main developments in the postal sector 2008-2010,29. 11.2010, pp. 85-91;
and raises questions about (i) the level of competition in the sector (particularly regarding the delivery of goods) and (ii) the status of the transposition and correct implementation of the postal acquis.
The responses to the consultation also indicated that the problems identified in delivery services are essentially (i) high costs,(mainly for cross-border trade), due to higher crossborder delivery prices in comparison to similar and/or equivalent domestic delivery
services,(ii) the refusal to supply in specific geographical areas (iii) the unreliability of the delivery service,
and express delivery services under the Postal services Directive The Postal services Directive256 addresses certain of these delivery issues indirectly firstly through the requirement of universal service provision with regard to basic letter mail (up to 2 kg),
http://ec. europa. eu/internal market/post/doc/legislation/2008-06 en. pdf 92 Although parcel and express delivery services have been open to competition for some decades257,
With regard to these regulatory measures, a distinction needs to be made between two types of services:(i)" basic"or"standard"parcel service which is part of the universal service obligation (USO),
and (ii) parcel delivery services with added value, which are not directly subject to USO, but are nonetheless subject to some other regulatory requirements (e g. obligation to handle consumer complaints).
The latter services are understood traditionally as comprising elements such as (i) the collection at the premises of the sender,
(ii) the handling of bulk parcels (parcels sent in larger quantities),(iii) track and trace services and (iv) express (faster) delivery and/or guaranteed delivery times.
Parcel delivery as part of the Universal Service Obligation (USO) Article 3 of the Postal services Directive obliges Member States to ensure the provision of basic parcel services at affordable prices for all citizens
All Member States ensure that basic parcel services in most cases meaning over-the-counter parcel services, 258 are guaranteed as part of the universal service obligation. 259 Article 3 (3) of the Postal services Directive enables Member States to implement derogations
from the minimum requirements for USO. This has to be granted by the independent national regulatory authority
thus on the basis of Article 3. Parcel services which are part of the USO do not,
however, in most cases comprise the additional added value elements as defined above. 261 These added value services are covered not by the USO requirements of Article 3. 257 See for example Chapter 4. 3. 3,
. ITA/WIK 2009.258 It is known that basic parcel services usually indicate services where customers hand in the parcel at the post office counter. 259
track and trace services and express (faster) delivery and/or time certain delivery. E g. as regards the delivery to home premises in some Member States parcels may not be delivered frequently to the addressee's residence,
additional services such as track and trace are provided often only by express and courier companies. 93 Postal users'protection measures Article 19 of the Postal services Directive obliges Member States to ensure the existence of complaint procedures for all postal users, particularly in cases
. While this provision is mandatory for the universal postal service and interchangeable services, many Member States go beyond this minimum
and extend the complaint mechanism to services outside the USO. 262 Although the Postal services Directive entrusted to Member States the task of organizing transparent complaint procedures,
The increased demand for more flexible and user-friendly delivery solutions has been impacting the delivery sector significantly.
guaranteed delivery times, improved operational performance, endtoend logistics services or track and trace services are offered increasingly as value-added delivery services.
and customers using electronic-commerce. Many operators are introducing flexible delivery systems, such as local stores or automatic parcel stations265,
and parcel services, especially in terms of the products offered. Parcel operators have improved their transit times and can hence compete with the lower end of express operators'services,
whilst express operators have introduced lower-cost products targeting customers less sensitive to delivery time. Furthermore, new business solutions such as parcel consolidators266 or online parcel brokers267 are being developed,
which facilitate the whole delivery process by providing customers with added value in the form of pre-delivery services (e g. presentation of available delivery alternatives and finding the best options in a given situation
) or in the form of passing on cost savings (e g. consolidators'volume discounts), which are reflected in a lower final delivery price for customers.
In relation to innovations, new technologies have allowed operators to both improve efficiency and reduce costs. Technological solutions such as"dynamic route planning"
delivery), which can subsequently be reflected in improved services, both in terms of the quality of service as well as pricing.
With regard to the efficient application of existing regulatory tools, Commission services are working on a number of initiatives. 265 Service provided by some delivery service operators,
and collection services and later on insert the collected parcels in postal delivery networks. 267 In contrast to parcel consolidators,
but only provide a sender with information on possible delivery options in a given situation. 95 The Commission services are conducting a sectoral study, with the help of an external consultant, regarding the cross-border provision of parcel delivery services,
with a specific focus on the alleged price differences between cross-border and domestic parcel services.
This will allow Commission services to better measure one of the issues mentioned in the consultation (high costs of delivery.
Commission services will prepare the Green Paper on parcel delivery as the final leg of e-commerce services,
and should include all stakeholders involved (e g. delivery operators; eretailers; customers; other stakeholders. With regard to the complaints procedures in case of lost items, theft and delay, it becomes imperative that Article 19 of the Postal services Directive
and the user's possibility to complain to the postal service provider is implemented efficiently and that adequate protection is ensured at the national level.
In this regard, Commission services will envisaged, as by Article 22 of the Postal services Directive, further promote cooperation among national regulatory authorities both within the context of the European Regulators Group for Postal services (ERGP) and in relation to possible individual cases.
Furthermore, as announced by Commissioner Barnier in his intervention at the European parliament on 9 september 2010268
Commission services has organized the first Postal Users Forum for 12 december 2011.269 The forum encouraged users to reflect on their experience with postal delivery services
In 2012, Commission services will prepare a report on the application of the USO derogations by Member States with a view to identifying their scope,
with specific focus on basic parcel services, and their impact on the delivery of items that originated in e-commerce transactions.
Commission services will continue not only to monitor the developments on the quality of delivery services as well as consumer satisfaction
In summary, the Commission services will: 270 prepare a Green Paper on cross-border delivery,
publish a sectoral study regarding the cross-border provision of parcel delivery services (January 2012;
prepare a report on the application of the USO derogations by Member States (2012). 4. 7 Dispute resolution in an online environment
While e-commerce offers a wide range of services, and many facilities, its development is still being hampered severely
consumers as well as enterprises want easy, fast and cheap solutions. Alternative Dispute Resolution("ADR")272 is considered widely as an efficient, quick and low-cost alternative to classic court procedures both for online and offline disputes.
and by enterprises http://www. risolvionline. com/281 Belmed is an online dispute resolution scheme set up by Belgium to resolve disputes between consumers and traders:
http://ec. europa. eu/consumers/redress cons/docs/cons redress eu qual study report en. pdf 284 The Gallup Organization for DG Communication, Flash Eurobarometer 300, Retailers'attitudes towards cross
Handling the entire process online would allow savings in terms of time and ease of communication between the parties.
The Commission services will encourage the ECC-Net to take a more proactive and preventive approach towards key business sectors that have significant cross border exposure.
The principal objective of this legal instrument is to encourage recourse to mediation services in the Member States.
The Commission services will carefully monitor the transposition of the Mediation Directive in the Member States
Moreover, online legal services are underdeveloped and in many cases nonexistent. Simplified court procedures or"small claims procedures"exist in almost all Member States for national cases as a cost-efficient alternative to the traditional court procedures.
Commission services will conduct an assessment of the application of Regulation (EC) 861/2007 by 2013.
and the applicable law as well as the recognition and enforcement of judgments also for disputes in an online environment is regulated under international private law rules relating to cross-border dispute resolution.
which would follow up on the full range of previous Commission work on collective redress at the EU level is scheduled in the Commission Work Programme for 2012 (Initiative 110 in the Annex to the Communication from the Commission to the European parliament, the Council, the European Economic
I with respect to services offered on the Internet. In the cases of Hotel Alpenhof and Peter Pammer302, the basic question at issue was whether the fact that the website of a business
The consumer found fault with the hotel's services and left without paying his bill.
for example when it offers its services or its goods in several Member States designated by name
and an indication of an international clientele composed of customers domiciled in various Member States,
in particular by the presentation of accounts written by such customers. Likewise, if the website permits consumers to use a language or a currency other than that generally used in the trader's Member State,
For electronic services, there is currently a problem of distortion of competition within the EU . When these services are provided by an EU supplier to final consumers in the EU,
their place of taxation is the Member State where that supplier is established. Consequently, businesses can take advantage of this situation by establishing in those Member States applying a lower VAT rate.
The situation is different as regards electronic services provided by non-EU suppliers, given that the current rules already provide for VAT to be collected
Directive 2008/8/EC of 12 february 2008304 sets new rules regarding electronic services. As from 2015, electronic services provided by an EU supplier to a nontaxable person (e g final consumer) will also be taxable at the place where the customer is established.
If the customer is established outside the EU, no VAT will be due in the EU. As a result, after 2015,
any potential distortions of competition will disappear. The supplier himself will be responsible for collecting the VAT paid in the Member State of the customer.
all suppliers of electronic services will have the possibility to make use of the MOSS as from 2015.
This should facilitate the selling of electronic services throughout the EU. There remains the question of VAT rates.
%and currently varies between 15 and 25%of the value of goods or services, depending on the Member State of taxation. 303 Proposal for a Council Directive amending Directive 77/388/EEC with a view to simplifying value added tax obligations (COM (2004) 728 final, 29.10.2004.
of supply of services, OJ L 44/11, 20.02.2008; available at: http://eurlex. europa. eu/Lexuriserv/Lexuriserv. do?
the Commission raised the question of the convergence between digital and physical environments, and notably of the impact on business and market development of the current divergences in the Single Market.
or by extending to the digital environment the reduced rates existing for goods on physical means of support.
the Commission adopted a Communication drawing conclusions from this consultation on the future of VAT
Respondents to the e-commerce communication have stressed the importance of strengthening these networks in order to contribute to the Digital Single Market.
and the online trade in goods and services. For example: There is an increasing demand for access to information on companies in a crossborder context,
either for commercial purposes or to facilitate access to justice, which requires cross-border cooperation amongst business registers.
e-mediation) and to enhance the communication between judicial authorities. 308 306 Commission Staff Working Document, Accompanying document to the Green Paper on the future of VAT, Towards a simpler, more robust and efficient
PDF 307 Commission Communication on the future of VAT, Towards a simpler, more robust and efficient VAT system tailored to the single marke,"COM (2011) 851 final,
http://ec. europa. eu/taxation customs/resources/documents/taxation/vat/key documents/communications/co m 2011 851 en. pdf 308 See the Council's Multi-Annual European e
and other online services can contribute to a more sustainable economy. Though research is still rather in its infancy,
available empirical evidence shows that the digital economy has positive effects on the environment. For example, compared to a traditional CD purchase in a"brick and mortar"shop
or enable them to benchmark the products they intend to buy against the best in class on the market.
And for more concrete examples see the revised roadmap of the Council Working Party on e-Law (e-Justice), doc 1033/11 of 20 may 2011.309 Communication from the Commission to the European parliament, the Council, the European
Court of Justice, the Court of Auditors, the European Investment Bank, the European Economic and Social Committee and to the Committee of the Regions, A growth package for integrated European infrastructures, COM (2011
in terms of journeys made by customers, the e-commerce model results in a total distance of 10.09 km saved per delivery.
http://www. ce. cmu. edu/greendesign/research/Buy com report final 030209. pdf 315 http://ec. europa. eu/environment/waste/weee/index en. htm 316
The present chapter complements the international aspects of the Digital Agenda as set out in the Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Digital Agenda for Europe, COM
by negotiating cooperation provisions on issues such as the prohibition of prior authorisation, the conclusion of contract by electronic means, unsolicited commercial communications and other provisions of the E-commerce Directive;
such as the classification of e-commerce services or the development dimension of ecommerce. The Commission has also been involved in the discussions within the Internet Governance Forum (IGF) on issues such as the sustainability and security of the Internet.
European Neighbourhood Policy. 109 Commission services will further intensify the bilateral and multilateral discussions on ecommerce and other online services through global cooperation in particular in the context of the WTO/GATS, OECD and the Internet Governance
17/01/2002 1. Loi du 11 mars 2003 sur certains aspects juridiques des services de la sociétè de l'information visés
language=fr&la=F&cn=20 03031131&table name=loi 2. Loi sur certains aspects juridiques des services de la société de l'information
signatures électroniques, la directive relative à certains aspects juridiques des services de la société de l'information, certaines dispositions de
la directive 97/7/CEE concernant la vente à distance des biens et des services autres que les services financiers Reference:(
of which the Commission services have become aware. Characteri stics MS Finland France*Germany Hungary Lithuania UK Portugal Spain Sweden 1. Law Act on provision of information of information society services HADOPI Act
Access Impediment Act (repealed) ACT CVIII of 2001 on certain aspects of ecommerce services Law on information society services Terrorism act 2006/Digital economy Act 2010 Articles
14-18 Decree-Law 7/2004 Royal Decree on the functioning and operating of the IPR Commission Act on Responsibility of Electronic bulletin boards 2. Scope infringements Copyright Copyright Child pornography Intellectual property rights Copyright or"information
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