COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL
2. 1 Description of e-commerce in the economy...6 2. 2 The regulatory framework...8
2. 2. 1. 3 Commercial communications and regulated professions (Articles 6-8 ECD. 13 2. 2. 1. 4 Electronic contracting (Articles 9-11 ECD...
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...
4. 3. 8 Competition...76 4. 3. 8. 1 General...76 4. 3. 8. 2 Vertical distribution agreements...
4. 6. 1 Delivery services in an e-commerce environment...89 4. 6. 2 Delivery problems...
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...
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
contrast, during 2008,24%of enterprises were purchasing and 12%selling electronically volumes that equalled or exceeded 1%of their total purchases/turnover.
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
increasingly large range of products and services for citizens and businesses located in isolated areas
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, Twelve levers to boost growth and
2 Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive growth, COM (2010) 2020 final, 03.03.2010;
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
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,
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.
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 e
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
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 Mà diamã trie//Netratings pour la FEVAD, Etude de l†impact environnemental de l†achat sur
of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce, hereafter ECD), OJ L 178/1, 17.07.2000;
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
retail services in the internal market for 2020â€, 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
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
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;(7) the resolution of online disputes The consultation generated valuable input
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 and other online
services"and is divided into two main parts. The first part contains an in depth analysis of the
The second annex to the Communication identifies the latest trends in business-to-consumer e-commerce in the EU and examines the potential benefits for consumers if current obstacles
E-commerce and online services are some of the most significant innovations in the economy in recent decades and have precipitated an evolution in the legal framework for doing
2. 1 Description of e-commerce in the economy Online services play an increasingly important role in the everyday life of EU citizens.
services help to reduce the time spent on paperwork and increase activity online (reading newspapers, consulting bank accounts
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
"20 Opinion of the European Economic and Social Committee on the †Communication from the Commission to
24 How the Internet is transforming the economy, a series of studies by the Boston Consulting Group
in France since 2000.25 Overall, the Internet economy creates 2. 6 jobs for every job
society services. Following its adoption in 2000, the Directive has been complemented by other EU legislation, covering various aspects such as data protection and consumer affairs
Market and to provide legal certainty to administrations, businesses and customers. It was drafted in a technologically neutral manner
certain information requirements, commercial communications, electronic contracting and the liability regime for online intermediaries. The Directive does not apply to a number of areas
The Internal 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
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 (or country of origin) clause 25 Forrester Consulting, produced by DIW-econ
The term"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,
services may be covered because they are provided by definition in situations where the healthcare professional and the patient (or two healthcare professionals) are not in the
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
"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.
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 the service provider is established. 36 Article 2
providers or information society services, regardless of whether the requirements are of a general nature or specifically targeted at this sector.
screen or in a programme guide are provided not services"at the individual request"of a recipient because
http://ec. europa. eu/enterprise/policies/european -standards/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.
In this request for a preliminary ruling on the question as to whether the provisions of Articles 3 (1) and (2) of the ECD have 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
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.
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 the
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
communication channel with its customers. Article 5 (1)( c) imposes the obligation on the service provider to render"easily, 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,
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
where information society services refer to prices, to provide a clear and unambiguous indication of the prices,
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
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
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. Whether a message is "commercial"or not leaves room for divergent interpretations as well
Unsolicited commercial communication is covered also by other consumer rules such as the Unfair Commercial Practices Directive. 50 One of the practices which Annex I of the UCP
ECD rule requirement for the commercial communications to be"clearly and unambiguously identifiable"remains applicable
professions may use commercial communications online, subject to compliance with such professional rules governing the independence, honour and dignity of the profession.
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
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 and of the Council of 11 may 2005 concerning unfair
52 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in
level related to the use of commercial communications. Certain professions such as accountants, lawyers, doctors, pharmacists and real estate agents established EU codes of
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.
welcome the opportunity to learn more about the experiences of both internet consumers and online businesses in respect to the process of placing orders.
The ECD introduced a specific liability regime 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
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:
Regulation on Passenger Rights60 (2004), the Services Directive61 (2006) and the new Consumer Rights Directive62 (2011)( see Chapters 4. 2. 3 and 4. 4. 1
61 Directive 2006/123/EC of the European parliament and of the Council of 12 december 2006 on services in
communication sector. The latter adds to the rules on"spam"in the ECD 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 Even though they are beyond the direct scope of the ECD,
•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
The results of the public consultation and the analysis of the Commission services show that
69 Directive 2006/123/EC of the European parliament and the Council of 12 december 2006 on services in the
the Commission services will increase their screening of the actual implementation and application of the ECD in the Member States (see
side, 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.
the progress of online services in the European economy. Some data are available in private research institutes,
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
between Member States and the Commission services 3. 2. 1 Transparency Directive 98/48/EC Directive 98/34/EC70,
services. The Directive is intended to help avoid the creation of new barriers to trade within
The Directive requires Member States to notify their rules on information society services in draft form,
provision of information society services under primary or secondary EU law, the Commission and other Member States may submit a detailed opinion to the Member State
Private stakeholders can submit comments, thereby assisting the Commission and national authorities in identifying possible trade barriers at an early stage
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) ECD contains a case-by-case limitation to the Internal Market clause.
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
http://ec. europa. eu/enterprise/tris/pisa/app/search/index. cfm? lang=EN 74 France notified the original and amended version of the Loi relative au prix du livre numã rique,
http://ec. europa. eu/enterprise/tris/default. htm? CFID=70911363&cftoken=31040420 21 consumers, including investors. 75 Article 3 (4) of the ECD contains an exhaustive list of
In the last decade, the Commission services have received only 30 notifications mainly dealing with measures to protect consumers.
75 See the Communication from the Commission to the Council, the European parliament and the European
services of Member States may be a reason for the small number of measures adopted. Some
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
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 services will, together with the Member States, closely monitor the system of notifications and invite the expert group to reconsider
Under the co-ordination of Commission services, the CPC-Network enforcement authorities both screen a sample of websites in a given sector for compliance with EU consumer
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
exemptions when they provide one of the so-called intermediary services set out in Articles 12 to 14 of the Directive.
imposing on providers of these services a general obligation to monitor content that they transmit or host.
the development of intermediary services, the societal interest that illegal information is taken down quickly, and the protection of fundamental rights82
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
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 E
what extent new services that have not been mentioned explicitly in these articles (e g because they did not exist at the time of the adoption of the Directive) are
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. This section provides an overview of the interpretations that have been given to the definition of activities listed in Articles 12 to 14 of
the Directive, in particular as regards their applicability to services that are not explicitly mentioned in those provisions,
specific liability exemptions for information location services (search engine services) and hyperlinking services. Austria, Hungary, Spain and Portugal have adopted specific liability
exemptions for search engines according to which a company can benefit if it meets the conditions that hosting service providers are required to meet
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.
clarify the status of these new services in view of often contradictory national case law. Some respondents, in particular right holders, asked for the exclusion of several new online
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 Dirwarn-Font not found:
website (recipients of ebay's services in terms of the E-commerce Directive) act under the authority or the control of ebay (the provider of an information society service in
objective of increasing profits by, for instance, appointing sales managers, creating online"boutiques"and offering the option of becoming a"power seller
its clients various services on the same site without losing the right to benefit from a
National jurisprudence on file sharing services also diverges. For instance •The Italian Court of Cassation102 considered that Piratebay, a peer-2-peer file sharing
guidance for determining whether certain services can benefit from a liability exemption First, recital 42 mentions that an activity should be"of a mere technical, automatic and
had the opportunity to provide more clarity on the scope of Article 14 The first case concerned Google's paid referencing service,"Adwords,
to attract new customers to its website, ebay had bought keywords, including trademarks held by L'Orã al, from paid internet referencing services (such as Google's"Adwords".
"In parallel to this, L'Orã al had identified several infringements of its trademarks through/by the selling
customers, plays an active role of such a kind as to give it knowledge of, or control over
information to its customers cannot have the effect of denying it the exemptions from liability
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
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
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".
the US has been introduced in the Communications Decency Act118, would ensure that taking voluntary actions would in principle not be punished
that recital 42 would contain conditions for all intermediary services for benefiting from a liability
Some stakeholders expressed fear that defining"expeditious"could increase pressure on ISPS to take down content on notice even before correctly assessing the alleged
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
interest of all parties involved in the provision of information society services to adopt and
whose services are being used by a third party to infringe intellectual property rights Moreover, its Article 17 provides that Member States shall encourage the development of
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 â€oeinfringements of IPR via the internet more effectively"by"tackling the infringements at their
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
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 E -Commerce Directive) contains a detailed notice-and-takedown procedure for mere
•The Hungarian Act on certain aspects of e-commerce and information society services transposing the E-commerce Directive) provides for a notice-and-takedown for mere
•The Lithuanian law on information society services (transposing the E-commerce Directive) also provides for a notice-and-takedown procedure for mere conduit and
According to a majority of stakeholders that responded to the public consultation, NTD procedures are fragmented heavily and this forms an important barrier to the Digital Single
Certain stakeholders also consider it socially undesirable that the takedown of manifestly illegal information (for
"Many stakeholders consider it important that the provider of allegedly illegal information should be given the opportunity to submit a counter-notice
and defend the legality of the information at issue Civil society organisations and the vast majority of intermediaries support the inclusion of a
stakeholders, offering the possibility of submitting a counter notice is perhaps not appropriate in the context of manifestly illegal information.
normally need to seek legal advice or translation and eventually make a judgment which could take some time
Some stakeholders consider that intermediaries should not be held liable for taking down"illegal"information if it turns out that the
136 Moore/Clayton, The Impact of Incentives on Notice and Takedown, Seventh Workshop on the Economics of
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
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
services (including entertainment, adult, health, gambling etc.)representing many societal interests. Stakeholders to be consulted include Member States, internet intermediaries, right
holders, child protection organisations, civil rights organisations and citizens in general The impact assessment will address a number of issues including the requirements for a
when providing the services covered by Articles 12,13 and 14, to monitor the information which they transmit or store,
in providing their intermediary services Respondents to the public consultation on e-commerce raised three main issues related to the
†all electronic communications passing via its services, in particular those involving the use of peer-to-peer software
†which applies indiscriminately to all its customers †as a preventive measure †exclusively at its expense;
oblige it to actively monitor all the data relating to each of its customers in order to prevent
•"may also infringe the fundamental rights of that ISP€ s customers, namely their right
that its introduction could lead to the blocking of lawful communications"(paragraph 52 The Court concludes that"Consequently,
stakeholders on the effectiveness and efficiency of filtering techniques ten years after the 142 BGH, 19.04.2007, ref. no.
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
Third, a variety of stakeholders raised concerns about tensions between the protection of fundamental rights and filtering techniques.
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. Finally, certain crosscutting issues are analysed which are relevant along this chain
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
145 See in particular the Commission Communication"A Digital Agenda for Europe",COM (2010) 245 of
-communication-en. pdf 146 See: http://www. thuiswinkel. org/engelstalig/-new/home/homepage-thuiswinkel 147 See:
policy makers, 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.
the costs and benefits of (different models) for setting up an EU online trustmark stakeholder
4. 1. 2. 1 Personal data protection in the online environment It is acknowledged widely that trust is the currency of the digital economy.
context, buyers of goods and services provide †often without much thought-their bank or
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 or counterfeited works,
exchange of views between policy-makers and respective stakeholders and analyse the steps required to improve E-commerce,
The next frontier for innovation, competition and productivity, May 2011; available at: http://www. mckinsey. com/mgi/publications/big data/index. asp
The ECD does not apply to questions relating to information society services covered by the
services is Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and
Recent studies suggest that unsolicited commercial communication or spam accounts for more than 90%of global e-mail traffic. 159 Spam is popular
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
communications services or of public communications networks and amending Directive 2002/58/EC), OJ L 105/54, 13.04.2006;
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, p. 4, available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
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.
This opt-in system applies only to users who are natural persons The 2009 amendments of the eprivacy Directive strengthen
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,
Business representatives indicated in the public consultation that today's internet economy and in particular the transformation of the Internet from web 1. 0 to web 2. 0 have been
"Commission services have issued a guidance document on the implementation of Article 5 (3 on cookies. 162
162 DG INFSO/B2 Communications Committee Working Document, COCOM10-34,20. 10.2010 available at: http://circa. europa. eu/Public/irc/infso/cocom1/library?
"The Commission services understand this in their guidance document as follows •The user concerned must be informed163,
communication over an electronic communications network, "or secondly, if the processing is "strictly necessary in order for the provider of an information society service explicitly
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
171 See the Communication from the Commission to the European parliament, the Council, the Economic and
This is particularly an issue in the digital environment Several provisions of the Directive have given rise to divergent interpretations and have not
The development of the Internet and the increased supply of online gambling services are posing challenges for the co-existence of differing regulatory models, illustrated by the
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
There is an increasing demand for buying medicines online for a number of reasons. The greatest benefit for consumers is the
practitioners 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
they may otherwise be reluctant to approach their pharmacists for in front of other customers in a physical pharmacy environment
In the absence of developed legal markets, the Internet has, however, become dominated by illegal offers to which consumers (including the most vulnerable seeking"cheaper"solutions
Market for online health services. For instance, the recently adopted Directive on the application of patients'rights in cross-border healthcare177 establishes a Community framework
Furthermore, 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, solving technical issues and facilitating market development. 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
services in the first half of 2012. Finally, the Commission will adopt by the end of 2012 its
"accompanying the Communication on e-commerce, consumers are missing out from the full benefits of e-commerce, that is lower prices and a wider choice,
customers the option of offers available from other Member States. In addition, just 14%of tested price comparison websites are available in more than one language179.
Commission services will work closely with product testing and other organisations providing information on product quality comparisons/price/best value for money in order to make
businesses reach clients through advertising or other forms of commercial communications Many small and emerging companies depend on online advertising to facilitate their market
Different tools for approaching online customers exist. The classical way is for the traders or
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 Publishers have focussed on the importance of advertising revenues which account for 50%of
newspaper revenues in the printed environment and almost 100%in the digital area Restrictions on advertising may
therefore have a negative effect on the development of online services. Certain restrictions on advertising,
such as on tobacco products, alcohol, gambling or financial services, are based on the principle of the protection of a general interest.
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
The Commission services will continue to monitor and analyse the national regulatory and contractual developments in the Member States and the EU with a view to assessing their
promote and protect fair competition in the area of commercial practices Based on full harmonisation, it has four key elements
concerning the provision of audiovisual media services (†Audiovisual Media Services Directiveâ€), OJ 15.4.2010, L 95/1, imposes advertising bans and restrictions for tobacco products, medicines on
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;
and not promote tobacco or prescription medication 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, Sociã tã fiduciare nationale d'expertise comptable v Ministre du Budget, des Comptes
publics et de la Fonction publique, judgments of 05.04.2011; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
provisions (websites selling airlines tickets, online mobile phone services, websites selling consumer electronic goods •on 3 december 2009 the Commission published detailed guidelines aiming to provide
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 and obligations provided for by EU law in the form of frequently asked questions
such as the European Enterprise Network and/or the European Consumer Centres Network, to provide information to (potential) online traders about their obligations when selling cross
-border and also to create more awareness about the opportunities offered by selling in other
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.
most frequent cases concern web shops that either refuse to sell items or services to residents
or sell identical items or services at a (much) higher price due to the consumer's country of residence.
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
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
Recital 95 of the Services Directive gives examples of such objective circumstances. Additional costs may be justified because of
or lower demand influenced by seasonal factors; pricing by different competitors, or extra risks linked to having to comply with rules different to those
Member States had to implement the Services Directive into their national legal orders by 28
Member States have implemented Article 20 (2) of the Services Directive through a provision in the horizontal law transposing the Services Directive
The Commission has received numerous complaints and queries from citizens who have encountered problems 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
national provisions implementing Article 20 (2) of the Services Directive and as yet no instances of judicial application in any Member State190
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.
Despite their importance, they encounter difficulties in raising finance for several reasons First of all, risk aversion tends to make investors
present their investment projects. Third, SMES tend to have a weak equity position, partially due to the late payment culture in Europe
financing, 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
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
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
and IP routing guarantee a minimum quality to end-users for services that require a differentiated network speed (such as videoconferencing),
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 On that basis it will decide whether,
more stringent measures to ensure competition and access to certain online services are not excluded 192 See
193 Communication from the Commission to the European parliament, the Council, the Economic and Social Committee and the Committee of Regions, The open internet and net neutrality in Europe, COM (2011) 222
measures to achieve competition and the choice consumers deserve 4. 3. 5 Intellectual property rights The development of the Internet has meant the birth of a trade in goods
and services that have a distinct characteristic †independence from any physical medium. Music, films and books
text, books have become services which can be downloaded on to digital readers. 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. It is
businesses face when they wish to provide cross-border digital content services which are copyright-protected, resulting in their needing toenter into licence agreements outside their
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.
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
will encourage the uptake of new business models that provide online services to European consumers 2. In order to promote the dissemination of Europe's intellectual and cultural heritage, the
intellectual property rights 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 right
Karen Murphy v Media Protection Services Limited, judgment of 4 october 2011, available at http://curia. europa. eu/juris/recherche. jsf?
row or even inexistent, 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
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".
relevant stakeholders and finding workable solutions to resolve outstanding issues that should lay the ground for comprehensive legislative action at EU level by 2012.
sector as regards issues such as video-on-demand (Vod) services and cross-border broadcast services (2012
198 Proposal for a Directive of the European parliament and of the Council on certain permitted uses of orphan
Affairs, was appointed to take up the mission of mediator to lead the process of stakeholder dialogue on
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
comprehensive codification of the EU copyright Directives and provide an opportunity to examine the feasibility of an optional"unitary"copyright title to provide right
involving the stakeholders most concerned by this phenomenon (right holders and internet platforms. In this context, a Memorandum of Understanding was signed by
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
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
Parliament and of the Council of 20 november 1998 on the legal protection of services based on, or
to forbid broadcasters from supplying cross-border services in order to protect exclusive licence agreements are unjustified anticompetitive
In 2012, the Commission services will publish a study on the economic potential of cross
-border pay-to-view audiovisual media services 4. 3. 7 Reuse of public information Public information can be defined as all the information that public bodies in EU produce
products and services and for efficiency gains in administrations. Overall economic gains from opening up this resource could amount to â 40 billion a year in the EU
products and services. Another key barrier is the lack of awareness of public organisations of
benefits from the new opportunities that the data offer. In addition, more support than available now is needed for R&d and innovation on data analysis and visualisation tools
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), notably
4. 3. 8 Competition 4. 3. 8. 1 General Competition is of key importance in ensuring a well-functioning digital Single Market.
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. Moreover Apple had restricted the terms and conditions of its licence agreement with independent developers of applications requiring the use of Apple's native programming tools
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"."For instance, a major application store would require from online
Competition rules on vertical restraints have been crucial in removing the unjustified restrictions on e-commerce contained in distribution agreements by prohibiting
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
http://europa. eu/legislation summaries/competition/firms/l26062 en. htm 215 For instance, the Commission has on several occasions (Yves saint laurent, 2001;
stakeholders responding to the public consultations expressed their concerns about manufacturers imposing"brick and mortar"requirements on their distributors when engaging
which may restrict competition and create barriers to the Internal Market to the detriment of consumers.
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.
any obligation on distributors to automatically reroute customers located outside their territory, or to terminate consumers'transactions over the Internet if their credit card data
TFEU 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 pre -contractual information requirements for business and consumer contracts and ensures
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
healthcare services. Furthermore, it allows Member States to impose linguistic requirements on consumer contracts One special issue to note is the application of the Directive to digital content (data produced
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
EBTP) 225 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.
small enterprises, as they constitute a greater share of their annual turnover. For instance, it could cost on average about â 10,000 for legal costs and â 3, 000 for the related web-site
The retail market monitoring report"Towards more efficient and fairer retail services in the Internal Market for 2020"232 underlined the existence of unfair commercial practices
networks in order to avoid competition from pure e-commerce players As mentioned in the Single Market Act,
Communication on unfair B2b practices in the (retail) supply chain with the particular aim of
services in the internal market for 2020, COM (2010) 355 final, 05.07.2010; available at http://ec. europa. eu/internal market/retail/docs/monitoring report en. pdf
society services beyond retailing, for example, in the way sites can be referenced by search engines or how technologies can be slowed down or blocked.
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
regulatory framework for electronic communications networks and services, OJ L 108/33, 24.04.2002 available at: http://eur-lex. europa. eu/Lexuriserv/Lexuriserv. do?
services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and
services, OJ L 337/37, 18.12.2009; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
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.
and open to all communication channels, including the Internet and mobile communications As a first step a public consultation on e-identification, e-authentication and e-signatures was
A large majority of stakeholders confirmed the need for regulatory measures regarding the mutual recognition and acceptance of e-identification and
237 Communication from the Commission to the Council, the European parliament, the European Economic and Social Committee and the Committee of the Regions, Action Plan on e-signatures and e-identification to
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 and
major obstacle to the development of low value information society services such as online newspapers, music, movies, video games,"premium rate service",directories, and low priced
States by the Payment Services Directive241, affects consumers who, for example, may be subject to several surcharges for every plane ticket they purchase even if only one 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 Directiveâ€), 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
cost is borne by the providers of payment services. By contrast, the payer shall bear the
•More competition •More choice and transparency for consumers •More innovation •More payment security and customer trust
243 Payment Services Directive, OJ L 319/1, 05.12.2007 88 As regards the level of competition in the payments market,
the Paper examines factors which could limit market access and market entry by alternative payment service providers, and
The pricing of payment services is analysed from two angles, namely the relationship between the consumer and the merchant and the relationship
lack of competition, standardization, and micropayments On 11 january 2012, the Commission has adopted a Green Paper on card payments, internet
terms of the regulatory and technical environment 244 See http://ec. europa. eu/internal market/payments/index en. htm
In its Communication"Reaping the benefits of electronic invoicing for Europe",246 the European commission identified the key hurdles
stakeholders involved. The proposed measures aim at making e-invoicing the predominant method of invoicing by 2020
1. Ensuring a consistent legal environment for e-invoicing 2. Achieving mass market adoption by getting SMES onboard
-stakeholder e-invoicing fora and to entrust them with the task to develop a national strategy
-Stakeholder Forum on e-invoicing†to identify common hurdles and remedies for e-invoicing in Europe, to exchange best practices and to coordinate actions at Member State level
Commission services will, together with the European multi -stakeholder forum, take action to encourage the maximum use of e-invoices exchange
4. 6 Delivery Many surveys and studies including the e-commerce public consultation identify delivery as
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. The
246 Communication from the Commission to the European parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Reaping the benefits of electronic invoicing for
Enhancing the trust in delivery services to promote consumers'overall confidence in using the electronic-commerce services can contribute to its further growth
While in the past the delivery of a letter or a parcel largely relied on the public postal delivery
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. National postal operators new entrants (alternative private operators) and express operators (mostly integrators) 249 have
offer their customers an improved product portfolio Today, national postal operators hold 36%252 of the total parcel market across the EU
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
"since they provide an end-to-end service, based on their integrated business model 250 ITA Consulting/WIK Consult, The evolution of the European Postal market since 1997, August 2009
252 Copenhagen Economics, Main developments in the postal sector 2008-2010,29. 11.2010, pp. 85-91
delivery in some Member States and raises questions about (i) the level of competition in the
services are essentially (i) high costs,(mainly for cross-border trade), due to higher cross -border 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, which can be reflected either in lower quality of service, delays in the delivery of
4. 6. 3 Parcel and express delivery services under the Postal services Directive The Postal services Directive256 addresses certain of these delivery issues indirectly firstly
Although parcel and express delivery services have been open to competition for some decades257, the Postal services Directive provides for a number of regulatory measures to
two types of services:(i)" basic"or"standard"parcel service which is part of the universal
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
) 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.
basic parcel services at affordable prices for all citizens on its territory at least five working days per week.
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.
guaranteed on the basis of Article 3. Parcel services which are part of the USO do not
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
services and express (faster) delivery and/or time certain delivery. E g. as regards the delivery to home
additional services such as track and trace are provided often only by express and courier companies 93
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
The increased demand for more flexible and user friendly delivery solutions has been impacting the delivery sector significantly.
-end logistics services or track and trace services are offered increasingly as value-added delivery services. The tracking of an item is a key feature for retailers
and customers using electronic-commerce Many operators are introducing flexible delivery systems, such as local stores or automatic
parcel stations265, which allow users to collect their parcels even after the local post office has closed or outside working hours.
express and parcel services, especially in terms of the products offered. Parcel operators have improved their transit times
'services, whilst express operators have introduced lower-cost products targeting customers less sensitive to delivery time
customers with added value in the form of pre-delivery services (e g. presentation of available
final delivery price for customers In relation to innovations, new technologies have allowed operators to both improve efficiency and reduce costs.
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, where parcels can be collected
and collection services and later on insert the collected parcels in postal delivery networks 267 In contrast to parcel consolidators, online parcel brokers (e g. parcelbroker. co. uk) are involved not at all in
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. Based on the results of this study, and together with other delivery issues identified above,
Commission services will prepare the Green Paper on parcel delivery as the final leg of e-commerce services,
with specific focus on its cross-border aspect. The Green Paper should provide for an informed overview of the issues identified, and
possibly go further, and should include all stakeholders involved (e g. delivery operators; e -retailers; 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
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 and identify possible shortcomings that would call for further initiatives 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, but will also encourage Member States to introduce further quality of service improvements,
and promote best practices In summary, the Commission services will: 270 •prepare a Green Paper on cross-border delivery,
with specific focus on e-commerce -originated traffic (2012 •continue to monitor the correct transposition and application of the Postal services
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 because the Internet continues to be perceived as a risk area
When disputes arise from cross-border transactions, consumers as well as enterprises want easy, fast and cheap solutions.
Disputes and can be used be used both by individual consumers/users and by enterprises http://www. risolvionline. com
284 The Gallup Organization for DG Communication, Flash Eurobarometer 300, Retailers†attitudes towards cross-border trade and consumer protection, March 2011, p 79, available at
online would allow savings in terms of time and ease of communication between the parties In 2009, more than half of complaints (55.9%)received by the ECC-Net (see below) were
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
services in the Member States. To do this, the Directive gives every judge the right to invite
The Commission services will carefully monitor the transposition of the Mediation Directive in the Member States and use the Commission's powers under the
online legal services are underdeveloped and in many cases nonexistent Simplified court procedures or"small claims procedures"exist in almost all Member States
Commission services will conduct an assessment of the application of Regulation (EC 861/2007 by 2013.
enforcement of judgments also for disputes in an online environment is regulated under international private law rules relating to cross-border dispute resolution
2012 (Initiative 110 in the Annex to the Communication from the Commission to the European parliament, the
services offered on the Internet In the cases of Hotel Alpenhof and Peter Pammer302, the basic question at issue was whether
The consumer found fault with the hotel†s services and left without paying his bill.
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,
such customers. Likewise, if the website permits consumers to use a language or a currency
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
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 and
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
potential distortions of competition will disappear The supplier himself will be responsible for collecting the VAT paid in the Member State of
In order to avoid new administrative burdens, 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.
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
supply of services, OJ L 44/11, 20.02.2008; available at: http://eur -lex. europa. eu/Lexuriserv/Lexuriserv. do?
convergence between digital and physical environments, and notably of the impact on business and market development of the current divergences in the Single Market.
well or by extending to the digital environment the reduced rates existing for goods on physical means of support
On 6 december 2011, the Commission adopted a Communication drawing conclusions from this consultation on the future of VAT and identify appropriate priority areas for action at EU
Respondents to the e-commerce communication have stressed the importance of strengthening these networks in order to contribute to the Digital Single
goods and services. For example •There is an increasing demand for access to information on companies in a cross
-border context, either for commercial purposes or to facilitate access to justice, which requires cross-border cooperation amongst business registers.
proceedings (for example, 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
307 Commission Communication on the future of VAT, Towards a simpler, more robust and efficient VAT
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-Justice Action Plan 2009-2013,2009/C 75/01, 31.3.2009
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, the purchase of online music and online movie rental is much more environmentally friendly.
benchmark the products they intend to buy against the best in class on the market The European commission supports the proposal,
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) 676,19. 10.2011, available at:
showed that, in terms of journeys made by customers, the e-commerce model results in a total distance of 10.09 km saved per delivery.
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 (2010) 245 of
-communication-en. pdf 317 See Recital 58, ECD 108 also arise in the context of notice-and-takedown procedures.
communications and other provisions of the E-commerce Directive •by requiring the full transposition of the E-commerce Directive in Association
such as the classification of e-commerce services or the development dimension of e -commerce. The Commission has also been involved in the discussions within the Internet
Commission services will further intensify the bilateral and multilateral discussions on e -commerce and other online services through global cooperation in particular in the context of
1. Loi du 11 mars 2003 sur certains aspects juridiques des services de la sociã tã de
2. Loi sur certains aspects juridiques des services de la sociã tã de l'information â€
services de la sociã tã 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:( (SG (2000) A/11994 http://www. legilux. public. lu/leg/a/archives/2000/0096/a096. pdf
Hungary Transposition deadline: 01/05/2004 1. 2008. Ã vi XLVII. tã rvã nya fogyasztã kkal szembeni tisztessã gtelen
of which the Commission services have become aware Characteri stics M S Finland France*Germany Hungary Lithuania UK Portugal Spain Sweden
services HADOPI Act Access Impediment Act (repealed ACT CVIII of 2001 on certain aspects of e
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
2. 1 Description of e-commerce in the economy 2. 2 The regulatory framework 2. 2. 1 The E-commerce Directive
2. 2. 1. 3 Commercial communications and regulated professions (Articles 6-8 ECD 2. 2. 1. 4 Electronic contracting (Articles 9-11 ECD
4. 1. 2. 1 Personal data protection in the online environment 4. 1. 2. 2 Spam and the eprivacy Directive
Article 20 (2) of the Services Directive 4. 3. 2 Access to capital for SMES
4. 3. 3 Domain names 4. 3. 4 Net neutrality 4. 3. 5 Intellectual property rights 4. 3. 6 Grey markets
4. 3. 8 Competition 4. 3. 8. 1 General 4. 3. 8. 2 Vertical distribution agreements
4. 6. 1 Delivery services in an e-commerce environment 4. 6. 2 Delivery problems 4. 6. 3 Parcel and express delivery services under the Postal services Directive
Parcel delivery as part of the Universal Service Obligation (USO Postal users'protection measures 4. 6. 4 Market trends and enhanced application of the EU postal legislation
4. 7 Dispute resolution in an online environment 4. 7. 1 Alternative Dispute Resolution and Online Dispute Resolution
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