RESTRICTED  
  
TN/S/W/ 64 
 
23 May 2017 
(17-2792) Page: 1/5 
Council for Trade in Services  
Special Session  Original: English  
 
COMMUNICATION FROM THE EUROPEAN UNION  
AN ENABLING ENVIRONM ENT TO FACILITATE ON LINE TRANSACTIONS  
How Common Principles on Consumer Protection , Unsolicited Messages , Authentication and Trust 
Services and Electronic Contracts Would Contribute to a Better Inte gration , Especially of SMEs, in 
the World Economy and Enhance Trust and Confidence of Consumers Online  
The following communication, dated 23 May 2017, is being circulated to the Members of the 
Council for Trade in Services – Special Session, a t the request  of the delegation  of the European 
Union . 
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1  THE ISSUE  
1.1.  Devising the right enabling environment is critical to the harmonious development of trade by 
electronic means. Ensuring that every step of online transactions is underpinned by a strong 
regulatory framework enhances consumers' confidence and trust, and contributes to legal certainty 
online while facilitating trade in services. Addressing all aspects of those services trade related 
transactions – i.e. the conclusion of a contract online, i ts signature and the related payments – 
and ensuring  that they are subject to clear rules would increase the uptake of operations online.  
2  ELEMENTS OF AN ENABL ING ENVIRONMENT  
2.1  Consumer protection  
2.1.  Electronic commerce has been changing dramatically in recent years, both in terms of its 
expanding market size and the variety of new forms it has been taking. Nowadays, one can find 
almost any good or service online, ranging from automobiles to daily commodities , to professional 
services. Since in electronic transa ctions people cannot directly see the other party, problems are 
potentially more likely to occur than with traditional transactions. Also, the scale of problems 
caused by online frauds and scams and the number of affected consumers in different countries 
risks being much larger than in traditional forms of commerce. In order to create an environment 
where consumers can participate in online trade in services with confidence, it is essential to 
ensure that they enjoy concrete rights, and that there are ways to quickly address problems if 
they do arise, to protect them from unfair commercial practices, to ensure transparency, and to 
provide for effective redress and other trust -enhancing measures. To this end, effective 
international cooperation between consum er protection agencies or other relevant bodies is 
paramount.  
2.2  Unsolicited commercial electronic messages  
2.2.  Unsolicited commercial communications or messages –"spam"  – are unwanted messages sent 
via e-mail, messenger services, social networks, SMSes, etc. R eceiving such messages is an issue 
for many reasons: privacy, deception of consumers, protection of minors, extra costs for 
businesses, lost productivity, etc. More generally from the consumer perspective, it undermines 
consumer trust and confidence, which  is a prerequisite for the success of e -commerce. So , rules 
ensuring that consumers can be protected against unsolicited communications and at any time opt TN/S/W/ 64  
 
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  out of such messages and/or have the option of opting -in could contribute to a more consumer 
and bus iness friendly digital trade environment.  
2.3  Electronic authentication and trust services, including electronic signature  
2.3.  Electronic authentication and trust services , which include electronic signatures, electronic 
seals, electronic time stamps, electronic delivery service and website authentication play a crucial 
role in the functioning of the Internet, including but not exclusively in the context of electronic 
contracts. In many Internet transactions, verifying the identity of a website 's owner is needed t o 
ensure that the website belongs and is effectively managed by the legal person who claims to be 
behind it. Similarly, the electronic signature of a final agreement may also require identifying the 
different signatories to ensure that they have expressed their consent to a content that will 
maintain its integrity. Examples of electronic signatures include clicking an 'accept' button online, 
signing on a touch pad to approve a credit card purchase or typing one 's name on a signature line .  
Stamping the docu ment provides it with a specific date and time. Finally, in some cases it is 
important that documents are transmitted to the other party through a secure channel that 
ensures the date of sending and receiving the document.   
2.4.  Trust services are therefore cru cial in facilitating both domestic and cross -border e -commerce 
as they help to ensure the authenticity, integrity and privacy of online transactions. For service 
providers or consumers in any country to engage in e -commerce (both domestic and cross -border)  
using electronic authentication and trust services, the national legal framework must be in place to 
provide for their legal significance, validity and equivalence with traditional paper -based services. 
Most countries that have legislation covering electr onic signatures and/or the other trust services 
do not impose limitations on the technology used when using such services.  
2.4  Electronic contracts  
2.5.  All electronic commerce transactions are based on electronic contracts. Electronic commerce 
can therefore not t ake place without the recognition of such e -contracts. The UNCITRAL Model Law 
on electronic commerce already rec ognised this by providing that " a contract shall not be denied 
validity or enforceability on the sole ground that a data message was used for th at purpose ". The 
explanatory notes to the UNCITRAL Model law recognises that, while in certain countries, the rule 
might be regarded as merely stating the obvious; it also states that the provision is needed "in 
view of the remaining uncertainties in a con siderable number of countries as to whether contracts 
can validly be concluded by electronic means ".  
3  COVERAGE BY EXISTING  WTO AGREEMENTS  
3.1.  There are no specific WTO disciplines on electronic signatures and trust services, electronic 
contracts, and spam. How ever, the transparency and MFN principles found in GATS may apply in 
instances related to trade in services. Disciplines on domestic regulation, market access and 
national treatment may also apply in instances/sectors where specific commitments have been 
made. The GATS general exceptions also play a role, notably in relation to consumer protection.  
4  THE CASE FOR A WTO O UTCOME  
4.1.  Digitalisation offers great opportunities for all countries to cooperate in a manner which 
potentially brings great global benefits. To promote e -commerce, regulatory frameworks should 
facilitate an open and competitive environment. The WTO has a role to play here. A WTO outcome 
on consumer protection and unsolicited messages, electronic authentication and trust services 
including signa tures and electronic contracts would be beneficial in the following ways:  
4.2.  First, recognizing the importance of maintaining and adopting transparent and effective 
measures to protect consumers engaging in electronic commerce from fraudulent and deceptive 
commercial practices, it would reassure consumer s and facilitate the uptake of online transactions, 
resulting in increased flows of trade in services. Cross -border cooperation between authorities to 
combat illegal commercial practices would be facilitated i f national measures were based on 
common principles.  TN/S/W/ 64  
 
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  4.3.  Second , a WTO outcome on unsolicited messages would also increase consumer trust as 
consumers would be protected against unsolicited communications.  
4.4.  Third, it would encourage more Members to adopt domes tic measures and legislation to 
facilitate the use of authentication and trust services and recognize electronic contracts, thus 
enabling electronic payments. This would bring legal certainty to both service providers and also 
consumers to engage in e -comm erce, and would also facilitate the growth of online payment 
systems. It would unlock the potential of e -commerce for growth, especially in developing 
countries and LDCs.  
4.5.  Fourth , it would reassure companies, especially SMEs, that electronic contracts will  be 
recognised and hence encourage them to invest in online solutions.  
5  POSSIBLE WAY FORWARD  
5.1.  Recognizing the potential benefits of a multilateral outcome on a set of items covering every 
step of online transactions, and pursuant to GATS Article XVIII, Membe rs could agree upon a 
series of legally binding principles that would form the basis for regulatory frameworks on those 
issues.  
5.2.  While the elements proposed in this paper constitute a coherent and complementary set of 
components, more could be added, takin g account views from Members.  
5.3.  Moving forward, Members will also need to consider any necessary development dimension of 
the proposed outcome, as indicated in paragraph 11 of the text proposal below.  
6  TEXT PROPOSAL FOR "A N ENABLING ENVIRONME NT TO FACILITATE ONLINE 
TRANSACTIONS"  
 
AN ENABLING ENVIRONM ENT TO FACILITATE ON LINE TRANSACTIONS  
Members,  
 
recognising the importance of adopting and maintaining transparent and effective measures to 
enhance trade in services and protect consumers from fraudulent and dece ptive commercial 
practices when they engage in electronic commerce;  
 
recognising that the prevalence of unsolicited commercial electronic messages can discourage the 
use of electronic means to carry out a commercial activity;  
 
recognising that ensuring the  legal validity of electronic signatures and other trust services, 
electronic authentication as well as contracts contribute to creating an enabling , secure and 
seamless online environment for trade in services;  
 
have agreed as follows:  
 
DEFINITIONS  
Unsoli cited commercial electronic message  means an electronic message which is sent for 
commercial purposes without the consent of the recipient or against the explicit rejection of the 
recipient, using an Internet access service supplier and, to the extent prov ided for under the 
domestic laws and regulations of each Member, other telecommunications service.  
 
Electronic authentication means the process or act of verifying the identity of a party to an 
electronic communication or transaction or ensuring the integr ity of an electronic communication.  
 
Electronic trust services  means an electronic service consisting of the creation, verification, 
validation of electronic signatures, electronic seals, electronic time stamps, electronic registered 
delivery services, web site authentication and certificates related to those services.  TN/S/W/ 64  
 
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  CONSUMER PROTECTION  
1. Members shall adopt or maintain measures  that contribute to consumer trust, including but 
not limited to measures that protect consumers from fraudulent and deceptive co mmercial 
practices when they engage in electronic commerce.  
 
2. Members recognise the importance of cooperation between their respective national 
consumer protection agencies or other relevant bodies on activities related to electronic 
commerce in order to  protect consumers and enhance consumer trust.  
 
UNSOLICITED COMMERCI AL ELECTRONIC MESSAG ES 
3. Members shall adopt and maintain measures that protect consumers against unsolicited 
commercial electronic messages.  
 
4. Members shall adopt or maintain measures regarding unsolicited commercial electronic 
messages sent to an electronic mail address  that:  
 
(a) require the consent, as specified according to the laws and regulations of each 
Member, of recipients to receive commercial electronic messages; or  
 
(b)  require suppliers of unsolicited commercial electronic messages to facilitate the 
ability of recipients to prevent ongoing reception of such messages.  
 
5.   Members shall provide recourse against suppliers of unsolicited commercial electronic 
messages who do  not comply with its measures implemented pursuant to paragraph  4.  
 
6. Members shall ensure that unsolicited commercial electronic messages are clearly 
identifiable as such and clearly disclose on whose behalf they are made.  
 
ELECTRONIC AUTHENTIC ATION AND  TRUST SERVICES, INCL UDING ELECTRONIC SIG NATURES  
7. Members shall not deny the legal effect and admissibility as evidence in legal proceedings 
of electronic authentication and trust services solely on the basis that they are in electronic 
form.  
 
8. Member s shall not adopt or maintain measures for electronic authentication and trust 
services that would:  
 
(a) prohibit parties to an electronic transaction from mutually determining the 
appropriate electronic methods for that transaction; or  
 
(b) prevent partie s from having the opportunity to prove to judicial or administrative 
authorities that their electronic transaction complies with any legal requirements 
with respect to electronic authentication and trust services.  
 
9. Notwithstanding paragraph  8, a Member may require that, for a particular category of 
transactions, the method of electronic authentication or the trust service meet certain 
performance standards or be certified by an authority accredited in accordance with the 
Member's law.  TN/S/W/ 64  
 
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  ELECTRONIC CONTRACT S 
10. Members shall ensure that their legal systems allow contracts to be concluded by electronic 
means and that the legal requirements for contractual processes neither create obstacles 
for the use of electronic contracts nor result in such contracts bein g deprived of legal 
effectiveness and validity on the ground of having been made by electronic means.1 
 
PARTICIPATION OF DEV ELOPING COUNTRIES  
11. [Language to facilitate the participation of developing countries to be considered.]  
 
 
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1 This provi sion shall not apply to contracts that create or transfer rights in real estate; contracts 
requiring by law the involvement of courts, public authorities or professions exercising public authority; 
contracts of suretyship granted and or collateral securiti es furnished by persons acting for purposes outside 
their trade, business or profession; and contracts governed by family law or by the law of succession.