JOB/GC/188  
 
16 May 2018  
(18-2925) Page: 1/4 
General Council  Original: English  
 
JOINT S TATEMENT ON ELECTRON IC COMMERCE  
ESTABLISHING AN ENAB LING ENVIRONMENT FOR  ELECTRONIC COMMERCE  
Communication from the European Union  
The following communication, dated 15 May 2018, is being circulated at the request of the 
delegation of the European Union.  
 
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Advancing WTO work on Electronic Commerce, including through the negotiations of concrete 
deliverables, is one of the main trade priority areas for the European Union . 
 
The EU is therefore pleased to take an active part in the exp loratory work undertaken among 
interested Members to implement the MC11 Joint Statement on e -commerce. The EU supports the 
open, transparent and inclusive character of this WTO process.  
 
The present submission outlines elements that the EU would like to ad dress in the on -going 
exploratory work. This submission is without prejudice to any future negotiating position and other 
elements that the EU might put forward in writing at a later stage.  
 
The EU looks forward to engaging with all interested WTO Members in a comprehensive and in -
depth exploration of trade related aspects of e -commerce with a view to prepare for the 
negotiation of concrete outcomes, including on issues raised in the submissions of other Members . 
 
1  INTRODUCTION  
1.1.  In this submission, the EU pro poses to carry out exploratory work towards future WTO 
negotiations on a set of obligations and principles aimed to facilitate on -line transactions, i.e. 
electronic contracts, electronic authentication and trust services, consumer protection, unsolicited 
electronic messages, authori zation requirements for on -line services and custom duties on 
electronic transmissions.  
1.2.  Currently, there are no specific WTO disciplines on these elements1. However, they have 
been subject to substantial legislative development a round the world and are part of many 
Members' FTA practices. At the same time, the UNCITRAL has conducted some very relevant work 
on the matter through the development of model laws.  
1.3.  WTO rules in those areas would be beneficial for a number of reasons. Fir st, WTO rules on 
electronic contracts would reassure companies, especially MSMEs, that such contracts will be 
recognised, hence encouraging them to invest in online solutions. Second, rules on electronic 
authentication and trust services would encourage mo re Members to adopt domestic measures and 
legislation to facilitate the use of such services. Third, recognizing the importance of maintaining 
and adopting transparent and effective measures to protect consumers engaging in electronic 
commerce from fraudul ent and deceptive commercial practices would reassure consumers and 
facilitate the uptake of online transactions. Cross -border cooperation between authorities 
                                                
1 Except for a two -year agreement renewed at each Ministerial Conference not to impose custom duties 
on electronic transmissions.  JOB/GC/188  
 
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  combatting illegal commercial practices – necessary to ensure an effective protection of consumer  
rights and thus foster consumer trust – would be facilitated if national measures were based on 
common principles. Fourth, WTO rules on unsolicited messages would also increase consumer 
trust, as consumers would be protected against such undesirable pract ices. Finally, ensuring that 
on-line services are not subject to specific authori zation requirements and committing permanently 
not to impose custom duties on electronic transmissions would provide certainty to business and 
consumers, facilitating their en gagement in global electronic commerce.  
1.4.  Against this background, the European Union suggests that Members explore whether new 
trade rules covering those issues could be a relevant contribution of the WTO to fostering digital 
trade in the context of the MC 11 Joint Statement of e -commerce, to the benefit of both developed 
and developing Members.  
2  PROPOSED ELEMENTS  
2.1  Electronic contracts  
Rationale  
2.1.  Trading on -line is based on electronic contracts. Electronic commerce simply cannot take 
place if the recognition of  such e -contracts is put into question. Legal certainty that electronic 
contracts will be recogni zed is necessary to assure companies, especially SMEs, and consumers 
that electronic transactions that take place through electronic contacts will be valid.  
Elements to consider  
 The EU proposes to work towards a provision ensuring that national legal systems allow 
contracts to be concluded by electronic means and that legal requirements for contractual 
processes neither create obstacles nor result in such contra cts being deprived of legal 
effectiveness.  
 Members would need to reflect about specific exceptions that might be required, such as in the 
case of real estate transactions.  
 
2.2  Electronic authentication and trust services  
Rationale  
2.2.  Electronic authentication a nd trust services, which include services such as electronic 
signatures, electronic seals, electronic time stamps, electronic delivery service and website 
authentication, are essential to ensure the authenticity, integrity and privacy of online 
transaction s.  
2.3.  In many cases, electronic transactions would not be possible without verification of the 
identity of a website's owner. 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 was maintained. Stamping of an electronic document may be required to ensure it 
has been submitted at a specific date and time. Finally, in some cases it is important that 
documents are transmitted to the othe r party through a secure channel that ensures capturing the 
moment of sending and of receiving the document.  
2.4.  Trust services are thus crucial in facilitating both domestic and cross -border e -commerce as 
they help to ensure the authenticity, integrity and p rivacy of online transactions. For businesses or 
consumers in any country to engage in e -commerce (both domestic and cross -border) using 
electronic authentication and trust services, the appropriate 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 electronic signatures and/or other trust 
services do not impose limitations on the technology used when using such servi ces. JOB/GC/188  
 
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  Elements to consider  
 The EU proposes to work towards a set of provisions to guarantee that  national legal 
framework s are in place  to ensure  that Members do 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 for m. 
 Rules could also be considered to ensure that there are no barriers that would prohibit parties 
to an electronic transaction from mutually determining the appropriate e lectronic methods for 
that transaction; or prevent parties from having the opportunity to prove to judicial or 
administrative authorities that their electronic transaction complies with any legal 
requirements related to electronic authentication and trust services.  
 
2.3  Consumer protection  
Rationale  
2.5.  Electronic commerce could only be brought to its full potential if consumers have trust and 
confidence to engage in online trading activities, if their concrete rights are guaranteed when 
purchasing on -line and if there are means provided to effectively ad dress problems that might 
arise.  
Elements to consider  
 The EU proposes to carry out the exploratory work towards a legally binding principle ensuring 
that Members have legislative frameworks in place that protect consumers from inter alia 
fraudulent and de ceptive commercial practices, ensure transparency, and provide for effective 
redress and other trust -enhancing measures.  
 Members  may also consider recognising the importance of having effective international 
cooperation between consumer protection agencie s and other relevant bodies to facilitate the 
implementation of consumer protection measures, especially in relation to cross -border trade, 
as necessary to enhance consumer trust and support the development of cross -border 
electronic commerce.  
 While devel oping actual consumer protection standards falls outside the scope of the WTO, 
Members could agree on a set of binding principles to adopt and maintain the minimum legal 
domestic framework in place that ensures consumer protection and enhances their trust,  
leaving sufficient flexibility for defining the exact content and format of the relevant measures 
at national level.  
 
2.4  Unsolicited commercial electronic messages  
Rationale  
2.6.  Unsolicited commercial communications or messages ("spam") pose a number of challen ges 
for the electronic commerce environment, including in relation to privacy, deception of consumers, 
protection of minors, extra costs for businesses and loss of productivity. More generally spam 
undermines consumer trust and confidence, which is a prere quisite for successful e -commerce.  
Elements to consider  
 The EU proposes to work towards a set of broad, technology neutral obligations ensuring that 
consumers are protected against unsolicited commercial communications.  
 Consumers should be able to opt out  of such messages at any time and/or have the option of 
opting -in, leaving a choice for consumers to receive unsolicited commercial electronic 
messages.  
 Members could also consider developing a rule ensuring that means of recourse are available 
for consume rs and agree to the principle that spam should be easily identifiable.  JOB/GC/188  
 
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  2.5  Prior authori zation  
Rationale  
2.7.  In an open e -commerce environment, any prior authori zation2 requirement for providing a 
service should be technologically neutral. Any prior authori zation procedure specifically targeting 
online services exclusively for reasons that a service is delivered electronically could result in 
additional cost and impact strategic decisions of business, having an overall negative impact on e -
commerce (both dome stic and cross -border).  
Elements to consider  
 The EU proposes to consider developing a rule that ensures that the supply of services by 
electronic means may not be subject to prior authorisation requirements specifically and 
exclusively targeting services provided by electronic means.  
 Specific except ions to the rule would have to be considered, such as in the case of 
telecommunication services.  
 Finally, Members  may consider relevant language reaffirming the right to regulate for 
legitimate public policy reasons.  
 
2.6  Moratorium on custom duties on electro nic transmissions  
Rationale  
2.8.  The fact that WTO Members have been renewing the moratorium on customs duties on 
electronic transmissions at each Ministerial Conference over the past 20 years shows that no 
Member has considered it necessary to impose such duti es. Agreeing on a permanent moratorium 
would provide greater certainty to consumers and business, including MSMEs, and facilitate their 
engagement in global e -commerce. Moreover, it would contribute to predictability and would 
therefore facilitate decision s in relation to the strategic planning and structuring of enterprises, 
while imposition of customs duties could potentially lead to market distortions and trade diversion.  
Elements to consider  
 The EU proposes to agree on a permanent extension of the WTO moratorium on the imposition 
of custom duties on electronic transmissions.  
 
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2 "Prior authori zation" is a broad term and should be understood as any requirement such as permit, 
licence or appro val which n eeds to be obtained " prior" to an economic activity being allowed to start.