EUROPEAN COMMISSION 
Brussels, 11.1.2012 
SEC(2011) 1641 final 
  
COMMISSION STAFF WORKING DOCUMENT 
Online services, including e-commerce, in the Single Market 
Accompanying the document 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITEE OF THE REGIONS 
A coherent framework to boost confidence in the Digital Single Market of e-commerce 
and other online services 
{COM(2011) 942 final} 
{SEC(2011) 1640 final}  
 
 1 
TABLE OF CONTENTS  
 
1 General Introduction .......................................................................................................... 3  
2 The market for online services: state of play ..................................................................... 6  
2.1 Description of e-comme rce in the economy .............................................................. 6  
2.2 The regulatory framework.......................................................................................... 8  
2.2.1  The E-Commerce Directive ................................................................................... 8  
2.2.1.1  The Internal Market clause and establ ishment requirements (Articles 3-4 ECD)
 ............................................................................................................................ 8  
2.2.1.2  Information requirements (Article 5 ECD) ...................................................... 12  
2.2.1.3  Commercial communications and regulated professions  (Articles 6-8 ECD) . 13  
2.2.1.4  Electronic contracting (A rticles 9-11 ECD)..................................................... 15  
2.2.1.5  Liability of online intermedia ries (Articles 12-15 ECD) ................................. 16  
2.2.1.6  Implementation and application (Articles 16-20 ECD) ................................... 17  
2.2.2  Other relevant EU rules........................................................................................ 17  
3 Issues and obstacles linked to the ECD............................................................................ 18  
3.1 Need for further information on the application of the ECD ................................... 19  
3.1.1  Lack of information on actual implementation in the Member States................. 19  
3.1.2  Lack of statistics on e-commerce......................................................................... 19  
3.2 Need for better co-operation in the ap plication and implementation of the ECD 
("governance")................................................................................................................. ..... 19  
3.2.1  Transparency Directive 98/48/EC........................................................................ 19  
3.2.2  Case-by-case derogations of Article 3 (4) ECD................................................... 20  
3.2.3  Administrative cooperation under Article 19 ECD.............................................. 22  
3.3 Need for better enforcement of the ECD ................................................................. 23  
3.4 Need for further clarification on the in termediaries regime of the ECD ................. 24  
3.4.1  Liability issues...................................................................................................... 24  
3.4.2  The activities covered by  Articles 12-15 ECD..................................................... 26  
3.4.2.1  National law ..................................................................................................... 26  
3.4.2.2  EU law.............................................................................................................. 30  
3.4.3  The conditions in Article 12 to 14 ECD............................................................... 32  
3.4.3.1  Absence of actual knowledge........................................................................... 32  
3.4.3.2  Acting expeditiously ........................................................................................ 37  
3.4.3.3  Other conditions ............................................................................................... 38  
3.4.4  Notice-and-action procedures .............................................................................. 39  
3.4.4.1  The European legislative framework ............................................................... 39  
3.4.4.2  The developments in the last ten years............................................................. 40  
3.4.4.3  Persisting issues................................................................................................ 43  
3.4.4.4  An EU initiative on procedures for notifying and acting on illegal online 
content ....................................................................................................................... ... 46  
3.4.5  The prohibition in Article 15 ECD....................................................................... 47  
3.4.5.1  EU law.............................................................................................................. 47  
3.4.5.2  National law ..................................................................................................... 49  
3.4.5.3  Filtering ............................................................................................................ 50  
4 Need for integration with other Digital Single Market policies....................................... 51  
4.1 Trust ......................................................................................................................... 5 2 
4.1.1  Trustmarks............................................................................................................ 52  
4.1.2  Personal data protection ....................................................................................... 53  
4.1.2.1  Personal data protection in the online environment......................................... 53  
 
 24.1.2.2  Spam and the ePrivacy Directive ..................................................................... 55  
4.1.2.3  Cookies and the ePrivacy Directive ................................................................. 56  
4.1.2.4  Self-regulation in behavioural advertising ....................................................... 58  
4.1.2.5  Data Protection Directive................................................................................. 59  
4.1.3  Online gambling................................................................................................... 60  
4.1.4  Online pharmacies and other health issues .......................................................... 60  
4.2 Information............................................................................................................... 63  
4.2.1  Price comparison websites ................................................................................... 63  
4.2.2  Restrictions on advertising................................................................................... 64  
4.2.3  Unfair commercial practices ................................................................................ 65  
4.2.4  Code of EU Online Rights ................................................................................... 67  
4.2.5  Business awareness .............................................................................................. 67  
4.3 Access....................................................................................................................... 67  
4.3.1  Discrimination: 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 ................................................................................... 71  
4.3.6  Grey markets ........................................................................................................ 74  
4.3.7  Re-use of public information................................................................................ 75  
4.3.8  Competition.......................................................................................................... 76  
4.3.8.1  General ............................................................................................................. 76  
4.3.8.2  Vertical distribution agreements ...................................................................... 77  
4.4 Contracting............................................................................................................... 79  
4.4.1  Contract law ......................................................................................................... 79  
4.4.2  Unfair business practices...................................................................................... 83  
4.4.3  E-signatures, e-identificati on and e-authentication.............................................. 84  
4.5 Electronic payment and invoicing............................................................................ 86  
4.5.1  Electronic payment............................................................................................... 86  
4.5.2  Electronic invoicing ............................................................................................. 88  
4.6 Delivery.................................................................................................................... 89  
4.6.1  Delivery services in an e-commerce environment ............................................... 89  
4.6.2  Delivery problems ................................................................................................ 90  
4.6.3  Parcel and express deliver y services under the Postal  Services Directive........... 91  
4.6.4  Market trends and enhanced applica tion of the EU postal legislation ................. 94  
4.7 Dispute resolution in an online environment ........................................................... 96  
4.7.1  Alternative Dispute Resolution a nd Online Dispute Resolution.......................... 96  
4.7.2  European Small Claims Procedure..................................................................... 100  
4.7.3  Collective redress ............................................................................................... 101  
4.7.4  International Private Law................................................................................... 101  
4.8 Cross-cutting issues................................................................................................ 103  
4.8.1  VAT.................................................................................................................... 103  
4.8.2  Networks and infrastructure............................................................................... 105  
4.8.3  Environmental dimension .................................................................................. 106  
4.8.4  International dimension...................................................................................... 107  
 
Annex I Transposition of Directive 2001/31/ EC in the European Economic Area 
Annex II National legislation on " notice-and-takedown" procedures 
 
 3 
1 General Introduction 
 
The "Single Market Act"1 identifies information society se rvices, including e-commerce, as 
one of the measures which can boost economic gr owth and drive forward the Internal Market 
of the 21st century. They also have a major role to play in achieving the objectives of smart, 
sustainable and inclusive growth in Europe by 2020.2 The "Digital Agenda for Europe3" sets 
the objectives of developing electronic commerce across Europe and facilitating access to electronic commerce for SMEs engaged in sales and purchasing. The strategy includes 
quantitative targets: by 2015 33% of SMEs shou ld be conducting onlin e purchases/sales. By 
contrast, during 2008, 24% of enterprises were  purchasing and 12% selling electronically 
volumes that equalled or exceed ed 1% of their total purchases/turnover. Moreover, it is 
anticipated that 20% of th e population will be buying goods  online from cross-border 
providers by 2015.   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 grow th. Over the past decade, these new activities 
have generated jobs and created enterprises,  thus adding value and representing a major 
engine for European growth, even in a time of crisis.   - E-commerce is seen as the best way to tran scend national borders a nd enable businesses and 
consumers to get the most out of the European  Single Market, even if  national markets still 
dominate today. For instance, only 9% of c onsumers in 2010 (against  8% in 2009) used e-
commerce across borders.
4 
 - E-commerce can help attain regional polic y objectives: it can improve access to an 
increasingly large range of products and serv ices for citizens and businesses located in 
isolated areas.  - E-commerce can enhance the quality of life of vulnerable populations : new technologies and 
new sales channels can often better meet the need s of at-risk social groups such as the elderly 
and allow them to have access to an extensiv e 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 Committ ee of the Regions, Single Market Act, Twelve levers to boost growth and 
strengthen confidence, "Working together to create new growth",  COM(2011) 206 final, 13.04.2011; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUr iServ.do?uri=COM:2011:0206:FIN:EN:PDF .  
2  Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive 
growth , COM(2010) 2020 final, 03.03.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:2020:FIN:EN:PDF . 
3  Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Committee of the Regions, A Digital Agenda for Europe , COM(2010) 245 final/2, 
26.08.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0245:FIN:EN:PDF . 
 
4  European Commission, DG Sanco, 5th Consumer Scoreboard, Consumers at home in the Single Market , 
March 2011, available at: http://ec.europa.eu/consumers/consumer_research/editions/cms5_en.htm   
 
 
 4available to them in the physical world, such  as cultural events. Moreover, information 
society services and e-commerce can contribute to meeting the demographic challenge of an 
ageing European population.  - E-commerce can help protect the environment: e-commerce has a role to play in achieving 
the objectives of sustainable growth , since according to some studies
5, it uses less CO2 than 
traditional commerce.  Ten years after the adoption of the Directive on certain legal aspects of information society 
services, in particular electronic commerce, in  the Internal Market (Directive on electronic 
commerce)
6, e-commerce is still limited to less than 4% of total European trade. As 
announced in the Communication "T owards a Single Market Act"7, the European 
Commission wants to explore the various reasons for the limited take-off of retail e-
commerce outlined in the retail market monitori ng report: “Towards more efficient and fairer 
retail services in the Internal Market for 2020."8 In addition, the Commission is using this 
Staff Working Document to pres ent its evaluation of the implementation of the E-Commerce 
Directive (hereafter: ECD) in conformity with Article 21 of the Directive, and as announced 
in the Communication "Towar ds a Single Market Act."9  
 The analysis presented below covers informati on society services, defi ned as those services 
provided at a distance, electronically and at th e request of a recipient of services against 
remuneration
10, and also the much wider domain of e-commerce transactions in goods and 
services.11 Online retailing, online pre ss, search engines, social  networks, blogs, media 
streaming, online gambling and e-health are in cluded in our analysis. The main focus, 
                                                 
5  E.g. Estia et Médiamétrie//NetRatings pour la FEVAD, Etude de l’impact environnemental de l’achat sur 
internet et dans le commerce traditionnel , Juin 2009; available at: 
http://www.fevad.com/uploads/f iles/Prez/fevad_estia_110609.pdf   
 
6  Directive 2000/31/EC of the European  Parliament and of the Council of 8 June 2000 on certain legal aspects 
of information society services, in particular electronic commer ce, in the Internal Market ( Directive on 
electronic commerce , hereafter ECD ), OJ L 178/1,  17.07.2000; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:32000L0031:EN:HTML .  
 
7  Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Committee of the Regions, Towards a Single Market Act, For a highly competitive 
social market economy, 50 proposals for improving our work, business and exchanges with one another , 
(hereafter ‘ Towards a Single Market Act’ ) COM(2010) 608,   27.10.2010, available at: 
http://ec.europa.eu/internal_market/s mact/docs/single-market-act_en.pdf . 
8  Report from the Commission to the European Parlia ment, the Council, the Ec onomic and Social Committee 
and the Committee of the Regions, Retail market monitoring report, “ Towards more efficient and fairer 
retail services in the internal market for 2020 ”, COM(2010) 355, OJ  C 84/19, 17.03.2011; available at: 
http://ec.europa.eu/internal_market/retail/docs/monitoring_report_en.pdf . 
9  Towards a Single Market Act, COM(2010) 608,  27.10.2010. 
 
10  Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down 
a procedure for the provision of information in the field of technical standards and regulations , OJ L 
204/37, 21.07.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF . 
11  This is defined by Eurostat/OECD as purchases and sales orders made via websites or systems of electronic 
data interchange, excluding manually typed e-mails. 
 
 5however, is on issues related to the E-Commerce Directive and the obstacles to its 
implementation that have been identified. The document does not attempt to cover all topics of interest to online services or cross-cutt ing issues such as social aspects or SME 
development.  The detailed analysis included in this Sta ff Working Document and the Communication is 
partly based on the results of an open public  consultation carried out between August and 
November 2010. The consultation sought opinions on seven broad themes: (1) the level of development, both national and cross-border, of  information society services; (2) issues 
concerning the application of Article 3 (4) by th e Member States (administrative cooperation); 
(3) contractual restrictions on cross-border online sales; (4 ) cross-border online commercial 
communications, in particular from regulated pr ofessions; (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 an d almost 420 responses were received. The 
responses are published online and summarised in a separate report.
12 While 50% of the 
answers were from companies or business associations, a significant proportion - 31% - came from European citizens, with lesser proportions composed by consumer associations, lawyers, 
public authorities and regulated profe ssions drawn from 13 Member States.
13 Besides the 
answers from European entities (f ederations etc.), responses fr om France, the Netherlands, the 
United Kingdom and Germany were particular ly numerous. Only three Member States 
(Romania, Bulgaria, and Lithuania)  failed to provide any response. 
 This Staff Working Document also draws on other sources of information available e.g. 
studies, participation in conferences, interviews with stakeholders and the deliberations of the 
expert group on e-commerce etc.  This document constitutes one of the two annexes to the Communication "A coherent 
framework to boost confidence in the Digital Single Market of e-co mmerce and other online 
services" and is divided into two main parts. The first part contains an in-depth analysis of the 
legal and economic state of play in the online services sector. It  also evaluates the remaining 
obstacles to the full and prope r application of the E-Commer ce Directive. The second part 
covers regulatory barriers relate d to other EU po licies, and the EU response to them. Annex I 
gives an overview of national legislation transposing the E-Commerce Directive. Annex II 
summarizes national legislation on so-cal led "notice-and-takedown" procedures. 
 The document, and in particular Chapters 2 and 3, serves as an application report within the 
meaning of Article 21 of the E-Commerce Dir ective. The Staff Working Document is not 
legally binding and does not cons titute Commission guidelines. 
 The second annex to the Communica tion identifies the latest tre nds in business-to-consumer 
e-commerce in the EU and examines the potential  benefits for consumers if current obstacles 
are overcome and the true potential of e-commerce in the Single Market is fulfilled (Commission Staf Working Paper, "Bringing e-commerce benefits to consumers"). 
                                                
 
12 See http://ec.europa.eu/internal_mar ket/e-commerce/directive_en.htm .  
 
13  Belgium, Chech Republic, Estonia, Finland, Luxemburg, Latvia, Malta, Poland, Portugal, Sweden, United 
Kingdom and Norway. 
 
 62 The market for online services: state of play 
 
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 
business online. This framework consists of  the E-Commerce Directive and many other 
pieces of subsequent EU legislation.    
2.1 Description of e-commerce in the economy 
 
Online services play an increasingly important ro le in the everyday life of EU citizens. These 
services help to reduce the time spent on pape rwork and increase ac tivity online (reading 
newspapers, consulting bank accounts and maki ng payments, sending mail, searching for 
information, communicating via social networks , etc.). Electronic commerce continues to 
grow substantially, even in th e current economic crisis. It pl ays an important role in B2B 
exchanges as 27% of European enterprises pur chase online and 13% sell online. Nevertheless, 
it is currently limited to 3.4% of  retail sales in the 27 Member States. The highest level of 
online retail sales is 7.7% , in the United Kingdom.14 The development of e-commerce is very 
uneven among Member States, with a clear No rth-South divide. The United Kingdom, France 
and Germany account for 70% of European e-co mmerce. The level of cross-border online 
retailing also appears to be modest. Indeed, only 9% of European consumers said they 
shopped online cross-border in 2010.15 
 E-commerce in Europe lags behind Korea, Japa n and the United States. In the USA, 66% of 
internet users made purchases onlin e, while 94% did in South Korea.
16 This compares with 
57% in the EU.17 However, the growth rate of electronic commerce is now higher in the EU 
than in the US.  Finally, m-commerce (electronic commerce conducte d from a mobile phone, tablet etc.) in the 
EU plays a more modest part in the growth  of electronic commerce than in the USA and 
Japan. According to a KPMG study
18, the percentage of consumers who visited an online 
retailer site from their mob ile phone increased from 10% in 2008 to 28% in 2010 against 41% 
in the Asia-Pacific region. However, the use of mobile phones for financial services is more 
widespread: 46% of consumers surveyed said th ey had used them. This was an increase on 
19% in 2008 but contrasts with 61% for in Asia-Pacific.  
                                                
 
14  Euromonitor International, 2010.  
15  Eurostat, Information Society Statistics, 2010. 
 
16  Forrester Research Inc, The Global eCommerce Adoption Cycle , 15.01.2010 (using 2009 data). 
 
17  Eurostat, Data in Focus 50/2010 : Internet Usage in 2010 – Households and Individuals , 14.12.2010, 
available at:  
http://epp.eurostat.ec.europa.eu/portal/page/portal/p roduct_details/publication?p_product_code=KS-QA-10-
050 
 
18  KPMG, Consumer and Convergence Survey IV , April 2010, available at: http://www.kpmg.co.il/e-
vite/3b.pdf   
 
 7Some sectors have already been profoundly transformed by electronic commerce. These 
include travel agen cies (39% of sales were online in 2008), sales of electronic and cultural 
goods (22%), financial services, gambling and sports betting. Clothi ng sales are growing 
(10%), while food sales are stil l relatively undeveloped (7%).19 Online sales of cultural goods 
are hard to quantify accurately. There are high leve ls of consumption of music online, but it is 
still largely illegal, which has a very destabiliz ing effect on the sector. The development of an 
attractive, high quality and legal offer is crucial for the sale of  cultural products. However, the 
responses to the public consulta tion (mentioned above) show that  consumers have contrasting 
views depending on the types of content (digit al books, music, movies, cultural and sporting 
events) and their Member State of residence. Ov erall, the market for online music is 4 times 
larger in the USA than in Europe, alt hough it is now growing faster in Europe.20  
 The past decade has seen on th e one hand the emergence of a number of (mainly US-based) 
large providers ("pure players" ) which only have a presence online and, on the other, a 
tendency for big retailers to deploy "multichannel" strategies. According to Experian Hitwise
21, only 7 of the 10 largest UK online retailers have physical stores and the trend away 
from "bricks and mortar" is growing. In addi tion, half of consumers first get information 
online before buying. In comparison, the position of SMEs in e-commerce is still limited. 
They often choose platforms organized by larg e companies to grow online. Overall, the 
development of electronic commerce appears, however, to be creating new complementarities and business activity and there is  little evidence that "canniba lization" of physical commerce 
by e-commerce is taking place. This is true ev en if there are problems between franchisee and 
franchisor, or other sector-s pecific problems (see above). 
 From a wider perspective, the internet economy has ge nerated 21 % of the GDP growth of the 
last 5 years
22 and could represent as much as 20% of  GDP growth in the period up to 2015 in 
the Netherlands and the UK. Internet consump tion and expenditure already exceeds the share 
of GDP of agriculture or energy, and its GDP is bigger than the GDP of Canada or Spain.23 It 
represents 7% of UK GDP, 3.7% in France, 2.2 % in Spain, 2% in It aly, 2.7% in Poland, 3.6% 
in the Czech Republic, 4.3% in the Netherlands , 5.8% in Denmark, 6.6% in Sweden, 3.4% in 
Germany and 2.5% in Belgium.24 According to IMRG, in March 2010, 600,000 jobs were 
linked to electronic commerce in the United Ki ngdom. The "Internet stream" (which is wider 
than ISS because it includes te lecoms) has accounted for 25% of  net job creation and growth 
                                                 
19  Forrester consulting, May 2009, Study on "A Single Market for Information Society".  
20  Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to 
the European Parliament, the Council, the European Economic and Social Committee and the Committee of 
the Regions — A Digital Agenda for Europe , COM(2010) 245, OJ C 54/58, 19.02.2011, available at: 
http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=OJ:C:2011:054:0058:0064:EN:PDF . 
21  IMRG Experian Hitwise Hot Shops List, May 2011. 
22  McKinsey Global Institute, Internet  matters : The net's sweeping impact on growth, jobs, and prosperity , 
May 2011, on the G8 countries, South Korea, Sw eden, Brazil, China and India. Available at : 
http://ww1.mckinsey.com/mg i/publications/internet_matters/pdfs/MG I_internet_matters_full_report.pdf   
23  Boston Consulting Group, Turning local: from Madrid to Moscow, the Internet is going native , September 
2011, available at: http://www.bcg.com/documents/file84709.pdf   
24  How the Internet is transforming the economy , a series of studies by the Boston Consulting Group 
commissioned by Google, 2010-2011; McKinsey & Company, Impact d'Internet sur l'économie française , 
March 2011, available at: http://www.economie.gouv.fr/files/ rapport-mckinsey-company.pdf   
 
 8in France since 2000.25 Overall, the Internet economy creates 2.6 jobs for every job 
destroyed.26 The value of the e-commerce market pe r se is between € 100 and 150 billion 
which is similar in the EU and the US.27 This sector is expected to generate further growth 
especially as SMEs come increasingly to explore the potential of "digital conversion".  
2.2 The regulatory framework  
 
The E-Commerce Directive (ECD) is the main legislative tool dealing with information 
society services. Following its adoption in 2000, the Directive has been complemented by 
other EU legislation, covering various aspects su ch as data protection and consumer affairs. 
2.2.1  The E-Commerce Directive 
 
The ECD is designed to help remove obstacles to  cross-border online services in the Internal 
Market and to provide legal certainty to admi nistrations, businesses and customers. It was 
drafted in a technologically neutral manner in or der to avoid amendments of the legal 
framework arising from the fast pace of innova tion in the IT sector. On the one hand, the 
Directive contains principles which should enco urage the functioning of the Internal Market 
such as the Internal Market clause, the cornerstone of the Directive. On the other hand, it 
regulates certain legal aspects of online serv ices. The Directive harmonises for instance 
certain information requirements, commercial co mmunications, electronic  contracting and the 
liability regime for online intermediaries. The Directive does not apply to a number of areas 
including taxation, questions related to th e Data Protection Directive and gambling 
activities28.  
2.2.1.1  The Internal Market clause and esta blishment requirements (Articles 3-4 
ECD) 
 
The Internal Market clause aims to ensure th e free movement of information society services 
between the Member States. It ha s two complementary components: 
 a. Each Member State must ensure that information society services  provided by a 
service provider established on its territo ry comply with the national provisions 
applicable in the Member State in  question which fall within the coordinated field  
(Article 3 (1) ECD); 
b. Member States may not, for reasons falling within the coordinated field , restrict the 
freedom to provide information society services  from another Member State (Article 3 
(2) ECD). 
 The terms "information society services" and "coordinated field" ar e crucial for a proper 
understanding of the Internal Market  (or country of origin) clause.  
                                                
 
25  Forrester Consulting, produced by DIW-econ. 
26  Boston Consulting Group, Turning local: from Madrid to Moscow, the Internet is going native , September 
2011, available at: http://www.bcg.com/documents/file84709.pdf  
27  Forrester consulting produced by DIW-econ.  
28  See in particular Article  1 (5) and Recital 12 of the ECD . 
 
 9 
The term "information society se rvices" is not defined in the ECD but in the Transparency 
Directive 98/38/EC as amended by Directive 98/48.29 The basic definition of "information 
society services" covers any service normally provided, for remuneration, at a distance, by 
electronic means and at the individual request of a recipient of services.30 
• The definition of a "service" and "normally  provided for remuneration" derives from 
Article 57, first paragraph, of the TFEU31, as interpreted by the European Court of 
Justice (hereafter: ECJ). The EC J has stipulated that the " essential characteristic of 
remuneration […] lies in the fact that it constitutes consideration for the service in 
question ". Such a characteristic is absent in th e activities the State undertakes within the 
framework of its public tasks, pa rticularly in social , cultural, educationa l and legal areas. 
• The concept of "at a distance" implies that the service is provided without the parties 
(i.e. the service provider and the recipien t) being simultaneously present. Medical 
advice requiring the physi cal examination of a patient does not fall, for instance, within 
the definition of an "inf ormation society service".32 However, certain telemedicine 
services may be covered because they are by definition provided in situations where the healthcare professional and the patient (or tw o healthcare professionals) are not in the 
same location.
33  
• The expression "by electronic mean s" is taken to mean that a service is sent initially and 
received at its destination using electroni c equipment for the processing (including 
digital compression) and storage of data, and that it is entirely transmitted, conveyed and 
received by wire, by radi o, by optical means or by other electromagnetic means. The 
service must be conveyed from its point of de parture to its point of arrival by means of 
electronic (processing and st orage) equipment and by te lecommunications means. 
• Finally, the service must be provided via th e transmission of da ta "at an individual 
request". This constitutes the element of interactivity which characterises information society services and sets them apart from ot her services that are sent without a request 
from the recipient being necessary. For this reason, the Directive does not apply to radio 
or television broa dcasting services.
34 
                                                 
29  Directive 98/34/EC of the European Parliament and the Council of 22 June 1998 laying down a procedure 
for the provision of information in the field of technical standards and regulations , OJ L 204/37, 
21.07.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF  
30  Article 1(2) of the Commission Directive 98/38/EC of 3 June 1998 adapting to technical progress Council 
Directive 74/151/EEC on certain components and characteristics of wheeled agricultural or forestry tractors , OJ L 170/13, 16.06.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:170:0013:0014:EN:PDF , as amended by Directive 
98/48/EC, OJ L 204/37, 21.07.1998.  
31  Treaty on the Functioning of the EU , OJ C 155/47, 09.05.2008, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF .  
32  See Case C-108/09, Ker-Optika  bt v ANTSZ Dél-dunántúli Regionális Intézete , judgment of 02.12.2010, 
(hereafter ‘ Ker-Optika’ ) par. 37-38, available at: http://curia.europa.eu/juris/recherche.jsf?language=en   
33  Commission Staff Working Paper , Telemedicine for the benefit of patients, healthcare systems and society , 
SEC(2009)943 final, June 2009; available at: 
http://ec.europa.eu/information_society/activities/hea lth/docs/policy/telemedicine/telemedecine-swp_sec-
2009-943.pdf .  
34  See for example Case C-89/04, Mediakabel BV  v Commissariaat voor de Media , ECR [2005] I-04891, 
judgment of 05.06.2005, Par.38: "Pay-per-view" serv ices to watch movies at the times indicated on the 
 
 10 
This is a broad definition spanni ng a variety of onlin e activities. More deta iled examples are 
provided in a Vademecum to Directive 98/48/EC published by the Commission.35  
 For the majority of the aspects of electronic  commerce, the Directive is not intended to 
achieve harmonisation of substantive rules, but de fines a "coordinated field" in the context of 
which the mechanism in Article 3 must allow information society services to be, in principle, subject to the law of the Member State in which the service provider is established.
36 Article 2 
(h) of the ECD defines the "coordinated field" of the Directive as those requirements laid 
down in Member States' legal systems which are applicable to information society service 
providers  or information society services , regardless of whether th e requirements are of a 
general  nature or specifically  targeted at this sector. At a more detailed level, the provision 
states that the coordinated field concerns the re quirements with which the service provider has 
to comply with respect to: 
• The taking up  of the activity of an information so ciety service, such as requirements 
concerning qualifications, authorisation or notification. Specific examples might be 
the requirement to demonstrate professiona l qualifications and good repute, to provide 
specific financial guarantees, or to obtain a licence and meet the conditions for that 
licence. 
• The pursuit  of the activity of an information society service, such as requirements 
concerning the behaviour of the service provide r, the quality or c ontent of the service 
linked to aspects such as a dvertising and contracts, or requirements concerning the 
liability of the service providers.  
 The coordinated field covers ru les related to a wide range of activities such as online 
information, online advertising, online shopping  and online contracting. Various national 
rules may also have consequen ces for to the taking up and pursuit of the activity of an 
information society service. The "coordinated  field", however, does not cover requirements 
applicable to goods (e.g. safety standards, labe lling and liability, classification for the purpose 
of protecting children
37) or conditions for the delivery or the transport of goods sold via the 
Internet, generally to the customer's home.38 
 Recent case-law of the ECJ confirms the broad principles underlying the Internal Market 
mechanism. In the Ker-Optika  judgment of 2 December 2010,
39 the Court recognised the 
                                                                                                                                                         
screen or in a programme guide are not services provided "at the indivi dual request" of a recipient because 
the selection of films is offered to all subscribers on the same terms, accessible at the broadcasting times 
determined by the provider, available at: http://curia.europa.eu/juris/recherche.jsf?language=en   
35  See: 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 the judgment of the ECJ in Joined Cases C-509/09 and C-
161/10, eData Advertising a.o. v X a.o ., judgment of 25.10.2011, (hereafter ‘ eData’ ) par. 57, available at 
http://curia.europa.eu/juris/ recherche.jsf?language=en .  
37  Case C-244/06, Dynamic Medien Vertriebs GbmH  v Avides Media AG , ECR [2008]  I-00505, judgment of 
14.02.2008, Par. 22; available at: http://curia.europa.eu/juris/ recherche.jsf?language=en .  
38  Those conditions not covered by the E-Commerce Dir ective must therefore be assessed under primary law, 
in particular Articles 34-36 TFEU on the free movement of goods. See par.41 of the  Ker-Optika judgment. 
39  See par. 40 of Ker-Optika  judgment. 
 
 11wide scope of the "coordinated fi eld" and held that a national  prohibition on selling contact 
lenses via the Internet falls, in principle, w ithin the coordinated field of the ECD. In the eData 
Advertising  judgment of 25 October 2011, the Court unde rlined that the mechanism provided 
for by the ECD prescribes, also in private law, respect for the substantive law requirements in force in the country in which th e service provider is established. In the absence of binding EU 
harmonisation, only the acknowledgment of the binding nature of national law to which the 
legislature has decided to make the service prov iders 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 
character of a conflict-of-laws rule, the Court held that Article 3 ECD must be interpreted as 
not requiring transposition in th e form of a specific conflict-of-rules rule. Nevertheless, in 
relation to the coordinated field, Member States must ensure that , subject to the derogations of 
Article 3 (4) ECD, the provider of an electronic commerce serv ice is not made subject to 
stricter requirements than those provided for by the substantive law applicable in the Member 
State in which that service provider is established.
40 
 Article 3 (4) of the ECD provides a derogation fr om the Internal Market clause of Article 3 
(2) ECD for a limited number of subjects. These are set out in the Anne x of the Directive and 
include in particular intellectual property rights;  the freedom of the parties to choose the law 
applicable to the contract; contractual oblig ations concerning consum er contracts and the 
permissibility of unsolicited commercial co mmunications by e-mail. The conditions under 
which Member States may derogate from the In ternal Market clause must be regarded as 
exhaustive.
41 
 In the public consultation on e-commerce there we re relatively few responses to the Annex as 
a whole. Some of the respondents (mostly busin ess organisations and enterprises) had doubts 
about the added value of all or some of the derogations in the Annex. Some respondents pointed out that the lack  of (full) harmonization in the area  of consumer contracts makes the 
derogation still necessary.
42 Contradicting observations were made in relation to intellectual 
property rights derogations, mos tly on copyright. Right holders tended to claim that the EU 
acquis has promoted the cross-bor der availability of copyright  protected works. Many other 
stakeholders took the opposite view and identifi ed the present copyright  situation within the 
EU as a major barrier to the availability of  content beyond the national borders and the 
establishment of a true Digital Internal Market.43 
 Article 4 (1) of the ECD prohibits Member Stat es from making the taking up and pursuit of 
the activity of an information society service provider subject to prior authorisation or any 
other requirement having an equi valent effect. This provision ensures that establishing an 
information society service in a Member St ate is a relatively smooth process without 
administrative hurdles. No specific difficulties ha ve been reported on the application of this 
provision.  
                                                
 
40  eData  judgment par. 59, 68.  
41  eData  judgment, par. 59. 
42  Refer to Chapter 4.4.1 for further developments. 
43  For further information refer to Chapter 4.3.5. 
 
 122.2.1.2  Information requirements (Article 5 ECD) 
 
Article 5 (1) of the ECD obliges the online trader to provide, as a minimum44, the following 
information: name, geographical address, e-mail a ddress, registration number if registered in a 
trade or similar public register.   This information is important and may even be  vital for customers cl aiming their rights. The 
country of origin of the web trader can have major consequences, for ex ample, for their right 
of withdrawal. If the web trad er is established in a non-EEA country, the provisions of the 
ECD do not apply
45 and the EU consumer cannot benef it from legal protection under the EU 
consumer acquis.   Moreover, Article 5 requires the online service provider to es tablish an effective direct 
communication channel with its customers. Ar ticle 5 (1) (c) imposes  the obligation on the 
service provider to render "easily, directly an d permanently accessible" to both recipients of 
services and the competent authorities "the details of the service provider, including its 
electronic e-mail address, which allow it to be contacted rapidly and co mmunicated with in a 
direct and effective manner". The European Cour t of Justice has interpreted this provision as 
meaning "that a service provider is required to supply to recipients of the service, before the 
conclusion of a contract with them, in addition to its electroni c mail address, other 
information which allows the service provider to be contacted rapidly and communicated with 
in a direct and effective manne r. That information does not n ecessarily have to be a telephone 
number. That information may be in the form of an electronic enquiry template through which 
the recipients of the service can contact the se rvice provider via the internet, to whom the 
service provider replies by el ectronic mail except in  situations where a recipient of the 
service, who, after contacting the service provid er electronically, finds himself without access 
to the electronic network, requests the latter  to provide access to another, non-electronic, 
means of communication".
46 The judgment implies that service providers cannot limit 
themselves to offering an e-mail address access ible for their customers through the website. 
They must also provide for othe r forms of direct communication.47 
 
                                                 
44  The information requirements do not prevent Member States from imposing additional information 
requirements but these ar e nowadays often harmonised or unified at EU-level. See for example the new 
Consumer Rights Directive , which completes Article 5 of the ECD  by fully harmonising the information 
requirements for B2C distance contracts. 
45  See Recital 58 of the ECD .  
46  Case C-298/07, Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale 
Bundesverband eV  v deutsche internet versicherung AG , ECR [2008] I-07841, judgment of 16.10.2008; 
available at: http://curia.europa.eu/juris/recherche.jsf?language=en .  
47  See also Article 6 (1) (c) of the Directive 2011/83/EU  of the European Parliament  and of the Council of 25 
October 2011 on consumer rights,  amending Council Directive 93/13/EEC and Directive 1999/44/EC and 
repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the 
Council , OJ L304/64, 22.11.2011 (Hereafter ‘ Consumer Rights Directive’ ) This obliges the trader to provide 
the consumer with the following information: the tr ader's geographical address, telephone number, fax 
number and e-mail address, where available, to enab le the consumer to contact the trader quickly and 
communicate with him efficiently and, where applicable , the geographical address and identity of the trader 
on whose behalf he is acting. Available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:304:0064:01:EN:HTML   
 
 13A recent Mystery Shopping study carried out by the ECC-Net reveals that: 
• in 2% of purchases, the trader's name  was not available at all; 
• in 9% of purchases, consumers had to search for the country of origin  of the trader 
and in 3% of purchases, the inform ation was not even available;  
• the physical address  was not available in 3% of th e purchases, and in 43% of the 
purchases, the company's registration number  was not available; 
• in 8% of purchases, the phone number  and in 12% of purchases, the e-mail address  
could not be found.48 
 Article 5 (2) obliges web traders, where inform ation society services refer to prices, to 
provide a clear and unambiguous in dication of the prices, includi ng taxes and delivery costs. 
This provision complements price transparen cy requirements laid down in other EU 
legislation (see Chapter 2.2.2). The "Mystery" survey above suggests that, in 34% of 
purchases, it was not clear whether the VAT  was included in the price presented.  
2.2.1.3  Commercial communications and regulate d professions (Articles 6-8 ECD) 
 
Article 6 of the ECD emphasises the need for tr ansparency when advertisements are displayed 
on the Internet. It obliges the Member St ates to ensure that online commercial 
communications (including promotional offe rs, 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 opera tor of an online marketplace and displayed by 
a search operator must always disclose both the identity of the online marketplace operator 
and the fact that the trade-marked goods ad vertised are being so ld through that online 
marketplace.
49 
 Article 7 of the ECD preserves the possibility fo r Member States to either prohibit or allow 
the sending of unsolicited commercial communications ("spams") by e-mail. Those Member States permitting unsolicited commercial communication must ensure that such communication is clearly and una mbiguously identifiable, and th at service providers respect 
the opt-out registers to whic h natural persons not  wishing to receive such commercial 
communications can sign up.   In practice it is not always easy to define notio ns such as "unsolicited" and "commercial". For 
example, not every unsolicited e-mail may be cla ssified 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 ente r the e-mail address of one or mo re "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.  
                                                
 
48  ECC-Net, Online Cross-border Mystery Shopping: State of the e-Union , September 2011, available at : 
http://ec.europa.eu/consumers/ecc/doc s/mystery_shopping_report_en.pdf . The research was conducted in all 
the EU Member States, Iceland an d Norway, with purchases made for 10 different consumer product 
categories. 
49  Cf. Case C-324/09, L'Oréal v eBay , judgment of 12 July 2011, par. 95-96, available at: 
http://curia.europa.eu/juris/ recherche.jsf?language=en .  
 
 14Unsolicited commercial communication is also c overed by other consumer rules such as the 
Unfair Commercial Practices Directive.50 One of the practices which Annex I of the UCP 
qualifies as unfair under all circ umstances is the "persistent and unwanted so licitations by 
telephone, fax, e-mail or other remote media except in circumstances and to the extent 
justified under national law to  enforce a contractual obliga tion". Member States must 
therefore provide effective, proportionate a nd dissuasive sanctions against spam-related 
activities of this kind.   These rules have been complemented by Dire ctive 2002/58/EC concerning the processing of 
personal data and the protection of privacy in  the electronic communications sector, most 
commonly known as the ePrivacy Directive
51, which has become the central instrument 
against spam in the EU (see Chapter 4.1.2.2). Arti cle 13 of the E-Privacy Directive deals with 
the use of email (including sms, mms), automatic calling machines and requires prior opt-in consent. It applies in princi ple only to subscribers who are natural persons. Member States 
may decide to extend the prior opt-in requirement to subscrib ers who are legal persons. The 
ECD rule requirement for the commercial comm unications to be "cle arly and unambiguously 
identifiable" remains applicable.  Article 8 of the ECD obliges the Member Stat es to ensure that members of regulated 
professions may use commercial communications online, subjec t to compliance with such 
professional rules governing the independence, honour and dignity of the profession. This 
provision has forced Member States to abolish restrictions on online commercial communications for such professions.   The Services Directive complements the rule s on online commercial communications set out 
in the ECD. According to Artic le 24 (1) of Directive 2006/123
52, Member States shall remove 
all total prohibitions on commercial communi cations by the regulated professions. The 
obligation to remove all "blanke t" prohibitions also covers national legi slation which only 
prohibits a particular form of commercial co mmuniation. In a judgmen t of 5 April 2011, the 
ECJ ruled that a ban on a ccountants' canvassing (direct marketi ng) must be regarded as a total 
prohibition of commercial comm unication, which is not allowed 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 
business-to-consumer commercial pr actices in the internal market  and amending Council Directive 
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council 
and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘ Unfair Commercial 
Practices Directive ’), OJ L 149/22, 11.06.2005, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:EN:PDF   
51  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the 
processing of personal data and the protection of priv acy in the electronic communi cations sector (Directive 
on privacy and electronic communications), OJ L 201/37, 31.07.2002; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:32002L0058:EN:HTML    As revised by Directive 
2009/136/EC of the European Parliament and of the Council of 25 November 2009.  
52  Directive 2006/123/EC of th e European Parliament and of the Council of 12 December 2006 on services in 
the internal market , OJ L 376/36, 27.12.2006; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:01:EN:HTML  
53  Case C-119/09, Société fiduciaire nationale d'expertise comptable  v Ministre du Budget, des Comptes 
publics et de la Fonction publique , judgment of 05.04.2011; available at: 
http://curia.europa.eu/juris/ recherche.jsf?language=en .  
 
 15 
Article 8 of the ECD encourages regulated prof essions to develop codes of conduct at EU 
level related to the use of commercial co mmunications. Certain professions such as 
accountants, lawyers, doctors, pharmacists and r eal estate agents esta blished EU codes of 
conduct almost a decade ago. These codes laid down professional rules in particular related to 
the independence, dignity and integrity of  the profession. Technological progress in 
combination with the increasing use of the Inte rnet by regulated professions may require that 
these codes be updated.  
2.2.1.4  Electronic contracting (Articles 9-11 ECD)  
 
Articles 9-11 of the ECD contain essential a nd mandatory contracting requirements for online 
transactions. These conditions apply in addition to other EU requirements on contracts, such 
as pre-contractual information rights or unfair contract terms for consumer contracts (see 
Chapter 4.4.1).   Pursuant to Article 9 (1) of the ECD, contra cts concluded by electronic means should have the 
same validity as contracts concluded offline by "traditional" means (equivalence principle). 
This applies to all stages and acts of the contract ual process, such as th e contractual offer, the 
negotiation and the conclusion of the contract by electronic m eans. Legal provisions obliging 
hand-written contracts, for example, are no longe r allowed. But the principle only covers legal 
requirements and not practical obstacles such as cases where the conclusion of a contract 
requires the physical presence of parties,  e.g. must be signed before a notary.
54  
 Article 9 (2) of the ECD leaves Member States  the option of excluding certain categories of 
contracts used in the cont ext of real estate tran sfer that require the i nvolvement of courts and 
other public authorities, those related to fa mily and succession law, as well as contracts 
dealing with certain securities. Article 9 (3 ) of the ECD obliges the Member States to 
regularly inform the Commission about the contr acts for which the equivalence principle does 
not apply.   Article 9 of the ECD has been complemented by the Electronic Signatures Directive
55 which 
regulates the legal recognition of e-signatures (see Chapter 4.4.3). 
 According to Article 10 of the ECD, online trad ers must provide the consumer with specific 
information prior to the order being placed and, in particular: 
• the steps to follow to conclude a contract,  
• the filing of the contract by the service provider,  
• the technical means for identifying and correc ting input errors prio r to the placing of 
the order, and  
• the languages offered for the conclusion of the contract.  
 
                                                
 
54  Cf. Recitals 34 and 37, ECD .  
55  Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community 
framework for electronic signatures , OJ L 013/12, 19.01.2000; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:31999L0093:en:HTML   
 
 16In addition, online service prov iders must make available a ny relevant codes of conduct, 
contract terms and general conditions.56 Consumers should not only be able to store the 
contract terms and general conditions, but they must also be able to reproduce (print) them.  
 Article 11 of the ECD harmonises the placing of the order in B2C contracts. The online 
contract has to be concluded through an "o rder" placed by the consumer, followed by an 
electronic "acknowledgme nt" of the online trader without undue delay. The "order" and the 
"acknowledgement" are deemed to be received wh en the involved contracting parties are able 
to access them. In addition, the on line trader has to provide th e consumer with the technical 
means allowing him/her to identif y and correct input e rrors prior to the placing of the order.
57 
 A recent EU-wide survey carried out by the E CC-Net in 2011 suggests that the obligations 
under Articles 10 and 11 are often neglected. The survey shows that the online traders fulfilled the obligation to inform the consumer  about the process of completing the purchase 
only in 68% of consumer purchases. The opportunity  to review the details of the order before 
placing the order was not offered in 11% of purc hases. In 6% of purchases it was not clear 
when the final stage was reached, i.e., when th e order had been placed. In almost half the 
purchases (48%), the purchaser  had to actively accept the terms and conditions. As to 
compliance with the rule s in Article 11, 81% of purchasers r eceived a confirma tion order both 
on screen and by e-mail. In 10% of purchases, a confirmation of the order was received only 
by e-mail and in 8% only on screen. In 1% of purchases, no confirmation was received
58. 
 Commission services do not have further reliable and detailed information on the practical 
application of the formation of  contracts. It has never recei ved reports from the Member 
States on the excluded categories of  contracts referred to in Article  9 (2) of the ECD. It would 
welcome the opportunity to learn more about th e experiences of both internet consumers and 
online businesses in resp ect to  the process of placing or ders. One the one hand, the ECC-Net 
survey shows that online traders too often do not respect national law transposing the 
provisions of the ECD. Awareness of these requirements should be  increased in order to make 
sure that businesses adapt their websites. On  the other hand, responde nts to the e-commerce 
consultation expressed concerns that the contra cting requirements of the ECD may have been 
legitimate and useful at the time when it was adopted, but they now be lieve that they could 
become obsolete or even a burden for devi ces operating with newer technologies.  
2.2.1.5  Liability of online intermedia ries (Articles 12-15 ECD)  
 
The ECD introduced a specific liability regime for three categories of services: mere conduit 
operators, "caching" providers and hosting servi ces. The details of the application of this 
regime are discussed in Chapter 3.4.  
                                                
 
56  With the exception of the contract terms and cond itions, these transparency requirements do not apply to 
contracts concluded exclusively by e-mail or by equivalent individual communications. 
57  The acknowledgement of receipt  and the revision mechanism do no t apply to contracts concluded 
exclusively by e-mail or by equivalent individual communications. 
58  ECC-Net, Online Cross-border Mystery Shopping: State of the E-Union , September 2011, available at: 
http://ec.europa.eu/consumers/ecc/doc s/mystery_shopping_report_en.pdf  
 
 172.2.1.6  Implementation and applic ation (Articles 16-20 ECD) 
 
The horizontal nature of the Directive, meaning that it affects several fields of national law 
(administrative, civil, penal law) has led to delays in the transposition of the Directive into national law. Following accessions in 2004 and 2007, all 27 Member States have formally put 
into place implementing legislation and the Co mmission has currently no infringement cases 
pending. The EEA countries have also notified implementing legislatio n in accordance with 
the EEA Agreement. Annex II of the Staff Wo rking Document contains a list of national 
measures transposing the Directive.  
2.2.2 Other relevant EU rules 
 
Since the adoption of the ECD more than a decade ago, EU law on e-commerce has 
developed considerably. New legislation has been  adopted, and further in itiatives have been 
proposed or are currently being considered. Th e following instruments are most directly 
linked to the provision s of the Directive: 
 
• The need for Member States to notify deroga tions to the Internal Market clause has 
diminished due to the operation of the CPC-networks since 2007 (see Chapter 3.2.2) 
• The information requirements laid down in Article 5 ECD have been complemented 
by specific rules e.g. in the Unfair  Commercial Practices Directive59 (2005), the 
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). 
• In the area of Intellectual Property Rights, th e most relevant legislation concerns the 
Copyright Information Society Directive63 (2001) and the IPR Enforcement 
Directive64 (2004) (see Chapter 4.3.5) 
• On electronic contracting, Article 9 of the ECD has been complemented by the 
Electronic Signatures Directive65 which regulates the legal recognition of e-signatures 
and is currently under revision (see Chapter 4.4.3). 
                                                 
59  Unfair Commercial Practices Directive , OJ L 149/22, 11.06.2005. 
60  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 
establishing common rules on compensa tion and assistance to passengers in the event of denied boarding 
and of cancellation or long delay of flights , and repealing Regulation (EEC) No 295/91, OJ L 046/1, 
17.02.2004; available at: 
http://eurlex.europa.eu/LexUriServ/LexUriS erv.do?uri=OJ:L:2004:046:0001:0007:EN:PDF   
61  Directive 2006/123/EC of th e European Parliament and of the Council of 12 December 2006 on services in 
the internal market , OJ L 376/36, 27.12.2006; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:01:EN:HTML  
62  Consumer Rights Directive , OJ L304/64, 22.11.2011 
63  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation 
of certain aspects of copyright and related rights in the information society , OJ L  167/10, 22.06.2001; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriS erv.do?uri=OJ:L:2001:167:0010:0019:EN:PDF   
64  Directive 2004/48/EC of th e European Parliament and of the Council of 29 April 2004 on the enforcement 
of intellectual property rights , OJ L 157/16, 30.4.2004; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:157:0045:0086:EN:PDF   
 
 18• The E-Privacy Directive66 (2002 and 2009) complements an d particularises the Data 
Protection Directive67 with regard to the processing of  personal data in the electronic 
communication sector. The latter adds to th e 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 co mmercial communications for regulated 
professions according to Artic le 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 following initiatives can also 
be mentioned:  
• The ban on discrimination in Article 20 Services Directive (see Chapter 4.3.1). 
• Various new developments in the area of payment services (see Chapter 4.5.1). 
• New rules on the application of VAT to  digital services (see Chapter 4.8.1). 
• New rules on vertical distributi on agreements (see Chapter 4.3.8.2). 
• Developments in private international la w and dispute resolution (see Chapter 4.7). 
3 Issues and obstacles linked to the ECD 
 
E-commerce has certainly developed, but it has still not reached its full potential. Certain 
issues arising from both the E-Commerce Direc tive and other parts of the EU acquis can go 
some way towards explaining this.  The results of the public consul tation and the analysis  of the Commission se rvices show that, 
despite praise for the positive role it has played in the development of online services, there is a need for further information on the application of the E-Commerce Directive. More administrative cooperation, improved enforcement and greater clarificat ion in the liability 
regime of internet intermediaries ar e required to increase its impact.  
                                                                                                                                                        
 
65  Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community 
framework for electronic signatures , OJ L 013/12, 19.01.2000; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:013:0012:0020:EN:PDF   
66  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the 
processing of personal data and the protection of priv acy in the electronic communi cations sector (Directive 
on privacy and electronic communications), OJ L 201/37, 31.07.2002; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:201:0037:0047:EN:PDF . Directive 2002/58/EC 
repealed Directive 97/66/EC of the European Pa rliament and of the Coun cil of 15 December 1997 
concerning the processing of personal data and the protection of privacy in the telecommunications sector.  
67  OJ L 281, 23.11.1995, p. 31. 
68  Unfair Commercial Practices Directive , OJ L 149/22, 11.06.2005 
69  Directive 2006/123/EC of th e European Parliament and the Council of 12 December 2006 on services in the 
internal market ; OJ L 376/36, 27.12.2006; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF   
 
 193.1 Need for further information on the application of the ECD   
3.1.1 Lack of information on actual impl ementation in the Member States 
 
Rapid technological and market developments, in combination with the adoption of further 
EU legislation (see Chapter 2.2.2), have led to national laws on e-commerce being amended 
on several occasions. In recent year s there has also been an increase in domestic case law, in 
particular linked to the liability regime of the ECD (see Chapter 3.4.2). In order to better 
monitor these and other related developments, the Commission services will increase their 
screening of the actual implementation and appli cation of the ECD in the Member States (see 
Chapter 3.2.1). A conformity assessment will be ca rried out of the transp osition in each of the 
27 Member States, including an evaluation of na tional case-law and conformity with the most 
recent ECJ case-law (2012). 
3.1.2 Lack of statistics on e-commerce  
 
Reliable statistics are a useful tool for measur ing trends in the e-commerce sector. The OECD 
and Eurostat have contributed to  the developm ent of classifications of  the ICT sector supply 
side, which includes information society serv ices, using the new NAC E Rev. 2 classification 
on economic activities. However, it is not po ssible to directly measure the share of 
employment, GDP, or the value added of electronic commerce activities.   The information society services financed by ad vertising but provided fo r free on the Internet 
are even more difficult to assess. Eurostat c onducts surveys to measure the extent to which 
businesses and households use the Internet, appl ying such indicators as the percentage of 
users who bought online in a given period of tim e. Additional data are necessary to measure 
the progress of online services in the European  economy. Some data are available in private 
research institutes, but they do not always cover the 27 Member States, and their comparability is not guaranteed. This lack of information calls for a new framework for measuring the value of the Internet incl uding services provided via the Internet. 
 The Commission services will, together with  the E-commerce Expert Group, explore means 
of improving (public) statistics  on electronic commerce and of developing tools to collect 
more detailed statistics about internet sales volumes. 
3.2  Need for better co-operati on in the application and 
implementation of the ECD ("governance")  
 
Within the context of the ECD, three levels of administrative co-operation can be identified 
between Member States and the Commission services. 
3.2.1  Transparency Directive 98/48/EC 
 
Directive 98/34/EC70, as amended by Directive 98/48/EC71 (the "Transparency Directive"), 
lays down a procedure for the provision of information about rules on information society                                                 
 
70  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a 
procedure for the provision of information in the field of technical standards and regulations , OJ L 204/37, 
31.07.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF   
 
 20services. The Directive is intended to help avoi d the creation of new barriers to trade within 
the EU.   The Directive requires Member States to notify their rules on information society services in 
draft form, and generally observe a standstill period of at least three months before formal adoption, in order to allow other Member Stat es and the Commission to raise concerns about 
potential barriers to trade. Where notified draf ts are liable to create barriers to the free 
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 
that has notified the draft. Private stakeholde rs can submit comments, thereby assisting the 
Commission and national authorities in identifying possible trade barriers at an early stage.  
 Over the years, the active par ticipation of Member States in assessing the notified draft has 
generated an effective dialogue between th em and the Commission. In the period 2006-2008, 
over 100 notifications were submitted by the Member States, many of them on online 
gambling.
72 Recent notifications have dealt with  issues such as notice-and-takedown 
procedures73 and have highlighted the trend where by proposed national rules can affect new 
business models, as shown in the case ofe-books.74  
 However, Member States do not always resp ect the obligation to notify draft laws on 
information society services under the Transp arency 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 limita tion to the Internal Market clause. Member 
States may take measures to restrict the provisi on of a particular onlin e service from another 
Member State. However limitations must meet certain requirements. 
 Firstly, there must be a need to protect certai n interests, in particular public policy aims 
(protection of minors; actions  against hatred on the grounds  of race, sex, religion or 
nationality; human dignity), and interests on the grounds of public  health, public security and 
                                                                                                                                                        
 
71  Directive 98/48/EC of th e European Parliament and of the Council of 20 July 1998 amending Directive 
98/34/EC laying down a procedure for the provision of information in the field of technical standards and 
regulations , OJ L 217/18, 05.08.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:217:0018:0026:EN:PDF   
72  See the Report from the Commission to the Council, the European Parliament and the ECOSOC, The 
Operation of Directive 98/34/EC from 2006-2008 , COM(2009) 690 final, 21.12.2009; available at: 
http://ec.europa.eu/enterpri se/tris/reps_2008_2006/EN.pdf   
73  For example, the Commission received notifications fro m France on the "Loi Hadopi", from Spain on the 
so-called "Ley Sinde", and from the UK on the "Digital Economy Act", available at 
http://ec.europa.eu/enterprise/tris/p isa/app/search/index.cfm?lang=EN .  
74  France notified the original and amended version of the Loi relative au prix du livre numérique , see TRIS 
notification numbers 2010/616/F and 2010/710F, 
http://ec.europa.eu/enterprise/tris/default.htm?CFID=70911363&CFTOKEN=31040420 . 
 
 21consumers, including investors.75 Article 3 (4) of the ECD c ontains an exhaustive list of 
general interests. With the exception of the pr otection of consumers, this provision does not 
cover the other public interests the European Cour t of Justice has recognis ed in its "mandatory 
requirement" case law, or the Treaty exceptions which justify cross-border trade restrictions. 
For instance, the national author ities cannot invoke the protectio n of culture, the fairness of 
trade or economic objectives to justify restri ctions on online services  from other Member 
States.  Secondly, the measures in question must be necessary and proportionate. They must be 
suitable for achieving the objective sought and th ey must not go beyond wh at is necessary to 
obtain that objective. Recently, the European Cour t of Justice has held that these principles 
must be interpreted in the same manner as those governing the Inte rnal Market freedom 
provisions of the Treaty.
76 
 Thirdly, these measures may only be taken if ce rtain procedural requirements are fulfilled:  
• the Member State taking the measure must have consulted with the Member State in 
which the provider is established; 
• the former must not have taken any measur es, or any measure ta ken must have been 
deemed inadequate in the view of the Member State of destination; 
• the former must have notified the Commi ssion and the Member State in which the 
provider is established of its  intention to take such a measure. The notification 
procedure enables the Commission to exercise its competence to examine the compatibility of the notified measure with EU law. 
 Contrary to what might have been expected, th e derogation appears to have been used very 
rarely. In the last decade, the Commission se rvices have received  only 30 notifications, 
mainly dealing with measures to protect co nsumers. It has never declared a measure 
incompatible with EU law.  The relatively small number of no tifications can be explained becau se of the establishment  of 
the Consumer Protection Co-operation Networ k (CPC-Network), which became operational 
in December 2006. The CPC Regulation
77 established a framework for cross-border 
cooperation between public auth orities responsible for the enforcement of certain EU 
legislation protecting consumer's interests, incl uding those arising from  or affected by the E-
Commerce Directive. The national authorities in the CPC Network have investigative and 
enforcement powers which they can exercise on th eir territory whenever there is a reasonable 
suspicion of intra-EU infringements. Article 8 of the CPC Regulation notably sets out an 
arrangement for cross-border coop eration. It enables an authority in one Member State to take 
the necessary enforcement measures to stop an infringement when requested to do so by the 
                                                 
75  See the Communication from the Co mmission to the Council, the European Parliament and the European 
Central Bank, Application to Financial Services of Article 3 (4) to (6) to the Electronic Commerce Directive , 
COM(2003) 259 final, 14.05.2003; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0259:FIN:EN:PDF   
76  Ker-Optika judgment, par. 76 
77  Regulation (EC) No 2006/2004 of the European  Parliament and the Council of 27 October 2004 on 
cooperation between national authorities responsible for the enforcement of consumer protection laws  (‘The 
Regulation on consumer protection cooperation’ ), OJ 364/1, 09.12.2004; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:364:0001:0011:EN:PDF   
 
 22relevant authority in another Member State. This  could have the effect of making recourse to 
Article 3 (4)-(6) of the E-Commerce Directive unnecessary. For example, when an authority 
in Member State A considers that the website of  an online trader established in Member State 
B does not fulfil the transparency requirement s of Article 5 of the ECD, following for 
instance complaints lodged by consumers in Member State A, it may request the authority in Member State B to investigate the case and if necessary, take m easures to stop the 
infringement. In that event, there would be no further need for cross-border administrative 
measures under Article 3 of the ECD.   
The statistics show that in  2007 there were 15 requests and in 2008 48 requests for 
enforcement measures within the CPC-Net fo r alleged infringements of the E-Commerce 
Directive.
78 In 2009, the number of requests increas ed to 54 and, in 2010, dropped again to 
40. These figures correspond with the considerab le drop in notificatio ns received by the 
Commission under the ECD after 2006, with almost no notifications in the last five years.   
 Referrals under the CPC mechanism are mos tly about alleged in fringements concerning 
Article 5 ECD. Many cases concern websites which give incomplete information such as failing to indicate all the taxes and costs included in a price.  Other cases concern websites 
where the trader's identity, location and VAT-numbers were missing, or where terms and conditions were only available in  English and not in the language of the targeted Member 
State.   The CPC-Network offers an effective tool in addressing cross-border infringements, thus 
making it unnessary for Member St ates to take direct measures  against ISS providers from 
other countries. However this is in itself not a sufficient explanation for why Member States 
have not notified more measures (sanctions, in junctions) adopted agains t ISS providers from 
other Member States in the last decade. A lack of awareness on the part of the administrative 
services of Member States may be a reason fo r the small number of measures adopted. Some 
Member States, in particular those with a more federal structure and decentralised 
enforcement systems, have experienced problems  attaining sufficient internal coordination to 
ensure the functioning of the notification and coope ration procedures in the ECD. Language 
and translation issues have also been rais ed in relation to cros s-border cooperation.  
 The Commission services will raise awareness about the obligation to notify draft measures. 
They will also explore with the Member States  ways in which to strengthen administrative 
cooperation by integrating the notification syst ems under the ECD in th e Internal Market 
Information (IMI) system.  
3.2.3 Administrative cooperat ion under Article 19 ECD 
 
All Member States have set up national contact points for e-commerce. An updated list is available on the e-commerce website of DG MARKT.
79 National websites contain general 
                                                 
78  Report from the Commission to the European Parliament and of the Council on the application of 
Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on 
cooperation between national authorities responsible for the enforcement of consumer protection laws  (‘The 
Regulation on consumer protection cooperation’ ), COM(2009) 336 final, 02.07.2009; available at: 
http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=COM:2009:0336:FIN:EN:PDF   
79  See: http://ec.europa.eu/internal_market/e-c ommerce/contact-points-central_en.htm   
 
 23information on e-commerce which is relevant for businesses and consumers. While national 
contact points are useful for c itizens, there is nevertheless st ill room for improvement in 
cooperation between the Member States and cooperation with the Commission.  
 In 2005, the Commission established an  expert group on electronic commerce.
80 The expert 
group is composed of representati ves of the Member States, in principle the national points of 
contact. Chaired by the European Co mmission, it meets on a regular basis81 to discuss any 
issues related to the E-Commerce Directive. T opics that have been dealt with include the 
application of the notification procedure under Article 3 (4) ECD;  codes of conduct; liability 
of intermediaries and national "notice-and- action" procedures. The expert group also 
discusses studies, andthe Commission servi ces make presentations on both new and ongoing 
(legislative) initiatives relevant for the e-commerce sector.  Commission services consider the expert gr oup a good forum for the exchange of views, 
experiences and best practi ces amongst the Member States  and between them and the 
Commission.   However, the creation of nationa l contact points and the e-co mmerce expert group has not led 
to a well-functioning system of notifications of  national administrative and judicial decisions 
in the meaning of Article 19 (5) ECD.  The Commission does not receive national 
administrative or judicial decisions despite th e substantial amount of national practices and 
case-law that have been developed relating t o, for instance, the liability regime of the 
Directive.  Commission services will, together with the Me mber States, closely monitor the system of 
notifications and inv ite the expert group to reconsid er and improve the enforcement 
framework for national notifications. One impr ovement would be to make better use of 
electronic tools. Guidance documents such as guidelines and FAQ could be developed. The 
use of the Internal Market Information Sy stem (IMI) for Article 19 ECD could also be 
explored. 
3.3 Need for better enfo rcement of the ECD  
 
Under the co-ordination of Commission servic es, the CPC-Network enforcement authorities 
both screen a sample of websites in a give n sector for compliance with EU consumer 
legislation and take appropriate enforcement act ions. This screening exercise is called a sweep  
and is carried out on an annual basis. Commis sion services will continue coordinating and 
monitoring the sweep activities carried out by the CPC-Network. Co mmission services are 
also supporting the online enforcement capaci ties of the CPC-Netw ork through financing 
projects that aim to develop a common platform at EU-level of e-enforcers which will (1) enhance investigators' skills by training enforcers and developing common investigation standards, (2) develop the exchange of be st practices through a common website and (3) 
develop tools and techniques to identify  emerging online threats for consumers. 
 
                                                
 
80  Commission Decision of 24 October 2005 establishing an expert group on electronic commerce , OJ L 
282/20, 26.10.2005; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:282:0020:0021:EN:PDF   
81  Since November 2005 ten meetings have been held. 
 
 24It is important that the ECD is fully and consis tently implemented in al l the Member States, in 
particular in view of technologi cal and market developments. As  guardian of the EU Treaties, 
the Commission is determined to ensure that Me mber States respect the ECD. If there are new 
indications of incomplete or incorrect implementation or application of the ECD, it will take the necessary remedial steps and, when n eeded, take strong enforcement measures. 
3.4 Need for further clarification on the intermediaries regime 
of the ECD 
3.4.1 Liability issues  
 
The E-Commerce Directive provides for exemptions from liability for information society 
service providers when they host or transmit ille gal content that has b een provided by a third 
party. Information society service providers ca n under certain conditions benefit from these 
exemptions when they provide one of the so-ca lled intermediary services set out in Articles 
12 to 14 of the Directive. Moreover, Article 15 of  the Directive prohibits Member States from 
imposing on providers of these se rvices a general obligation to monitor content that they 
transmit or host. The Directive provides for a technologically neutral framework and the 
liability regime strikes a balance between the several interests at stake, in particular between the development of intermediary services, the soci etal interest that illeg al information is taken 
down quickly, and the protection of fundamental rights
82. 
 Stakeholders, by means of the public consu ltation on e-commerce, indicated that these 
provisions are essential for the provision of inte rmediary activities. They argue that, in their 
absence, intermediaries could be held liable under both national civil and criminal codes for 
information of which they were unaware. By way of example, a majo r video-sharing site 
reported that more than 24 hours of vide o are uploaded on its site every minute.
83 Checking 
all videos that are uploaded from possibly illegal sites would be too heavy a burden to 
continue providing the service and would still, no t exclude the possibility that illegal 
information would "slip through the net". This stakeholder further st ated that in the absence of 
liability exceptions, offering a video-sharing si te would probably be too great a commercial 
risk. Other intermediaries also maintained th at the liability exemptions of the E-Commerce 
Directive are essential for their trust in online activities.  Article 14 on hosting applies to  illegal activity or information . The E-Commerce Directive 
does not define the notions of "illegal activity" or "illegal information". It could be understood 
                                                
 
82  Recital 41 provides the following: "This Directive stri kes a balance between the di fferent interests at stake 
and establishes principles upon which industry agreements and standards can be based". Recital 46 provides: 
"In order to benefit from a limitation of liability, the prov ider of an information society service, consisting of 
the storage of information, upon obtaining actual k nowledge or awareness of illegal activities has to act 
expeditiously to remove or to disable access to the information concerned; the removal or disabling of 
access has to be undertaken in the observance of the pr inciple of freedom of expression and of procedures 
established for this purpose at national level; this Di rective does not affect Member States' possibility of 
establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information." 
83   Google contribution to the public consultation on the future of electronic commerce in the internal market 
and the implementation of the Directive on electronic commerce  (2000/31/EC), available at: 
https://circabc.europa.eu/ d/d/workspace/SpacesStore/ 316395ec-5caf-4684-8538-
fdfb207464de/EU%20GOOGLE%20ENTR%20%28th%201-2%264-5%29%20808590.pdf   
 
 25that the liability exemption of Article 14 appl ies to any content which is considered to be 
illegal according to EU or national legislation.  This could include, for example, sites 
containing infringements of intellectual propert y rights (such as trademark or copyright 
infringements), but also sites containing ch ild pornography, racist  and xenophobic content, 
defamation, incitements to terrorism or violence in general, illegal gambling offers, illegal 
pharmaceutical offers, fake banking services (phi shing), data protection infringements, illicit 
tobacco or alcohol advertisements, unfair co mmercial practices or breaches of the EU 
consumer rights acquis.    
Although the Directive aimed at being techno logically neutral, innovations and economic 
developments since the adoption of the Directive in  2000 have rendered th e interpretation of 
above-mentioned provisions increasingly challeng ing. Diverging case law at the national level 
on the application of the Dire ctive confirms this . Moreover, the responses to the public 
consultation on e-commerce indicated that a wide  variety of stakeholders face a high degree 
of regulatory uncertainty about th e application of the intermedia ry liability regime of the E-
Commerce Directive.  The source of this uncertainty can be subdivided into four areas: 
 
1. The definition of intermediary activities in Articles 12 to 14 . The main question is to 
what extent new services that have not been  explicitly mentioned in these articles (e.g. 
because they did not exist at the time of the adoption of the Directive) are 
intermediary activities in the sense of Artic les 12 to 14 and can therefore benefit, in 
principle, from a liability exemption.  2. The material conditions for benefiting from the "safe harb our" in Articles 12 to 14.  
Information society service providers, even when they are covered by the scope of 
Article 12 to 14, can only benefit from liab ility exemptions when they fulfil certain 
conditions. It has not always been clear exactly when these conditions are met. The 
interpretation of the term s “actual knowledge” and “expeditious” is essential in this 
context.  3. So-called "Notice-and-takedown" procedures.
84 The E-Commerce Directive 
provides the basis for these procedures, according to which, following a notice of illegal information or activity, an intermed iary takes down or pr events access to the 
information or activity (see Article 14 (2) of  the ECD). In practice a multitude of often 
vary different procedures exist and it is not easy either for intermediary service 
providers or for victims of illegal content to determine which one applies and in what way.   4. The prohibition in Article 15.  Article 15 prohibits Member  States from imposing on 
intermediaries a general oblig ation to monitor. National co urts have in recent years 
produced decisions imposing injunctions on intermediaries obliging them to prevent  a 
                                                
 
84  One of the conditions for an information society service provider to benefit from a liability exemption for 
illegal content provided by a third party is that, once it becomes aware of illegal content it is hosting, it 
immediately acts to "remove or  disable access" to it. The ECJ eBay vs. l'Oréal  judgment in case C-324/09 
confirms that awareness in the sens e of Article 14 can be obtained through  a "notice" that is sent to an 
intermediary and that is sufficiently precise and subs tantiated. The E-commerce Di rective therefore contains 
a basis for the takedown or blocking of illegal co ntent by intermediaries, follo wing receipt of a notice 
(hereafter "notice and takedown" or "NTD", or also "notice-and-takedown-and-blocking"). 
 
 26particular infringement, which implies a ce rtain degree of monitoring. Yet what is a 
general monitoring obligation as opposed to  a "specific" monitoring obligation, the 
second of which could be allowed in the mean ing of recital 47 of the Directive? There 
remains uncertainty over what degree of monitoring is acceptable in the sense of 
Article 15. 
 These topics will be addressed below in more detail. Each review w ill describe the main 
obstacles that have been raised  by stakeholders, the interpreta tion of the Directive by national 
judges and the state of EU law. It should, how ever, be recalled that  this Staff Working 
Document is not legally bindi ng, does not create any new le gislative rules and does not 
constitute Commission guidelines. It should also be noted that, in any ev ent, interpretation of 
Union law is ultimately the role of the ECJ. 
3.4.2 The activities covered by Articles 12-15 ECD 
 
It follows from the wording of Articles 12 to 14 ECD that the liability exemption regime applies to specific activities  rather than to service providers in general. This has been 
confirmed in recent case law of the European Court of Justice.
85  
 
A service provider can conduct various activities of  which some are intermediary (in the sense 
that the service provider transmits or hosts information from a third party) while others are not. The liability exemptions are limited to the first category. They do not extend to all other 
activities carried out by a service provider (cf. also recitals 42 to 46 of the Directive).   
 Since the E-Commerce Directive was adopte d, several new services and activities  have 
emerged that the legislators c ould not have foreseen, such as  video-sharing sites, selling 
platforms, social networks and peer-2-peer serv ices. This section provides an overview of the 
interpretations that have been given to the defi nition of activities listed in Articles 12 to 14 of 
the Directive, in particular as regards their ap plicability to services that are not explicitly 
mentioned in those provisions, but that could nevertheless be covered. 
3.4.2.1  National law 
 
Member States have in general carried out a more or less literal transposition  of the 
definition of activities in Articles 12 to 14. Howe ver, some Member States have provided for 
specific liability exemptions for information lo cation 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 requir ed to meet in order to  to secure a liability 
exemption. Similarly, Austria, Spain and Port ugal have adopted liability exemptions for 
hyperlinks applying the same conditions as th e Directive's liability exemption for hosting 
activities.   Despite the frequent literal tran sposition of Articles 12-14 ECD, divergent national case law  
has emerged particularly in  regard to the applicat ion of liability exemptio ns 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. LVMH , judgment of 23.03.2010, for instance par. 113; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUr iServ.do?uri=CELEX:62008J0236:EN:HTML   
 
 27uncertainty . Respondents to the e-commerce cons ultation called on the Commission to 
clarify the status of these new services in view  of often contradictory national case law. Some 
respondents, in particular right holders, as ked for the exclusion of several new online 
activities from the scope of Articles 12-14, wher eas others, in particul ar selling platforms, 
video sharing sites, so cial networks and search engines,  favoured the inclusion of those 
activities within the "safe harbour" regime. 
 Where specific exemptions from liability for search engine services and hyperlinking 
services  have not been explicitly included in nationa l 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 hyperl inking website was a mere conduit activity that could 
benefit from the liability ex emption of Article 12 ECD;  
• the Belgian court in the "Copiepresse" case ( Copiepresse et al  vs. Google Inc .)  stated 
that the Directive was not relevant for the liability of a news search service because 
that service would be actively editing content and could therefore not be considered an 
intermediary service provider;87 
• in the German "Thumbnails" case the B undesgerichtshof considered in an obiter 
dictum  (the focus of the case be ing copyright) that an im age search service could 
benefit from the liability exemp tion for hosting ex. Article 14 ECD.88 The court did 
not specify why a search engine should be classed as a hosting provider. 
 
Similarly, there is divergent national case law on video-sharing sites:  
• French case law recently confirmed that vi deo-sharing sites can benefit from the 
liability exemption for hosting ac tivities, for instance in the Magdane  vs. Dailymotion 
case.89 The fact that DailyMotion received a dvertisement revenues was irrelevant in 
determining whether it was a hosting se rvice provider or not. The fact that 
DailyMotion put in place a specific architectu re allowing it to format and to encode 
certain content should not lead to the conclusion that it is not a hosting service 
provider. According to the court, these t echnical operations woul d, on the contrary, be 
part of the essence of the hosting activity and would not at  all be equivalent to the 
selection of content;  
• In Germany, however, the Hamburg Court held (in Peterson  v Google Inc and 
others90) that a video sharing site for videos  uploaded by third parties cannot benefit 
                                                 
86  Crown Court, Gloucester, 06.02.2010, ref. no. T20097013, available at: 
http://merlin.obs.coe.int/iris/2010/4/article26.en.html   
87  Brussels Court of First Instance, 15.02.2007, ref. no. 7964; available at: http://www.copiepresse.be/13-02-
07-jugement-en.pdf .  
88 Deutscher Bundesgerichtshof (BGH), 29.04. 2010, ref. no. I ZR 69/08; available at: 
http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2011&nr=51998&linked=urt&Blank=1&
file=dokument.pdf  
89  Paris Court of Appeal, 13.10.2010; available at: http://legalis.net/spip.php?page=jurisprudence-
decision&id_article=3001# .  
90  Hamburg Regional Court, 03.09.2010, ref. no. 308 O 27/09; available at: 
http://rechtsprechung.hamburg.de/jportal/portal/pag e/bshaprod.psml?doc.id=JURE100070104&st=ent&sho
wdoccase=1&paramfromHL=true#focuspoint . 
 
 28from a liability exemption when it presents the uploaded content as its own content. 
The court ruled that YouTube could not bene fit from a liability exemption for hosting 
providers as, for the following reasons, it would have adopted uploaded third party 
content as its own:  
o YouTube provides a specific layout of  the website and YouTube's logo is 
shown in rather big letters above the playing video;  
o YouTube provides links to related videos; 
o YouTube displays commercial video clips and not only content that 
expresses a personal opinion.  
o Because of the arrangement of the we bsite the average user cannot tell at 
first sight that the videos were upl oaded by the user and not by YouTube;  
o The homepage of YouTube suggests th at YouTube exer cises editorial 
control as it suggest s certain videos;  
o YouTube actively connects advertisements to uploaded videos; 
o YouTube's Terms and Conditions indi cate that YouTube can use the 
content uploaded on its s ite as its own content. 
• In Italy the Civil Court of Rome ( RTI and others  vs. YouTube and others )91 also 
considered that a video-sharing site coul d not benefit from a liability exemption. 
The court stated that YouTube was not to be regarded as a hosting provider but as 
a "digital broadcaster" and was consequently considered  fully responsible for the 
published content. YouTube would play an active role and would not limit its 
activities to providing server space for users to  independently upload and organise 
content. 
 The case law on online selling platforms  is also fragmented: 
• The Paris Commercial Court considered that  eBay might not benefit from a liability 
exemption for its hosting activities.
92 The court considered th at the sellers on eBay's 
website (recipients of eBay's services in terms of the E-commerce Directive) act under the authority or the control of eBay (the pr ovider of an information society service in 
terms of the E-commerce Directive), in wh ich case, in accordance with Article 14 (2) 
of the Directive, the liability exemption for hosting activities does not apply. The court 
came to this conclusion because eBay plays an  active role in promoting sales with the 
objective of increasing profits by, for inst ance, appointing sales managers, creating 
online "boutiques" and offering the opti on of becoming a "power seller".  
• In the L’Oréal vs. eBay case
93 the Paris Civil Court considered that eBay could offer 
its clients various services on the same site without losing the right to benefit from a 
liability exemption. However, only some of eBay’s activities are covered by the 
definition of hosting of Article 14 of the E-Commerce Directive and eligible for the 
liability exemption (for instance eBay's selection of "daily deals" could not be 
covered)  
                                                 
91  Appeal Panel Decision of Civil Court of Rome, IP specialist section, 22.02.2010, and Court of  Rome, 
15.12.2009, Section IX, RG n.54218/08, available at: http://www.scribd.com/doc/38060158/Ordinanza-
Tribunale-di-Roma-16-dicembre-2009-RTI-vs-Youtube   
92  Paris Commercial Court, 30.06.2008; available at: http://www.legalis.net/spi p.php?page=jurisprudence-
decision&id_article=2354   
93  Paris Civil Court, 13.05.2009; available at: http://www.legalis.net/spip.php?page=jurisprudence-
decision&id_article=2639  
 
 29• In the eBay  vs. Maceo case94, the Paris Civil Court consid ered that eBay’s activities 
are covered by the definition of hosting. That eBay receives revenues related to sales 
carried out on its website was considered irreleva nt in this context. In this case, it was 
considered that eBay was not an editor as it could not be  proven that eBay checks the 
messages that users post on the site. The fact that eBay has designed the architecture and structure of its site a nd that it has developed systems for organising and ranking 
the content on its site is not  sufficient to conclude that  it cannot benefit from the 
hosting liability exemption. 
• The UK High Court in L'Oreal  vs. eBay
95 considered, without any further reasoning, 
that eBay’s activities could not be covered by Article 14 of the ECD because its 
activities would go far beyond the mere passi ve storage of information provided by 
third parties. EBay actively organises and par ticipates in the proces sing and use of this 
information. The UK High Court has not yet de cided on the hosting status of eBay as 
it requested guidance from the European Cour t of Justice (see the judgement referred 
to in Chapters 3.4.2.2 and 3.4.3.1). 
 Similarly fragmented case law exists in relation to blogs, discussion fora and social 
networks.  For example: 
• Usenet (a system in which users post messages to a newsgroup) was considered a 
caching provider by the German  Regional Court of Munich
96 because information was 
mirrored and stored on its service for about 30 days. 
• A UK court, however, considered that Brit ish Telecom operated a hoster in providing 
Usenet newsgroups (in the case Bunt v Tilley. )97   
• The High Court of England and Wales ( Kaschke v. Gray Hilton )98 refused to apply the 
liability exemption for hosting to a blog owne r, even for those parts posted by third 
parties. The defendant's involvement in the pages exceeded mere storage as he 
exercised some editorial cont rol on parts of the website. 
• The Paris Court of First Instance99 refused to recognise a content aggregator 
displaying on its website links posted by thir d parties as a hosting provider because the 
owner had played an active role in how the links should be classified and presented, making him a publisher according to the court.  
• The Tribunal de Grande Instance in France ( Lafesse  vs. MySpace )
100 held that the 
social network service MySpace was not offering a hosting activity and therefore 
                                                 
94  Paris Tribunal de Grande Instance (TGI), 26.10.2010; available at: 
http://www.legalis.net/spip.php?article3144   
95  High Court of England and Wales, 22.05.2009, [2009] EWHC 1094 (Ch); available at: 
http://www.bailii.org/ew/cas es/EWHC/Ch/2009/1094.html .  
96  Regional Court of Munich, 19.04.2007, ref. no. 7 O 3950/07; available at: http://medien-internet-und-
recht.de/pdf/vt_MIR_Dok._155-2007.pdf .  
97  Queen's Bench Division, 10.03.2006, [2006] EWHC 407 (QB); available at: 
http://www.bailii.org/ew/cas es/EWHC/QB/2006/407.html   
98  High Court of England and Wales, 29.03.2010, [2010] EWHC 690 (QB); available at: 
http://www.bailii.org/ew/cas es/EWHC/QB/2010/690.html   
99  Paris Court of First Instance, 08.06.2009, ref. no. 08/11342; available at: 
http://www.juriscom.net/doc uments/tgiparis20090608.pdf  
100  TGI Paris, 22.06.2007; available at: http://www.legalis.net/jurisprudence-decision.php3?id_article=1965  
 
 30could not benefit from a liability exem ption. MySpace goes beyond offering technical 
hosting activities by offering an architec ture based on frames and by receiving 
advertisement revenue linked to the content that is viewed. 
• The Cour d'Appel de Paris101 considered that an aggreg ator of news article links, 
provided by users, could benefit from a lia bility exemption for hosting. The fact that 
the site allowed the classifi cation and structuring of cer tain information provided by 
users did not imply an editing activity. More over, the hosting provider status was seen 
to follow from the fact that the site did not  offer a possibility to check the information 
on certain websites referred to in users' posts.  
 
National jurisprudence on file sharing services  also diverges. For instance: 
• The Italian Court of Cassation102 considered that PirateBay, a peer-2-peer file sharing 
service particularly known for sharing pi rated works, was not a hosting service 
provider. 
• The Stockholm District Court103, without providing deta ils of its argumentation, 
considered that PirateBay should be consid ered a hosting service provider. However, 
PirateBay was not held to fulfil the requirements to benefit from a liability exemption for hosting activities since it had knowledge of the infringements committed through its service and did not act against it. 
3.4.2.2  EU law 
 
Not only are the relevant provision s of the Directive informative but also its recitals provide 
guidance for determining whether certain serv ices can benefit from a liability exemption. 
First, recital 42 mentions that an activity should be  "of a mere technical, automatic and 
passive nature" . Second, recital 43 mentions th at an intermediary should be “in no way 
involved with the information transmitted” . Lastly, recital 44 states that an intermediary 
"cannot deliberately collabor ate with one of the recipients of its service in or der to undertake 
illegal acts”.  
 
Despite the clear divergence of interpretation at th e national level, EU case law in this field is 
still limited. It is only in two r ecent preliminary rulings that the European Court of Justice has 
had the opportunity to provide more clarity on the scope of Article 14.  
 The first case concerned Google's paid referenci ng service, "Adwords", and its liability for 
infringements of trademarks held by the French luxury group LVMH, 
104 "Adwords", enables 
an economic operator to display advertising links to its site accompanied by a commercial message that appears on the right hand side of th e screen whenever one carries out "a search" 
                                                
 
101  Cour d'Appel de Paris, 21.11.2008, ref. no. 08/09553; available at: 
http://www.legalis.net/spip.php?page=ju risprudence-decision&id_article=2488   
102  Court of Cassation, Third Criminal Chamber, 29.09.2009, ref. no. 49437; available at: 
http://www.ilsole24ore.com/fc?cm d=document&file=/art/SoleOnLine4/Norme%20e%20Tributi/2009/12/ca
ssazione-sentenza-49437-2009.pdf?cmd=art .  
103  Stockholm District Court, Division 5 Unit 52, 17.04.2009, ref. no. B 13301-06; available at: 
http://www.ifpi.org/content/library/Pirate- Bay-verdict-Englis h-translation.pdf   
104  Joined cases C-236/08 to C-238/08, Google  vs. LVMH , judgment of 23.03.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:62008J0236:EN:HTML   
 
 31through Google's search engine. These advertisem ent links appear whenever a "keyword" that 
can be reserved by an economic operator corres ponds to the word(s) ente red as a request in 
the search engine.   In the national proceedings LVMH (the holder of the "Louis Vuitton" trademark) complained 
about the fact that both competitors and counter feiters of the firm had reserved the keyword 
"Louis Vuitton" (meaning their advertisements would appear in response to a search for "Louis Vuitton") and that Google had not preven ted them from doing so. The French Cour de 
Cassation asked the ECJ whether the reservati on of keywords could be interpreted as a 
trademark infringement and, if this were the case, whether, the referencing service provider 
(Google) could be held liable for this.  The ECJ in this case refers to recital 42 in th e preamble of the Directiv e to conclude that an 
intermediary service provider " has neither knowledge of nor control over the information 
which is transmitted or stored ". Accordingly, in order to establish whether the liability of a 
referencing service provider ma y be limited under Article 14 of the ECD, the ECJ considers it 
necessary " to examine whether the role played by that service provider is neutral, in the sense 
that its conduct is merely tec hnical, automatic and passive, poin ting to a lack of knowledge or 
control of the data which it stores " (paragraphs 113 and 114) 
 In analysing the Google "Adwords" service, the ECJ notes that " with the help of software it 
has developed, Google processes the data entered by advertisers and the resulting display of 
the ads is made under conditions which Google controls. Thus, Google determines the order 
of display according to, inter alia, the remuneration paid by the advertisement " (paragraph 
116). However, the ECJ considers that to examin e Google's activity in th e light of recital 42, 
"the role played by Google in the drafting
 of the commercial message which accompanies the 
advertisement link or in th e establishment or selecti on of keywords is relevant " (paragraph 
118, underlining added).   The second ruling from the ECJ on the liability exemption regime concerns eBay and L'Oréal. 
In its ruling of 12 July 2011 in Case C-324/ 09 (see also Chapters 3.4.2.1 and 3.4.3.1) the ECJ 
had been asked, inter alia , whether the selling platform eBay could be held liable for 
trademark infringements committed (and possibly to be committed) thr ough its site. In order 
to attract new customers to its website, eBay had bought keywords, including trademarks held 
by L'Oréal, from paid internet referencing servic es (such as Google's "Adwords"). In parallel 
to this, L'Oréal had identified several infringements of its trademarks through/by the selling 
platform eBay. The question posed to the ECJ was to what extent eBay could benefit from the 
exemption of liability on account of "hosting".   The ECJ first confirms that an online selling platform in principle offers an information 
society service and therefore is covered by the E-commerce Directive. The ECJ argues that, in 
order to define whether such a service is also an intermediary service in the sense of Article 
14 of the Directive, one should not only look at the text of the Direc tive, but also at the 
intention of the legislator:  
 
"(Article 14 of the ECD) must, in fact, be inte rpreted in the light not only of its wording but 
also of the context in which it occurs and the objectives pursued by the rules of which it is 
part (see, by analogy, Case C-298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-7841, par agraph 15 and the case law cited).  
 
 
 32In that regard, the Court has alre ady stated that, in order for an internet service provider to 
fall within the scope of Article 14 of Directive 2000/31, it is esse ntial that the provider be an 
intermediary provider within the meaning intended  by the legislature in the context of Section 
4 of Chapter II of that directive (s ee Google France and Google, paragraph 112)". 
(Paragraphs 110-112) 
 The ECJ then discusses when a service is not covered by the liability exemption of Article 14 
ECD: 
 
"That is not the case where the service provider , instead of confining its elf to providing that 
service neutrally by a merely technical and autom atic processing of the data provided by its 
customers, plays an active role of such a kind as to give it knowledge of, or control over, 
those data (Google France and Google, paragraphs 114 and 120)".  (Paragraph 113) 
 
"(..) the mere fact that the ope rator of an online marketplace st ores offers for sale on its 
server, sets the terms of its service, is remunerated for t hat service and provides general 
information to its customers cannot have the effect  of denying it the exem ptions from liability 
provided for by Directive 2000/31 (see, by  analogy, Google France and Google, paragraph 
116).  Where, by contrast, the operator has provid ed assistance which entails, in particular, 
optimising the presentation of the offers for sale in question or promoting those offers, it must 
be considered not to have taken a neutral pos ition between the custom er-seller concerned and 
potential buyers but to have played an active role  of such a kind as to give it knowledge of, or 
control over, the data relating to those offers for sale. It cannot th en rely, in the case of those 
data, on the exemption from liabil ity referred to in Article  14(1) of Directive 2000/31". 
(Paragraphs 115 and 116)  
 The ECJ suggested that Ebay would potentially in some instances not have such a neutral 
position:  
"In some cases, eBay also provides assistan ce intended to optimise or promote certain offers 
for sale" (paragraph 114). 
3.4.3 The conditions in Article 12 to 14 ECD 
 
Articles 12 to 14 of the ECD contain a number of  specific material conditions to be met in 
order to benefit from a liability exemption. Th e responses to the public consultation confirm 
that the respondents perceive a la ck of clarity on the interpretation of these conditions and in 
particular of the terms "actual knowledge" and "expeditious", both of which are part of the 
conditions for a liability exemption for hosting ac tivities. National case law that has emerged 
on the interpretation of these conditions is ofte n contradictory across borders or even within 
the same Member State. This section below will  discuss the variations  in defining conditions 
for exemptions including absence of actual knowledge, and acting expeditiously. 
3.4.3.1  Absence of actual knowledge 
 
Article 14 of the Directive specifies that a provider can benefit from a liability exemption regime for hosting activities if  "the provider does not have actual knowledge  of illegal activity 
 
 33or information and, as regards claims for dama ges, is not aware of facts or circumstances 
from which the illegal activity or  information is apparent".  
 Most Member States have literally transposed  the condition of not ha ving actual knowledge, 
but some Member States have deviated from the explicit text of the ECD. For example: 
• Germany does not use the term "actual knowle dge" in its transposition of Article 14 
but refers merely to "knowledge"; 
• the Czech transposition requires the receipt of provable information about the illegal 
nature of the cont ent in order for an inte rmediary to be judged to  have obtained actual 
knowledge; 
• Hungary and Malta restrict their liability  exemptions for hosting to liability for 
damages and exclude criminal liability from the scope of the exemption;  
• Spanish legislation mentions that actual knowledge can be obtained through a court 
order or notice by an ad ministrative authority; 
• Portuguese legislation refers  to knowledge (instead of actual  knowledge) of manifestly  
illegal information or activity; 
• legislation in The Netherlands specifies that  a hosting service prov ider cannot be held 
liable for damages if it "cannot reasonably be expected to kn ow of the illegal nature of 
an activity or information". 
 Even when the term "actual knowledge" has been  literally transposed, it has given rise to 
diverging interpretations. The re sponses to the public consultation demonstrated that, roughly 
speaking, there are three interpretations that are given  on how actual knowledge can be 
obtained: 
 
1. An intermediary can only obtain actual knowledge through a court order; 
2. An intermediary can only obtain actual know ledge through a notice (ranging from an 
'informal' notice from a user, such as a red flag under a video, to a court order) 
3. An intermediary can obtain knowledge even  in the absence of a notice if it, for 
instance, has a "general awareness" th at its site hosts illegal information. 
 The first interpretation is commonly defende d by civil organisations in defence of, in 
particular the freedom of speech, 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 if private parties were to 
define what is legal and illegal  and on that basis decide wh ether to take down or block 
the content. Taking down or blocking informa tion is considered to be a restriction to 
the fundamental right of free dom of expression and information. Such a restriction can 
only be justified on the basis of democra tic oversight and legal expertise. Such 
decisions should therefore only be taken on the basis of a court's assessment. 
• On the other hand, it is argued that entrusting ISPs with th e role of assessing what is 
legal and what is illegal w ould create an excessive ec onomic burden for them. ISPs 
would not have the legal expe rtise in-house to assess the le gality of the content and 
procuring this legal expertise would hamper their activities. 
 Recital 40 of the E-Commerce Di rective states, in this rega rd, that the Directive "should 
constitute the appropriate basis for the deve lopment of rapid and reliable procedures for 
removing and disabling access to illegal informa tion" and that "such mechanisms could be 
developed on the basis of voluntary agreements  between all parties co ncerned and should be 
encouraged by Member States".  
 
 34 
The second interpretation is also defended by ma ny ISPs and right holders. The main point of 
discussion among those sharing this interpretation is the required level of detail of the notice. 
This is discussed in more detail in Ch apter 3.4.3 on notice-and-takedown procedures.  
 The third interpretation is mainly defended by right holders. They claim that intermediaries often have a general awareness of the possible ex istence of illegal information or activities on 
their sites and that th is constitutes actual know ledge. ISPs that advert ise the possibility of 
downloading music and videos of the consumer's  choice would for instance have this form of 
actual knowledge.  
 Some ISPs argue that actual knowledge cannot be interpreted as general knowledge as this 
would in practice lead to a gene ral monitoring obligation in orde r to avoid liability, which is 
prohibited under Article 15 of th e Directive. In this contex t, respondents to the public 
consultation also argued that actual know ledge should be human knowledge and not 
"computer knowledge".  Stakeholders sometimes defend a differentiate d approach on the basis that the means by 
which actual knowledge can be obtained de pends on the kind of illegal activity or 
information. A key concept here is the degree to which information or activity is manifestly 
illegal . Some stakeholders who defend the first in terpretation (actual kno wledge can only be 
obtained through a court order) ma ke an exception for child pornogr aphy or manifestly racist 
content. They consider that this content co uld be taken down immedi ately on the basis of a 
notice, although some of them argue  that this decision should then  still be validated by a court 
order. The court order would then be required ex post  rather than ex ante . 
 National case law has further defined the c oncept of "manifestly illegal content":  
 
• In Austria this concept has been interpre ted as "obvious to any non-lawyer without 
further investigation". A domain name re gistration on the basis of the name of a 
political party by a third party was consider ed manifestly illega l because the website 
of the third party was almost identical to the website of the political party, but contained hyperlinks to racist content, m eaning it could tarnish the reputation of the 
political party if internet users confused the two websites.
105 Also, defamation has 
been considered manifestly illegal in some instances.106 By contrast, infringements 
relating to advertising and general terms and conditions107 or trademark law108 have 
not been considered manifestly  illegal because a layman w ould not be able to easily 
identify the content as manifestly illegal without fu rther research.  
                                                 
105  OGH, 13.09.2000, ref. no. 4 Ob 166/00s; available at: 
http://www.internet4jurists.at/entscheidungen/ogh4_166_00s.htm   
106  OLG Innsbruck, 24.05.2005, ref. no. 2 R 114/05i; available at: 
http://www.internet4jurists.at/entscheidungen/olgi_114_05i.htm   
107  OGH, 06.07.2004, ref. no. 4 Ob 66/04s; available at: 
http://www.internet4jurists.at/entscheidungen/ogh4_66_04s.htm   
108  OGH, 19.12.2005, ref. no. 4 Ob 194/05s; available at: 
http://www.internet4jurists.at/entscheidungen/ogh4_194_05s.htm   
 
 35• In Germany, however, the Federal Court109 considered, in proceedings for injunctive 
relief and without any further reasoning, th at the trademark infringements were clear 
as some of them had been ascertained in previous proceedings. The court also held 
that the liability limitation was not appli cable in injunctive relief proceedings.  
• In France the Paris Court of Appeal ruled that all racist110, anti-Semitic111 or 
revisionist content112 as well as texts which excuse war crimes, paedophilia or 
pornographic pictures113 could be considered manifestly illegal. Moreover, the sale of 
copyrighted video114 games well below counter price has been considered manifestly 
illegal in France. The Paris TGI, however, considered that privacy infringements were 
not manifestly illegal infringements.115  
• In Belgium child pornography, revisionism or incontestable defamation have been 
considered manifestly illegal. The Belgian Supreme Court has even considered that 
without notice  the existence of manifestly illegal content can  lead to ac tual knowledge. 
A host of a website containing hyperlinks  leading to to ch ild pornography was 
attributed knowledge of these illegal hyperlinks even if it did not insert them and had 
not received a notification about them (Belgian Supreme Court).116 
 
Another issue that was raised in  many responses to the public co nsultation is the impact that 
voluntary actions of an ISP can have on its  "actual knowledge". A wide variety of 
stakeholders expressed concerns that ISPs woul d be reluctant to take voluntary measures to 
prevent illegality as this could make it more difficult to claim an absence of actual knowledge. 
This was confirmed by a judgment from the Ham burg regional court where an ISP that had 
voluntarily implemented a flagging system (that en ables users to put red flags next to content 
they considered to be potentially illegal) wa s considered to have actual knowledge of illegal 
content because of this very flagging  system it had voluntarily introduced ( Gisele Spiegel  vs. 
                                                 
109  BGH, 19.04.2007, ref. no. I ZR/04; available at: 
http://juris.bundesgerichtshof.de/cgibin/rechtsprec hung/document.py?Gericht=bgh&Art=pm&Datum=2007
&Sort=3&anz=45&pos=0&nr=40136&li nked=urt&Blank=1&file=dokument.pdf  and BGH, 11.03.2004, ref 
no. I ZR 304/01; available at: http://juris.bundesgerichtshof.de/cgibin/rechtsprec hung/document.py?Gericht=bgh&Art=pm&Datum=2004
&Sort=3&anz=31&pos=0&nr=30359&li nked=urt&Blank=1&file=dokument.pdf .  
110  TGI Paris, 12.07.2001; available at: http://www.legalis.net/spip.php?pa ge=breves-article&id_article=213   
111  TGI Nanterre, 24.05.2000; available at: http://www.juriscom.net/txt/jurisfr/cti/tginanterre20000524.htm  
112  TGI Paris, 13.06.2005; available at: http://www.foruminternet.org/te lechargement/documents/ca-
par20061124.pdf   
113  TGI Paris, 27.02.2006; available at: http://www.legalis.net/breves- article.php3?id_article=1648   
114  Commercial Court of Paris, 17.10.2006; available at: http://www.droit-
technologie.org/jurisprudence/details.asp?id=224   
115  TGI Paris, 19.10.2010, ref. no. 06/58312; available at: 
http://www.juriscom.net/doc uments/tgiparis20061019.pdf   
116  Cour de Cassation de Belgique, 03.02.2004, R.D.T.I., 2004, n° 19, P.03.1427.N; available at: 
http://jure.juridat.just.fgov.be/pdfapp/download_blob?idpdf=F-20040203-3   
 
 36YouTube LLC ).117 Some stakeholders, in particular in termediaries, therefore suggested that 
the Commission should propose a so -called "Good Samaritan clause ". Such a clause, which in 
the US has been introduced in the Communications Decency Act118, would ensure that taking 
voluntary actions would in pr inciple not be punished.  
 In this regard, it can be noted that Recital 40 of  the ECD states that "t he provisions of this 
Directive relating to liability should not precl ude the development and effective operation, by 
the different interested parties, of technical systems of protection and identification methods 
and of technical surveillance instruments made possible by digital technology within the 
limits of Directives 95/46/EC and 97/66/EC".  
 There is also national case law on a variety of other aspects related to the term "actual 
knowledge". For instance: 
• The Regional Court of Hamburg
119 took a very wide inte rpretation of "knowledge" 
and considered that "there is thus a slid ing obligation to exercise due care with a 
graded range of monitoring obligation: if it is almost certainly predictable that an infringement of the right of personali ty will happen, the operator's monitoring 
obligation can increase to a continui ng monitoring obligation or an advance 
monitoring obligation". In another judgment the Higher Regional Court of Hamburg
120 
held, however, that a complainant should sufficiently s ubstantiate his/her complaint 
and that a simple hint should not  be sufficient to obtain knowledge. 
• In France the Constitutiona l Council, in its decision121 on the French law that 
transposes the E-Commerce Directive, ruled th at this law can only lead to liability of 
an intermediary that has not taken down allegedly illegal information following a notice, if the information is not manifestly  illegal and if its takedown has not been 
ordered by a court. 
 In Case C-324/09, L'Oréal vs. eBay  (see also Chapters 3.4.2.1 a nd 3.4.2.2) the referring court 
referred the question of what is actual knowledge and or awarene ss in the sense of Article 14 
ECD to the European Court of Justice. In the judgment of 12 July 2011 the ECJ clarified that 
the relevant question relating to the conditions for benefiting from a liability exemption was 
                                                
 
117  Regional Court of Hamburg, 05.03.2010, ref. no. 324 O 565/08; available at: 
http://rechtsprechung.hamburg.de/jportal/portal/pag e/bshaprod.psml?showdoccase=1&doc.id=JURE100058
567&st=ent   
118  See Telecommunications Act of 1996: http://transition.fcc.gov/telecom.html   
119  Regional Court of Hamburg, 03.12.2007, ref. no. 324 O 794/07; available at: 
http://www.landesrecht.hamburg.de/jportal/portal/pag e/bshaprod.psml?showdoccase=1&doc.id=JURE0800
02256&st=ent  ; Regional Court of Hamburg, 05.03.2010, ref. no. 324 O 565/08; available at: 
http://landesrecht.hamburg.de/jportal/portal/page/b shaprod.psml?showdoccas e=1&doc.id=JURE100058567
&st=ent   
120  Higher Regional Court of Hamburg, 02.03.2010, ref. no. 7 U 70/09; available at: 
http://www.telemedicus.info/urteile/Internetrecht/H aftung-von-Webhostern/1014-OLG-Hamburg-Az-7-U-
7009-Blogspot.html   
121  Constitutional Council of France, 10.06.2004, decision no. 2004-496 DC; available at: 
http://www.legifrance.gouv.fr/affichTexte.do ?cidTexte=JORFTEXT000000801165&dateTexte =.  
 
 37whether eBay was aware of f acts and circumstances from wh ich the illegal activity was 
apparent:122 
 
"(…)  it is sufficient, in order for the provider  of an information societ y service to be denied 
entitlement to the exemption from  liability provided for in Article 14 of Directive 2000/31, for 
it to have been aware of facts or circumstanc es on the basis of which a diligent economic 
operator should have identified th e illegality in question and acte d in accordance with Article 
14(1)(b) of Di rective 2000/31.  (Paragraph 120) 
 
The Court then clarifies how one can obtain this awareness: The situations thus covered 
include, in particular, that in which the operator of an online marketplace uncovers, as the 
result of an investigation undertaken on its ow n initiative, an illegal activity or illegal 
information, as well as a situation in which the op erator is notified of the existence of such an 
activity or such information. In the second case, although such a notification admittedly 
cannot automatically preclude the exemption from  liability provided for in Article 14 of 
Directive 2000/31, given t hat notifications of allegedly ille gal activities or information may 
turn out to be insufficiently precise or inadequately substantia ted, the fact remains that such 
notification represents, as a general rule, a fa ctor of which the national court must take 
account when determining, in the light of the information so transmitted to the operator, 
whether the latter was actually aware of fact s or circumstances on the basis of which a 
diligent economic operator should have identified the illegality . 
 In view of the foregoing, the answer to the nint h question is that Article 14(1) of Directive 
2000/31 must be interpreted as applying to the op erator of an online marketplace where that 
operator has not played an active role allowing  it to have knowledge or control of the data 
stored. The operator plays such a role when  it provides assistance which entails, in 
particular, optimising the presenta tion of the offers for sale in  question or promoting them".  
(Paragraphs 121-123, underlining added) 
 The ECJ concludes that it is up to the national court to decide whether eBay provides such 
assistance but it already indica ted that "in some cases" (without  further specification) eBay 
does play such an active role. The ECJ does not elaborate explicitly on how a hosting service provider can obtain "actual knowledge". 
3.4.3.2   Acting expeditiously 
 
Article 14 of the Directive specifies that, for hosting activities, a provider can benefit from a liability exemption regime either if there is  an absence of actual knowledge (as discussed 
above) or if "the provider, upon obtaini ng such knowledge or  awareness, acts expeditiously  to 
remove or to disable access to the information" (italics added). The Dire ctive does not specify 
what removing or disabling e xpeditiously exactly means. 
 
                                                
 
122  In his opinion of 9 December 2010 the Advocate Gene ral interprets Article 14 di fferently than the ECJ did 
in the LVMH vs. Google  case. The AG claims to " have some difficulties " with the conclusion of the Court 
that recital 42 would contain conditions for all intermediary services for benefiting from a liability 
exemption and argues that recital 42 would only co ncern the activities of mere conduit and caching. He 
considers that " it is recital 46 which concerns hosting providers mentioned in Article 14 (...). Hence, the 
limitation of liability of a hosting provider should not be conditioned and limited by attaching it to recital  
42". 
 
 38Most Member States have transposed the c ondition of removing or disabling expeditiously 
literally, but some Member States have chosen a slig htly different wording than the text 
of the E-Commerce Directive .  
 For instance: 
• Lithuanian, Polish and Finnish law only requir es that illegal information be disabled, 
but does not require that it be removed; 
• Slovakia has, in contrast, implemented an obligation to remove information but not 
one to disable information; 
• Sweden has introduced a general obligation "to prevent further dissemination" without 
specifying the means for doing this; 
• Finnish law has provided for an exemption from liability for taking down legal content 
in good faith if the entity follows the legal notice-and-takedown procedure; 
• Poland also explicitly exempts providers from contractual liab ility for blocking 
content if they have disabled informati on following an injunctive relief against the 
provider. 
 No Member State has, however, clarified the te rm "expeditious" in the transposition of the E-
Commerce Directive. This was only done by ce rtain Member States (Hungary, Finland and 
Lithuania) when adopting legislation on no tice-and-takedown procedures for specific 
categories of illegal content at a later stage (see Annex 2 and Chapter 3.4.4.2). Moreover, national case law that interprets the term "expeditious" is very limited.  The term expeditious is discussed in more de tail under the heading "t imeframe" in Chapter 
3.4.4.3 on notice-and-takedown procedures. In the consultation, generally, ISPs have 
defended a more flexible interp retation and right holde rs are in favour of a fixed and short 
time frame. Some stakeholders expressed fear  that defining "expeditious" could increase 
pressure on ISPs to take down content on notice even before correctly assessing the alleged 
illegality of the information.  Some stakeholders (and national judgments) cons ider that the extent to which information or 
activity is manifestly  illegal seems to be essential. It de termines whether an intermediary can 
quickly and with certainty assess the legality an d then proceed to either withdraw or disable 
access. When the illegality of information or ac tivity is not manifest, assessing the legality 
may require considerably more time. 
3.4.3.3  Other conditions 
  
The E-Commerce Directive also contains other c onditions for intermediaries to benefit from a 
liability exemption. Article 12 of  the Directive provides that for mere conduit activities, a 
provider can benefit from a liabi lity exemption regime if " the provider does not initiate the 
transmission, does not select the receiver of  the transmission and does not select or modify 
the information containe d in the transmission" . Moreover, Article 13 of the Directive 
provides that, for caching activities, a provi der may for instance only benefit from an 
exemption from liability if it " acts expeditiously to remove or to disable access to the 
information it has stored upon obtaining actual know ledge of the fact that the information at 
the initial source of the transmission has been re moved from the network, or access to it has 
been disabled, or that a court or an adminis trative authority has ordered such removal or 
disablement" 
 
 
 39As is the case with conditions for a liability  exemption for hosting activities, the Directive 
does not specify how exactly th ese conditions can be met. Ho wever, their interpretation 
appears to have led to fewer disputes than the interpretati on of the conditions for hosting 
activities.  The transposition of these provisions has been almost literal across the EU, with a few exceptions: 
• Lithuania provides that, where information he ld in cache memory has to be modified 
for technical reasons, the liability exemption still applies; 
• Malta restricts its liability exemption for caching to liability for damages and excludes 
criminal liability from th e scope of the exemption. 
 The responses to the public consultation  indicated that some issues could be further 
clarified. In particular, according to the responde nts, it is not always clear to what extent 
technical manipulations would preclude benef iting from the liability exemption for mere 
conduit activities. For instance, traffic manage ment by internet providers (see Chapter 4.3.4 
on net neutrality) could, according to some stak eholders, be interpreted as selecting or 
modifying. Recital 43 of the Dire ctive provides in this regard  that the requirement of not 
modifying information "does not cover manipulati ons of a technical natu re which take place 
in the course of the transmission as they do not alter the integrity of the information contained in the transmission" 
3.4.4 Notice-and-action procedures  
3.4.4.1  The European legislative framework 
 
Article 14 of the E-Commerce Directive contains the basis for procedures for notifying and acting on online illegal cont ent. It provides that hosting providers, in order to benefit from a 
liability exemption, should act  expeditiously to remove ( take down ) or to disable access to 
(block)  illegal activity or information of which they have obtained actual knowledge.
123  
 Recital 40 states that: "this Directive should constitute  the appropriate basis for the 
development of rapid and reliable procedures for removing and disabling access to illegal 
information; such mechanisms could be devel oped on the basis of voluntary agreements 
between all parties concerned and should be en couraged by Member States; it is in the 
interest of all parties involved in the provision of information society se rvices to adopt and 
implement such procedures. (…)". 
 
An explicit reference to "notice-and-takedow n" can be found in Article 21 (2) ECD, which 
provides that the applicati on reports on the Directive "shall in particular analyse (...) "notice-
and-takedown" procedures and the attribution of liability following the taking down of 
content". 
 
The liability regime of the E-Commerce Directive applies to  all illegal activity or information 
and it provides for both removing and disabling access  (blocking). Blocking is of particular 
importance when takedown is not possible because the illegal activity or information is stored 
outside the European Union.  
                                                
 
123   See in particular Chapter 3.4.3.1 on "actual knowledge" and the eBay vs L'Oréal  case.  
 
 
 40 
Apart from the E-Commerce Directive, there are ot her pieces of European legislation relevant 
for NTD procedures. For example, the Directiv e on the enforcement of intellectual property 
rights124 (Enforcement Directive ) provides in its Articles 9 and 11 that Member States shall 
ensure that right holders are in a position to apply for an injunction against intermediaries 
whose services are being used by a third part y to infringe intellectual property rights. 
Moreover, its Article 17 provides that Member  States shall encourage the development of 
self-regulatory codes of conduc t contributing to the enforcem ent of intellectual property 
rights. The Commission will propose a revision  of the Enforcement Directive (see also 
Chapter 4.3.5).125 
 Article 21 of the Proposal for a Directive on co mbating sexual abuse, sexual exploitation of 
children and child pornography
126 obliges Member States to take the necessary measures to 
obtain the blocking of access by internet users in their territory and the removal of internet pages containing or disseminating child pornography.  Furthermore, fundamental right s are relevant, as set out, inter alia,  in the Charter of 
Fundamental Rights of the EU (see Article 6 TEU). Reference is ma de in particular to Article 
11 of this Charter on the freedom  of expression and information, as  well as to its Article 16 on 
the freedom to conduct a business. 
3.4.4.2  The developments in the last ten years 
 
Self-regulatory developments 
 
The Directive obliges Member States to encourage voluntary agreements for removing and 
disabling access to illegal information (cf reci tal 40). There are however only few examples of 
voluntary codes in Member States: 
• In the United Kingdom a broad group of interm ediaries (comprising providers of mere 
conduit and hosting activities) have set up a procedure in cooperation with a non-
governmental organisation, specifically targ eted at removing child abuse content.
127  
                                                 
124  Directive 2004/48/EC of th e European Parliament and of the Council of 29 April 2004 on the enforcement 
of intellectual property rights , OJ L 157/16, 30.04.2004; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:157:0045:0086:EN:PDF   
125  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee  and the Committee of the Regions,  A Single Market for Intellectual Property 
RightsBoosting creativity and innovation to provide economic growth, high quality jobs and first class 
products and services in Europe , COM(2011) 287 24.05.2011; available at 
http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf . The 
Communication announces a review of the Enforcement Directiv e that should in particular find ways to 
combat  “infringements of IPR via the internet more effectively" by "tackling the infringements at their 
source and, to that end, foster co operation of intermediaries, such as  internet service providers while 
respecting all fundamental rights recognised by the EU Charter of Fundamental Rights, in particular also 
the rights to private life, protection of personal data, freedom of expression and information and to an 
effective remedy".  
126  Proposal for a Directive of European Parliament and the Council on combating the sexual abuse, sexual 
exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA , COM(2010) 
94, 29.03.2010; available at http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:52010PC0094:EN:NOT   
127  See: http://www.iwf.org.uk/members/fu nding-council/code-of-practice   
 
 41• In the Netherlands, ISPs, national enforcemen t authorities and asso ciations of right 
holders have subscribed to a notice-and-take down code of conduct for all content that 
is punishable or unlawful;128 
• In December 2009 several French internet platforms and right holders agreed on a 
charter for the fight against the sale  of counterfeit goods on the Internet.129 An 
extension of this charter is  currently being discussed.130 
 Recently, a number of voluntary codes ha ve been developed at EU level:  
• In 2009 the Commission brokere d an agreement on a code between a large group of 
social networks with the objective of  ensuring the safety of minors online.
131 
• On 4 May 2011 a representative group of ri ght holders and intern et platforms signed, 
under the auspices of the Commission, a Memorandum of Understanding aimed at 
reducing the sale of counterfeits via e-comm erce platforms. The MoU sets out a series 
of joint principles including effective and balanced measures to prevent offers of 
counterfeit goods from being listed on internet platforms.132  
• A similar EU level dialogue on online piracy  (copyright infringe ments) was launched 
in 2009 but did not result in a final agreement. 
 It should be noted, however, that most NTD pr ocedures are not based on agreements between 
stakeholders, but result from the unilate ral policy of individual companies.  
 In the responses to the public consultation,  some stakeholders, in particular civil rights 
organisations, complained about a lack of tran sparency and democratic oversight with the 
policies of individual companies. Private co mpanies are able to judge the legality and 
illegality of content without anyone looking ov er their shoulders. Some stakeholders are 
worried that intermediaries are in a position, fo r the sake of simplicity and to avoid liability 
claims, to simply take down any content about  which they are notifie d without assessing the 
legality of the content and w ithout informing or consulting th e provider of the allegedly 
illegal content.
133  
 As a result of a survey amongst the Member States for the prepar ation of a Commission 
Report on the implementation of the 1998 an d 2006 Recommendations on Protection of 
Minors, it can be stated that ISPs are becoming increasingly involved in the protection of 
                                                
 
128  See: 
http://www.nederlandtegenterrorisme.nl/fileadmin/user _upload/Bedrijven/PDF_s/G edragscode_Notice_and
_Take_Down_tcm91-293746.pdf  
129  See Charte de lutte contre la contrefaçon sur Internet : 
http://www.minefe.gouv.fr/actus/pdf/091216charteinternet.pdf 
130  See recent developments on the web-page of the Ministère de l’Economie: 
http://www.minefe.gouv.fr/actus /11/contref_internet.html 
131  See: http://ec.europa.eu/info rmation_society/activities/social_ne tworking/docs/sn_p rinciples.pdf   
132  See: http://ec.europa.eu/internal_market/ip renforcement/docs/memora ndum_04052011_en.pdf   
133 The website www.chillingeffects.org, an initiative from several US law faculties and some NGOs, reports on 
cases of blocked legal content.    
 
 
 42minors, despite their limited liability and re sponsibility under the E-Commerce-Directive. 
This applies to their legal obligations regard ing illegal content and particularly to joint 
voluntary commitments and adherence to codes of conduct. The large majority of Member 
States reported that notice-and-takedown proce dures have been deve loped and are applied. 
However, there are considerable differences in the functioning of hotlines and particularly of notice-and-takedown procedures. This concerns the decision that certain content is illegal, the 
review of such decisions, the tracking of its source and identification of the web hosting 
provider and, in particular, the notification to the competent au thorities. Moreover, in some 
Member States the response time is  considered to be too long.  
 
Legislative developments 
 
Some Member States have enacted notice-and- takedown and blocking pr ocedures in national 
legislation. This has happened in at least Fi nland, France, Germany, Hungary, Lithuania, the 
United Kingdom, Spain and Sweden. 
 
These procedures all apply to mere conduit prov iders. Except for the Swedish rules on online 
forums, they do not apply to providers of hostin g activities in the meaning of Article 14 ECD. 
Article 13 of the Directive does not contain the requirement for providers of mere conduit 
activities to take down illegal information, even after having obtained actual knowledge of it, 
in order to qualify for an exemption of liabil ity. It limits the obligat ion of the mere conduit 
provider in this regard to not initiating the transmission, to not selecting the re ceiver of the 
transmission and to not modifyi ng or selecting the information contained in the transmission.  
 The Commission services have been made awar e of the following national laws (see Annex II 
of this Staff Working Document for a more detailed description): 
• The Finnish Act on provision of informati on society services (transposing the E-
Commerce Directive) contains a detailed  notice-and-takedown procedure for mere 
conduit and caching providers applying to infringements of copyright; 
• The French HADOPI law provides for a so  called "three stri ke" procedure for 
copyright infringements whereby, following a notice, an individual downloader may 
receive a warning that he or she is in breach  of the law and may eventually, in case of 
repeated infringement, be cut off from internet access; 
• The German Access Impediment Act obliges the Federal Office of Criminal 
Investigation to compile a black list containing child  pornography websites, on the 
basis of which ISPs have to block access to those websites; 
• The Hungarian Act on certain aspects of e- commerce and information society services 
(transposing the E-Commerce Directive) pr ovides for a notice-and-takedown for mere 
conduit and caching providers as regards infrin gements of intellectual property rights; 
• The Lithuanian law on information societ y services (transposing the E-Commerce 
Directive) also provides for a notice-and-takedown procedure for mere conduit and 
caching providers in cases of infringeme nts of intellectual property rights;   
• The UK Digital Economy Act follows a three- tier approach. First, ISPs must notify 
their subscribers of infringements which ha ve been reported by copyright owners and 
they have to submit to the copyright owners a list of serious repeat infringers. Second, 
ISPs can be obliged to limit the internet acce ss of subscribers and, thirdly, they can be 
forced to block access to copyright-infringing websites;  
• The UK Terrorism Act provides a specif ic procedure for terrorism-related 
information; 
 
 43• The Spanish "Ley Sinde" does not target the e nd user but the illegal service that can be 
taken down or, in the event that it is stored outside Spain, blocked; 
• The Swedish Act on responsibility of Electr onic Bulletin Boards (online forums or 
blogs) applies to several categories of illegal content;  
• The Italian law on child pornography through the internet establishes a blocking 
mechanism for child abuse content; 
• The French Law on the performance of in ternal security also puts in place a 
mechanism for blocking child pornography. 
 
3.4.4.3  Persisting issues 
 
According to a majority of stakeholders that responded to the public consultation, NTD 
procedures are heavily fragmented and this fo rms an important barrier to the Digital Single 
Market. In particular, it leads to legal uncertainty  for intermediaries. Cert ain stakeholders also 
consider it socially undesirable that the take down of manifestly illegal information (for 
instance child pornography) is sometimes less fa st than the takedown of illegal information 
where there is a financial gain involved in the takedown (for instan ce phishing websites). A 
majority of the respondents to the consul tation proposed a Europe an notice-and-takedown 
procedure, either on a voluntary or on an ob ligatory basis. The views on what such a common 
standard for NTD procedures shoul d look like are, however, divided. 
 This sub-section provides an overview of the main  elements of the NTD procedures that cause 
the fragmentation.   
a) The requirements for notice 
 
The main question as regards the requirements fo r the notice is how a no tice can lead to actual 
knowledge (see a more detailed discussion  in Chapter 3.4.3.1) without placing an 
unreasonable burden on the notice provider.  Many right holders indicate that the required le vel of information for submitting a notice is 
often too detailed and amounts to a burdensome procedure. Some right holders for instance 
consider that the NTD procedure should not require specific information such as a URL 
reference or information about why specific cont ent is illegal. Moreover, the procedure should 
be accessible by electronic means and easy to s ubscribe to. Many right holders also expressed 
a wish that NTD procedures become notice and stay down procedures, where a single notice 
would lead to actual kn owledge of all potential future infringements that are similar to the 
notified infringement.  Intermediaries, on the other hand, stress the im portance of a detailed  notice and complain 
about the fact that notices are often not deta iled enough to allow them to assess the alleged 
illegality of information. They argue that a notice should contain info rmation which enables 
the intermediary to indentify the complainant, locate the cont ent (e.g. should include URLs) 
and assess the alleged illegality. Some intermed iaries specified that certain complainants 
refuse to use the NTD procedure proposed by a pa rticular site and provide information in a 
way that makes it difficult to identify the illega l information and its lo cation (for instance by 
sending photocopies of URLs that have to be  typed in manually by the intermediary). 
  
 
 44b) The possibility of a defen ce for providers of information 
 
Takedown and blocking of certain content may have a negative im pact on the exercise of the 
rights to freedom of expression and informati on. The E-Commerce Directive (in its recital 46) 
states that the removing or disabling of access "h as to be undertaken in the observance of the 
principle of freedom of expression and of proc edures established for this purpose at national 
level". Many stakeholders consider it impor tant 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 
possibility of a counter-notice as a means to increase the legitimacy of takedowns and to 
minimise restrictions to the freedom of speec h. Some national NTD pro cedures (in particular 
those in place in Finland, Hungary, Lithuania,  Spain and UK) also recognise this by including 
an obligation for intermediaries to offer a possibility to submit a counter-notice. 
 Right holders and ISPs, however, consider that the possibility of counter-notice would make 
NTD procedures more burdensome, slower a nd less effective. More over, as indicated by 
stakeholders, offering the possibility of submitti ng a counter notice is perhaps not appropriate 
in the context of manifestly illegal informati on. For instance, it appear s excessive to ask for 
the prior opinion of the provider of child pornographic content be fore it can be taken down. It 
has also been suggested that a requirement to  offer the possibility of submitting a counter-
notice could be in breach of data protecti on rules since it would re quire identifying the 
content provider.  
c) The timeframe 
 
As discussed in Chapter 3.4.3.2, intermediaries have an obligation to  take down or block 
illegal information expeditiously  once they have obtained actua l knowledge of it, so as to 
benefit from a liability exem ption for hosting activities.  
 Most self-regulatory NTD procedures do not specify a timeframe for takedown
134. Some 
legislative NTD procedures ha ve established a specific timeframe for the takedown or 
blocking of information, while ot hers have not. For instance:  
• in Finland an intermediary has to act "i mmediately" for copyright infringements;  
• in Hungary intermediaries have to act within 12 hours in the field of IPR;  
• in Lithuania, intermediaries have to act within 1 day for copyright infringements;  
• in Spain, ISPs have to act within 72 hours for copyright infringements; 
• in the UK, intermediaries have to act within 2 days for terrorism-related illegal 
content.  
 According to the responses to the public consul tation it is often unclear when time begins to 
run and, in particular, whether this happens fr om the moment of notic e or from the moment 
that the notice has been assessed.  
                                                
 
134  For example, the agreement on child pornography between UK intermed iaries and a NGO according to 
which an intermediary has to act "expeditiously". 
 
 45Intermediaries argue that  the term "expeditious", found in Ar ticle 14 of the Di rective, does not 
need to be clarified as it allo ws the intermediaries to take a ccount of every individual case. 
The flexibility of the term is considered  necessary by many ISPs because they would 
normally need to seek legal a dvice or translation and even tually make a judgment which 
could take some time.   Right holders, however, in genera l argue that "expeditious" should be specified and that this 
specification should correspond to a short time period. For instance,  a takedown period of one 
hour would already be too long for live str eaming. Moreover, a long time period would in 
regular circumstances be unnecessary for assessi ng the illegality of information. In some 
Member States, the time before takedown would "be long" because a specific authorisation would be required for this purpose.
135  
 It has also been argued that a lack of a specification of the timef rame would also be 
detrimental to the fight against child pornography. A report conducted by Cambridge 
University
136 demonstrates that the average time be fore takedown of child pornography sites 
is much longer than the time befo re takedown of phishing sites. 
 
d) Liability for providing wrongful notices or  for taking down or blocking legal content  
 
NTD procedures do not exclude a ri sk that wrongful notices are provided to intermediaries (in 
good faith or bad faith) and that intermediari es, acting on such notic es, take down legal 
content.  Some respondents to the public consultation on e-commerce have ra ised the issue of holding 
notice providers liable for submitting wrongful notices . They consider that this could decrease 
the number of wrongful notices. But once a wro ng notice has been subm itted, the question is 
how the intermediary should deal with it. Some  stakeholders consider  that intermediaries 
should not be held liable for taking down "ille gal" information if it turns out that the 
information was not illegal, provided they have respected a NTD procedure and that, on the basis of a notice submitted in the context of such a procedur e, had good reason to consider 
that the information which was the subject of th at notice was illegal. So me national legislative 
NTD procedures provide that, by following the procedure in good faith, intermediaries are 
exempted from liability, whereas others do not.   
e) Private operators assessing the legality of information 
 
Many respondents to the public consultation on e-commerce expre ssed concerns that private 
operators judging the legality of  information on the Internet represented "private judges". 
They believed it would not be legitimate or feas ible for intermediaries to assess the alleged 
illegality of certain information. Private opera tors would have a tendency to take down 
allegedly illegal information without even asse ssing the legality. Moreover, there would be no 
transparency and oversight on (t he application of) NTD procedures of private companies. 
 
                                                
 
135  According to several respondents this would be the case in Italy for instance. 
136  Moore/Clayton, The Impact of Incentives  on Notice and Takedown , Seventh Workshop on the Economics of 
Information Security (WEIS 2008), June 25–28 2008; available at: 
http://www.cl.cam.ac.uk/~rnc1/takedown.pdf   
 
 46Many 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 co urt is required to ta kedown manifest child 
pornography.  It has been held that the term manifestly could be helpful in interpreting the E-Commerce 
Directive. Portugal has introduced  the concept to its national le gislation transposing the ECD. 
 f) The need for NTD procedures to complement other policies  
Some respondents to the public consultation on e-commerce take the view that takedown or 
blocking would not be a soluti on to the existence of illegal information on the Internet. 
Certain right holders consider that the em phasis should be on prevention rather than 
enforcement and propose the use of filtering tec hniques. Other stakeholders, in particular 
intermediaries, also favour a focus on preventi on, but in the form of  offering attractive, 
accessible and legal services on the Internet. Mo reover, some intermediaries, in particular 
video-sharing sites, argue that right holde rs should favour "monetis ation" over takedown. 
"Monetisation" involves receiving a share of advertisement revenue s that can be attributed to 
content to which they  hold the rights. 
3.4.4.4  An EU initiative on procedures for notifying and acting on illegal online 
content 
 
The cross-border nature of the Internet, the existing fragmenta tion of NTD systems, the lack 
of development of regulatory codes at Europ ean level and conflicting jurisprudence within 
and across Member States justify an analys is of the need for EU action. In 2012 the 
Commission will publish an impact assessment on procedures for notifying and acting
137 on 
illegal online content which will determine th e content of the initiative. Its main policy 
objectives are the following:  
• Contribute to developing trust and therefor e growth in (cross- border) online services, 
thus enhancing the functioning of  the Digital Single Market. 
• Contribute to combating ill egality on the Internet. 
• Ensure the transparency, e ffectiveness, proportionality and fundamental rights 
compliance of NTD procedures. 
• Ensure a balanced and workable approach  towards NTD procedures, with a focus on 
the impact on innovation and growth, while ensuring respect for fundamental rights. 
 The initiative will have a horizontal scope in th e sense that it will cover all types of online 
services (including entertainment, adult, he alth, gambling etc.) repr esenting many societal 
interests. Stakeholders to be consulted include Member States, internet intermediaries, right 
holders, child protection organisa tions, civil rights organisations and citizens in general.  
 The impact assessment will address a number of  issues including the requirements for a 
notice; the time for an intermediary to act follo wing a notice; the need to  inform or consult the 
provider of the alleged illegal information;  the need for further transparency on NTD 
                                                
 
137  The term "acting" is broader than "takedown" of illegal content and includes also "blocking" of websites. 
 
 47procedures; the consequences of submitting wr ong notices; the instruments for removing or 
disabling access to illegal content, etc. Severa l options including no EU action, European soft 
law (such as already piloted in the Me morandum of Understanding on the sale of 
counterfeited goods) and legislative instruments will be assessed, in particular taking into 
account their respective proportionality.  In parallel the Commission will review the Directive on the enforcement of intellectual property rights. The objective is to  fight illegal content whilst fully respecting internal market 
rules and fundamental freedoms, in particular by paying attention to pr ocedural safeguards. 
The initiative on notice and action procedures  is without prejudice to this initiative 
 
3.4.5  The prohibition in Article 15 ECD 
3.4.5.1  EU law 
 
Article 15 provides that " Member States shall not impose a general obligation on providers, 
when providing the services covered by Articles 12, 13 and 14, to monitor the information 
which they transmit or store, nor a general obli gation actively to seek facts or circumstances 
indicating illegal activity ". 
 Although such monitoring could constitute an infringement of othe r rules (e.g. certain 
fundamental rights), Article 15 itself does not prohibit monitoring by private companies as 
such, but prevents Member States from imposing such an obligation on companies.  It aims to 
avoid placing a disproportionate burden on interm ediaries that would seriously restrict them 
in providing their intermediary services.  Respondents to the public consultation on e-commerce raised three main issues related to the prohibition set out in Article 15 which th ey feel require further clarification. 
  First, recital 47 of the Directive states that "Member States are prevented from imposing a 
monitoring obligation on service providers only with respect to obligations of a general 
nature; this does not concern monitoring obli gations in a specific case and, in particular, 
does not affect orders by national authoritie s in accordance with national legislation". This 
raises the question as to what exactly a speci fic monitoring obligation could be as opposed to 
a general monitoring obligation.   Second, recital 48 of the Directive st ates that the E-Commerce Directive "does not affect the 
possibility for Member States of requiring serv ice providers, who host information provided 
by recipients of their service,  to apply duties of care, which can reasonably be expected from 
them and which are specified by national law, in  order to detect and prevent certain types of 
illegal activities" . Some respondents wondered what the exact duties of care are and where 
the border lies between an obligation to appl y duties of care and a general obligation to 
monitor.   Third, some respondents raised doubts about the a pplication of Article 15 to injunctions. The 
provision is silent about injunctions.  
 
 
 48In the L'Oréal vs. eBay case138 the European Court of Justi ce accepts, in principle, the 
compatibility of effective and pr oportionate injunctions against pr oviders such as operators of 
online marketplaces. In th e Scarlet vs. SABAM case139, the ECJ, however, considers that that 
under the circumstances of the case at hand a court injunction forcing an internet access 
provider to introduce filtering so ftware for the prevention of copyright ingringements is 
incompatible with Article 15 of the Directive, construed in the light of the requirements stemming from the protection of the applicable fundamental rights.  One of the preliminary questions refered by the Brussels Cour d'Appel to the ECJ was 
whether the applicable in struments of EU  law, "read together and construed in the light of 
the requirements stemming from the protection of  the applicable fundamen tal rights, must be 
interpreted as precluding an in junction imposed on an ISP to in troduce a system for filtering 
–        all electronic communications pa ssing via its services, in particular those 
involving the use of pe er-to-peer software;  
–        which applies indiscri minately to all its customers;  
–        as a preventive measure;  –        exclusively at its expense; and 
–        for an unlimited period,  
which is capable of identifying on that provid er’s network the movem ent of electronic 
files containing a musical, cinematographic or  audio-visual work in respect of which 
the applicant claims to hold in tellectual property ri ghts, with a view to blocking the 
transfer of files the sharing of  which infringes copyright (…)" . 
The Court first considers the app licable instruments of secondary  EU law. It clarifies that 
Directives 2001/29 (Co pyright in the information societ y) and 2004/48 (Enforcement of 
intellectual property rights), wh ich both contain a basis for inj unctions against intermediaries, 
"may not affect the provisions  of Directive 2000/31 and, more sp ecifically, Articles 12 to 15 
thereof" . 
 As regards the above-mentione d question it notes that " it must be held that the injunction 
imposed on the ISP concerned requiring it to install the contested filtering system would 
oblige it to actively monitor all the data relating  to each of its customers in order to prevent 
any future infringement of inte llectual-property rights. It follo ws that that injunction would 
require the ISP to carry out general monitori ng, something which is prohibited by Article 
15(1) of Directive 2000/31 " (paragraph 40) . 
 
Secondly, the Court considers the applicable fundamental rights  recognised under EU law. In 
this regard, the Court deci des that the injunction: 
                                                
 
138  Case C-324/09, L'Oréal v eBay , judgment of 12 July 2011, par. 141, available at  
http://curia.europa.eu/juris/ recherche.jsf?language=en   
139  Case C-70/10, Scarlet Extended  v Société belge des auteurs compositeurs et éditeurs  (SABAM ), available at 
http://curia.europa.eu/juris/ recherche.jsf?language=en .  
 
 49• "would result in a serious infr ingement of the freedom of the ISP concerned to conduct 
its business since it would re quire that ISP to install a co mplicated, costly, permanent 
computer system at its own expense" (paragraph 48).  
• "is to be regarded as not respecting the re quirement that a fair  balance be struck 
between, on the one hand, the protection of th e intellectual-property right enjoyed by 
copyright holders, and, on the other hand, that  of the freedom to  conduct business" 
(paragraph 49).  
• "may also infringe the fundamental rights of  that ISP’s customers, namely their right 
to protection of their personal data and their freedom to receive or impart 
information, which are rights safeguarde d by Articles 8 and 11 of the Charter 
respectively" (paragraph 50).   
• "could potentially undermine fr eedom of information sinc e that system might not 
distinguish adequately between unlawful content and lawful content, with the result 
that its introduction could lead to th e blocking of lawful communications" (paragraph 
52). 
 
The Court concludes that "Consequently, it must be held that, in adopting the injunction 
requiring the ISP to install the contested filtering system, the national court concerned would 
not be respecting the requireme nt that a fair balance be struck between the right to 
intellectual property, on the one hand, and the freedom to conduct business, the right to 
protection of personal data and the freedom to  receive or impart information, on the other"  
(paragraph 53). 
 A similar case, on the compatibility of such a filtering obligation for a social network, is currently pending before the ECJ.
140 
3.4.5.2  National law 
 
Article 15 has been transposed in different ways across the EU . Some Member States did not 
consider it necessary to introdu ce a prohibition of general m onitoring in their legislative 
framework because their legislation did not have any such obligations at the time of 
transposing the Directive. De nmark, Finland, Spain, Ireland and the Netherlands have for 
instance not introduced an  explicit prohibition. Most Member  States have, however, opted for 
a more or less verbatim transposition of the Directive.  Independently from the mode of transposition, across the EU there have been questions about 
the interpretation of Article 15. This has become apparent in a number of cases where courts 
have imposed or have been asked to impose th e use of filtering software to prevent illegal 
information and activity by means of inj unctions on intermediaries. For instance: 
 
• In a case concerning the Belgian collecting society SABAM and the internet service 
provider Tiscali
141 (now Scarlet) a judge on 29 June 2007 ordered Tiscali to use a 
specific filtering software (" Audible Magic") to prevent infringements of copyright 
                                                 
140  Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers  (SABAM ) v N.V. NETLOG, 
available at http://curia.europa.eu/juris/recherche.jsf?language=en   
141  District Court of Brussels, 29.06.2007, ref. no. 04/8975/A; available at: 
http://www.cardozoaelj.net/issues/08/case001.pdf .  
 
 50managed by SABAM. The court considered that this software had proven to be 
effective and considered that the average cost of implementing the measure did not appear excessive. Moreover, the Court argued that implem enting a filtering technique 
should not be confused with monitoring as  recital 40 of the Di rective e xplicitly 
mentions that the Directive's provisions rela ting to liability s hould not preclude the 
development and use of technical surveillanc e instruments. Scarlet filed an appeal 
against the decision and on 28 January 2010 the Brussels Court of Appeal made a preliminary reference to the European Cour t of Justice (see above for the judgment). 
• In a case concerning Rolex, Ricardo and eB ay, two online selling platforms, the 
Bundesgerichtshof
142 (the German Federal Supreme Court) considered that an 
injunction against the two intermediaries forcing them to apply filtering software would not be infringing Artic le 15. The Court considered th at the protection offered to 
intermediaries by the E-Commerce Directive w ould not apply to injunctive claims and 
that therefore such a measure could be orde red, although it was left to a lower court to 
assess whether it would be technically feasible. 
• In France, in a ruling of 13 May 2009 in a case concerning eBay and L'Oreal,
143 the 
Court refused to oblige eBay to implement f iltering software for its "health and beauty 
section" to prevent infringements of L'Or éal's trademark. The Court considered that 
filtering software was not necessary as eBay  had made the required efforts to prevent 
trademark infringements, suggesting that to  some extent there is an obligation of 
surveillance. 
• In the UK, BT and TalkTalk, two internet service providers, had contested the validity 
of the Digital Economy Act (DEA, discusse d above) under the European law and in 
particular Article 15 thereof144. The High Court, however, on 20 April 2011 took the 
position that the DEA does not involve any monitoring in the sense of Article 15. 
Under the DEA. The Court notes that  copyright owners may well "monitor 
information (...), but they are not ISPs and they are under no duty by virtue of the 
DEA to carry out "monitoring."" BT and TalkTalk have been granted permission to appeal this decision. 
3.4.5.3  Filtering 
 
As discussed above, the main ques tion concerning Article 15 is to what extent injunctions that 
impose filtering software are compatible with the prohibition of a general monitoring obligation. However, one can imagine that if  filtering techniques ha d become flawless and 
costless, the need for a prohibition on imposi ng a general monitoring obligation would have 
become obsolete. For this reason, the public consultation on e-commerce consulted 
stakeholders on the effectiveness and efficiency of filtering techniques ten years after the 
                                                
 
142  BGH, 19.04.2007, ref. no. I ZR/04; available at: 
http://juris.bundesgerichtshof.de/cgibin/rechtsprec hung/document.py?Gericht=bgh&Art=pm&Datum=2007
&Sort=3&anz=45&pos=0&nr=40136&li nked=urt&Blank=1&file=dokument.pdf  and BGH, 11.03.2004, ref 
no. I ZR 304/01; available at: 
http://juris.bundesgerichtshof.de/cgibin/rechtsprec hung/document.py?Gericht=bgh&Art=pm&Datum=2004
&Sort=3&anz=31&pos=0&nr=30359&li nked=urt&Blank=1&file=dokument.pdf .  
143  TGI Paris, 13.05.2009; available at: http://www.legalis.net/spi p.php?page=jurisprudence-
decision&id_article=2639 .  
144  High Court of Justice of England and Wales, Queen's Bench Division, 20.04.2011; available at http://high-
court-justice.vlex.co.uk/vid/-287515403   
 
 51adoption of the Directive. A wide variety of st akeholders mentioned several disadvantages of 
filtering techniques and confirmed that Article 15 is still relevant today.  First, respondents expressed technical concerns about filtering . Filtering techniques can range 
in effectiveness from not being in any way ef fective to being very promising, but filtering 
techniques may involve some degree of ove rblocking (blocking legal content) and 
underblocking (not blocking illegal content). An example of content that could not be filtered 
would be content in so-called ‘f lat pdf files’ (that are similar to non-searchable images), such 
as scientific articles or books.  
 
However, video is an example of a form of content to which filtering techniques can be 
usefully applied. Video hosting sites have, for instance, voluntarily and in cooperation with 
right holders, developed so-calle d fingerprinting techniques that identify the unique hash code 
of a file.  Techniques such as these have also been shown to be effective in the fight against 
on-line child sex abuse images and videos. An impor tant element is for the relevant file(s) to 
be "fingerprinted" (for example by Interpol).  A similar technology has also been developed 
for audio files. 
 
Any filtering approach brings the risk of a technological "arms race" between those imposing 
filters and pirates. For instance, in France,  the HADOPI law (mentioned in Chapter 3.4.4.2) is 
said to have led to an increased use of encryp tion of traffic, the use of VPN (virtual private 
networks) and the use of proxies. These develo pments make it more difficult to identify 
seriously harmful content and to identify a user’s real location and IP address.  
 A variety of stakeholders raised concerns abou t significant traffic speed reductions as a result 
of certain filtering techniques. In particular so -called deep packet filte ring techniques (where 
one looks at what is inside tr afficked "packages" rather than at the "packaging") would require 
large amounts of processing power  and network reconfiguration. This would even tually lead 
to more limited broadband internet a ccess and negatively affect consumers. 
 Second, stakeholders also expressed concerns about the costs associated with filtering  
techniques. ISPs tend to argue that implemen ting filtering techniques would be a significant 
financial burden. Some right holders would want  to shift more of this burden on ISPs, in 
particular for the development of fingerpri nting techniques. The fact that there is 
interoperability between these techniques fo r different video shar ing sites would be a 
particular burden according to some right holders.   
 
Third, a variety of stakeholde rs raised concerns about tensions between the protection of 
fundamental rights and f iltering techniques . On the one hand, filtering can, depending on the 
technology used, risk restricting freedom of sp eech by blocking legal content by mistake. On 
the other hand, filtering techniques such as deep packet inspection could restrict the right of 
personal data protection. There are, however, legitimate concerns about the protection of 
minors and public decency as rega rds, in particular, child sex abuse images that circulate on 
the internet and as discussed above in th e area of video and image content filtering. 
 
4 Need for integration with other Di gital Single Market policies  
 
Although the regulato ry framework described in Chapte r 3 is vast, better enforcement, 
enhanced administrative cooperation and provid ing clarifications ar e not in themselves 
 
 52sufficient to tap the full potential of e-co mmerce and online services within the Single 
Market. Horizontal issues such  the development of broadband and IT infrastructures or IT 
literacy across the Member States, social groups and generations are also key to the development of online services.
145  
 This Staff Working Document does not cove r infrastructure but d eals with regulatory 
obstacles which still need to be addressed with in the Single Market. This Chapter is based on 
the flow of a typical (retail) transaction, st arting with the willingness to engage in e-
commerce and following through the process of gathering of information on products and 
services on offer, the actua l access to products and servi ces, the issues surrounding the 
conclusion of a contract, the payment and de livery of the products and services bought/sold, 
ending with redress if things go wrong. Finally, certain cross-cutting issues are analysed 
which are relevant along this chain. 
 
This analysis is based on an integrated approach to the de velopment of online services, 
without attempting to cover all relevant issues.   
4.1 Trust 
 
Trust is recognised as a prerequisite for the development of online services, without which 
potential buyers and sellers may not even c onsider going online. Trustmarks, personal data 
requirements, specific policies for online gambling and pharmacies and liability provisions for businesses all contribute to  enhancing trust online.  
4.1.1  Trustmarks  
 
Trustmarks are generally considered a useful instrument for traders to foster consumer 
confidence. Typical trustmark systems cons ist of an accreditation mechanism with an 
independent supervisor for an online trader to meet the trustmark's requirements (including 
creditworthiness, security mechanisms, price tr ansparency, provision of  information, customer 
service, data protection and dispute settlement ). Well-known trustmarks within the EU include 
Thuiswinkel146 (the Netherlands), Trusted Shops147 (UK) and Confianza Online148 (ES).  
 However, a major disadvantage of these trustmarks is that they operate mainly on a domestic level. They are characterised by different ce rtification and business models and provide 
different guarantees of service.  
 
To overcome such fragmentation, the Commi ssion announced in the Digital Agenda for 
Europe (2010) its intention to  create a stakeholder platform  by 2012 for EU online trustmarks, 
especially for retail websites.  
                                                
 
145  See in particular the Commission Communication "A Digital Agenda for Europe ", COM (2010) 245 of 
19.5.2010, available at: http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-
communication-en.pdf   
146  See: http://www.thuiswinkel.org/engelstalig/-new/home/homepage-thuiswinkel   
147  See: http://www.trustedshops.com   
148  See: http://www.confianzaonline.es   
 
 53 
The Working Group on E-Commerce,  set up by the EP Committee on the Internal Market and 
Consumer Protection (IMCO), c onsidered an EU Trustmark scheme a major instrument for 
completing the Internal Market for e-commerce.  The Working Group concluded at its most 
recent meeting (June 2011) that further discussi on was needed as well as the involvement of 
policy makers, stakeholders and experts to ca refully analyse the implementation process for 
setting up the EU trustmark scheme. 149 
 In order to lay the groundwor k, the Commission services orga nised a workshop on "trust and 
confidence in the Internal Mark et" during the first Digital Ag enda Assembly (June 2011). The 
key outcome of the discussion was a general agreement that there is a need for EU-level involvement in the co-regulation of trustmarks between the EU, national authorities, consumer 
organisations and trustmark suppliers. A study was launched to evaluate the most effective and 
proportionate means to reinforce consumer confid ence in e-commerce and in particular assess 
the costs and benefits of (different models) fo r setting up an EU online trustmark stakeholder 
platform .  
4.1.2 Personal data protection 
4.1.2.1  Personal data protection in the online environment 
 
It is widely acknowledged that trust is the currency of the di gital economy. In today's digital 
context, buyers of goods and se rvices provide – often withou t much thought - their bank or 
credit card details when paying for their purchas e. Millions of citizens publish photos, blogs 
and text about families, friends and colleagues on social networks such as Netlog, LinkedIn 
and Facebook, often without being aware of pr ivacy policies. The use and exchange of 
personal data have become essen tial 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 counterfeite d works, information about both up- and downloaders needs to 
be shared between the right holders and intermediaries.  
 
                                                 
149  The IMCO Committee mandated Mr Pablo Arias Eche verria, Rapporteur for the own-initiative report 
"Completing the internal Market for E-Commerce", to set up this working group to provide a forum for an 
exchange of views between policy-makers and respectiv e stakeholders and analyse the steps required to 
improve E-Commerce, enhance consumer confidence and develop a European Trustmark. The Working 
Group presented its conclusions to the Committee on 12 July 2011, available at:   
http://www.europarl.europa.eu/document/activities/cont/201107/20110715ATT24204/20110715ATT24204
EN.pdf  . The Working Group will organize a second cycle of workshops in the first half of 2012. 
150  McKinsey Global Institute, Big data: The next frontier for innovation, competition and productivity , May 
2011; available at: http://www.mckinsey.com/mgi/pub lications/big_data/index.asp . 
151  Behavioural targeting or behavioural advertising is a technique used by online publishers and advertisers to 
increase the effectiveness of their campaigns. Informa tion is collected on an individual's web-browsing 
behavior, such as the pages they have visited or the s earches they have made, to select which advertisements 
to display to that individual. Behavioural marketing can be used on its own or in conjunction with other 
forms of targeting based on factors like geography, demographics or the surrounding content. This helps 
marketeers to deliver their online advertisements to the users who are most likely to be interested. For 
example, a user may often visit sport sites and thus be categorised in the "sports fan" segment. This user 
would then be shown advertisements that are relevant to the interests of a sports fan. 
 
 54Articles 7 and 8 of the Charter of Fundamental Rights of the EU152 recognize the respect for 
private and family life, and the right to the pr otection of personal data . Data protection rules 
organise and control the way pe rsonal data are processed. Thes e rules take account of the 
importance of the freedom of expression and pr ovide for specific regime applicable to the 
processing of personal data carried out so lely for freedom of expression purposes.153 
  The ECD does not apply to questions relating to  information society services covered by the 
EU legislation on the protection of personal data  (Article 1 (5) (b) ECD). The Data Protection 
Directive
154 constitutes the fundamental legal framewor k for the processing of personal data 
in the EU. It was adopted to harmonise the legi slation of the Member St ates with the twofold 
objective of protecting fundamental rights, name ly the right to personal data protection, and 
ensuring the free flow of personal data betwee n Member States within the context of the 
Internal Market. According to the Data Protectio n Directive, personal da ta must be processed 
fairly and lawfully, collected for specified, explicit and legitimate purposes (data minimisation principle) and not further processe d in a way incompatible with those purposes 
(principle of finality). Persona l data must be adequa te, relevant and not excessive in relation 
to the purposes for which they are collected  (purpose limitation prin ciple). The Directive 
furthermore provides for the right  of individuals to be given information on the purposes of 
the processing, how and by whom th eir data are processed and the rights to acce ss, rectify and 
delete personal data. Monitoring of complianc e with data protection laws implementing the 
Directive is entrusted to natio nal public independent authori ties endowed with investigative 
and enforcement powers. The data protectio n authorities also hear claims lodged by 
individuals regarding the pro cessing of their personal data. 
 A major factor enabling individuals to know a bout the processing of their personal data and 
exercise the rights granted by the Data Protection Directive is the provision of information 
(principle of transparency).
155 Service providers that qualify as data controllers have to 
provide users with clear, easily understandable and affordable privacy notices in line with the 
requirements of the Data Protec tion Directive. This rule is, however, not always observed. 
 Since its adoption in 1995, other EU legislatio n has come into force which complements the 
Data Protection Directive. The most significant  instrument for e-commerce and other online 
services is Directive 2002/58/EC concerning  the processing of personal data and the 
protection of privacy in the electronic commu nications sector (Directive on privacy and 
electronic communications),
156 as amended by Directive 2009/136/EC (Citizen's Rights 
                                                 
152  Charter of Fundamental Rights of the EU,  OJ C 364/1, 18.12.200; available at: 
http://www.europarl.europa.eu/charter/pdf/text_en.pdf   
153  See: ECJ, Case C-101/01, Bodil Lindqvist , 6.11.2003, and Case C-73/07, Tietosuojavaltuutettu v. 
Satakunnan Markkinapörssi Oy, Satamedia Oy , 16.12.2008; both available at 
http://curia.europa.eu/juris/ recherche.jsf?language=en .  
154  Directive 95/46/EC of the European Parlia ment and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data , OJ L 
281/31, 23.11.1995 (hereafter ‘ Data Protection Directive’ ); available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:31995L0046:en:HTML  
155  See: Data Protection Directive , Art. 10 and 11. 
156  Directive on privacy and electronic communications , OJ L 201/37, 31.07.2002 
 
 55Directive),157 hereafter the eP rivacy Directive.158 The ePrivacy Directive intends inter alia  to 
give citizens control over which information is stored on or retrieved from users' terminal 
equipment, including computers, smartphones or  other devices connect ed to the internet. 
Users should be able to know and control w ho is using their information, and how the 
information is being used.  Many respondents to the public consulta tion on e-commerce commented on the data 
protection and privacy dimension of online se rvices. The potential importance of personal 
data for the development of the Digital Single Market has been outlined, but also concerns 
about the use of data have been raised. Th e following sections focus on spam as well as 
cookies, and recall the upcoming revision of the data protection framework.  
4.1.2.2  Spam and the ePrivacy Directive 
 
Recent studies suggest that unsolicited comm ercial communication or spam accounts for 
more than 90% of global e-mail traffic.159 Spam is popular because costs for senders are low 
even with a wide range of unsolicited messages. Only a lim ited number of reci pients need to 
respond in order for spam to be commercially viab le. This is even truer for types of spam that 
intend to gain access to information such as credit card numbers or company secrets.  
 Spam can seriously harm the development of on line services. Their cost s do not only relate to 
the unnecessary use of broadband capacity or th e purchase of expensive anti-virus software. 
Unsolicited messages infringe individual privacy ri ghts, they can infect computers with 
viruses and the illegal offer of pharmaceuticals affects consumer confidence and threatens 
their health.
160  
  
                                                 
157  Directive 2009/136/EC of the European Parliament and the Council of 25 November 2009 amending 
Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks 
and services, Directive 2002/58/EC concerning the processing of personal data and the protection of 
privacy in the electronic communications sector  and Regulation (EC) No 2006/2004 on cooperation 
between national authorities responsible for the enforcement of consumer protection laws , OJ L 337/11, 
18.12.2009; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:En:PDF   
158  Reference can also be made to the Data Retention Directive  (Directive 2006/24/EC of 15 March 2006 on the 
retention of data generated or processed in connection with the provision of publicly available electronic 
communications services or of public communications networks and amending Directive 2002/58/EC), OJ L 
105/54, 13.04.2006; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:32006L0024:EN:HTML . The Directive harmonises 
national laws on the retention of data e.g. on in ternet access, telephony and e-mail to ensure the 
investigation, detection and prosecution of "serious  crime". See the report from the Commission to the 
Council and the European Parliament on the  Data Retention Directive  (Directive 2006/24/EC), COM(2011) 
225 final, 18.04.2011; available at: http://www.statewatch.org/news/2011/apr/eu-com-data-retention-report-
225-11.pdf   
159  See : van Eecke & Truyens for DG INFSO, EU Study on the Legal analysis of a Single Market for the 
Information Society: New rules for a new age? , November 2009, Ch.10, p.2, available at 
http://ec.europa.eu/information_society /newsroom/cf/itemdetail.cfm?item_id=7022 . 
160  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions on unsolicited commercial communications or "spam",  
COM (2004) 28 final, p. 4, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2004:0028:FIN:EN:PDF   
 
 56Article 13 of the ePrivacy Directive complement s the provisions of Articles 6 and 7 of the E-
Commerce Directive. Article 13 contains an "opt-in" appro ach to unsolicited commercial 
communications. Users must give their prior co nsent 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 r eceived on any fixed or mobile terminal. 
Exceptions are foreseen in the context of al ready established customers for the direct 
marketing of its own similar pr oducts or services by the same provider. This opt-in system 
applies only to users wh o are natural persons. 
 
The 2009 amendments of the ePriv acy Directive strengthen and cl arify the legal framework to 
counter spam. The ePrivacy Directive, which now explicitly refers to the E-Commerce 
Directive, makes illegal under Article 13 (4) a ll commercial e-mails advertising websites 
without disclosing the identity of the sender on whose behalf the communication is made. It 
requires the disclosure of a va lid address to exercise the right to request that such 
communications cease.  Also, Article 13 (6) allo ws any legal person adversely affected by 
spam, such as internet servic e 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, and are 
stored in a file on the user's hard disc. They are designed to facilitate a browser-server interaction in order to collect data. Cookies  allow the creation of profiles which can be 
beneficial for both users and online service pr oviders. Based on a survey carried out in 2010 
by ENISA, almost 80% of online service prov iders interviewed are collecting data from 
cookies.
161  
 Business representatives indicat ed in the public c onsultation that toda y's internet economy 
and in particular the transformation of the Internet from web 1.0 to web 2.0 have been 
possible thanks to cookies. Th ey argued that cookies do not store information such as IP 
addresses or personal information (names, addresses etc.).   But other respondents to the public consultation were not convinced and warned against the 
negative impact of cookies. In formation collected through the us e of cookies is processed to 
build up user profiles which is not only sold to third parties and applied for behavioural 
advertising but could also be  used for other kinds of (c ommercial and non-commercial) 
applications, often without users being aware of it.  How the data are collected and used raises quest ions about the compatibility of this practice 
with the ePrivacy Directive. A significant num ber of respondents expressed concerns about 
the scope of the new rules on ePrivacy, and requ ested further guidance on their application in 
practice especially regardi ng the notion of "consent". 
 Commission services have issued  a guidance document on the im plementation of Article 5 (3) 
on cookies.
162  
                                                 
161  See http://www.enisa.europa.eu  
162   DG INFSO/B2 Communications Committee Working Document, COCOM10-34, 20.10.2010, 
available at: http://circa.europa.eu/Public/irc/infso/coco m1/library?l=/public_documents_2010/cocom10-
 
 57Article 5 (3) states that "the storing of information, or the gaining of access to information 
already stored, in the terminal equipment of a subscriber or user is only allowed on condition 
that the subscriber or user concerned has given his or her consent , having been provided 
with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, 
about the purposes of the processing"  (bold added).  
 Article 2 of the ePrivacy Directive provides th at the definitions of Directive 95/46/EC shall 
apply to the ePrivacy Directive. Accordingly,  consent has the same meaning as the data 
subject's consent defined in Article  2 (h) of that Directive, i.e.  "a freely given specific and 
informed indication of his wishes (…)". Recital 17 of the ePrivacy Directive emphasizes this 
interpretation of consent and explains that "consent may be given by any appropriate method 
enabling a freely given specific and informed indication of the user's wishes, including by 
ticking a box when visiting an internet website" . The Commission servic es understand this in 
their guidance document as follows:  
• The user concerned must be informed
163, i.e. the user must have information about the 
purpose of the intended operation(s) when deciding on whether or not to consent to 
this operation. This condition is emphasized  by the wording of the paragraph ("having 
been provided with clear and comprehe nsible information, in accordance with 
Directive 94/45/EC164") and underlined by recital 24 (" The use of such devices should 
be allowed for legitimate purposes, with the knowledge of the user concerned."). In order to fulfil the condition of specific c onsent, consent must relate to a defined set 
of operations about which the user has been informed at the time of giving consent. 
Any changes in the purpose for which consen t was given that occu r afterwards cannot 
be assumed to be covered by th at consent, such as processing of data for incompatible 
secondary purposes. This would be unlawful.
165 However, where a sequence of 
operations of storing and accessing data on a user's terminal equipment are part of 
processing for the same purpose, it is not  necessary to obtai n consent for each 
individual operation involving gaining access to or storing of information on a user's terminal, if the initial information and c onsent covered such further use. This is 
clarified by recital 25 which e xplains that "Information and the right to refuse may be 
offered once for the use of various devices to be installed on the user's terminal 
equipment during the same connection and also  covering any further use that may be 
made of these devices during subsequent connections." 
 
                                                                                                                                                        
 
34_guidance/_EN_1.0_&a=d . See also Opinion 15/2011 of the Article 29 Working Party on the definition of 
"consent", available at http://ec.europa.eu/justice/policies/privacy/workinggroup/wpdocs/2011_en.htm  
163  In accordance with Article 10 of Data Protection Directive  (95/46/EC) information should cover at least the 
identity of the company, the purposes of the intended processing and any further information in so far as 
such further information is necessary, having regard to the specific circumstances in which the data are 
collected, to guarantee fair processi ng in respect of the individual. 
164  Article 10 of the Data Protection Directive  lays down the minimum information that has to be provided to a 
data subject.  
165  Further processing of personal data for historical, statistical or scientific purposes is not generally to be 
considered as incompatible with the purposes for which the data have previously been collected, provided 
suitable safeguards are in place (see rec ital 29 and Article 6 (1) (b) of the Data Protection Directive ). 
 
 58• Consent should be freely given , i.e. the user must have an actual choice. This also 
implies that a user, having freely given his or  her consent, can also revoke it at any 
time. Recital 25 however clarifies that freely- given consent implies that a user may not 
be able to be provided with  a specific service if he or  she does not consent to the 
storing and/or accessing of information on his or her terminal equipment: "Access to 
specific website content may still be made conditional on the well-informed acceptance of cookies or similar device, if it is used for a legitimate purpose".  
 
The second sentence of Article 5 (3) provides for a possible exception to the principle of 
information and consent where the use of co okies and similar devices could be allowed 
without the need for transparency and consen t. Following the amendments introduced by 
Directive 2009/136/EC, the exception may apply in certain cases. Firstly, it may apply if the 
storage is technical and designed "for the sole  purpose of carrying out the transmission of a 
communication over an electronic co mmunications network", or sec ondly, if the processing is 
"strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service". As it is an exception to the principle, it must be interprete d restrictively, as illu strated by recital 66:  "Exceptions to the 
obligation to provide informati on and offer the right to refuse  should be limited to those 
situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specifi c service explicitly requested by the subscriber or user". 
Nevertheless, recital 66 also points out that "(w)he re it is technically possible and effective, in 
accordance with the relevant provisions of Directive 95/46/EC, the user's consent to 
processing may be expressed by  using the appropriate setti ngs of a browser or other 
application".  The transposition deadline for the amended ePrivacy Directive expired on 25 May 2011. By the summer of 2011, the Commission had only received a limited number of notified 
measures of Member States that had implemen ted the new rules. At the end November of 
2011, a majority of Member States had not ye t adopted and/or notified the Commission the 
measures ensuring the full tran sposition of the new rules.
166 Some of the proposed national 
laws have already been criticised  for being unworkable in practice.167 Commission services 
will closely monitor the process of transposi tion of the new ePrivacy Directive in those 
Member States that have not yet fulfilled thei r obligations, and if requested provide further 
guidance.  
4.1.2.4   Self-regulation in be havioural advertising 
 
Many companies have developed guidelines for behavioural advertising. Companies and 
industry associations increasingly publish thei r internal guidance for online/behavioural 
marketing and the processing of data. Thes e codes supplement already legally binding 
requirements and confirm commitments on princi ples such as informing consumers about 
control of their data; how they are used (selling to third parties, use re-targeting etc.), and respecting the particular needs and vulnerabilities of young users.
168  
                                                 
166  Only AT, DK, EE, IE, FI, LT, LU, LV, MT, SE, SK  and UK notified full transposition at that time. 
167  This is for instance the case in the Netherlands. 
168  Recently, for example, the advertising asso ciations EASA and IAB Europe agreed on Good Practice 
Principles for Online Behavioural Advertising , available at http://www.iabeurope.eu/public-affairs/top-
stories/self-regula tion-framework.aspx . Their approach is based on an icon that is placed on each targeted 
 
 59 
The Commission supports self-regula tory efforts in order to en sure compliance with the EU 
data protection legal requirements and to provid e transparency to users, and it will present 
new initiatives in the area of behavioural adve rtising in the first qua rter of 2012. The industry 
is well placed to design innovative technical so lutions, including browser settings and other 
applications. A self-regulatory solution for compliance with Article 5(3) of the ePrivacy Directive would need to be based on the following elements:
169 
 
• effective transparency, i.e. users should be provided with a clear notice of any 
targeting activity th at is taking place; 
• consent, i.e. an appropriate form of affirma tion on the part of the user that he or she 
accepts to be subject to targeting and for what purposes; 
• a user-friendly solution, possibly based on br owser (or another appl ication) settings; 
• effective enforcement, including clear and simple complaint handling, reliable third-
party compliance auditing and e ffective sanctioning mechanisms. 
 The Council of Europe has adopted a recommen dation on profiling and data protection setting 
out minimum privacy standards to be implem ented through national legislation and self-
regulation.
170 
4.1.2.5  Data Protection Directive 
 
The Commission is preparing a major reform of the data protection rules laid down in the 
Data Protection Directive171 to make the data protection framework more coherent and 
provide more legal certainty (a doption foreseen in the first quarter of 2012). The objectives 
are to set forth a comprehensive and consiste nt personal data protection legal framework 
which addresses new challenges such as tec hnological developments in the digital economy 
and more intense globalisation, while elimina ting unnecessary costs for operators, reducing 
administrative burdens, and ensuring more cohe rence in the data protection acquis. The 
reform also aims at clarifying and simplifying ru les for international transfers of personal data 
and strengthening and clarifying the powers of  data protection authorities to ensure 
compliance with data protection rules. 
 
                                                                                                                                                         
advertisement, coupled with a website providing th e user with information about how to switch off 
behaviourally targeted display ads from the company that th e user signed up to. The principles oblige the 
participating companies to provide clear and unambiguous notice to users that it collects data for the 
purposes of online behavioural advertising. They al so contain commitments on user education and the 
creation of complaints mechanisms. 
169  See in particular http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/452   
170  Recommendation CM/Rec(2010)13 of the Co mmittee of Ministers to member states on the protection of 
individuals with regard to automatic processing of personal data in the context of profiling , 23.11.2010, 
available at: 
https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=CM/Rec( 2010)13&Language=lanEnglish&Ver=original&BackC
olorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383  
171  See the Communication from the Commission to the European Parliame nt, the Council, the Economic and 
Social Committee and the Co mmittee of the Regions, A comprehensive approach on data protection in the 
European Union , COM(2010) 609, 04.11.2010; available at: 
http://ec.europa.eu/jus tice/news/consulting_public /0006/com_2010_609_en.pdf   
 
 60Individuals sometimes find it difficult to exerci se their rights as laid down in the Data 
Protection Directive. For example, in practice it is  not always easy to request deletion of data, 
or to get access to personal data. This is particularly an issue in the digital environment. Several provisions of the Directive have given rise to divergent interpretations and have not 
been implemented and enforced in a uniform manner in the Member States, thereby creating 
legal uncertainty and unnece ssary costs for business.  
4.1.3 Online gambling 
 
The online gambling market is the fastest gr owing segment of the overall gambling market, 
with annual revenues in excess of € 8.5bn in 2010. Some markets have traditionally been 
open to licensed and regulated operators, while in others national monopolies have tended to 
be authorised to develop on line activities. While certain Member States with monopoly 
regimes have gradually opted for opening their online gambling and betting market, others are 
banning online gambling.   The development of the Internet and the incr eased supply of online gambling services are 
posing challenges for the co-existence of differing regulatory models, illustrated by the 
number of preliminary rulings in this area as well as by the developm ent of significant so-
called "grey" markets (i.e. operators licensed in  at least one but not all Member States) and 
illegal online markets across the Member Stat es. The enforcement of national rules is 
rendered difficult by several factors, raising the possibility of the need for enhanced 
administrative co-operation betw een competent national authori ties, or for other types of 
action. A number of objectives, common to all Me mber States, notably consumer protection, 
the fight against fraud and money laundering, ensuri ng the integrity of spor ts (mainly the fight 
against match fixing), and efficient enforcement,  could also benefit fr om policy action at EU 
level.  On 24 March 2011, the Commission launched an exte nsive public consulta tion on all relevant 
public policy challenges and pos sible Internal Market issues  resulting from the rapid 
development of both licit and unauthorised online gambling offers directed at citizens located 
in the EU.
172 With the consultation the Commission e xhausted a number of questions related 
to the effects of, and the possible public policy  responses to, this growth in online gambling 
activity. The Commission sought to gain a full pi cture of the existing s ituation, to facilitate 
the exchange of best practices between Memb er States and to determine if the differing 
national regulatory models for gambling can continue to coexist or whether specific action may be needed in the EU for that purpose.   On the basis of the conclusions drawn from th e results of this cons ultation, the Commission 
will adopt an action plan in 2012, which s hould amongst other objectives contribute to 
enhancing (administrative) cooperation a nd protecting consumers and citizens more 
efficiently. 
4.1.4 Online pharmacies and other health issues 
 
The situation in the EU with re spect to online pharmacies is highly fragmented. Most Member 
States still prohibit the online (or mail-orde r) sale of prescriptio n medicines and some 
                                                 
172  See the DG’s website: http://ec.europa.eu/internal_m arket/services/gambling_en.htm    
 
 61Member States prohibit the on line sale of "over-the-counter " (OTC) medicines or medical 
devices. The latter is noteworthy given that th e European Court of Ju stice ruled already in 
2003 in the so-called DocMorris  judgment that the absolute pr ohibition for the online sale of 
OTC medicines is not compatible with the Tr eaty's provisions concerning the free movement 
of goods.173 In those Member States permitting online sales of medicines, specific regulations 
on safety standards differ considerably and sometimes do not even exist. All this has led to diversity in practice with well established legal e-pharmacy market s in countries like 
Germany, the Netherlands and the UK, but an almo st total absence of le gal internet  sales in 
some eastern European Member States.  
 
The result of this highly fragmented market is that cross-border transactions between legal 
online pharmacies and patients residing in other Me mber States are rare. The lack of uniform 
safety standards creates uncertainties for cons umers/patients, who encounter difficulties if 
they wish to verify the legality of an e- pharmacy. This does not always stop them from 
buying medicines online, with the result that th ey, often unconsciously, buy from illegal sites, 
with all the attendant health risks.  The public consultation on e-commerce triggere d a limited number of responses to online 
pharmacies, stressing its advantages and disadv antages. There is an increasing demand for 
buying medicines online for a number of reasons. The greatest benefit for consumers is the 
convenience of buying online and the subsequent sa vings of time, travelling costs and effort. 
The Internet should not replace necessary face- to-face consultations with appropriate medical 
practitioners but internet servic es can provide quick and easy acces s to medicines in particular 
for chronically ill people, less mobile citizens,  the elderly, working pe ople or inhabitants of 
rural areas. Second, medicines sold online can al so be cheaper. In the case of non-reimbursed 
OTC medicines it is obvious that  patients benefit from such lo wer prices directly. Finally, the 
Internet guarantees anonymity to users, allo wing people to access advi ce or medicines that 
they may otherwise be reluctant to approach th eir pharmacists for in front of other customers 
in a physical pharmacy environment.   In the absence of developed le gal markets, the Internet has,  however, become dominated by 
illegal offers to which consumers (including th e most vulnerable seeking "cheaper" solutions) 
are drawn despite their unsafe or falsified char acter. Other disadvantag es mentioned were the 
lack of physical contacts, possi bly illegal advertisi ng, language difficultie s, and the delivery 
time.  In 2007, the Council of Europe adopted a re solution recommending a number of safety 
standards which governments should respect so th at mail-order trade in medicines can take 
place safely.
174 The resolution considers an identifiable legal framework as the best protection 
for consumers. It covers (a) the virtual dimens ion with transparency obligations concerning 
names of responsible persons, addresses, licensi ng authorities etc, and (b) the physical side 
providing obligations such as delivering  medici nes safely and effectively to the person who 
has ordered them or printing pharmaceutical advice in the language of the country of 
destination, etc. 
                                                 
173  Case C-322/01, Deutscher Apothekerverband  [2003] ECR I-14887. Recently confirmed in the decision in 
the Ker-Optika  judgment, Case C-108/09.  
174  Council of Europe Parliamentary Assembly Recommendation 1794 (2007), The quality of medicines in 
Europe ; available at: http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/erec1794.htm#1   
 
 62 
In line with the DocMorris  judgment of 2003, the recently adopted Falsified Medicines 
Directive175 lays down a number of conditions under which the Member States are obliged to 
allow the sale of OTC medicines online. W ithout prejudice to the provisions of the E-
Commerce Directive, the Directive provides,  for example, for additional information 
requirements and the creation of an obligator y "trust mark" ("comm on logo") for websites 
legally offering medicinal products on the Intern et. A "reciprocal link"  between the common 
logo and a national register of legally-operating online sellers176 will allow verification of 
authenticity. The Commission shall adopt an  implementing act establishing, amongst other 
things, the design of the co mmon logo. The new Directive also addresses information 
campaigns in order to raise consumer awar eness of the functioni ng of the common logo. 
 However, the Falsified Medicines Directive does  not harmonise the rules for the sale of the 
medicinal products at a distance to the public. Member States may therefore adopt further 
requirements under which medicines are sold over  the Internet, within the limits of the EU 
Treaty.   Following the the adoption of the Falsified Medicines Directive, the Commission is prioritising the implementation act on a "co mmon logo" for legally operating sellers. In 
addition, it will continue to analyse the risks re lated to the online sale s of medicines in the 
context of the transposition and the application of the Falsified Medicines Directive in the Member States.  Other EU initiatives also contribute to the rea lization of a safe and le gally secure Internal 
Market for online health services. For inst ance, the recently adopted Directive on the 
application of patients' right s in cross-border healthcare
177 establishes a Community framework 
for cross-border healthcare. Article 13 of the Di rective provides for the mutual recognition of 
prescriptions issued in another Member State. Article 14 foresees the creation of an eHealth 
network which should address topics where struct ured cooperation between Member States is 
needed.   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 Co mmunication will be complemented by a Staff 
                                                 
175  Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 amending Directive 
2001/83/EC on the Community code relating to medicinal products for human use, as regards the 
prevention of the entry into the legal supply chain of falsified medicinal products , OJ L 174, 1.7.2011, p. 74, 
available at: http://ec.europa.eu/health/files/eudralex/vol-1/dir_2011_62/dir_2011_62_en.pdf   
176  Directive 2011/62/EU refers to a "natural or legal person authorised or entitled to supply medicinal products 
to the public also at a distance in accordan ce with the legislation of the Member State". 
177  Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of 
patient's rights in cross-border healthcare , OJ L 88/45, 04.04.2011; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:088:0045:0065:EN:PDF   
178  Commission from the Commission to the European Par liament, the Council, the European Economic and 
Social Committee and the Committee of the Regions on telemedicine for the benefit of patients, healthcare 
systems and society , COM (2008)689 final, 4.11.2008, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0689:FIN:EN:PDF   
 
 63Working Paper on the applicabil ity of the existing EU legal framework to telemedicine 
services in the first half of 2012. Finally, th e Commission will adopt by the end of 2012 its 
second eHealth Action Plan (eHAP), which will consolidate the actions which have been addressed to date, take them a step further where possible and provide  a longer-term vision for 
eHealth in Europe. 
4.2 Information 
 
Once trust is achieved, sellers and buyers willing to go online still need to be able to advertise their offers, and to be able to obtain info rmation on the offer that is available. Where 
necessary in this contex t, price comparison we bsites, restrictions on  advertising, and unfair 
commercial practices should be tackled.  
4.2.1 Price comparison websites  
 
As outlined in the Staff Working Document "Bringing e-commerce benefits to consumers" accompanying the Communication on e-commerce, c onsumers are missing out from the full 
benefits of e-commerce, that is lower prices  and a wider choice, since many offers are not 
available across borders. In 2010,  just 9% of consumers bought a good or a service from an 
online business based in  another EU country.   
 Even in cases where it is possible to buy acros s borders, information on these offers is not 
readily available. In 2010, eight in ten onlin e shoppers used a price comparison website to 
research their purchases, yet as was shown in a recent Mystery Shopping study of price 
comparison websites, only a low proportion of price comparison websites (17%) give 
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 language
179. As a result, 
consumers often do not find out about cross-border offers.  The performance of the tested  price comparison websites was sub-standard in many aspects 
when it came to the provision of information. Only one in two price comparison websites 
provided the full details of their business address. The situation with online retailers was somewhat better, with 67% of tested reta ilers providing a full business address.  
 In 60% of tested price comparison websites, it was not clear whether retailers had to pay to 
have their products listed and most price compar ison websites did not disp lay the correct final 
price. Information provision on added costs was rather poor. Just 19 % of price comparison 
websites showed prices includi ng VAT and other taxes, and delivery charges. Another 
worrying finding was that in more than half of trials, the cheapest price was not the first price displayed.  It is also disappointing that many online sellers a pparently do not even kn ow where to turn to 
find out more information about selling cross- border: only 29% of re tailers knew where to 
look for information or advice about consumer legislation in force in  other EU countries. 
Moreover, 73% of distance sellers were unaware  of the exact length of the "cooling-off" 
                                                
 
179  Data from the mystery shopping exercise taken from Civic Consulting. Consumer market study on the 
functioning of e-commerce , 2011, available at: 
http://ec.europa.eu/consumers/consumer_resear ch/market_studies/e_commerce_study_en.htm  
 
 64period for distance sales in their own country180. A Mystery Shopping exer cise tested whether 
retailers provide information on the rights of consumers in case they receive a faulty product. 
Disturbingly, only 37% of cases provided info rmation on the right of consumers to have a 
faulty good repaired or replaced or to obtain a refund within two years after purchasing the 
goods. A positive finding was that four out of fi ve (82%) tested retailers provided information 
concerning the consumer right to return a good without giving a reason within a minimum of 
seven days after the purchase.181   
 Commission services will work closely with pr oduct testing and other organisations providing 
information on product quality comparisons/price/best value for money in order to make 
results available and comparable across the EU. 
4.2.2 Restrictions on advertising  
 
One of the main drivers of online services ac ross Europe is advertising. Virtually all online 
businesses reach clients through advertising or other forms of commer cial communications. 
Many small and emerging companies depend on onlin e advertising to facilitate their market 
entry and build competitive and successful busine sses. Effective online advertising helps to 
maintain low barriers to market entry, pa rticularly in a cross-border context.  
 Different tools for approaching online customers ex ist. The classical way is for the traders or 
service providers to create their own website in  the hope that clients will find their business 
and make a direct order online through thei r website. Second, online businesses such as 
newspapers, video sharing site s, and commercial blogs offer content and services to 
consumers for free, earning revenue by selling a dvertising 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) se rvices directly to consumers.   
 In all those business models, th e use of search engines has become widespread. Customers 
rely increasingly on search engines to find thei r 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 whic h account for 50% of 
newspaper revenues in the printed environmen t 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 protecti on of a general interest. These 
restrictions are often based on EU legisl ation and apply both in offline and online 
                                                
 
180  European Commission, Flash Eurobarometer 300: Retailers' attitudes toward cross-border trade and 
consumer protection . March 2011, available at: http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf . The 
"cooling-off" period is the period after the purchase during which a consumer has the legal right to return a product purchased on the internet, by phone or post without paying a penalty. This "cooling-off" period 
ranges from 7 to 15 calendar days depending on the country where the pr oduct is sold. The recently adopted 
Consumer Rights Directive  fully harmonizes the "cooling-off" period to 14 days (see Chapter 4.4.1). 
181 ECC-Net, Online Cross-border Mystery Shopping – State of the e-Union , October 2011 
http://ec.europa.eu/consumers/ecc/doc s/mystery_shopping_report_en.pdf  
 
 65situations.182 But the public consultation and Commissi on research make clear that other 
advertising restrictions are more specific an d may be more difficult  to justify under the 
fundamental freedoms of the TFEU. Some Memb er States still ban the sale of certain 
products online183 or apply different conditions for online and offline marketing. National 
rules restricting the periods of  sales for "brick and mortar" shops may also be applied to 
online traders established in other Member Stat es. Regulated professions still face restrictions 
when developing online commercial communications . In this context, Article 24 (1) of the 
Services Directive requires Member States to rem ove total bans in so far as such bans concern 
a particular form of advertising su ch as advertising over the Internet.184 It has also been 
reported that contractual prohibitions (e.g. on data portability) complicate multi-platform 
advertising campaigns. Finally, th e application of data and priv acy protection rules on cookies 
and behavioural targeting has sometimes been pe rceived as excessive by internet companies. 
 The Commission services will continue to mo nitor and analyse the national regulatory and 
contractual developments in the Member States  and the EU with a view to assessing their 
compatibility with the Internal Ma rket freedoms and other EU acquis. 
4.2.3 Unfair commercial practices  
 
The Unfair Commercial Pr actices (UCD) Directive185 lays down harmonised rules for the 
fight against unfair commercial practices and contributes to a high level of consumer 
protection. It ensures th at consumers are not misled or e xposed to aggressive marketing and 
that any claim made by traders in the EU is clear, accurate and substantiated, enabling 
consumers to make informed and meaningful choices. The Directive also aims to ensure, 
promote and protect fair competition in  the area of commercial practices. 
 Based on full harmonisation, it has four key elements: 
• A general clause : a far-reaching general clause defining practices which are unfair and 
therefore prohibited. 
• Misleading practices (actions and omissions) and aggressive practices : the two main 
categories of unfair commercial practices − are defined in detail.  
                                                
 
182  For example, Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the 
coordination of certain provisions laid down by law, regulation or administrative action in Member States 
concerning the provision of audiovisual media services  (‘Audiovisual Media Services Directive’ ), OJ 
15.4.2010, L 95/1,  imposes advertising bans and restrictions for tobacco products, medicines on 
prescription, and alcohol advertising. 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 environmen t; 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 co mmercial communications rules of the Audiovisual Media Services 
Directive  also apply to new services such  as the online social networks. 
183  See recently for example the Ker-Optika  judgment, Case C-108/09. 
184  See Case C-119/09, Société fiduciare nationale d'expertise comptable  v Ministre du Budget, des Comptes 
publics et de la Fonction publique,  judgments of 05.04.2011; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:62009J0119:EN:HTML  
185  Unfair Commercial Practices Directive , OJ L 149/22, 11.06.2005. 
 
 66• Safeguards for vulnerable consumers : the Directive contains provisions that aim at 
preventing exploitation of  vulnerable consumers. 
• Black list : an extensive black list of practices which are banned in all circumstances. 
 
The UCP Directive applies to commercial practi ces both in offline and online situations. The 
Directive is thus a crucial instrument for guaranteeing that any commercial information available on websites is fair and that it does not  confuse consumers. In order to ensure that 
both consumers and traders are subject to the same rules across the EU, it is necessary for 
national authorities and courts to contribute to the uniform implementation and consistent 
enforcement of the Directive. In recent years the Commission has undertaken certain 
initiatives to promote the knowledge of the UCP and to achieve a unifor m transposition in the 
Member States:  
• the web page www.isitfair.eu  
contains practical informa tion for consumers on how to 
check if they have fallen victim to an unfai r commercial practice, and how to get help; 
• in 2009 the Commission published online the Digital Guide for Consumers which 
clarifies the application of th e Directive on online practices;  
• joint surveillance actions ("sweeps") have  been carried out on the basis of UCP 
provisions (websites selling airlines tickets, online mob ile phone services, websites 
selling consumer electronic goods); 
• on 3 December 2009 the Commission published de tailed guidelines aiming to provide 
guidance on those key concepts  and provisions of the Direc tive which are perceived to 
be problematic. It includes practical exam ples showing how the Directive works. The 
guidelines must evolve in response to the i nput received from na tional enforcers, the 
emergence of new practices or additional que stions and the development of European 
and national case law;  
• to support the Member States in achie ving a uniform application and common 
understanding of the Directive, the Commi ssion has developed a legal database which 
will make it possible to compare decisions and national case law of the Member States. The database is a comprehensive and user-friendly tool  which gathers and 
gives public access to national laws transposing the Directive, jurisprudence, administrative decisions, references to related legal literature and other relevant materials. 
 
In spring 2012 the Commission will publish a report on the application of the Unfair 
Commercial Practices Directive. The report will identify areas for possible future revision of 
the Directive and provide an overview of its appli cation in the fields of financial services and 
immovable property. Among the many issues which may be examined in the report are the 
rules on sales promotions, misleading environm ental claims, price information and price 
comparisons.   Simultaneously, in the context of the fight against unfair commercial practices the 
Commission will also evaluate the appli cation of the Directive on Misleading and 
Comparative Advertising whic h covers B2B relationships.
186 More details will be made 
                                                 
186  Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning 
misleading and comparative advertising , OL 375/21, 27.12.2006, available at: http://eur-
lex.europa.eu/smartapi/cgi/sga_doc?smartapi! celexplus!prod!CELEXnumdoc&lg=EN&numdoc=32006L01
14  
 
 67available in the Consumer Action Plan 2014-202 0 which the Commission will make public in 
2012. 
4.2.4 Code of EU Online Rights 
 
The Digital Agenda announced th e issuing by the Commission of a Code of EU Online Rights 
which should summarize existing digital user ri ghts in the EU in a clear and accessible way 
way to inspire trust and confidence among user s 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 di gital rights and obligations provided for by EU 
law in the form of frequently  asked questions and answers.
187 The Code is expected to be 
completed in 2012. 
4.2.5 Business awareness  
 
There is also a serious lack of knowle dge among traders concerning e-commerce and 
consumer rights, in particular in cross-border situations. For example, only 29% of retailers 
know where to look for information or advice about  consumer legislation in force in other EU 
countries, and 72% of distant sellers do not ev en know the exact length of the "cooling-off" 
period for distance sales in their own country.188 As a result, many businesses find it too 
daunting to begin selling online or to take the next step and start selling cross-border.  
 The Commission will contribute to a more pr oactive policy by using its existing networks 
such as the European Enterprise Network and/ or the European Consumer Centres Network, to 
provide information to (potential) online trad ers about their obligations when selling cross-
border and also to create more awareness about  the opportunities offered by selling in other 
EU countries and taking advantage of th e potential of the Internal Market.  
4.3 Access 
 
Both consumers and businesses face legal and pract ical obstacles when they seek to operate 
online. These barriers include discrimination on th e basis of country of residence; difficulties 
in obtaining capital; problems registering domain names or getting internet access; territorial 
restrictions on intellectual prope rty rights; and grey markets. 
4.3.1  Discrimination: Article 20 (2) of the Services Directive 
 
There is a growing tendency for bus inesses to use the Internet to foster the sales of their goods 
and services by exploiting the gl obal availability of their we bsites. However, most online 
traders still serve a very li mited number of Member Stat es. Online buyers are regularly 
confronted with refusals of online web shops to  deliver if they are not residing in the same 
Member State, undermining the consumers' conf idence in the digital Internal Market. The 
most frequent cases concern web shops that either  refuse to sell items or services to residents 
                                                 
187  http://ec.europa.eu/information_society/eyouguide/navigation/index_en.htm   
188 European Commission, Flash Eurobarometer 300: Retailers' attitudes toward cross-border trade and 
consumer protection . March 2011, available at: http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf . 
 
 68of certain Member States, or sell identical items or services at a (much) higher price due to the 
consumer's country of residen ce. It is not unusua l that websites automatically route the 
consumer to another website which corresponds to their country of residence, enabling the 
web shop to maintain different price polic ies based on national borders. Consumer 
transactions may also fail at the stage of revea ling credit card details due to the address of the 
owner. Complaints received by the Commission and the European Consumer Centres indicate 
that such practices exist for a wide range of services such as the sa le of electronic goods, 
textiles, bikes, DIY goods, music downloads, rental cars, mobile phone contracts etc.  
 
Article 20 (2) of the Services Directive189 prohibits discrimination on grounds of nationality 
or residence in B2C and B2B relationships. It ob liges Member States to ensure that general 
conditions of access to a service which is availabl e to the public at large by a service provider 
do not contain discriminatory provisions based on nationality or the place of residence of 
recipients. This does not exclude that service pr oviders offer different ta riffs, prices and other 
conditions where those differe nces are directly justified by objective criteria.  
 In accordance with Article 20(2) of the Services Directive, Member States have an obligation 
to ensure that the above-mentioned non-discri mination principle is implemented in their 
national legal orders. Further to this impl ementation, it is for the competent national 
authorities to ensure that general conditions of  access to a service made available to the public 
by online traders falling under the scope of the Services Direc tive comply with the national 
provisions implementing Article 20(2)  of the Services Directive. 
 The application of these nati onal provisions will require a ca se-by-case assessment of the 
possible "objective reasons" for th e different treatment. Recital 95 of the Services Directive 
gives examples of such objective circumstances. Additional costs may be justified because of 
the distance involved or the technical character istics of the provision of  a service; different 
market conditions such as a higher or lower demand influenced by seasonal factors; pricing 
by different competitors, or extra risks linked to having to comply with rules different to those 
of the Member State of establishment. For exam ple, delivery costs of physically heavy items 
such as television sets or di fferences in VAT could objective ly justify higher prices. The 
provision of a service may also be refused becau se of the lack of a required intellectual 
property right in a particular territory. In a ddition, online service prov iders have invoked as 
objective justifications for different treatment th e perceived insecurity of  transactions and the 
higher risk of fraud and non-payments in cros s-border transactions, and the difficulty of 
resolving cross-border disputes which is aggravated by the persistent complexity of cross-
border legal arrangements.   Member States had to implement the Services Directive into their national legal orders by 28 
December 2009. According to the information held by the Commission, a majority of 
Member States have implemented Article 20 (2 ) of the Services Directive through a provision 
in the horizontal law transposing the Services Directive.   The Commission has received numerous complain ts 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 fe w cases of administrative application of the 
                                                
 
189  Directive 2006/123/EC of th e European Parliament and of the Council of 12 December 2006 on services in 
the internal market , OJ L 376/36, 27.12.2006; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF   
 
 69national provisions implementing Article 20 (2) of the Services Dire ctive and as yet no 
instances of judicial application in any Member State190.  
 The Commission is currently assessing the completeness and correctness of the implementation of Article 20 (2) of the Servic es 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 Directiv e (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 invest ors and banks shy away from financing firms in 
their start-up and early expansion stages. Second, many SMEs lack awareness of the 
advantages and disadvantages of different form s of finance and knowledge of how  best to 
present their investment projects. Third, SMEs tend to have a weak e quity position, partially 
due to the late payment culture in Europe. 
 SMEs providing online services face an addition al hurdle in accessing finance. As a rule, they 
have few tangible assets and therefore have di fficulties in getting acce ss to traditional bank 
finance. Innovative SMEs therefore often seek access to capital markets beyond bank 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.  On 7 December 2011, the Commission adopted an  action plan on access to finance for 
SMEs.
191 The action plan includes measures to faci litate the cross-border provision of venture 
capital services in view of the existing multitude of national regulatory regimes and tax barriers. 
4.3.3 Domain names 
 
For many online services, obtaining a national t op level domain name (TLD) is a major asset 
for reasons of trust and reputa tion. Globally operati ng internet companies therefore usually 
choose to have their country specific sites w ith a TLD of the country  in question. Businesses 
that register under a local domain name will ve ry often also be ranked higher when their 
customers are using search tools. Howeve r, the Commission services have received 
complaints from companies frustrated in th eir 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. While this may be an important 
element in building trust and reputation it ma y also create a barrier to the cross-border 
                                                 
190 Case nr. 10/04928, http://www.forbrugerombudsmanden.dk/Sager-og-praksis/Lov-om-tjenesteydelser/Sager-
efter-lov-om-tjenesteydelser/Lov-om- tjenesteydelser-i-det-indre-marked  
191 See http://europa.eu/rapid/pressReleases Action.do?reference=MEMO/11/879   
 
 70provision of online services, es pecially in cases where SMEs are trying to penetrate cross-
border markets and expand their ac tivities beyond national borders. 
 National domain names as such are not regulated  at EU level. However, requiring a local 
presence for the registration of a TLD could be a restriction to the freedom  to provide services 
(Art. 56 TFEU) and might also be in breach of the E-Commerce Directive (Article 3 (2), 
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 which the Internet should be neutral, open and 
easily accessible. This principl e is not always compatible with the practice of "traffic 
management" generally used by internet prov iders. A recent Commission consultation on net 
neutrality and the open Internet192, shows a consensus of opinion on the necessity of having a 
certain degree of traffic management: on the one  hand, techniques like packet differentiation 
and IP routing guarantee a minimum quality to  end-users for services that require a 
differentiated network speed (such as videocon ferencing), while, on the other hand, a certain 
degree of filtering is necessary to block harmful traffic such as cyber attacks and viruses. 
 Traffic management can, however, also be misuse d by internet providers to prevent access to 
information society services, in particular when  they are competing with the services of the 
internet provider (such as te lephony 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 Europe
193 reports 
several instances of blocking of legal services (in particular of Voic e-over-Internet-Protocol 
services by mobile internet providers), but stre sses that more exhaustive evidence is needed 
before policy conclusions can be drawn at  the European level. The Communication 
furthermore recalls that the Co mmission reserves its right to assess under Articles 101 and 
102 TFEU any behaviour related to traffic ma nagement that may restrict or distort 
competition. In the first half of 2012, th e Commission will publish evidence from 
investigations by the Body of European Regul ators for Electronic Communications (BEREC). 
On that basis it will decide whet her, in addition to measures th at should increas e transparency 
and facilitate switching, specific guida nce on net neutrality is necessary.194 In the meantime, 
more stringent measures to ensure competition and access to certain online services are not excluded. 
                                                
 
192  See: 
http://ec.europa.eu/information_society/policy/ecomm/library/public_consult/net_neutrality/index_en.htm   
193  Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Commi ttee of Regions, The open internet and net neutrality in Europe , COM(2011)222 
final, 19.4.2011; available at: 
http://ec.europa.eu/information_society/policy/ecomm/ doc/library/communications_reports/netneutrality/co
mm-19042011.pdf  
194  In The Netherlands a draft law is discussed that  should guarantee net neutrality, Kamerstuk, 32549/17, 
available at: https://zoek.officielebekendmakingen.nl/dossier/32549/kst-32549-17  
 
 71 
The Commission will in 2012 publish the evidence that will come to light from BEREC's 
work on net neutrality. On that basis, the Comm ission will assess the need for more stringent 
measures to achieve competition and the choice consumers deserve. 
4.3.5 Intellectual property rights  
 
The development of the Internet has meant the bi rth of a trade in goods and services that have 
a distinct characteristic – independence from any physical medium. Music, films and books 
can be downloaded or viewed remotely without th e need to visit shops or have them delivered 
to one's home. Equally, cultural and sporting even ts can be viewed on the Internet without 
having to go to a theatre or sports venue.   Historically, music was the first digital content available on the Intern et. Thanks to further 
technological development includi ng the growth of broadband ne tworks, videos were able to 
"travel" on the network. Today, with the availabi lity of adequate computer support for reading 
text, books have become services which can be  downloaded on to digital readers. Businesses 
have developed new business models to prom ote transactions in online digital goods.  
 
Although this new form of trade creates huge e xpectations on the part of consumers, the 
online content-related (legal) services are norma lly 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 fo r consumers to use them across borders. It is 
undisputed that Europe remains to a very great extent a patc hwork of national online markets 
and that there are a number of regulator y and non-regulatory reasons for this.  
 The principle of territoriality that applies to copyright as well as re lated licensing practices 
that often necessitate obtaining  obtain separate licences for a ll the countries covered are two 
of the main obstacles to cross-border trad e. These two issues were identified by many 
respondents to the public consultation. Several respondents called for further harmonisation of 
intellectual property rules. Other than the diffi culties linked to licences and legal uncertainty 
of the current intellectual property system, mark et players are also confronted with sometimes 
conflicting claims, from different  claimants, over ownership of goods or rights for which they 
hold a licence. In addition, complaints have  been made about the practical difficulties 
businesses face when they wish to provide cr oss-border digital conten t services which are 
copyright-protected, resulting in their needing toenter into licence agreements outside their 
home country. Copyright holders usually strongly defend the trad itional territoriality system 
of rights and licences.   The fact that copy right protection is based on territoriality should not be seen as leading 
automatically to territorial licensing. It is neve rtheless the case that right holders and, equally 
importantly, online service providers adapt wo rks according to the linguistic and cultural 
tastes of each country in an  attempt to maximise economic returns e.g. film distributors' 
staggered release windows.
195 In the absence of a European public domain, a common 
                                                 
195 Territorial licensing practices were also the subject of a recent case befo re the European Court of Justice. 
The Premier League case concerns the restricti on of access by means of conditional access technology 
(decoder cards) to sports broadcasts which are transm itted via satellite in various Member States. Premier 
League brought actions against a number of UK pubs using non-UK pay-TV subscriptions to show live Premier League matches. The Court held that national legislation protecting sporting events is capable of 
justifying a restriction to the free movement of services (Article 56 TFEU ). However, where a premium is 
 
 72language, and common cultural preferences (hum our, taste, decency, etc) the production and 
consumption of cultural products still remains overwhelmingly national.196   
 Intellectual property right holders  also raised the issue of c ounterfeiting and piracy as an 
obstacle to e-commerce. Piracy deprives creato rs from a fair reward whereas counterfeiting 
distorts the Single Market because of the unf air competition between businesses. One of the 
crucial means of combating piracy is the develo pment of legal offers by providers. In parallel, 
the development of cross-border trade should al so help increase the income of authors by 
attracting potential customers from all Member States. 
 
On 24 May 2011 the Commission published a Comm unication with the ai m of boosting the 
Single Market for Intelle ctual Property Rights.
197 The new Intellectual Property Strategy 
announces a number of EU initiatives:  
1. The Commission will present a legislative proposal to simplify the collective 
management of copyright  in the EU. Collecting societies licence the rights of 
creators and collect and distribute their r oyalties. The Commission's focus will be two-
fold. The first initiative will be the esta blishment of common rules for collecting 
societies in order to enhance the governan ce and transparency of all collectively-
managed revenue streams. Clearer rule s on the governance and transparency of 
collecting societies will create a level pl aying field amongst right  holders, commercial 
users and collecting societies. Second, the creation of a clear and well-functioning 
legal framework for the multi-territorial licen sing of musical works for online services 
will encourage the uptake of new business m odels that provide online services to 
European consumers. 
 2. In order to promote the dissemination of Eur ope's intellectual and cultural heritage, the 
Commission tabled  on 24 May 2011 a legislative proposal  to facilitate the 
                                                                                                                                                        
 
paid by the television stations in order to ensure them absolute territorial exclusivity, this goes beyond what 
is necessary to ensure the right-holders appropriate remuneration, because such a practice may result in 
artificial price differences between the partitioned nationa l markets. Such partitioning  and such an artificial 
price difference are irreconcilable  with the fundamental aim of the Treaty, which is completion of the 
Internal Market. Provisions on freedom to provide services impose obligations on the Member States but do 
not prohibit market players, such as FAPL, from impos ing territorial restrictions in commercial agreements. 
The Court confirmed that the clauses of an exclus ive licence agreement concl uded between a holder of 
intellectual property rights and a broadcaster constitu te a restriction on competition prohibited by Article 
101 TFEU where they oblige the broa dcaster not to supply decoding de vices enabling access to that right-
holder’s protected subject-matter with  a view to their use outside the territory covered by that licence 
agreement (See: Case C-430/08, Football Association Premier League Ltd v QC Leisure  and C-429/08, 
Karen Murphy v Media Protection Services Limited , judgment of 4 October 2011, available at 
http://curia.europa.eu/juris/ recherche.jsf?language=en ).  
196 One of the reasons adduced to explain this shortage is the fact that certain (natio nal) markets are far too na 
row or even inexistent, meaning investments are not made. Cross-border acce ss to cultural goods and 
services, however, helps European c itizens to better know and understand each other's cultures, to appreciate 
the richness of cultural diversity and to see for themselves what they have in common. 
197  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions, A Single Market for Intellectual Property Rights. 
Boosting creativity and innovation to provide economic gr owth, 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   
 
 73digitisation and making available of "orphan works".198 Orphan works are works 
such as books, newspapers or films that are still protected by copyright but whose 
copyright holders are not known or cannot be traced. Therefore, the right holders 
cannot be contacted to give their permission fo r libraries and archives  to digitise their 
works and make them available online. The lack of a common EU framework on 
orphan works is a particular obstacle to the development of European large-scale 
digital libraries. As part of its efforts to wards the creation of digital libraries, the 
Commission brokered a Memora ndum of Understanding with Key Principles between 
authors, publishers, libraries and co llecting societies to enable online access to out-of-
commerce books through licensing models . The agreement was signed on 20 
September 2011. Out-of-commerce books are bo oks that are in-copyright but that are 
no longer in customary channels of commerce.  They differ from orphan works in that 
their right holders (authors  and publishers) are known.199 
 3. The proper functioning of the Internal Mark et requires the development of a durable 
approach to private copying levies. Rem uneration for private copying of copyright-
protected works is collected in the form of  levies on recordi ng media or recording 
equipment (photocopiers, printers, Mp3 pl ayers, CDs and DVDs etc.). However, 
different rules and tariffs a pply across Member States. Th is impedes the smooth cross-
border flow of goods that ar e subject to levies. The Co mmission has appointed a high-
level mediator, M. Antonio VITORINO, tasked with resolving differences amongst relevant stakeholders and finding workable so lutions to resolve out standing issues that 
should lay the ground for comprehensive legi slative action at EU level by 2012. The 
issues that will be looked  at specifically are the methodology used to impose set 
tariffs, the equipment which should be subj ect to levies, and ways to improve the 
cross-border functioning of di sparate national levy systems.
200 
 4. In the audiovisual sector, the Commissi on launched a public consultation on the 
online distribution of  audiovisual works  on 13 July 2011 which was open until 18 
November 2011.
201 On the basis of the results of the public consultation, the 
Commission will determine whether any follow-up action needs to be taken in order to overcome Digital Single Market barriers and stimulate the European audiovisual 
sector as regards issues such as video- on-demand (VoD) services and cross-border 
broadcast services (2012). 
                                                
 
198  Proposal for a Directiv e of the European Parlia ment and of the Council on certain permitted uses of orphan 
works , COM(2011) 289 final, 24.05.2011, available at: 
http://ec.europa.eu/internal_market/copyright/docs/orphan-works/proposal_en.pdf   
199 See for more details European Commission, Memorandum of Understanding:  Key Principles on the 
Digitisation and Making Available of Out-of-Commerce Works , 20.09.2011, available at: 
http://ec.europa.eu/internal_market/copyright/c opyright-infso/copyright-infso_en.htm#mou .  
200  On 23 November 2011, Mr. António Vitorino, former European Commissioner for Justice and Home 
Affairs, was appointed to take up the mission of mediator to lead the process of stakeholder dialogue on 
private copying levies. Mr. Vitorino's task will be to moderate stakeholder discussions with the objective of 
exploring possible approaches to harmonisation of both the methodology used to impose levies and the 
systems of administration of levies. It is planned that the discussions will commence in the beginning of 
2012 and will be completed before the summer of 2012. See statement by Commissioner Barnier available at: http://ec.europa.eu/commission_2010-2014/barnier/docs/speeches/20111123/statement_en.pdf
.  
201  See http://ec.europa.eu/internal_market/consultations/2011/audiovisual_en.htm .  
 
 74 
5. As part of its long-term strategy on copyright, the Commission will assess the 
feasibility of creating a European Copyright Code. A future Code could envisage a 
comprehensive codification of the EU copyri ght Directives and provide an opportunity 
to examine the feasibility of an optional "unitary" copyright title to provide right 
holders with the flexibility to choose whet her to license and en force their copyrights 
nationally or on a multi-territory basis. Given its far-reaching implications, the 
creation of a European Copyright Code  requires further study and analysis.202  
 
6. Furthermore, the Commission will pursue its efforts exploring to what extent the sale 
of counterfeit goods over the Internet can  be reduced through voluntary measures, 
involving the stakeholders most concer ned by this phenomenon (right holders and 
internet platforms). In this context, a Memorandum of Understanding  was signed by 
major internet platforms a nd right holders on 4 May 2011.203 Over the coming twelve 
months, these stakeholders will review and measure progress under the auspices of the 
Commission services. The Co mmission is also working on a review of the IPR 
Enforcement Directive 2004/48/EC,204 inter alia  identifying ways to create a 
framework allowing more effective combating of IPR infringements  via the Internet.  
 7. Journalists are authors and thei r work is crucial in Europe's pluralistic and democratic 
society. Protecting author's right s for journalists and ensuring  that they maintain a say 
over how their works are exploited is central  to maintaining independent, high-quality 
and professional journalism. Publishers play  an important role in disseminating the 
work of writers, journalists, researchers, scientists, photographers  and other creators. 
The Commission believes it important to sa feguard the rights that journalists and 
publishers have over the use of their works on th e Internet, in particular in view of the 
rise of news aggregation services . Commission services will continue to examine 
these issues in the light of new legal and technical developments.  
4.3.6 Grey markets 
 
In its application report on the implementation of Directive 98/84/EC (on the protection of 
conditional access services)205, the Commission noted that European  citizens are restricted in 
their cross-border access to audiovisual servi ces whether this be on demand, Internet or 
satellite. The inadequacy of ru les governing the provision of digital cultural goods, including 
across borders, an area of im portance given increasing mobility of European citizens in the 
                                                 
202  The Commission will examine these issues in a report on the application of Directive 2001/29/EC of 22 
May 2011 on the harmonization of certain aspects of copyright and related rights in the information society , 
OJ L 167, 22.6.2001, p.10. The report will be published in 2012.  
203  See: http://ec.europa.eu/internal_market/ip renforcement/stakeholders_dialogues_en.htm  
204  Directive 2004/48/EC of th e European Parliament and of the Council of 29 April 2004 on the enforcement 
of intellectual property rights , OJ L 195/16, 2.6.2004, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:195:0016:0025:en:PDF   
205  Report from the Commission to the European Parliament, the Council, the Economic and Social Committee 
and the Committee of Regions, Second report on the implementation of Directive 98/84/EC of the European 
Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access , COM(2008) 593 final, 30.09.2008; available at: 
http://ec.europa.eu/dgs/internal_market/docs/evaluation/2008cad_eval_en.pdf
  
 
 75EU, has contributed to the emergence of "g rey markets". "Grey ma rkets" develop when 
subscribers to pay-TV are prevented from viewi ng outside national territo ries due to a system 
of contracts with territorial limitations. Many citizens living abroad view their pay channels from their place of expatriation. These subscrip tions are usually obtained through an address 
of convenience in the country of the service provider, of ten the country of origin of the expat. 
The grey market is well known but  has never been quantified. 
 In its judgment Premier League
206 of 4 October 2011, the European  Court of Justice ruled that 
the import, sale and use of pay-TV subscripti ons from outside the national territory fall under 
the Internal Market freedoms. It held that the practice of holders of intellectual property rights 
to forbid broadcasters from supplying cross-bo rder services in order to protect exclusive 
licence agreements are anticompetitive and unjustified within the EU.  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 Re-use of public information 
 
Public information can be defined as all the information that public bodies in EU produce, 
collect or pay for. Examples are geographical  information, statistics, weather data, public 
transport data, data from publicly  funded research proj ects, and digitised b ooks from libraries. 
This information has an enormously – and cu rrently untapped – potentia l for re-use in new 
products and services and for efficiency gains in administrations. Overall economic gains 
from opening up this resource could amount to € 40 billion a year in the EU.  
 Directive 2003/98/EC of the Parliament and of  the Council on the re-use  of public sector 
information (the PSI Directive)
207 was adopted on 17 November 2003. The PSI Directive 
harmonised the basic conditions of re-use across the EU and removed major barriers to re-use 
in the Internal Market.   Despite a minimum harmonisation in 2003 and although some progress has been achieved, 
significant differences in national rules (e.g. li censing and pricing conditions) and practices 
still exist. This results in fragmentation in the internal information market for PSI based 
products and services. Another key barrier is the lack of awaren ess of public organisations of 
the potential of open data. Moreover, there are pr actical and technical is sues holding back the 
development of a true public data re-use market. In particular, lack of interoperability between 
the information resources from different organi sations and countries, an d the non-availability 
of the information in a machine-readable format make it impossible to reap maximum benefits from the new opportuni ties that the data offer. In  addition, more support than 
available now is needed for R&D and innovation  on data analysis and visualisation tools. 
 
                                                
 
206  Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd v QC Leisure  and Karen 
Murphy v Media Protection Services Limited , judgment of 4 October 2011, available at 
http://curia.europa.eu/juris/ recherche.jsf?language=en   
207  Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of 
public sector information , OJ L 345/90, 31.12.2003, available at: 
http://ec.europa.eu/information_society/policy/ psi/docs/pdfs/directive/psi_directive_en.pdf   
 
 76These considerations have led the Commission to revise and strengthen its public data 
strategy by inter alia  targeting both the legal framewor k for re-use and available support 
tools.  The Commission's revised strategy has three complementary strands:  
• Adapting the framework in favour of data re -use, including legal, soft law and policy 
measures; 
• Mobilising financing instruments by pr ioritising open data in R&D&I and 
infrastructure programmes; 
• Facilitating coordination and experien ce-sharing between Member States. 
 
On 12 December 2011, the Commission adopted the strategy in a Communication to the 
European Parliament and to the Council. Th e Communication is acco mpanied by a proposal 
for modifying the PSI Directive (the main elemen t of the legal framework for re-use), notably 
its scope and principles on charging for access and use, and the revised Commission's decision on the re-use of information.
208 
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 cl osely 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 invo lving the iPhone. Apple had made wa rranty repair serv ices available 
only in the country where the iPhone was bought, thereby potentially part itioning the Internal 
Market. Moreover Apple had restri cted the terms and conditions of its licence agreement with 
independent developers of app lications requiring the use of Apple's native programming tools 
and approved software languages to the detrimen t of third-party software. In September 2010, 
following a change of policy by Apple, the deci sion was taken to close both investigations.
210 
 Similarly, on 20 November 2010 the Commissi on started investigations into Google 
following allegations of abuse of market domi nance in the areas of  online search, online 
advertising and online advertising intermediation.
211  
                                                 
208  See for details http://ec.europa.eu/information_society/policy/psi/index_en.htm   
209   Mainly the prohibition of cartels (Article 101 TFEU ), the prohibition of abuse of a dominant position 
(Article 102 TFEU ) and the regulation of mergers and acquisitions (based on Regulation 139/2004) 
210  See Press Release, Antitrust : Statement on Apple’s iPhone policy changes , IP/10/1175, 25.09.2010, 
available at : 
http://europa.eu/rapid/pressReleasesAction.do?refer ence=IP/10/1175&format=HTML&aged=0&language=
EN&guiLanguage=en   
211  See Press Release, Antitrust: Commission probes allegatio ns of antitrust violations by Google , IP/10/1624, 
30.1..2010, available at: 
 
 77 
On 6 December 2011 the Commission also announ ced that it had opened formal antitrust 
proceedings to investigate whether internationa l publishers have, possibly with the help of 
Apple, engaged in anti-competitive practices aff ecting the sale of e-books in the European 
Economic Area, in breach of Article 101 TFEU.212 
 In the field of mergers and acquisitions, on 21 January 2010 the Commission agreed to the 
planned acquisition of Sun Microsystems by Oracle.
213 The acquisition raised the issue of the 
competitive effect of open source software products. 
 
Interoperability of standards is also crucial for guaranteeing access to the Internal Market. 
Against this background, on 14 December 2010 the Commission adopted its guidelines on 
cooperation agreements.214 These provide that the standard-setting process should be 
transparent and accessible to all interested ma rket players. Moreover, IPR right holders are 
encouraged to commit to license on fair, r easonable and non-discri minatory terms (FRAND 
commitment) to ensure the acces sibility of standards. This should considerably drive down 
the cost of innovation.  Stakeholders in the resp onses to the public cons ultation on the future of electronic commerce 
in the Internal Market and the implementatio n of the ECD also raised the issue of the 
provision of online press services being alle gedly hampered by conditions set by certain 
"application platforms". For instance, a major application store woul d require from online 
press providers that their appli cations include an option to c onclude commercial transactions 
within  the application (instead of providing a link to a we bsite where the commercial 
transaction is concluded), in which case the ap plication platform would receive 30 % of the 
transaction value.   
4.3.8.2  Vertical distribution agreements 
 
Competition rules on vertical restraints have  been crucial in removing the unjustified 
restrictions on e-commerce contained in distribution agreemen ts by prohibiting 
anticompetitive restrictions to cross-border internet marketing and sales.
215 However, certain 
                                                                                                                                                         
http://europa.eu/rapid/pressReleasesAction.do?refer ence=IP/10/1624&format=HTML&aged=0&language=
EN&guiLanguage=en   
212  See Press Release,  Antitrust: Commission opens formal proceedings to investigate sales of e-books, 
http://europa.eu/rapid/pressReleas esAction.do?reference=IP/11/1509   
213  See announcement of this decision on DG Competition’s web-page: 
http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_5529   
214   European Commission, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the 
European Union to horizontal co-operation agreements , OJ  C11, 14.1.11, available at: 
http://europa.eu/legislation_summaries/competition/firms/l26062_en.htm   
215  For instance, the Commission has on several occasions ( Yves Saint Laurent , 2001; B&W Loudspeakers , 
2002) approved selective distribution networks on the condition that the company removed clauses 
prohibiting authorised distributors fr om selling over the Internet. See al so the recent judgement of the ECJ 
in a case on the question whether an absolute refusal of  a cosmetic and personal care company to allow its 
French distributors to sell its products on the Internet is compatible with the (now) Article 101 TFEU  and 
the Block Exemption Regulation of 1999: Case C-439/09, Pierre Fabre Dermo-Cosmétique SAS  v Président 
de l'Autorité de la Concurrence and Ministere de l'Economie, de l'Industrie et de l'Emploi . In its judgment 
of 13 October 2011 (available at: http://curia.europa.eu/juris/recherche.jsf?language=en ), the ECJ 
 
 78stakeholders responding to the public cons ultations expressed th eir concerns about 
manufacturers imposing "brick an d mortar" requirements on thei r distributors when engaging 
in online sales. This, it is argued, hinders the development of a free digital Internal Market. 
 The new Commission Regulation on the application of Article 101 (3) TFEU to categories of 
vertical agreements and concerted practice,
216 and the accompanying new Commission 
Guidelines on Vertical Restraints217 entered into force on 1 June 2010. The new Block 
Exemption Regulation sets out the principles for the assessment of vertical distribution 
agreements under Article 101 TFEU.  
 
In general, distribution agreements are prohibited if they contain "hardcor e restrictions", such 
as restraints on the buyer's ability to determine a sale price ("resale price maintenance") or 
certain types of re-sale restric tions, which may restrict competi tion and create barriers to the 
Internal Market to the detriment of cons umers. Manufacturers can, however, implement 
certain types of distribu tion systems such as exclusive dist ribution or selective distribution. 
Within exclusive distribution systems, the manu facturer may protect an exclusive distributor 
against other distribu tors making active sales on its terr itory, but the manufacturer cannot 
restrict its distribut ors from responding to customer demand and selling its products 
throughout the Internal Market (p assive sales): any such rest riction would be a hardcore 
restriction. Within selective distribution syst ems manufacturers can c hoose their distributors 
on the basis of specified criteria and prohi bit sales to unauthoris ed distributors. But 
distributors should then be free to  actively sell to other authoris ed distributors throughout the 
Internal Market and to any end consumer. Any other restriction of their freedom regarding 
where and to whom they may sell in the area  where the selective distribution system is 
applied would be a hardcore restriction.  The same rules apply to offline and online sales.  For, in the online world, suppliers can also 
set up an exclusive distribution network which a llows them to restrict active sales within 
exclusively defined territories or  customer groups or to set up a selective distribution system 
and require quality standards for the use of an intern et site to sell th eir products. Since the 
Internet allows distributors to reach differe nt customers and differe nt territories, certain 
restrictions on the use of the Inte rnet by distributors are dealt with  as hardcore restrictions. In 
principle, every distributor must be allowed to use the Internet to sell products. For example, 
any obligation on distributors to automatically  reroute customers located outside their 
territory, or to terminate consumers' transactio ns over the Internet if their credit card data 
reveal an address that is not within the distributor's te rritory, are hardcore restrictions. 
Similarly, any obligation that diss uades distributors from using th e Internet, such as a limit to 
the proportion of overall sales which a distri butor can make over the Internet, or the 
requirement that a distributor pa ys a higher purchase price for un its sold online than the same 
                                                                                                                                                        
 
considered that such a restriction infringes Article 101(1) TFEU  as it has an anti-competitive object, and 
cannot benefit from the Vertical Restraints Block Exemption Regulation. 
216  Commission Regulation (EU) No. 330/2010 of 20 April 2010 on the application of Article 101(3) of the 
Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices , OJ L 102/1, 23.04.2010 (the " Block Exemption Regulation "); available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:102:0001:0007:EN:PDF   
217  Information from European Union Institutions, Bodies, Offices and Agencies, European Commission 
Guidelines on Vertical Restraints , OJ C 130/1, 19.05.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:130:0001:0046:EN:PDF   
 
 79distributor pays for units sold o ffline ("dual pricing"), is also considered to be a hardcore 
restriction.218  
 In addition, the new rules specify that qual itative and quantitative selective distribution 
agreements are not block exempted when th e market share of supplier or buyer exceeds 
30%.
219 It should also be recalled that, where an  agreement contains one or more hardcore 
restrictions, the agreemen t is not only excluded from the bene fit of the block exemption, it is 
also presumed unlikely that th e agreement will meet the conditi ons set out in Article 101 (3) 
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 co mply with EU competition law. 
4.4 Contracting 
4.4.1 Contract law 
 
The E-Commerce Directive contains basic provis ions on online contract ing. It contains pre-
contractual information requir ements for business and cons umer contracts and ensures 
through the "equivalence principle" that contr acts concluded electroni cally are valid (see 
Chapter 2.2.1.2). Respondents to the e-commerce c onsultation, however, identified the lack of 
a unified substantive contract law, both in B2B as in B2C contractual relations, as a major 
obstacle for the creation of a digital Internal Market. 
 The European legal framework on contract law pr esents a highly diverse picture characterised 
by differences in substantive contract law rules.  In order to improve legal certainty, the EU 
put in place uniform conflict-of-law  rules under the Rome I Regulation
220. The EU has 
partially reduced the differences in substantiv e rules by harmonising certain areas of contract 
law. However, these rules are often either limite d to specific areas of contract law (e.g. pre-
contractual information, right of withdrawal), or establis h only minimum standards which 
Member States can build upon (e.g. un fair terms, sales guarantees).  
 The EU acquis  on B2B contracts is limited to a few ar eas of contract law, addressed by the E-
commerce and Late Payments Dire ctives. A set of rules of a br oader scope was introduced at 
international level by the 1980 Vienna Conve ntion on the internat ional sale of goods 
(CIGS)
221 which contains rules for B2 B contracts. However, it was not ratified by all Member 
States, it does not cover the fu ll life cycle of a contract and th ere is no mechanism ensuring its 
uniform application.  
                                                
 
218  See for more details par. 51 - 53 of the Guidelines on Vertical Restraints , 2010. 
219  See par. 176 of the Guidelines on Vertical Restraints , 2010.  
220  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 
applicable to contractual obligations  (‘Rome I’ ), OJ L 177/6, 04.07.2008; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:32008R0593:EN:NOT   
221  1980 - United Nations Convention on Contracts for the International Sale of Goods (CISG) ; available at: 
http://www.uncitral.org/uncitral/en/un citral_texts/sale_goods/1980CISG.html   
 
 80The EU acquis for consumer contracts contains a number of directives establishing minimum 
consumer protection requirements, for instan ce for unfair contract terms and sales and 
guarantees.  Over the y ears, Member States have made us e of their competence to introduce 
more stringent rules to protect their cons umers, making EU cons umer contracts law a 
patchwork of 27 sets of differing rules. EU c ountries have for example developed a mix of 
different information obligations and rules on coo ling-off periods for the rights of withdrawal. 
Similarly, they have different rights with re spect to faulty products : while in some EU 
countries consumers can choose between the reme dies of repair, replacement, reduction in 
price or termination of the contract, in ot hers they can only firs t ask for repair and 
replacement and only if these remedies are no t available ask for the termination of the 
contract. The e-commerce consultation confir med that many online traders consider the 
fragmented national consumer laws as a sour ce both of high compliance costs and of legal 
uncertainty.   One major piece of contract law legisl ation has been adopted in 2011, the new Consumer 
Rights Directive (CRD) .
222 The new Directive covers the scope of the current Doorstep 
Selling and Distance Sales Directives, which will be repealed after Member States have transposed the new Directive.  Contrary to the original Commission proposal, which had a 
wider scope, the text agreed between the co-l egislators leaves (essentially) unchanged the 
Directives on Unfair Contract Term s and Consumer Sales and Guarantees. 
In contrast to the current Directives, which only impose a minimum level of harmonisation of 
consumer protection rules, the areas covered by the CRD provide for, with some limited 
exceptions, common rules and a convergent leve l of consumer protection across the 27 
Member States. For distance and off-premises contracts, the information requirements for 
traders, the consumer's right of withdrawal fr om the contract and the obligations for traders 
and consumers in case of withdrawal will be  fully harmonised. Both consumers and traders 
will benefit from standard forms for the righ ts of withdrawal. Additionally, the Directive 
entails new harmonised rules on the passing of ri sk in sales contracts and the default time-
limit for the delivery of goods as well as a ban on hidden charges, on pre-ticked boxes which impose surcharges higher than the trader's actua l costs for the use of a certain payment means 
(e.g. credit cards) and on charge s for telephone hotlines higher than the standard telephone 
rate for calls. As to the scope, contracts on the provision of utilities (water, gas, electricity) 
and contracts concerning digita l content will also be  covered by the new rules, but certain 
areas such as healthcare services, passenger transport and gambling will be excluded.  
The new rules of the Consumer Rights Directive will have to be transposed into national laws 
by 13 December 2013.  The new Directive, which has to a large extent retained its full harmonisation character, will 
increase legal certainty for consumers and business and henc e contribute to the better 
functioning of online markets in the EU. The Dir ective will thus cut red tape that is holding 
back businesses from engaging in cross-border business.   However, the Directive will not remove all the contractual obstacles for cross-border e-commerce transactions. For example, the fr agmentation of national laws on remedies 
(guarantees) and unfair contract terms will remain unchanged. The Directive also applies without prejudice to national laws  on the validity, termination or  enforceability of a contract; 
                                                
 
222 Consumer Rights Directive , OJ L 304/64, 22.11.2011. 
 
 81it does not affect the transfer of ownership of goods; nor is it applicable to gambling and 
healthcare services. Furthermore, it allows Memb er States to impose linguistic requirements 
on consumer contracts.   One special issue to note is the application of the Directive to  digital content (data produced 
and supplied in digital form such as computer  programmes, applications, games or music). 
Contracts for the supply of dig ital content are within the scope of the Directive, but the right 
of withdrawal is limited to situ ations where the performance of  the contract has not yet begun 
or begun without the consumer's prior consent or, if the digital content is provided on a 
tangible medium such as a CD, where th e consumer has not yet unsealed it.  
 The new Consumer Rights Directive improves and clarifies the information rights for 
consumers when purchasing digital content. In  particular, traders will have to inform 
(consumer) buyers of digital content not only about its compatibility  with hardware and 
software, but also about the application of any technical protection measures or digital rights 
management, for example about a limitation on the right of the consumers to make copies of 
the content.   The Commission services will closely monito r the transposition of the Consumer Rights 
Directive. They will also look into the most appropr iate ways to ensure  that businesses and 
consumers are made aware of the new consumer rights.  The European Commission will announce in 2012 a new European Consumer Agenda strategy. One of the cornerstones will be the impact of the digital revolution on consumer 
behaviour.
223  
 Even with the adoption of th e new Consumer Rights Directiv e, substantial differences 
between the national contract laws in the EU remain. This is particularly relevant for the contract law areas firstly where no harmonisatio n measures have been adopted at EU level
 at 
all (e.g. rules on the conclusion of a contract; def ects in consent; obligations and remedies for 
service contracts; damages; re stitution; prescription etc),  and secondly for areas of minimum 
harmonisation that allow for significant discrepa ncies between the transposition measures of 
Member States (e.g. remedies in consumer sales contracts, unfai r terms in consumer 
contracts).  Recent Eurobarometer surveys
224 and those carried out by the European Business Test Panel 
(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, film s, e-books or e-learning services. Problems include 
incomplete or incomprehensible information, interrupted access to content and faulty products. Two 
independent studies carried out at the request of the European Commission were of ficially presented at the 
conference. See for more details: http://ec.europa.eu/justice/newsroom/consumer-
marketing/events/digital_conf_en.htm  
224  See Eurobarometer Flash 320, European contract law in business-to-business transactions , 2011, available 
at http://ec.europa.eu/public_opinion/flash/fl_320_sum_en.pdf  and Eurobarometer Flash 321, European 
contract law in consumer transactions , 2011, available at 
http://ec.europa.eu/public_opinion/flash/fl_321_sum_en.pdf   
225  See: European Business Test Panel, European Contract Law  survey, available at: 
http://ec.europa.eu/yourvoice/ebtp/consultati ons/2010/european_contract_law/report_en.pdf   
 
 82selling their products cross-border rank barriers re lated to differences of contract law among 
the top barriers to cross-border trade. The cont ract law-related barrier s are due to the legal 
complexity and transaction costs associated with adaptation to and compliance with the 
requirements of the different applicable nation al laws governing cross-border contracts. In 
addition, specific contract-law-re lated IT costs may be incurre d by businesses selling online 
to consumers in other EU count ries, as they have to adap t their website to the legal 
requirements of every Member State they direct their activity to.  
 For companies selling to consumers these co sts grow proportionately  to the number of 
countries they trade with and may be particul arly dissuasive for SMEs and companies selling 
online. While an online shop ma y be willing to ta rget consumers in neighbouring countries 
and beyond, it would first have to face trans action costs for ensuring compliance with 
multiple foreign laws. The transaction costs ma y be dissuasive, particularly for micro and 
small enterprises, as they cons titute a greater shar e of their annual turn over. For instance, it 
could cost on average about € 10,000 for legal costs and € 3,000 for the related web-site 
adaptation for an e-commerce company to sell to  consumers in one other Member State. It 
would cost about € 338,000 - more than a micro-retailer's annual turnover -
227 to trade across 
the whole of the EU.228  
 Differences in contract law therefore create obsta cles to the digital Internal Market and hinder 
both businesses and consumers from engagi ng in cross-border online transactions. 
 Since 2001 the Commission has been working on the development of a European contract 
law. In July 2010, it adopted a "Green Paper on policy options on progress towards a European contract law for consumers and businesses". On 11 October 2011 the Commission 
proposed, as a follow-up to the Green Paper, an optional Common European Sales Law which 
would apply upon an agreement by the contracting parties.
229 The voluntary nature of this 
contract law would mean that Member States ' contract laws will not be replaced and will 
continue to be used in domestic contra cts and where parties do not choose the Common 
European Sales Law. This initiative would facil itate trade by offering traders the possibility to 
use a single set of contract te rms for all their cross-border cont racts in the 27 EU countries. If 
traders offer their products on the basis of  the Common European Sales law, consumers 
would have the option of agreeing to be bound by a user-friendly Common European Sales 
law with a high level of protection. The Comm on European Sales La w would apply not only 
in business-to-consumer, but also in business-to-business contracts in which at least one party 
is an SME.  Article 6 of the Rome I Regulation  establishes specific rules for a uniform EU conflict-of-
laws regime which cover B2C contracts. These rules aim to protect consumers in situations 
where the business pursues its commercial activities  in or directs its activity to the country of 
                                                                                                                                                        
 
226 The results of the SME panel survey on the Impacts of European contract law  are available at: 
http://ec.europa.eu/justice/contract/files/report_sme_panel_survey_en.pdf   
227  See the Impact Assessment  accompanying the Proposal for a Regulation of the European Parliament and of 
the Council on a Common Europ ean Sales Law (hereafter ‘ CESL Proposal’ ), COM(2011) 635 final, 
11.10.2011, p.16.  
228  See Impact Assessment  of CESL Proposal , pp.13-14 
229  See Press Pack, available at: http://ec.europa.eu/justice/newsroom/news/20111011_en.htm .  
 
 83habitual residence of the consumer. If the parties choose a law other than the law of the 
country of the habitual residence of the cons umer, the contract cannot deprive the consumer 
of the protection afforded by the country of residence. Consumers are therefore always 
guaranteed the same level of consumer prot ection as in their home country. Article 6, 
however, does not apply to consumers who are not actively targeted by businesses and who 
approach sellers themselves in cross-border contexts.   The responses of businesses showed that this may lead to unclear legal situations in particular 
with e-commerce transactions. The recent Pammer/Alpenhof
230 case law of the ECJ on the 
interpretation of "directed activity" in the Brussels I Regulation231 has provided a certain level 
of guidance on determining when a website contai ns activities directed to consumers in other 
Member States (see Chapter 4.7.4).   The Common European Sales Law would contribute to the solution for the problems posed by 
the diversity of cross-border situ ations. Parties would be able to  choose the same set of rules 
in each national law and remove the need to adapt their contract to the rules in country of the 
consumer. However, given the very high le vel of consumer protection in the Common 
European Sales Law and the fact that the cons umer must be informed of its applicability 
before the conclusion of the contract, the cons umer would have nothing to  lose when agreeing 
to be bound by this instrument. 
4.4.2 Unfair business practices  
 
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 
throughout the retail supply chai n. The formal and informal consultations for the above-
mentioned report and the preparat ion of this Staff Working Paper show that these business 
practices can affect electronic commerce as much as their "brick and mortar" competitors and  indeed be more prevalent in that sector. Abuses  of market power, especi ally at the expense of 
SMEs, are likely to exist in the online as in th e offline sector. Other practices may be specific 
to electronic commerce.Operators may have to face practices from manu facturers such as the 
improper reclassification of the distribution of their products in selective distribution 
networks in order to avoid compe tition from pure e-commerce players. 
 As mentioned in the Single Market Act,  the Commission will adopt (in 2012) a 
Communication on unfair B2B practices  in the (retail) supply chain with the particular aim of 
pinpointing where there are prob lems. In addition, it will lis t the various existing national 
regulatory frameworks and eval uate their implementation, invol ving an examination of any 
                                                
 
230  Joined cases C-585/08 and C-144/09, Peter Pammer  v Reederei Karl Schlüter GmbH & Co. KG  and Hotel 
Alpenhof GesmbH  v Oliver Heller , judgment of 07.12.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:62008J0585:EN:NOT   
231  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters , OJ L 12/1, 16.01.2001; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF   
232  Report from the Commission to the European Parliament, the Council, the Economic and Social Committee 
and the Committee of Regions, Retail market monitoring report, Towards more efficient and fairer retail 
services in the internal market for 2020 , COM(2010) 355 final, 05.07.2010; available at: 
http://ec.europa.eu/internal_market/retail/docs/monitoring_report_en.pdf   
 
 84Single Market problems posed by  uncoordinated proliferation. It  will also propose possible 
options to be submitted for consultation to interested parties.  In addition, certain anti-competitiv e or unfair practices may exist in the area of information 
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. The European Commission is 
carefully monitoring this issue, as outlined in the recent Communication on Internet network 
neutrality. In the first half of  2012, it will report on its analysis  of the implementation of the 
Framework Directive "telecom" (2002/21/EC)
233, as amended by Directive 2009/140/EC234 to 
ensure that new rules guarantee an open Internet (see also Chapter 4.3.4). 
4.4.3 E-signatures, e-identificati on and e-authentication  
 
The legal recognition of electronic signatures and electronic authentication is crucial for 
facilitating and strengthening confidence in electronic transactions. The Directive on 
Electronic Signatures (Directive 1999/93/EC235) provides the European framework for e-
signatures.  EU-legislation on the mutual rec ognition and acceptance of e-identification and 
authentication across bord ers is still lacking.  
 
The eSignature Directive has been evaluate d a number of times since its adoption. The 
Commission's first implementation report of 15 March 2006236 concluded that, although all 
Member States had implemented the Directive, the use of e-signatures had not increased. This 
was due to economic factors such as the insuffi ciently developed market and few incentives 
for service providers to deve lop e-signatures, which could be used throughout different 
sectors. Nevertheless, the Commission decided th at there was no need for a revision of the 
Directive as it was expected that  the use of e-signatures, in pa rticular in e-government, could 
trigger future market growth. Moreover, the Commission announced in this report that it 
would analyse the need for complementary meas ures, continue to en courage the use of e-
signatures and prepare a report on standards for e-signatures.  
 
                                                 
233  Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common 
regulatory framework for electronic communications networks and services , OJ L 108/33, 24.04.2002; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriS erv.do?uri=OJ:L:2002:108:0033:0050:EN:PDF   
234  Directive 2009/140/EC of the European Parliament and the Council of 25 November 2009 amending 
Directives 2002/21/EC on a common regulatory fram ework for electronic commun ications networks and 
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?uri=OJ:L:2009:337:0037:0069:EN:PDF   
235  Directive 1999/93/EC of th e European Parliament and th e Council of 13  December 1999 on a Community 
framework for electronic signatures , OJ L 013/12, 19.01.2000; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:31999L0093:en:HTML   
236  Report from the Commission to the European Parliament, the Council, Report on the operation of Directive 
1999/93/EC on a Community framework for electronic signatures , COM(2006) 120 final, 15.03.2006; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUr iServ.do?uri=COM:2006:0120:FIN:EN:PDF   
 
 85On 2 December 2008, the Commis sion adopted an action plan237 to enhance cross-border e-
signatures and e-identification in the field of e-g overnment in all areas of the Internal Market. 
Although the main focus of this action plan was on e-government, the Commission clarified 
that future policies would al so yield benefits to busine ss-to-business and business-to-
consumer transactions. The goal of this act ion plan was to ease access by citizens and 
companies to cross-border electronic public se rvices by redressing the lack of legal, 
organisational or technical interoperability of e-signatures and e-identification systems between different Member States.   
Both the Digital Agenda and Single Market Act
238 announce that the Commission will 
propose a new legislative framework to ensure c onfidence in electronic  transactions. This 
pan-European framework will propose a revision of the eSignatures Directive in order to clarify concepts, simplify the use of e-signatures and remove interoperability barriers. It will 
also cover the cross-border functioning of certain other trusted services and provide 
legislation for the mutual recognition of electronic identification and authentication services. The tools proposed in the framework should be general and open to all sectors, especially 
where electronic identification is concerned. The framework will be technologically neutral 
and open to all communication channels, includi ng the Internet and mobile communications. 
 As a first step a public consultation on e-identi fication, e-authentication and e-signatures was 
held in the first half of 2011.
239 It confirmed that the existing framework on e-signatures could 
be strengthened, in particular by improving the mutual recognition, interoperability and 
security of these systems. A large majority of  stakeholders confirmed the need for regulatory 
measures regarding the mutual recognitio n and acceptance of e-identification and 
authentication throughout the EU.  In 2012, the Commission will propose legisla tion ensuring the mutual recognition of 
electronic identification and authentication acros s the EU and a revision of the Directive on 
Electronic Signatures.   
                                                
 
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 
facilitate the provision of cross-border public services in the Single Market , COM(2008) 798 final, 
28.11.2008; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0798:FIN:EN:PDF   
238  Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Committ ee of the Regions, Single Market Act, Twelve levers to boost growth and 
strengthen confidence, "Working together to create new growth",  COM(2011) 206 final, 13.04.2011; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUr iServ.do?uri=COM:2011:0206:FIN:EN:PDF   
239  See Press Release, Digital Agenda: Commission launches public consultation on eSignatures and 
eIdentification , IP/11/198, 18.02.2011, available at: 
http://europa.eu/rapid/pressReleasesAction.do?refer ence=IP/11/198&format=HTML&aged=1&language=E
N&guiLanguage=fr   
 
 864.5 Electronic payment and invoicing 
4.5.1 Electronic payment 
 
With respect to the development of e-commerce, the responses to the consultation that this paper draws on show that there are four types of problems which relate to electronic retail 
payments: the restricted acceptance of different  payment methods, both domestically and in 
cross-border situations; the level of payment related char ges, both for merchants and 
consumers; a lack of payment security and data  protection, and finally un certainties relating to 
liability in case of unauthorised pa yments or unsatisfactory deliveries. 
 Even though a variety of payment means is ava ilable at the European level, their deployment 
and acceptance across Member States diverge. Cr edit cards play an important role in online 
payments today, but they are not  available to all citizens. Ac cording to a study, in the EU-15 
countries, two adults in ten do not have access to transaction banking facil ities and four in ten 
do not have access to credit facilities. In the new Member States (EU-10), one third of citizens has difficulty accessing those financial services.
240 In particular, debit cards do not seem to be 
sufficiently accepted for online payments, according to consumers. But the issues relating to the deployment and acceptance of cards are insufficient explanation for the limited development of e-commerce across Europe whic h, according to data from one of the major 
credit cards players, has 50% more bank cards  than the USA but 40% smaller volume of e-
commerce.  The possibility for the consumer to use prepai d payment means, payment intermediaries, such 
as dedicated e-payment providers, or payment on delivery is important to the development of 
e-commerce in all parts of society. For micro- payments, mobile payments through billing by 
telecom operators seem to be the preferred solution today.  The excessive cost of payments has been noted by many merchants and associations. The 
criticism focuses on credit cards, but also on payment intermediaries, telecom operators for 
m-commerce, and payment on delivery. For micro-pa yments, the issue of cost seems to be a 
major obstacle to the development of low value information society services such as online 
newspapers, music, movies, video games, "premium  rate service", directories, and low priced 
event tickets.   
Consumers also complain about  the high cost of payments. The possibility of charging 
additional fees for card payments (surcharging), which was left to the arbitration of Member 
States by the Payment Services Directive
241, affects consumers who, for example, may be 
subject to several surcharges for every plane ticket they purchase even if only one payment 
transaction is made. The new Consumer Righ ts Directive addresses this problem by 
prohibiting merchants from charging consumer s fees that exceed the costs borne by the 
merchant.                                                 
 
240  Financial services provision and prevention of financial inclusion , May 2008, a study carried out on behalf 
of the Commission by Réseau Financement Alternatif (Belgium), the University of Bristol (UK), the 
University of Milan (Italy) and the Warsaw School of Economics (Poland). 
241  Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment 
services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC , OJ L 319/1, 05.12.2007 (hereafter ‘ Payment Services Directive’ ), available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriSe rv.do?uri=OJ:L:2007:319:0001:0036:EN:PDF
  
 
 87 
The cost of payments can be partly correlated to the risk of fraud, which seems to be very 
significant for both online and offline payments, and is apparently more relevant for cross-
border payments than for domestic payments. This raises  the question of the  security of 
payments:  a lack of trust is symptomatic, and both merchants and consumers experience 
failures in the security of payments. All releva nt market actors seem willing to address this 
problem while realising that there is a trade-o ff between the level of security and convenience 
for the consumer. It is important that the perc eived lack of security does not continue to 
hamper e-commerce, especially at a cross-border  level. The issue of privacy and protection of 
payment information was recurrently mentioned by payment users in the consultation, again 
often in the context of potential fraud.242 
 Finally, issues of liability for any incident re lated to payment were raised in the public 
consultation. The Payment Services Directive
243 (PSD) in its Articles 60 et sequ . addresses 
the liability for payments, especially in cas es of unauthorized payment transactions, and 
billing or processing errors. The PSD obliges the payment service prov ider to refund to the 
payer immediately the amount of an unauthorised payment transac tion and stipulates that the 
cost is borne by the providers of payment services. By contrast, the payer shall bear the losses, up to a certain limit that Member States can reduce, that result from the 
misappropriation of a lost, stolen  or unsafely kept payment inst rument. However, the situation 
seems less clear for refunds in those cases wher e the consumer receives  a product that was not 
ordered, arrives in a damaged c ondition or never arrives. In th e light of responses to the 
consultation on the future of electronic commerce, it seems that this is still an area of future 
improvement for merchants, who carry the so le responsibility for refunds and returns. 
 The responses to the above-mentioned public c onsultation reflect to a large extent the 
problems addressed in the Green Paper "Towards  an integrated European market for card, 
internet and mobile payments". The Green Pape r aims to assess a number of specific factors 
which seem to be the root causes for many of the problems encountered by consumers and 
merchants in the field of e-commerce today. Nota bly, the scope of the Green Paper is wider 
than e-commerce, as for instance the majority of card payments today continue to be made 
offline.  The Paper is based on the premise that four dr ivers could significantly enhance the European 
payments market and therefor e also improve the take-up of e-commerce throughout the EU: 
 
• More competition 
• More choice and transparency for consumers 
• More innovation 
• More payment security and customer trust 
 Each of these objectives would benefit from a more integrated European market for card, 
internet and mobile payments and the Green Pa per provides the basis for a public consultation 
as to which measures could best contribute  to improvements in th e above-mentioned four 
areas. 
                                                
 
242  A separate issue is the blocking of payments by financial institutions for example in situations of alleged 
intellectual property rights infringements or online gambling.  
243 Payment Services 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 a lternative payment serv ice providers, and 
thereby lead to market fragmentation. The prici ng of payment services is analysed from two 
angles, namely the relationship between the co nsumer and the merchant and the relationship 
between the merchant and the payment service provider. Possible remedies mentioned in the 
Green Paper address the transparency of the cost  of payments, as well as steering mechanisms 
which could ensure that the most efficient pa yment instrument, both from a consumer and a 
merchant point of view, is c hosen in a given purchasing tran saction. A third area considered 
in the Paper is technical standardisation whic h could significantly improve the acceptance of 
payment cards or e- and m-payment schemes acro ss borders. Closely related to this, the issue 
of interoperability between payment service pr oviders is addressed. Finally, the Paper deals 
with payment security and data  privacy and the possi bilities for improvements in this area.  
  The last part of the Green Paper touches on a cr ucial issue, which underpins all of the issues 
mentioned above, namely the establishment of proper governance structures that could 
facilitate the implementation of remedial  measures in the aforementioned areas. 
 The consultation will lay the groundwork necessary  for the definition in 2012 of a strategy to 
improve the efficiency of payments related to electronic commerce, including surcharges, the lack of competition, standardization, and micropayments.  On 11 January 2012, the Commission has adopted a Green Paper on card payments, internet 
and mobile payments.
244 
4.5.2 Electronic invoicing 
 
Invoicing forms another part of the e-commer ce process chain which could substantially 
benefit from dematerialisation or digitalisati on. Due to the strong lin k between invoices and 
payments – generally every paym ent is preceded by an invoice – potential synergies between 
both processes are strong and can generate substantial economic savings. A study commissioned by the Commissi on estimates that replacing paper invoices by electronic 
invoices could lead to annual savings of  EUR 40 billion over a six-year period.
245 
 A large part of these savings relates to the invoice exchange between businesses, but 
consumers, especially in e-commerce, also be nefit from the convenience that e-invoices can 
provide. In particular, if linked with an on line banking or other e-payment solution, invoices 
can be paid electronically with  a simple click and without th e need for manual data input. 
Currently, however, e-invoicing in Europe is often complicated, especially across borders. 
Diverging approaches to e-invoicing have led to a certain degree of fragmentation, both in 
terms of the regulatory and technical environment.  
                                                
 
244  See http://ec.europa.eu/internal_market/payments/index_en.htm   
245  Capgemini Consulting, SEPA: potential benefits at stake , available at: 
http://ec.europa.eu/internal_market/payments/docs /sepa/sepa-capgemini_study-final_report_en.pdf  
 
 89In its Communication "Reapi ng the benefits of electro nic invoicing for Europe",246 the 
European Commission identified the key hurdles  which prevent the uptake of e-invoicing, 
defined priorities for their reso lution and proposed a set of c oncrete future actions for all 
stakeholders involved. The proposed measures  aim at making e-invoicing the predominant 
method of invoicing by 2020 and fall into four key priority areas: 
  1. Ensuring a consistent legal environment for e-invoicing 2. Achieving mass market adoption by getting SMEs onboard 3. Ensuring maximum use of e-invoicing 
4. Promoting a common e-invoicing standard 
 Member States are best placed to advocate, deve lop and facilitate the use of e-invoicing at 
national level. The Commission therefore invited all Member States to set up national multi-stakeholder e-invoicing fora and to entrust them with the task to develop a national strategy 
for the promotion of e-invoicing. In turn, th e Commission established a “European Multi-
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. 
Particular attention should be given to facilita ting cross-border transactions, especially for 
SMEs. The forum will gather representatives from the different national fora and from 
European associations represen ting e-invoicing users, includi ng consumers. A first meeting 
took place in September 2011. Comm ission services will, together with the European multi-
stakeholder forum, take action to encourag e the maximum use of e-invoices exchange. 
4.6 Delivery  
 
Many surveys and studies including the e-comme rce public consultation identify delivery as 
one of the main obstacles to the developmen t of e-commerce, especi ally its cross-border 
dimension.247 
4.6.1 Delivery services in an e-commerce environment 
 
With the exponential growth and use of elec tronic means of communication, customers 
increasingly need to send or receive physic al goods that they sell or buy online. The 
electronic-commerce value chain thus ends with  the physical delivery of goods to consumers. 
This service is mostly still provided by national (public) postal operators and private alternative postal operators, including large in tegrated express operators and more locally 
focussed courier companies. As a response to emerging needs, new alternative ways of 
delivery are being developed such as parcel cons olidators who arrange the direct transport of 
items from the online retailer to the postal operator of the country of destination.  
 
                                                
 
246  Communication from the Commission 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 
Europe , COM(2010) 0509 final, 02.12.2010, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:52010DC0712:EN:NOT   
247 See for example: Eurostat  Data in Focus 46/2009: Internet usage in 2009 - Households and Individuals , 
available at: 
http://epp.eurostat.ec.europa.eu/portal/page/portal/p roduct_details/publication?p_product_code=KS-QA-09-
046 
 
 90Delivery links the two sides of the e-commerce chain. On the one side (" sender aspect "), there 
are the online retailers who seek reliable and trus tworthy delivery partners for the final leg of 
the e-commerce service they provide to their end users. On the other side (" addressee 
aspect "), there are the end users purchasing items online who seek reliable retailers selling 
goods which suit their needs and can  be delivered efficiently.   
 Enhancing the trust in delivery services to prom ote consumers' overall confidence in using the 
electronic-commerce services can c ontribute to its further growth. 
    
While in the past the delivery of a letter or a parcel largely relied on th e public postal delivery 
network, this practice has now undergone significant change. This is especially the case when 
talking about parcel delivery a nd express delivery se rvices, which have traditionally been 
open to competition.
248 The European parcel and express market is today a highly 
consolidated market, after a decade of merger s and acquisitions. National postal operators, 
new entrants (alternative private operators) and express operators (mostly integrators)249 have 
been actively participating in this market, which was estimate d at € 42,4 billion in 2008, or 
0.34% of EU27 GDP.250 In 1998, 80% of this market was covered by five Member States: 
Germany (31%), France (23%), UK (16%), Ital y (6%) and Spain (4%). This share decreased 
to 77% in 2008251. Contrary to the past, boundaries be tween parcel and express market 
segments have decreased and all these operato rs are today competing against each other to 
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 increasingl y using alternative delivery providers. The 
main reasons for this choice could be: (i) better prices, (ii) better range of services and (iii) 
better quality and/or reliability of delivery  services provided by alternative operators. 
4.6.2 Delivery problems  
 
Delivery emerges from the various consultations and studies as one of the the major obstacles 
to the development of electronic commerce253.  
                                                 
248  Green Paper on the development of the single market for postal services, COM(91) 476 final, 11.06.1992, 
available at http://ec.europa.eu/internal_market/post/index_en.htm   
249  International express operators such as DHL, FedE X, TNT, UPS are commonly referred to "integrators" 
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, 
available at: http://ec.europa.eu/internal_market/post/doc/studies/2009-wik-evolution_en.pdf  (hereafter 
ITA/WIK  2009). The annual growth of the parcel and express market between 1998 and 2008 was 6.1%, 
growing faster than the GDP (3.5%) over the same time period. 
251  Western Europe is by far the most mature market and has the biggest market turnover in Europe. Southern 
Europe has showed a strong growth rate between 1998 and 2008, whilst Eastern Europe region, the smallest 
in turnover, has had the hi ghest growth. See above: The evolution of the European Postal market since 1997  
252  Copenhagen Economics, Main developments in the postal sector 2008-2010 , 29.11.2010, pp. 85-91; 
available at: http://ec.europa.eu/internal_market/post/doc/studies/2010-main-developments_en.pdf  
253  Eurostat Data in Focus 46/2009: Internet usage in 2009 - Households and Individuals , available at: 
http://epp.eurostat.ec.europa.eu/portal/page/portal/p roduct_details/publication?p_product_code=KS-QA-09-
046 . 
 
 91 
In general, the e-commerce consultation high lighted several problems in postal services 
delivery in some Member States and raises quest ions about (i) the leve l of competition in the 
sector (particularly regarding the delivery of goods) and (ii) the status of the transposition and 
correct implementation of the postal acquis . 
 The responses to the consultatio n also indicated th at the problems identified in delivery 
services are essentially (i) high costs, (mainly for cross-border trade) , due to higher cross-
border delivery prices in comparison to simila r and/or equivalent domestic delivery services , 
(ii) the refusal to supply in sp ecific geographical ar eas, (iii) the un reliability of the delivery 
service, which can be reflected either in lower quality of service, dela ys in the delivery of 
goods or indeed in the non-de livery of goods duly paid.  
 These delivery problems are exa cerbated in remote areas where,  apart from the problem of 
non-delivery, issues regarding hi gher shipping costs and longer delivery delays can be more 
problematic.  In addition, the delivery deadline for goods and the question of who bears the risk of loss or 
damages of shipped goods are two of the ma in difficulties encountered by consumers in 
online B2C-transactions and represent a sour ce of dispute. The Directive on Consumer 
Rights
254 introduces new rules. Article 18 states that in principle, unless the parties have 
agreed otherwise, the trader shall deliver the goods by tran sferring physical possession or 
control of the goods to the cons umer without undue delay, but not  later than 30 days from the 
conclusion of the contract. Article 20 provides th at the consumer will be protected against any 
risk of loss or damage of the goods occurri ng before he has acquire d the physical possession 
of the dispatched goods.   The Consumer Rights Directive, however, doe s not harmonise the place and modalities of 
delivery which are essentially subject to the decision of the online buyer when purchasing 
online, although she/he is limited by the range of options that online retailer provides. The 
Directive also does not apply to delivery clause s where it is up to the consumer to take 
delivery of the goods or to ask a carrier to  take delivery. The Co mmission Proposal on a 
Common European Sales Law
255 contains uniform rules on the modalities for delivery, such 
as the time, method and place of delivery, carri age of goods and the effects of delivery on the 
passing of risk. These rules in the Common European Sales Law also apply to B2B contracts. 
4.6.3 Parcel and express delivery services un der the Postal Services Directive 
 
The Postal Services Directive256 addresses certain of these delivery issues indirectly firstly 
through the requirement of universal  service provision w ith regard to basic letter mail (up to 2 
kg), recommended and insured items and basic parcels up to 10 kg (except where a Member State decides for a maximum we ight of 20kg) and secondly thr ough the requirement that all 
postal service providers set up an internal complaints system.  
                                                
 
254  See Chapter 4.4.1 
255  Also see Chapter 4.4.1 
256  Directive 2008/6/EC of the European Parliament and the Council of 20 February 2008 amending Directive 
97/67/EC with regard to the full accomplishment of the internal market of Community postal services , OJ L 
52/3, 27.2.2008, available at: http://ec.europa.eu/internal_market/post/doc/legislation/2008-06_en.pdf   
 
 92 
Although parcel and express delivery services  have been open to competition for some 
decades257, the Postal Services Directive provides for a number of regulatory measures to 
ensure a high quality of (basic) parcel service as well as a high level of postal users' protection. With regard to these regulatory meas ures, a distinction need s to be made between 
two types of services: (i) "basic" or "standard" parcel service which is part of the universal 
service obligation (USO), as define d in Article 3 (4) of the Postal Services Directive, and (ii) 
parcel delivery services with added value, which are not dire ctly subject to USO, but are 
nonetheless subject to some other regulatory requ irements (e.g. obligation to handle consumer 
complaints). The latter services  are traditionally understood 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) e xpress (faster) delivery and/or 
guaranteed delivery times. The Postal Services Di rective foresees a number of requirements 
concerning the basic parcel serv ice as part of the USO.  
 
Parcel delivery as part of the Universal Service Obligation (USO) 
 
Article 3 of the Postal Services Directive oblig es Member States to ensure the provision of 
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 Dire ctive enables Member States to implement 
derogations from the minimum requirements for USO. This has to be granted by the 
independent national regulatory aut hority and only if the existing " circumstances or 
geographical conditions deemed exceptional " allow for it. Based on available data one can 
observe that - with the exception of Greece, wh ere 7 % of the population does not have five 
times per week delivery frequency – Memb er States do not provide for extensive 
derogations.
260 
 A basic high level parcel delivery of a specif ied quality standard at EU level is thus 
guaranteed on the basis of Article 3. Parcel services which are part of the USO do not, 
however, in most cases comprise the additi onal added value elements as defined above.
261 
These added value services are not cove red 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 indicat e services where customers hand  in the parcel at the post 
office counter. 
259  See Table 2.3., WIK Consult, The Role of Regulators in a More Competitive Postal Market , September 
2009, available at:  http://ec.europa.eu/internal_market/post/doc/studies/2009-wik_regulators.pdf  
260  See above reference: The Role of Regulators in a More Competitive Postal Market , p. 82   
261  Collection at the premises of the sender; bulk par cels (parcels sent in larger  quantities); track and trace 
services and express (faster) delivery and/or time certa in delivery. E.g. as regards the delivery to home 
premises in some Member States parcels may not be de livered frequently to the addressee’s residence, but 
must be collected by the addressee from the nearest pos t office; additional services such as track and trace 
are often only provided by ex press and courier companies. 
 
 93Postal users' protection measures 
 
Article 19 of the Postal Services Directive oblig es Member States to ensure the existence of 
complaint procedures for all post al users, particularly in case s of loss, damage, theft or non-
compliance with quality standards. It also dete rmines that Member States shall encourage the 
development of independent out-of-court schemes for dispute resolution (Article 19 (1)). If 
postal service providers do not provi de the service at the level agreed they have to adequately 
remedy the situation (e.g. provide payment of indemnity) based on the requirements laid 
down in the applicable national legislation. 
 
Additionally, where users' complaints to busine sses providing postal services within the scope 
of the universal service have not been satisfactorily resolve d, postal users may bring these 
cases before the competent national authority (Article 19 (2)). While this provision is mandatory for the universal postal service and interchangeable services, many Member States 
go beyond this minimum and extend the complaint mechanism to services outside the USO.
262  
 Although the Postal Services Dire ctive entrusted to Member St ates the task of organizing 
transparent complaint procedures, it does not cove r the issue of liability for late delivery or 
non-delivery as such. Nevertheless, there ar e many Member States that have introduced 
legislative solutions in their national legisl ation (e.g. right of inde mnity in case of late 
delivery; right of indemnity in case of a lost item). Furthermore, the issues of accountability 
for delivery and transfer of risk are only resolved to a certain ex tent at EU level (see Chapter 
4.4.1).  The complaint mechanism procedure is therefor e not uniform or harmoni zed, which results in 
different practices being applied in different Member States, as well as variations in the 
possible level of protection. This can add ambi guity and difficulties in cross-border delivery 
firstly where a complaint triggers the need fo r cooperation between two service providers – a 
problem limited to delivery networks that are not integrated - and secondly where problems 
arise between two national regulatory authorities if a complaint is not satisfactory resolved.
263 
 
Member States are therefore encouraged to en sure a high level of user protection, and to 
develop and facilitate the us e of independent out-of-court schemes for the resolution of 
disputes between postal services providers and users while taking into account the cross-
border dimension.264 
 
                                                 
262  See in this context Advocate General's Opinion, Case C-148/10, Express Line NV v Belgisch Instituut voor 
Postdiensten en Telecommunicatie , judgment of 26.05.2011; available at: http://curia.europa.eu/jurisp/cgi-
bin/form.pl?lang=EN&Submit=Submit&numaff=C-148/10    
263  Another example of possible difficulties in cross-border complaint cases is that the sender has the legal right 
to complain, except in the UK and Ireland where the responsibility for the item belongs to the recipient from the moment it is dropped in the postal pipeline. In continental Europe as long as the item is not delivered it 
is still a legal right of the sender. So, if the item is lost the sender and not the recipient must ask for 
indemnity. In the cases of delay and damaged goods, as so on as the items arrive to the recipient, he can ask 
for financial compensation. 
264  See on ADR also Chapter 4.7.1  
 
 944.6.4 Market trends and enhanced applicat ion of the EU postal legislation 
 
In order to achieve a fa st and reliable delivery service in Eu rope it is essential that parcel 
delivery operators, express delive ry operators and competent nati onal and EU authorities take 
an active role.  The increased demand for more flexible and user-friendly delivery solutions has been 
impacting the delivery sector significantly. Post al delivery operators have been improving 
their service offers to become more flexible a nd customer-focused. Features such as increased 
distribution coverage, guarant eed delivery times, improved operational performance, end-to-
end logistics services or track and trace serv ices are increasingly offered 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 sy stems, such as local stores or automatic 
parcel stations
265, which allow users to collect their parcels even after the local post office has 
closed or outside working hours. Moreover, th e market sees a highe r convergence between 
express and parcel services, espe cially in terms of the products offered. Parcel operators have 
improved their transit times and can hence comp ete with the lower end of express operators' 
services, whilst express operato rs have introduced lower-cost  products targeting customers 
less sensitive to delivery time.   Furthermore, new business solutions such as parcel consolidators
266 or online parcel 
brokers267 are being developed, which facilitate the whole delivery process by providing 
customers with added value in th e form of pre-delivery services (e.g. presentation of available 
delivery alternatives and finding the best options in a given situation) or in the form of 
passing on cost savings (e.g. cons olidators’ volume discounts), which are reflected in a lower 
final delivery price for customers.   In relation to innovations, new technologies have allowed operators to both improve 
efficiency and reduce costs. Technological solutions such as " dynamic route planning ", with 
the help of GPS technology, and RFID significa ntly contribute to the optimization of the 
delivery chain processes (e.g. so rting; delivery), which can s ubsequently be reflected in 
improved services, both in terms of the quality of service as well as pricing. 
 With regard to the efficient application of ex isting regulatory tools, Commission services are 
working on a number of initiatives.   
                                                
 
265  Service provided by some delivery service operators, where parcels can be coll ected and dispatched by 
consumers 24 hours a day. These automatic stations or  boxes are self-service and based on a code received 
via SMS or e-mail. Germany, Austria, Latvia, Estonia an d Poland are examples of Member States where this 
service is offered. 
266  Parcel consolidators provide for pa rcel preparation 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 not at all involved in 
the logistic process, but only provide a sender with information on possible delivery options in a given 
situation. 
 
 95The Commission services are conducting a sector al study, with the he lp of an external 
consultant, regarding the cross- border provision of parcel deliv ery services, with a specific 
focus on the alleged price differences between cr oss-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, Commi ssion 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 in formed overview of the issues identified, and 
possibly  go further, and should include all st akeholders involved (e.g. delivery operators; e-
retailers; customers; ot her stakeholders).  
 With regard to the complaints procedures in case of lost items, theft and delay, it becomes 
imperative that Article 19 of the Postal Servi ces 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, as envisaged by Article 22 of the Postal Services Directive, further promote cooperation among na tional regulatory author ities both within the 
context of the European Regulators Group for Po stal services (ERGP)  and in relation to 
possible individual cases.  Furthermore, as announced by Commissioner Barn ier in his interventi on at the European 
Parliament on 9 September 2010
268, Commission services has organi zed 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 possi ble 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 item s 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 satisfac tion, 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 cros s-border delivery, with specific focus on e-commerce-
originated traffic (2012); 
• continue to monitor the correct transpositi on and application of the Postal Services 
Directive; 
                                                 
268  See Minutes of the European Parliament, 09.09.2010, Response of Commissioner Barnier to Oral Question 
O-0114/2010, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+PV+20100909+ITEM-003+DOC+XML+V0//EN&language=EN   
269  See http://ec.europa.eu/internal_market/ post/conference_en.htm#conference2011   
270  See in general for the EU developments in the postal area 
http://ec.europa.eu/internal_market/post/index_en.htm   
 
 96• promote cooperation among national regulatory authorities, in particular within the 
context of the European Regulators Group for Postal services (ERGP);  
• organize annually a Postal Users Foru m (first Forum took place on 12 December 
2011); 
• publish a sectoral study rega rding the cross-border provis ion of parcel delivery 
services (January 2012); 
• prepare a report on the applica tion 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 severely hampered because the Internet continues to be percei ved as a risk area, 
generating potential disputes whic h cannot be easily solved part ly because of the nature of 
this virtual exchange zone. Responses to th e consultation on the future of e-commerce 
testified to the fears felt by both consumers and businesses that something could go wrong. 
These fears are linked to the general lack of  information on existing quick and effective 
remedies that e-commerce users could resort to  if necessary. As a result of specific problems 
in electronic commerce and the absence of knowle dge of relevant remedies, the parties may 
end up not exercising their rights.  In this regard, the concern of consumers is even greater 
when it comes to cross-border e-commerce. Such  fears, however, often tend to disappear after 
the first experience of using cross border e-commerce.
271 
 Most disputes related to electronic commerce ar e characterized by their low monetary value. 
EU law already provides for special rules on c onsumer transactions with a relatively low 
value. This chapter deals both with out-of-c ourt settlements and specific court procedures. 
4.7.1 Alternative Dispute Resolution and Online Dispute Resolution 
 
When disputes arise from cross-border transact ions, consumers as well as enterprises want 
easy, fast and cheap solutions. Alternative Dispute Resolution ("ADR ")272 is widely 
considered as an efficient, quick and low-cost alternative to classic court procedures both for 
online and offline disputes.  The public consultations both on th e future of e-commerce and on ADR
273 revealed strong 
support for resolving disputes online. Consumer groups, busine ss organisations and Member 
                                                 
271 See the Fifth Consumer Conditions Scoreboard, Consumers At Home in the Single Market , March 2011, 
IP/11/280, available at: http://ec.europa.eu/consumers/consumer_research/editions/cms5_en.htm   
272  ADR can be defined as any scheme that leads to the resolution of a dispute, including compensation, 
through the intervention of an entity. Traditionally this definition includes mediation  (the neutral third party 
intends to solve the dispute with a mutually agreed settlement) and arbitration  (the neutral third party takes 
a binding and enforceable decision on the dispute). 
273  The Consultation Paper and other relevant documents are available at the Consumer Affairs Consultations 
web-page of DG SANCO, available at: 
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/adr_consultation_18012011_en.htm  
 
 97States favour the development of alternative dis pute resolution mechan isms which can boost 
confidence in e-commerce.274 
 A recent study on the use of ADR in the EU
275 showed that ADR can offer inexpensive and 
fast resolution of disputes and that ADR  has gained widespread acceptance amongst 
consumers and businesses in recent years. The va st majority of the more than 750 existing B-
2-C ADR procedures in the EU are free of charge  for consumers or are available at moderate 
costs (below € 50).276 The majority of ADR cases are deci ded within a period of 90 days. The 
study also showed that ADR schemes are hi ghly diverse in structure, operation and 
funding.277  
 Online Dispute Resolution ("ODR")  can be defined as a type of ADR which is performed 
entirely or substantially online. Compared to traditional ADR, the inherently online nature of 
ODR provides further advantages such as time savings (no travelling ), cost savings and 
convenience (the entire procedure can be perfor med online, at the convenience of the parties 
and the neutral third party). The potential for ODR at the global leve l was recognised in 2010 
when UNCITRAL set up a working group on ODR for e-commerce transactions.
278 
 Most of the existing ADR schemes do not make  a distinction between online and offline 
purchases. Very few ADR schemes handle the enti re process online where consumers, traders 
and ADR schemes communicate during the whole procedure through a web-based system in 
order to resolve disputes. Examples of where this is the case include ECODIR,
279 Risolvi-
online,280 and Belmed.281 About half of the existing ADR schemes, however, provide for an 
online complaint form which can be submitted directly online or sent by post or e-mail.282 
                                                 
274  In addition, responses to the e-commerce consultation indicated the importance of private sector initiatives 
taken in order to settle disputes arising between thei r members and consumers (for example, call centres for 
telecommunications). Certain consumer protection associations have developed tools to assist consumers to 
quickly and effectively find solutions, outside the judicial system. 
275  Civic Consulting of the Consumer Policy Evaluation Consortium (CPEC), Study on the use of Alternative 
Dispute Resolution in the European Union  (hereafter ‘ ADR study’ ) 16 October 2009, available at: 
http://www.cc.cec/home/dgserv/sg/e valuation/page s/eims_en.htm   
276  ADR study , pp.8, 13. 
277  ADR study , Annex 1, pp. 164-324. 
278  http://www.uncitral.org/   
279  ECODIR stands for "Electronic Consumer Dispute Resolution" and is a pilot project concerned with 
disputes for transactions between businesses and consumers taking pl ace over the Internet. Its partners, 
which include universities, are specialized in online dispute resolution. ECODIR is free of charge for consumers and involves a 3-step process of negotia tion, mediation and recomme ndation. See for details 
http://www.ecodir.org
. 
280  RisolviOnline is a service offered by the Milan Medi ation Chamber that allows the resolution of commercial 
Disputes and can be used be used both by individual consumers/users and by enterprises. 
http://www.risolvionline.com/   
281  Belmed is an online dispute resolution scheme set up by Belgium to resolve disputes between consumers 
and traders: http://economie.fg ov.be/belmed.jsp   
282  ADR study  pp.100, 143. 
 
 98 
Most consumers who have used ADR recall it as  an uncomplicated and transparent process, 
where sufficient support and advice was provided283. The resultant simple and fast process 
was compared very favourably with the per ceived long and slow process that proceedings 
before a court would entail. 54 % of businesses would prefer to  solve disputes through ADR 
rather than in court284 and 82% who have already used  ADR would do so again in the 
future.285 This evidence is further reinforced by da ta on the satisfaction levels of businesses 
that had used ADR; 76% found that it provided a successful settlement of the dispute. Like 
ADR, ODR is perceived positiv ely. About 60% of businesses286 and 64% of consumers state 
that they would be willing to solv e disputes with consumers through ODR.287  
 In this regard, the European Co mmission has already taken a number  of initiatives to facilitate 
the resolution of disputes out-of-court. In pa rticular, it has adopted two Recommendations to 
promote ADR – Recommendations 98/257/EC
288 and 2001/310/EC.289 The two 
Recommendations establish a number of minimum guarantees, such as independence, 
transparency and effectiveness, which ADR sc hemes should respect. In addition, several EU 
Directives like Article 17 of the E-commerce Di rective encourage Member States to establish 
ADR schemes. In some other sectors, such as telecoms, energy, and consumer credit, EU 
legislation obliges Member States to establish ADR schemes.  But there is still room for improvement. The pot ential of ODR, and in particular cross-border 
ODR, has not yet been fully exploited. Its lim ited success can partly be explained by the 
untapped potential of ADR in general. Despit e the development of ADR and ODR in the EU 
over the last decade, there are st ill a number of shortcomings wh ich hinder their effectiveness 
across Member States.   First, there are important gaps  in ADR coverage. This means that the existing set of ADR 
schemes offering to resolve business-to-consumer disputes related to e-commerce transactions 
is still scattered and incomplete within the European Union. In addition, while half of the 
existing ADR schemes offer the possibility to  submit complaints online, very few offer 
                                                
 
283  TNS qual+, Eurobarometer Qualitative Study, Consumer redress in the European Union: Consumer 
experiences, perceptions and choices , August 2009, p.48, available at: 
http://ec.europa.eu/consumers/redress_cons/docs/cons_redress_EU_qual_study_report_en.pdf   
284  The Gallup Organization for DG Communication, Flash Eurobarometer 300, Retailers’ attitudes towards 
cross-border trade and consumer protection , March 2011, p 79, available at: 
http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf   
285  European Business Test Panel (EBTP) survey, Alternative Dispute Resolution , 2010-11, 
http://ec.europa.eu/yourvoice/ebtp/consultations/2010/adr/report_en.pdf   
286  EBTP statistics available at: http://ec.europa.eu/yourvoice/ebtp/consultations/2010/adr/statistics_en.pdf   
287  Preliminary results on a study on th e development of e-commerce in the EU. 
288  Commission Recommendation 98/257/EC on the principles applicable to the bodies responsible for the out-
of-court settlement of consumer disputes , OJ L 115, 17.04.1998, p. 31, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:115:0031:0034:EN:PDF   
289  Commission Recommendation 2001/310/EC on the principles for out-of-court bodies involved in the 
consensual resolution of consumer ADR , OJ L 109, 19.04.2001, p. 56, available at: 
http://ec.europa.eu/consumers/redress/ out_of_court/adr/acce_just12_en.pdf   
 
 99consumers the possibility to conduct the entire procedure online. Handling the entire process 
online would allow savings in terms of time an d ease of communication between the parties. 
In 2009, more than half of complaints (55.9%) received by the ECC-Net (see below) were 
linked to e-commerce transactions. Out of the 50,000 cross border complaints received by 
European Consumer Centres in 2009, 93% coul d not be referred to an ADR scheme in 
another Member State.  Second, many replies to both public consultati ons showed that ADR/ ODR systems are not 
well known. One of the most frequent observations  was the lack of information and publicity 
surrounding ADR/ODR. Third, resp ondents indicated that the qua lity of existing ADR/ODR 
schemes can vary considerably.  On 29 November 2011 the Commission adopted proposals for two legislative measures to 
improve out-of-court dispute resolution for all consumer disputes and to improve the online 
dispute resolution of cros s-border disputes related to online transactions.
290 
 The Commission also set up the European Consumer Centres Network (ECC-Net)
291 
which is an EU-wide network co-sponsored by the European Commission and the Member 
States. The aim of the network is to provide in formation to consumers on their rights and to 
assist them with cross-border disputes. The netw ork is made up of 29 centres, one in each of 
the 27 EU Member States, Iceland and No rway. The network handles over 70,000 cross-
border contacts per year. Internet  purchases continue to be the main source of consumer cross-
border complaints making up 56% of all comp laints addressed to the ECC-Net in 2010 
(44,232 complaints).   The Commission services will encourage the ECC-Net to take a more proactive and 
preventive approach towards key business sect ors that have significan t cross border exposure.  
A further alternative to traditional settleme nts of dispute in c ourt is provided by the 
introduction of compulsory mediation within the traditional litigation procedure . The 
Mediation Directive
292 of 2008 applies to cross-border disputes in civil and commercial 
matters. The principal objective of this legal inst rument is to encourage recourse to mediation 
services in the Member States. To do this, the Directive gives every judge the right to invite 
the parties to a dispute to try mediation first if she/he cons iders it appropriate given the 
circumstances of the case. It also provides th at agreements resulting from mediation can be 
rendered enforceable if both parties so request.  This can be achieved, for example, through 
court approval or certification by a public not ary. The transposition period for the Member 
States to adopt national measur es providing for the implementation of the Directive expired 
on 21 May 2011. The Commission services will car efully monitor the transposition of the 
Mediation Directive in the Member States and use the Commission's powers under the 
Treaties as regards those Member States whic h have not yet taken transposition measures 
                                                 
290  Proposed Directive on consumer ADR and Proposed Regulation on consumer ODR, available at: 
http://ec.europa.eu/consumers/redr ess_cons/adr_policy_work_en.htm   
291  For further information see the ECC-net web-page, available at: 
http://ec.europa.eu/cons umers/ecc/index_en.htm  
292  Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of 
mediation in civil and commercial matters , OJ L 136/3, 24.05.2008; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF   
 
 1004.7.2 European Small Claims Procedure 
 
Due to the large backlog of cases and the time and cost that traditional means of resolving 
legal disputes entail, the use of courts and judicial tribunals to resolve online commercial transactions has not always offered a satisf actory solution for e-commerce users. Moreover, 
online legal services are underdevelop ed and in many cases non-existent. 
 Simplified court procedures or "small claims pr ocedures" exist in almost all Member States 
for national cases as a cost-effi cient alternative to the tradit ional court procedures. In 2007, a 
Regulation was adopted setting up a European Small Claims Procedure
293 as an alternative to 
domestic claims procedures for cross-border ca ses. It is an optional procedure for claims 
under € 2,000 in value, covering  both civil and commercial cases including all consumer 
transactions and applying equally to online disput es. The claimant must fill in a standard form 
(available online)294 with the details of the claim and submit it to the competent court in 
another Member State. This c ourt then drafts a standard an swer and provides the defendant 
with the possibility to lodge a counterclaim. A judgment is given in thirty days and the court 
decision can be directly enforce d, without the need to use the exequatur  procedure. A further 
major advantage is that parties do not require compulsory legal assistance. 
 The success of this procedure essentially depends on the extent to which consumers, 
consumer advisors like ECC-Net and lawyers are aware of the procedure. This is not always 
considerable. A public opinion survey conducte d in 2010 shows that only 8% of respondents 
had heard about the procedure.
295  
 Its success also depends on the effective appl ication of the procedure by national courts. A 
survey conducted by the ECC-Net in 2010
296 shows that 53% of courts and judges visited 
were already aware of the European Small Cl aims Procedure. There is however room for 
improvement. The relevant forms were not made available on the premises or the websites of 
41% of the courts visited. Cons umers found it difficult to fill in the forms on their own, while 
in 41% of cases, assistance to fill in the fo rms and start the procedure was not available to 
consumers. In 76% of examined cases, the Eur opean Small Claims Procedure was not free of 
charge for consumers. Consumers also faced language problems (no assistance is foreseen 
and certified translators are usually too expens ive). Finally, consumers perceived difficulties 
with determining the competent court, as we ll as with the enforcement of judgments.  
 Commission services will conduct an assessmen t of the application of Regulation (EC) 
861/2007 by 2013. This could lead to a future re vision which could in particular include a 
                                                
 
293  Regulation (EC) No. 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a 
European Small Claims Procedure , OJ L 199/1, 31.07.2007; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0001:0022:EN:PDF  (N.B. This Regulation 
does not apply to Denmark). 
294  The form is available from the European Judicial Atlas: 
http://ec.europa.eu/jus tice_home/judicialatlascivil/html/sc_filling_en.htm .  
295  TNS Opinion & Social at the reques t of DG JUST, Special Eurobarometer 351: Civil justice , October 2010, 
available at: http://ec.europa.eu/public_opini on/archives/ebs/ebs_351_en.pdf   
296  Draft ECC-Net Joint Project on the European Small Claims Procedure . 
 
 101proposal for a possible increase of the threshold for its use. In additi on, electronic processing 
related to the procedure s hould be further developed. 
4.7.3 Collective redress 
 
Responses to the consultation indicated that  e-commerce users have  different views on 
collective redress. While some are in favour of collective redress for the reso lution of disputes 
arising from electronic commer ce, others are strongly opposed, f earing that this  would give 
rise to a "claim culture".   Consideration of the need for a coherent approa ch to collective redress is underway at the EU 
level. In February 2011, the Commission launched a consu ltation to identif y common legal 
principles on collective redress.
297 Currently, 15 Member States have judicial mechanisms 
whereby a group of consumers or an entity re presenting the consumer public interest can 
request compensation for harm caused by an illegal practice. These mechanisms are designed for mass claims and can be used if multiple consumers have been harmed by the illegal 
practice of a trader.  
The Commission will explor e in 2012 how to follow-up on the results of  the public 
consultation
298. 
4.7.4 International Private Law 
 
Dispute resolution concerning online transacti ons is complex, particularly because online 
decisions and transactions take place withou t any direct human interface. Many online 
transactions have a relatively low value which implies that compliance costs are relatively high. But dispute resolution becomes even more co mplicated in a cross-border situation, when 
internet actors are resident in two different  Member States or even outside the EU. 
Determining the competent court and the appl icable law as well as the recognition and 
enforcement of judgments also for disputes in an online environment is regulated under 
international private law rules relating to cross-border dispute resolution. 
 The Brussels I Regulation
299 is the most important legal instrument for determining which 
court is competent to handle a dispute. The Rome I Regulation300 (for contractual obligations) 
                                                 
297  Details of the consultation are available at: 
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/collective_redress_consultation_en.htm   
298 An initiative on an EU framework on collective redress, which would follow up on the full range of previous 
Commission work on collective redress at the EU level is scheduled in the Commission Work Programme for 
2012 (Initiative 110 in the Annex to the Communication from the Commission to the European Parliament, the 
Council, the European Economic and Social Committee and the Commit tee of the Regions Commission work 
programme 2012. com(2011) 777 final vol. 2/2.-. 
 
299  Council Regulation (EC) No. 44/2001 of 22 December 200 0 of the European Parlia ment and of the Council 
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters , OJ L 
12/1, 16.01.2001; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF  
300  Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 
applicable to contractual obligations ( Rome I ), OJ L 177/6, 04.07.2008; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:32008R0593:EN:NOT   
 
 102and the Rome II Regulation301 (for non-contractual relations) regulate the applicable law (see 
further Chapter 3.2.4 on contracting).   The Brussels I Regulation provides that actions against a person domiciled in a Member State 
can, as a general rule, be brought in the courts of that State. It also provides that cases 
resulting from a contractual relationship may be decided by the courts of the place of 
performance of the contractual obligation. In the case of consum er contracts, however, rules 
protecting the consumer apply. Th e consumer may bring proceedings  against the trader either 
in the courts of the Member States in which that party is domiciled, or in the courts of the 
place where the consumer is domiciled. Proceed ings against the consumer may be brought 
only in the courts of the Member State where the consumer is domiciled. In order for those 
protective rules to apply, the Brussels I Regulation requires that the trader "directs its activities" to the Member State in which the consumer is domiciled (Article 15 (1) (c)). The protective rules are justified on the basis of  the weaker negotiation power of individual 
consumers and the costs related to transnational litigation, which are difficult to bear for individual consumers.   The Brussels I Regulation, however, does not pr ovide a definition of the notion "directed 
activity". At the time of the adoption of the Regulation, th e Council and the Commission 
issued a declaration on the inte rpretation of the notion. Neverthe less, several respondents to 
the public consultation expressed their concerns  about the lack of clarity surrounding the 
application of the Brussels I Regulation. In December 2010, how ever, the European Court of 
Justice issued certain guidance on the interpretation of Article 15 Brussels I with respect to services offered on the Internet.   In the cases of Hotel Alpenhof  and Peter Pammer
302, the basic question at issue was whether 
the fact that the website of a business, on th e basis of which a consumer entered into a 
contract, can be viewed on the Internet is sufficient to justify the conclusion that an activity is being "directed" within the meaning of Article  15 (1) (c) of the Br ussels I Regulation.  
 
• In the Hotel Alpenhof  case, the consumer, a German resident, reserved a number of 
rooms, for a period of a week, in Hotel Al penhof, in Austria. The reservation was 
made by email, the address being provided on the hotel’s website which the consumer had viewed. The consumer found fault with the hotel’s services and left without 
paying his bill. The hotel then brought an action before the Austrian courts for 
payment of the bill.  
 
• In the Pammer  case, the consumer, a resident of Austria, wished to travel by freighter 
from Trieste (Italy) to th e Far East. He booked a voyage with the German company 
Reederei Karl Schlüter through a German tr avel agency specialising in the internet 
sale of voyages by freighter. The consumer refused to embark on the grounds that the 
conditions on the vessel did not, in his view, correspond to  the description which he 
                                                
 
301  Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law 
applicable to non-contractual obligations ( Rome II ), OJ L 199/40, 31.07.2007; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0040:0049:EN:PDF   
302  Joined Cases C-585/08 and C-144/09, Peter Pammer  v Reederei Karl Schlüter GmbH & Co KG  (C-585/08), 
and Hotel Alpenhof GesmbH  v Oliver Heller  (C-144/09), judgment of 07.12.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:62008J0585:EN:NOT   
 
 103had received from the agency and he sought  reimbursement of the sum that he had 
paid for the voyage. As Reederei Karl Schlüt er reimbursed only a part of that sum, the 
consumer brought proceedings before the Au strian courts, before which the German 
company raised a plea that the court l acked jurisdiction on the grounds that the 
company did not pursue any professional or commercial activity in Austria. 
 The European Court of Justice ruled
 that mere use of a website by a trader in order to engage 
in trade does not in itself mean that its activ ity is "directed to" other Member States, which 
would trigger applicatio n of the protective rules of jurisd iction in the regul ation. The Court 
held that, in order for those rules to be appli cable in relation to consumers from other Member 
States, the trader must have manifested its intention  to establish commercial relations with 
such consumers.   In this context, the Court considers what eviden ce demonstrates that the trader was envisaging 
doing business with consumers domiciled in othe r Member States. Such evidence includes 
clear expressions of the trader ’s intention to solicit the cust om of those consumers, for 
example when it offers its services or its goods  in several Member States designated by name 
or when it pays a search engine operator for an internet referencing service in order to 
facilitate access to its site by consumers domiciled in those various Member States.  
 Nevertheless, other less obvious items of evidence,  if combined with one  another, are also 
capable of demonstrating the existence of an activity "directed to" the Member State of the consumer’s domicile. These include: the internati onal nature of the activity at issue, such as 
certain tourist activities; the in clusion of telephone numbers with an international code; use of 
a top-level domain name other than that of the Member State in which the trader is 
established, for example ‘.de’, or use of neutral t op-level domain names such as ‘.com.’ or 
‘.eu’; the description of itineraries from one or  more other Member States to the place where 
the service is provided; and an indication of an  international clientele composed of customers 
domiciled in various Member St ates, in particular by the presentation of accounts written by 
such customers. Likewise, if the website permits consumers to use a language or a currency other than that generally used in  the trader’s Member State, this can also constitute evidence 
demonstrating cross-border activity of the trader.  
 On the other hand, the mere mentioning on a website of the trade r’s email address or 
geographical address, or of its telephone number without an international code, does not 
constitute evidence of this kind because  the in formation does not indicate whether the trader 
is directing its activity to one or more Member States.   The Court concluded that, in view of these cons iderations, the Austrian court must determine 
whether it is apparent from the traders’ website s and overall activity that they were envisaging 
doing business with Austrian consumers (Cas e C-585/08) or German consumers (Case C-
144/09) in the sense that they were mi nded to conclude contracts with them. 
4.8 Cross-cutting issues 
4.8.1 VAT 
 
E-commerce is also hampered by tax obs tacles in relation to value-added tax. 
 For goods, there is the problem of excessive  administrative burdens: beyond a certain 
 
 104threshold, set by each Member State at EUR 35 000 or EUR 100 000, the seller must register 
in the Member States where he sells. Knowledge of the thresholds and fulfilling the VAT obligations (registration for VAT, completing VAT returns and payment of the VAT due) in 
each Member State where sales exceed the thres hold is clearly a deterrent to cross-border 
activities.  The introduction of a One Stop Shop mechan ism as proposed by the European Commission
303 
would help to alleviate admini strative burdens for businesses. 
 
For electronic services, there is currently a problem of distortion of competition within the 
EU. When these services are provided by an EU  supplier to final consumers in the EU, their 
place of taxation is the Member State where that supplier is established. Consequently, 
businesses can take advantage of this situation by establishing in those Member States 
applying a lower VAT rate. The situation is diffe rent as regards electro nic services provided 
by non-EU suppliers, given that the current rules already provide for VAT to be collected and 
paid in the Member State where the customer is  established. For these non-EU suppliers, there 
is a single point of electronic contact for VAT identification and declaration – the mini One Stop Shop mechanism (MOSS).  Directive 2008/8/EC of 12 February 2008
304 sets new rules regardi ng electronic services. As 
from 2015, electronic services provided by an EU  supplier to a non-taxable person (e.g final 
consumer) will also be taxable at the place where the customer is established. If the customer 
is established outside the EU, no VAT will be  due in the EU. As a result, after 2015, any 
potential distortions of competition will disappear.   The supplier himself will be responsible for coll ecting the VAT paid in the Member State of 
the customer. In order to avoid new administrativ e burdens, all suppliers of electronic services 
will have the possibility to make  use of the MOSS as from 2015. 
 The MOSS, which will be optional for businesses,  should simplify administrative obligations 
for small e-commerce operators, as th ey will be able to fulfil al l their obligations in their own 
Member State. This should facilitate the selling of electronic serv ices throughout the EU. 
 There remains the question of VAT rates. First, VAT rates are subject to partial harmonization within the EU
305 and the Member States may set their rates within 
predetermined ranges. For example, the standard  rate must be set at a minimum of 15% and 
currently varies between 15 a nd 25% of the value of goods or services, depending on the 
Member State of taxation. 
                                                 
303  Proposal for a Council Directive amending Directive 77/388/EEC with a view to simplifying value added tax 
obligations  (COM(2004) 728 final, 29.10.2004. Bibliographic notice available at: http://eur-
lex.europa.eu/Notice.do?val=390797:cs&lang=en&list=390798:cs,390488:cs,390797:cs,&pos=3&page=1&
nbl=3&pgs=10&hwords =  
304  Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of 
supply of services , OJ L 44/11, 20.02.2008; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:044:0011:0022:EN:PDF   
305  Council Directive 77/388/EC of 17 May 1977 on the harmonisation of the laws of the Member States 
relating to turnover taxes , OJ L 145/1, 13.06.1977, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriSer v.do?uri=CELEX:31977L0388:EN:HTML   
 
 105 
Finally, VAT rates discriminate between phys ical and digital cu ltural goods. Whilst for 
certain cultural goods, Member St ates have the option to apply a reduced VAT rate (minimum 
5%), the sales of digital assets are always s ubject to the standard rates (15 to 25%). This 
discrimination is a source of misunderstanding fo r the consumers, an additional administrative 
burden for companies, especially SMEs, and can constitute a barrier to  market for digital 
goods. In its Green Paper on the future of VAT306, the Commission raised the question of the 
convergence between digital and physical envi ronments, and notably of the impact on 
business and market development of the current divergences in the Single Market. It indicated 
that convergence can be achieved either by appl ying the standard rate to physical goods as 
well or by extending to the digital environm ent 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 level.
307 
4.8.2 Networks and infrastructure 
 
Multiple networks are being developed at nation al and European level to manage the links 
between businesses, consumers and public authoritie s, as well as between public authorities of 
different Member States. Respondents to th e e-commerce communicati on have stressed the 
importance of strengthening thes e networks in order to cont ribute to the Digital Single 
Market. Although this Staff Work ing Document does not cover ne tworks and infrastructure, it 
is obvious that a clear relations hip exists between these netw orks and the online trade in 
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 acces s to justice, which 
requires cross-border cooperation amongst business registers.  The Commission 
proposed to amend Directives 89/666/EEC , 2005/56/EC and 2009/101/EC as regards 
the interconnection of central, commercial an d companies’ registers. An initiative is 
also underway to interconnect insolvency registers via the European e-Justice Portal 
by mid 2012. 
• More generally, the e- Justice Portal was launched on 16 July 2010. The Portal intends 
to promote access to information in the field of justice (both to EU and national 
legislation and case law); to dematerialise cross-border judicial and extra-judicial 
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, 
Towards a simpler, more robust and efficient VAT system , COM(2010) 695 final, 01.12.2010; available at: 
http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=SEC:2010:1455:FIN:EN:PDF   
307  Commission Communication on the future of VAT, Towards a simpler, more robust and efficient VAT 
system tailored to the single marke, " COM(2011) 851 final,  
http://ec.europa.eu/taxation_customs/resources/documents/taxation/vat/key_documents/communications/co
m_2011_851_en.pdf   
308  See the Council’s Multi-Annual European e-Justice Action Plan 2009-2013 , 2009/C 75/01, 31.3.2009, 
available at: http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=OJ:C:2009:075:0001:0012:en:PDF . 
 
 106• The new fund for the "Connecting Europe Facility" proposed by the European 
Commission for the 2014-2020 multi-annual budge t reserves € 9.2 billion for digital 
infrastructures.309 
• The Commission is moving to suppo rt take-up of e-procurement.310 
4.8.3 Environmental dimension  
 
The development of e-commerce and other on line services can contribute to a more 
sustainable economy. Though research  is still rather in its in fancy, available empirical 
evidence shows that the digital economy has positive effects on the environment. 
 For example, compared to a traditional CD purch ase in a "brick and mortar" shop, the 
purchase of online music and online movie rental  is much more environmentally friendly. A 
recent study concludes that energy use and ca rbon emission can be reduced by between 40% 
and 80%, depending on whether the customer  burns the file to a CD or not.
311 Research in the 
field of online and offline movie rental came to the same conclusions despite the fact that in 
the online movie rental business the DVDs were still delivered.312 
 E-Commerce and other modern technologies can al so help to communicate to consumers the 
environmental performance of the products they buy more clearly, efficien tly and effectively. 
This can be done not just at the point of pur chase but also while the consumer is doing 
(online) research about the pr oducts he intends to buy. E-Comme rce and other online services 
can for example allow consumers easy access to a summary of environmental information of 
the products they are considering buying using electronic tagging, or enable them to 
benchmark the products they intend to buy ag ainst the best in class on the market. 
 The European Commission supports the proposal, made at the Retail Forum established in 
2009, to reduce the retail environmental footpr int and spread good environmental practices 
throughout the supply chain. E-commerce is seen as a way to reduce the environmental costs 
                                                                                                                                                        
 
And for more concrete examples see the revised roadmap of the Council Working Party on e-Law (e-
Justice), doc 1033/11 of 20 May 2011. 
309  Communication from the Commission to the European Parliament, the Council, the European Court of 
Justice, the Court of Auditors, the European Inve stment Bank, the European Economic and Social 
Committee and to the Commi ttee of the Regions, A growth package for integrated European 
infrastructure s, COM(2011) 676, 19.10.2011, available at: http://ec.europa.eu/commission_2010-
2014/president/new s/speeches-statement s/pdf/20111019_1_en.pdf   
310  See for details the Public Procurement web-page of DG MARKT: 
http://ec.europa.eu/internal_market/publicprocurement/index_en.htm .  
311  Weber/ Koomey/ Matthews, The energy and climate change impacts of different music delivery methods , 
Final Report to Microsoft Corporation and In tel Corporation, 2009, p. i, available at: 
http://download.intel.com/pressroo m/pdf/cdsvsdownloadsrelease.pdf   
312  Marcelo Velásquez, A comparative study of the environmental impact of the online and offline movie rental 
business , 2009, available at: 
http://dalspace.library .dal.ca:8080/bits tream/handle/10222/12737/ME C%20THESIS%20MARCELO%20V
ELASQUEZ.pdf?sequence=1   
 
 107of transporting products to consumers. A study commissioned by FEVAD313, in France, 
showed that, in terms of journeys made by cust omers, the e-commerce model results in a total 
distance of 10.09 km saved per de livery. For standard-sized pa rcels, the e-commerce model 
makes it possible to divide the emissions of greenhouse gases by a factor of almost 4. In 
absolute terms, the average saving made on CO2 emissions amounts to 2.670 kg eq. CO2 per 
delivery. The e-commerce model makes it possi ble to reduce the use of non-renewable 
resources used in deliveries by a factor of 4.5, and reduce by a factor of 2.81 the impact on 
human health. Moreover, a US study314 found that e-commerce elec tronic products consumed 
30% less energy than th ose originating in traditional commerce.  
 
The current lack of harmonisation in nationa l implementation of the rules on waste of 
electrical and electronic equipm ent (WEEE Directive) results in various levels of fees and 
thresholds for the registration and reporting of  electrical and electronic equipment by online 
retailers, which can be prohibitive for cross-bo rder traders. In its proposal to recast the 
Directive of 2009,315 the Commission took major steps to harmonise implementation, 
clarifying certain provisions of the Directive,  including its scope. Ar ticle 16 proposes to 
harmonise registration and reporting by producer s in the EU by making the national registers 
for producers interoperable. This  would allow producers to regist er in one Member State and 
conduct their activities in the whole EU inst ead of registering in each Member State 
separately. The Commission's pr oposal would significantly cont ribute to alleviating the 
practical problems identified unde r the current scheme. In the co-decision discussion on the 
WEEE Directive during its first reading, the Pa rliament has supported the approach proposed 
by the Commission, while the Council expressed a preference for a national approach. The 
Commission invites the Council to  reconsider this approach, especially as regards cross-
border distance sales. 
4.8.4 International dimension316  
 
E-commerce and the Internet ha ve an inherently global dime nsion, but rules on e-commerce 
are still very much fragmented both across Euro pe and worldwide. This may be problematic 
when European companies operate outside Eu rope or when non-EU companies operate in 
Europe. For instance, some non-European countr ies impose general mon itoring obligations on 
companies or require companies to block cer tain content in a way that would not be 
considered proportionate in Europe. On the othe r hand, companies that are not established in 
Europe are in principle not c overed by the E-Commerce Directive.317 Particular problems can 
                                                 
313  Estia et Médiamétrie//NetRatings pour la FEVAD, Etude de l’impact environnemental de l’achat sur 
internet et dans le commerce traditionnel , June 2009; available at: 
http://www.fevad.com/uploads/f iles/Prez/fevad_estia_110609.pdf  
314  Weber et. al., Life Cycle Comparison of Traditional Retail and E-commerce Logistics for Electronic 
Products: A case study of buy.com ,  Green Design Institute at Carneg ie Mellon University, December 2008, 
available at: http://www.ce.cmu.edu/~greendesign/research/Buy_com_report_final_030209.pdf   
315  http://ec.europa.eu/environment/waste/weee/index_en.htm   
316  The present chapter complements the international aspects of the Digital Agenda as set out in the 
Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions, A Digital Agenda for Europe , COM (2010) 245 of 
19.5.2010, available at: http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-
communication-en.pdf   
317  See Recital 58, ECD . 
 
 108also arise in the context of notice-and-takedown procedures. When illegal information is 
accessible in Europe, but is hosted outside the EU, a court in a Member State cannot order the 
takedown of this information. Inte rmediaries in Europe can then  block this content, but many 
consider this to be a sub-optimal solution wh ich could hamper the freedom of expression.  
 The Commission has been addressing international aspects of e-commerce both in bilateral
318 
and multilateral319 contacts with its partners. Bilatera lly, the Commission has been negotiating 
the inclusion of certain instruments of the e-commerce acquis , such as the liability 
exemptions regime of the ECD in Free Trad e Agreements. Although the initial focus was on 
the inclusion of the liability exemptions in  the specific area of IPR enforcement, the 
Commission now aims to include liability exemp tions that apply horizontally to all illegal 
information and activities. Similarly the Commission is seeking to include horizontal 
prohibitions on general monitoring obligations in its FTA negotiations . This reflects the 
importance that European online companies attach to the horizontal application of the liability regime, as expressed in the responses to  the public consultation on e-commerce. 
 The Commission has also been discussing the E- Commerce Directive in a bilateral context: 
• by negotiating cooperation provisions on issu es such as the prohibition of prior 
authorisation, the conclusion of contract by  electronic means, unsolicited commercial 
communications and other provisions of the E-Commerce Directive; 
• by requiring the full transposition of th e E-Commerce Directive in Association 
Agreements concluded in the context of the European Neighbourhood Policy; 
• by negotiating the full transposition of th e E-Commerce Directive with (potential) 
candidate countries. 
 The Commission has taken into acc ount the international dimension of trade also in respect of 
other policy instruments. For instance, th e Proposal for a Common European Sales Law 
provides that companies from third countries coul d also choose this instrument for contracts 
with parties located in the EU. This would be an incentive from companies from third 
countries to expand their e-comm erce in the EU, as they would be able to trade within the 
Single Market based on the same rules.   At a multilateral level, the Commission has been  active in several bodies, notably in the G8 
and the OECD. The Commission has for instance ta ken an active role in the OECD Working 
Group on the role of intermediaries in advanc ing public interest ob jectives. The Commission 
has also contributed significan tly to the discussions within the context of the WTO 
programme on e-commerce. One of the achievements of this work programme is notably the so-called "e-commerce moratorium" (WTO members will not charge import duties on 
electronic transmissions), therefore the develo pment of electronic transactions. The work 
programme has been ongoing sin ce 1998 and covers all trade related aspect s of e-commerce, 
such as the classification of e-commerce se rvices or the devel opment dimension of e-
commerce. The Commission has also been involv ed in the discussions within the Internet 
Governance Forum (IGF) on issues such as the su stainability and secur ity of the Internet.  
 Despite the usefulness of several multilate ral dialogues on e-commerce, the Commission 
believes that e-commerce could benefit fr om intensifying multilateral dialogues.   
                                                
 
318  For example: Free Trade Agreements; Stabilization and Association Agreements. 
319  For example: WTO/GATS; Eu ropean Neighbourhood Policy. 
 
 109 
Commission services will further intensify the bilateral and multilateral discussions on e-
commerce and other online servic es through global cooperation in particular in the context of 
the WTO/GATS, OECD and the Internet Governance Forum.  
 
 110ANNEX I:  TRANSPOSITION OF DI RECTIVE 2000/31/EC IN THE EUROPEAN 
ECONOMIC AREA  
 
Member 
States  Transpositions Laws  
Belgium  Transposition deadline: 17/01/2002  
 1. Loi du 11 mars 2003 sur certains aspects juridiques des services de la sociétè de 
l'information visés à l'article 77 de la  Constitution. MB Ed. 2 du 17/03/2003 p. 
12960 (C - 2003/11126)  
Legal act : Mesures administratives; Official Journal: Moniteur Belge, Publication 
date: 17/03/2003, Entry into force:  11/03/2003; Reference: (SG(2003)A/02989)  
http://www.ejustice.just.fgov.be/cgi_loi/ change_lg.pl?language=fr&la=F&cn=20  
03031131&table_name=loi   
 
2. Loi sur certains aspects juridiques des serv ices de la société de l'information –  
11 mars 2003; Moniteur belge du 17.3.2003 p. 12960 et 12963  
http://www.ejustice.just.fgov.be/cgi_loi/ change_lg.pl?language=fr&la=F&cn=20  
03031132&table_name=loi   
 
Bulgaria  Transposition deadline: 01/01/2007  
 1. Закон  за задълженията  и договорите
 
Legal act : Закон ; Official Journal: Държавен  вестник , number: 36, Publication 
date: 02/05/2006, Entry into force:  01/07/2006; Reference: (MNE(2006)58154)  
 2. Закон  за международния  търговски  арбитраж
 
Legal act : Закон ; Official Journal: Държавен  вестник  , number: 46, Publication 
date: 07/05/2002, Entry into force:  11/05/2002; Reference: (MNE(2006)58156)  
 3. Закон  за медиацията
 
Legal act : Закон ; Official Journal: Държавен  вестник , number: 86, Publication 
date: 24/10/2006, Entry into force:  28/10/2006; Reference: (MNE(2006)58152)  
 
 111 
4. Закон  за електронния  документ  и електронния  подпис  
Legal act : Закон ; Official Journal: Държавен  вестник , number: 80, Publication 
date: 03/10/2006, Entry into force:  03/10/2006; Reference: (MNE(2006)58150)  
 5. Граждански  процесуален  кодекс
 
Legal act : Кодекс ; Official Journal: Държавен  вестник , number: 64, Publication 
date: 08/08/2006, Entry into force:  09/11/2006; Reference: (MNE(2006)58151)  
 
6. Закон  за електронната  търговия  
Legal act : Закон ; Official Journal: Държавен  вестник , number: 51, Publication 
date: 23/06/2006, Entry into force:  24/12/2006; Reference: (MNE(2006)58149)  
Czech 
Republic  
 Transposition deadline: 01/05/2004  
 1. Zákon č. 88/2003 Sb., kterým se m ění zákon č. 513/1991 Sb., obchodní zákoník, ve 
znění pozdějších předpisů, zákon č. 40/1964 Sb., ob čanský zákoník, ve zn ění 
pozdějších předpisů, zákon č. 99/1963 Sb., ob čanský soudní řád, ve znění 
pozdějších předpisů, zákon č. 591/1992 Sb., o cenných papírech, ve zn ění 
pozdějších předpisů, zákon č. 358/1992 Sb., o notá řích a jejich činnosti (notá řský 
řád), ve zn ění pozdějších předpisů, zákon č. 370/2000 Sb., kterým se m ění zákon č. 
513/1991 Sb., obchodní zákoník, ve zn ění pozdějších předpisů, zákon č. 358/1992 
Sb., o notá řích a jejich činnosti (notá řský řád), ve zn ění pozdějších předpisů, 
zákon č. 15/1998 Sb., o Komisi pro cenné papíry a o zm ěně a doplnění dalších 
zákonů, ve znění zákona č. 30/2000 Sb., zákon č. 200/1990 Sb., o p řestupcích, ve 
znění pozdějších předpisů, zákon č. 99/1963 Sb., ob čanský soudní řád, ve znění 
pozdějších předpisů, a zákon č. 328/1991 Sb., o konkursu a vyrovnání, ve zn ění 
pozdějších předpisů, ve znění zákona č. 501/2001 Sb. a nálezu Ústavního soudu 
vyhlášeného pod č. 476/2002 Sb., zákon č. 219/2000 Sb., o majetku České 
republiky a jejím vystupování v právních vztazích, ve zn ění pozdějších předpisů, 
a zákon č. 455/1991 Sb., o živnostenském podnikání (živnostenský zákon), ve 
znění pozdějších předpisů 
Legal act : Zákon, number: 88/2003; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 01/04/2003;  Reference: (MNE(2003)56385)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2003/sb037-03.pdf   
 
2. Zákon č. 151/2002 Sb., kterým se m ění některé zákony v souvislosti s p řijetím 
 
 112soudního řádu správního  
Legal act : Zákon, number: 151/2002; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 17/04/2002;  Reference: (MNE(2003)56295)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2002/sb061-02.pdf   
 
3. Zákon č. 138/2002 Sb., kterým se m ění zákon č. 40/1995 Sb., o regulaci reklamy a 
o změně a doplnění zákona č. 468/1991 Sb., o provozování rozhlasového a 
televizního vysílání, ve zn ění pozdějších předpisů, a zákon č. 79/1997 Sb., o 
léčivech a o zm ěnách a dopln ění některých souvisejících zákon ů, ve znění 
pozdějších předpisů 
Legal act : Zákon, number: 138/2002; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 15/04/2002;  Reference: (MNE(2003)56308)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2002/sb057-02.pdf   
 4. Zákon č. 135/2002 Sb., kterým se m ění zákon č. 40/1964 Sb., ob čanský zákoník, ve 
znění pozdějších předpisů 
Legal act : Zákon, number: 135/2002; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 15/04/2002;  Reference: (MNE(2003)56792)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2002/sb057-02.pdf   
 5. Zákon č. 317/2001 Sb., kterým se m ění zákon č. 40/1964 Sb., ob čanský zákoník, ve 
znění pozdějších předpisů, a o změně dalších zákon ů 
Legal act: Zákon, number: 317/2001; Of ficial Journal: Sbirka Zakonu CR, 
Publication date: 07/09/2001;  Reference: (MNE(2004)53429)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2001/sb122-01.pdf   
 6. Zákon č. 370/2000 Sb., kterým se m ění zákon č. 513/1991 Sb., obchodní zákoník, 
ve znění pozdějších předpisů, zákon č. 358/1992 Sb., o notá řích a jejich činnosti 
(notářský řád), ve zn ění pozdějších předpisů, zákon č. 15/1998 Sb., o Komisi pro 
cenné papíry a o zm ěně a doplnění dalších zákon ů, ve znění zákona č. 30/2000 Sb., 
zákon č. 200/1990 Sb., o p řestupcích, ve zn ění pozdějších předpisů, zákon č. 
99/1963 Sb., ob čanský soudní řád, ve znění pozdějších předpisů, a zákon č. 
328/1991 Sb., o konkursu a vyrovnání, ve zn ění pozdějších předpisů 
Legal act : Zákon, number: 370/2000; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 25/10/2000;  Reference: (MNE(2003)56337)  
 
 113http://aplikace.mvcr.cz/arch iv2008/sbirka/2000/sb100-00.pdf   
 
7. Zákon č. 367/2000 Sb., kterým se m ění zákon č. 40/1964 Sb., ob čanský zákoník, ve 
znění pozdějších předpisů, a některé další zákony  
Legal act : Zákon, number: 367/2000; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 23/10/2000;  Reference: (MNE(2003)56434)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2000/sb099-00.pdf   
 8. Zákon č. 227/2000 Sb., o elektron ickém podpisu a o zm ěně některých dalších 
zákonu  
  
Legal act : Zákon, number: 227/2000; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 26/07/2000;  Reference: (MNE(2003)56642)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2000/sb068-00.pdf   
 
9. Zákon č. 356/1999 Sb., kterým se m ění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve zn ění pozdějších předpisů, a některé další 
zákony  
Legal act : Zákon, number: 356/1999; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 30/12/1999;  Reference: (MNE(2003)56853)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1999/sb111-99.pdf  
 10. Zákon č. 63/1999 Sb.,, kterým se m ění zákon č. 202/1990 Sb., o loteriích a jiných 
podobných hrách, ve zn ění pozdějších předpisů, a o změně dalších zákon ů 
Legal act : Zákon, number: 63/1999; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 09/04/1999;  Reference: (MNE(2004)53428)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1999/sb026-99.pdf   
 11. Zákon č. 286/1995 Sb., kterým se m ění a doplňuje zákon č. 455/1991 Sb., o 
živnostenském podnikání (živnostenský zákon), ve zn ění pozdějších předpisů, a 
zákon České národní rady č. 570/1991 Sb., o živnostenských ú řadech  
Legal act : Zákon, number: 286/1995; Offici al Journal: Sbirka Zakonu CR, 
 
 114Publication date: 08/12/1995;  Reference: (MNE(2003)56856)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1995/sb74-95.pdf   
 12. Zákon č. 40/1995 Sb., o regulaci reklamy a o zm ěně a doplnění zákona č. 468/1991 
Sb., o provozování rozhlasového a televizního vysílání, ve zn ění pozdějších 
předpisů 
Legal act : Zákon, number: 40/1995; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 14/03/1995;  Reference: (MNE(2003)56307)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1995/sb08-95.pdf   
 
13. Zákon č. 216/1994 Sb., o rozhod čím řízení a o výkonu rozhod čích nálezů, ve znění 
pozdějších předpisů 
Legal act : Zákon, number: 216/1994; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 30/11/1994;  Reference: (MNE(2003)56857)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1994/sb67-94.pdf   
 14. Zákon č. 264/1992 Sb., kterým se m ění a doplňuje občanský zákoník, zrušuje 
zákon o státním notá řství a o řízení před státním notá řstvím (notá řský řád) a 
mění a doplňují některé další zákony  
Legal act : Zákon, number: 264/1992; Official  Journal: Sbirka Zakonu CR, 
Publication date: 10/06/1992;  Reference: (MNE(2004)53427)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1992/sb056-92.pdf   
 
15. Zákon č. 513/1991 Sb., obchodní zákoník, ve zn ění zákona č. 370/2000 Sb., zák. č. 
501/2001 Sb. a zák. č. 88/2003 Sb., ve zn ění pozdějších předpisů 
 
Legal act : Zákon, number: 513/1991; Official  Journal: Sbirka Zakonu CR, 
Publication date: 18/12/1991;  Reference: (MNE(2003)56306)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1991/sb098-91.pdf  
  16. Zákon č. 509/1991 Sb., kterým se m ění, doplňuje a upravuje ob čanský zákoník
 
Legal act : Zákon, number: 509/1991; Official  Journal: Sbirka Zakonu CR, 
 
 115Publication date: 18/12/1991;  Reference: (MNE(2003)56311)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1991/sb097-91.pdf   
 17. Zákon č. 455/1991 Sb., o živnostenském podniká ní (živnostenský zákon), ve zn ění 
pozdějších předpisů 
Legal act : Zákon, number: 455/1991; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 15/11/1991;  Reference: (MNE(2003)56510)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1991/sb087-91.pdf   
 
18. Zákon č. 202/1990 Sb., o loteriích a jiných obdobných hrách, ve zn ění pozdějších 
předpisů 
Legal act : Zákon, number: 202/1990; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 18/05/1990;  Reference: (MNE(2003)56673)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1990/sb035-90.pdf   
 19. Zákon č. 40/1964 Sb., ob čanský zákoník, ve zn ění pozdějších předpisů
 
Legal act : Zákon, number: 40/1964; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 05/03/1964;  Reference: (MNE(2003)56425)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1964/sb19-64.pdf   
 20. Zákon č. 99/1963 Sb., ob čanský soudní řád
 
Legal act : Zákon, number: 99/1963; Offici al Journal: Sbirka Zakonu CR, 
Publication date: 04/12/1963;  Reference: (MNE(2003)56292)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/1963/sb56-63.pdf   
 21. Zákon č. 500/2004 Sb., správní řád, ve znění pozdějších předpisů
 
Legal act : Zákon, number: 500/2004; Official  Journal: Sbirka Zakonu CR, 
Publication date: 24/09/2004;  Reference: (MNE(2004)53430)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2004/sb174-04.pdf   
 
 
 11622. Zákon č. 480/2004 Sb., o n ěkterých službách informa ční společnosti a o zm ěně 
některých zákon ů (zákon o n ěkterých službách informa ční společnosti), ve zn ění 
pozdějších předpisů 
Legal act : Zákon, number: 480/2004; Official  Journal: Sbirka Zakonu CR, 
Publication date: 07/09/2004;  Reference: (MNE(2004)53161)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2004/sb166-04.pdf   
 23. Zákon č. 235/2004 Sb., o dani z p řidané hodnoty, ve zn ění pozdějších předpisů
 
Legal act : Zákon, number: 235/2004; Official  Journal: Sbirka Zakonu CR, 
Publication date: 23/04/2004, Entry into force: 01/05/2004; Reference: 
(MNE(2004)58467)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2004/sb078-04.pdf   
 24. Zákon č. 167/2004 Sb., kterým se m ění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve zn ění pozdějších předpisů, a některé 
související zákony  
Legal act : Zákon, number: 167/2004; Official  Journal: Sbirka Zakonu CR, 
Publication date: 16/04/2004, Entry into force: 01/05/2004; Reference: 
(MNE(2004)59068)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2004/sb057-04.pdf   
 25. Zákon č. 18/2004 Sb., o uznávání odbo rné kvalifika ce a jiné zp ůsobilosti státních 
příslušníků členských stát ů Evropské unie a o zm ěně některých zákon ů (zákon o 
uznávání odborné kv alifikace), ve zn ění pozdějších předpisů 
 
Legal act : Zákon, number: 18/2004 ; Official  Journal: Sbirka Zakonu CR, 
Publication date: 23/01/ 2004; Reference: (MNE(2003)56823)  
http://aplikace.mvcr.cz/arch iv2008/sbirka/2004/sb007-04.pdf   
 26. Zákon č. 127/2005 Sb., o elektronický ch komunikacích a o zm ěně některých 
souvisejících zákon ů (zákon o elektronických komunikacích), ve zn ění pozdějších 
předpisů,  
 
 
 117Legal act : Zákon, number 127/2005; Official  Journal: Sbirka Zakonu CR, 
Publication date: 31/03/2005;  
 27. Zákon č. 130/2008 Sb., kterým se m ění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve zn ění pozdějších předpisů, a další související 
zákony  
 
Legal act : Zákon, number 130/2008; Official  Journal: Sbirka Zakonu CR, 
Publication date: 17/04/2008;  
 
28. Zákon č. 155/2010 Sb., kterým se m ění některé zákony ke zkvalitn ění jejich 
aplikace a ke snížení administrativní zát ěže podnikatel ů;  
 
Legal act : Zákon, number 155/2010; Official  Journal: Sbirka Zakonu CR, 
Publication date: 21/05/2010;  
 
29. Zákon č. 189/2008 Sb., kterým se m ění zákon č. 18/2004., o uznávání odborné 
kvalifikace a jiné zp ůsobilosti státních p říslušníků členských stát ů Evropské unie 
a o změně některých zákon ů (zákon o uznávání odbo rné kvalifikace), ve zn ění 
pozdějších předpisů, a další související zákony  
 
Legal act : Zákon, number 189/2008; Official  Journal: Sbirka Zakonu CR, 
Publication date: 02/06/2008;  
 30. Zákon č. 214/2006 Sb., kterým se m ění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve zn ění pozdějších předpisů, a některé další 
zákony  
 
Legal act : Zákon, number 214/2006; Official  Journal: Sbirka Zakonu CR, 
Publication date: 19/05/2006;  
 
31. Zákon č. 261/2007 Sb., o stabilizaci ve řejných rozpo čtů 
 
 
 118Legal act : Zákon, number 261/2007; Official  Journal: Sbirka Zakonu CR, 
Publication date: 16/10/2007;  
 
32. Zákon č. 281/2009 Sb., kterým se m ění některé zákony v souvislosti s p řijetím 
daňového řádu 
 
Legal act : Zákon, number 281/2009; Official  Journal: Sbirka Zakonu CR, 
Publication date: 03/09/2009;  
 
33. Zákon č. 302/2008 Sb., kterým se m ění zákon č. 235/2004 Sb., o dani z p řidané 
hodnoty, ve zn ění pozdějších předpisů 
 
Legal act : Zákon, number 302/2008; Official  Journal: Sbirka Zakonu CR, 
Publication date:19/08/2008;  
 
34. Zákon č. 427/2010 Sb., kterým se m ění zákon č. 326/1999 Sb., o pobytu cizinc ů na 
území České republiky a o zm ěně některých zákon ů, ve znění pozdějších 
předpisů, zákon č. 325/1999 Sb., o azylu a o zm ěně zákona č. 283/1991 Sb., o 
Policii České republiky, ve zn ění pozdějších předpisů, (zákon o azylu), ve zn ění 
pozdějších předpisů, a další související zákony  
 
Legal act : Zákon, number 427/2010; Official  Journal: Sbirka Zakonu CR, 
Publication date: 13/12/2010;  
 
35. Zákon č. 47/2011 Sb., kterým se m ění zákon č. 235/2004 Sb., o dani z p řidané 
hodnoty, ve zn ění pozdějších předpisů  
 
Legal act : Zákon, number 47/2011; Official  Journal: Sbirka Zakonu CR, 
Publication date: 08/03/2011;  
 
36. Zákon č. 489/2009 Sb., kterým se m ění zákon č. 235/2004 Sb., o dani z p řidané 
hodnoty, ve zn ění pozdějších předpisů 
 
 
 119Legal act : Zákon, number 489/2009; Official  Journal: Sbirka Zakonu CR, 
Publication date: 13/12/2009;  
 
37. Zákon č. 545/2005 Sb., kterým se m ění zákon č. 586/1992 Sb., o daních z p říjmů, 
ve znění pozdějších předpisů, a některé související zákony  
 
Legal act : Zákon, number 545/2005; Official  Journal: Sbirka Zakonu CR, 
Publication date: 30/12/2005;  
 
38. Zákon č. 56/2006 Sb., kterým se m ění zákon č. 256/2004 Sb., o podnikání na 
kapitálovém trhu, ve zn ění pozdějších předpisů, a další související zákony  
 
Legal act : Zákon, number 56/2006; Official  Journal: Sbirka Zakonu CR, 
Publication date: 08/03/2006;  
 
39. Zákon č. 635/2004 Sb., kterým se m ění některé zákony v souvislosti s p řijetím 
zákona o správních poplatcích  
 
Legal act : Zákon, number 635/2004; Official  Journal: Sbirka Zakonu CR, 
Publication date: 17/12/2004;  
 
40. Zákon č. 444/2005 Sb., kterým se m ění zákon č. 531/1990 Sb., o územních 
finančních orgánech, ve zn ění pozdějších předpisů, a některé další zákony  
 
Legal act : Zákon, number 444/2005; Official  Journal: Sbirka Zakonu CR, 
Publication date: 11/11/2005;  
 
41. Zákon č. 296/2007 Sb., kterým se m ění zákon č. 182/2006 Sb., o úpadku a 
způsobech jeho řešení (insolven ční zákon), ve zn ění pozdějších předpisů, a některé 
zákony v souvislosti s jeho p řijetím  
 
Legal act : Zákon, number 296/2007; Official  Journal: Sbirka Zakonu CR, 
 
 120Publication date: 29/11/2007;  
 
42. Zákon č. 104/2008 Sb., o nabídkách p řevzetí a o zm ěně některých dalších zákon ů 
 
Legal act : Zákon, number 104/2008; Official  Journal: Sbirka Zakonu CR, 
Publication date: 01/04/2008;  
 
Denmark  Transposition deadline: 17/01/2002  
 
1. Lov om tjenester i informat ionssamfundet, herunder viss e aspekter af elektronisk 
handel ref: Lov nr 227 af 22/04/2002  
Legal act : Lov, number: 227; Official Journal : Administrative measures, Entry 
into force: 22/04/2002; Reference: (SG(2002)A/06093)  
http://www.retsinfo.dk/ _GETDOC_/ACCN/A20020022730-REGL  
Germany  Transposition deadline: 17/01/2002  
 1. "Umsetzung der Artikel 10 und 11 der RL: § 312 e Bürgerliches Gesetzbuch 
Umsetzung von Artikel 18 der RL: §§ 2 und 3 Unterlassungsklagengesetz"  
Legal act : Gesetz; Official Journal: Bundesges etzblatt Teil 1 (BGB 1), Publication 
date: 29/11/2001, Page: 03138-03188; Reference: (MNE(2006)56697)  
http://www.bgbl.de/Xaver/text.xav?bk= Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC   
 
2. Teledienstegesetz  
Legal act : Gesetz; Official Journal: Bundesges etzblatt Teil 1 (BGB 1), Publication 
date: 28/02/2007; Reference: (MNE(2007)55072)  
http://www.bgbl.de/Xaver/text.xav?bk= Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC   
 
3. Concordance table  
Legal act : Concordance table; Reference: (MNE(2007)55071)  
 
 121 
4. Umsetzung von Art. 20 der Richtlinie: §§ 8 - 10, 16 Gesetz gegen den unlauteren 
Wettbewerb vom 3. Juli 2004 (BGBl. I S. 1414), geändert durch Artikel 165 des 
Gesetzes vom 19. April 2006 (BGBl. I S. 866)  
Legal act : Gesetz; Official Journal: Bundesges etzblatt Teil 1 (BGB 1), Publication 
date: 07/06/2004; Reference: (MNE(2006)55202)  
http://www.bgbl.de/Xaver/text.xav?bk= Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC   
 
5. Gesetz uber rechtliche Rahmenbedi ngungen für den Elektronischen 
Geschaftsverkehr (Elektronisch er Geschäftsverkehr-Gesetz (EGG)) 
Bundesgesetzblatt, Jahrgang 2001, Teil I Nr. 70 vom 20/12/2001, Seite 3721  
Legal act : Gesetz; Official Journal: Bundesg esetzblatt Teil 1 (BGB 1), number: 
Teil I nr 70, Publication date: 20/12/2001, Page: 3721; Reference: 
(SG(2002)A/04406)  
http://www.bgbl.de/Xaver/text.xav?bk= Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC   
 
6. Umsetzung von Art. 10 und 11 der RL: § 3 der BGB- Informationspflichten-  
Verordnung  
Legal act : Verordnung; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), 
Publication date: 08/08/2002;  Reference: (MNE(2006)55241)  
http://www.bgbl.de/Xaver/text.xav?bk= Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC   
 
7. Umsetzung von Art. 20 der Richtlinie: §§ 8 - 10, 16 Gesetz gegen den unlauteren 
Wettbewerb vom 3. Juli 2004 (BGBl. I S. 1414), geändert durch Artikel 165 des 
Gesetzes vom 19. April 2006 (BGBl. I S. 866)  
Legal act : Gesetz; Official Journal: Bundesges etzblatt Teil 1 (BGB 1), Publication 
date: 07/06/2004; Reference: (MNE(2006)55203)   
 8. Landesgesetz zu dem Sechsten Rundf unkaenderungsstaatsvertrag und zur 
Änderung des Landesrundfunkgesetzes vom  4/07/2002 GVBl. Rheinland-Pfalz n° 
10 du 12/06/2002 p. 255  
Legal act : Gesetz; Official Journal: Verwaltungsmassnahmen  
 
 122http://www.urheberrecht.org/law/ normen/rstv/RStV-06/text/   
Estonia  Transposition deadline: 01/05/2004  
 1. KÄIBEMAKSUSEADUS
 
Legal act : seadus, number: RT I 2004, 89, 603; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2004, 89, 603, Entry into force: 01/01/2005; 
Reference: (MNE(2005)54902)  
https://www.riigiteataja.ee/akt/976969   
 
2. ÄRISEADUSTIK  
Legal act : seadus, number: RT I 1995, 26-28, 355; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 1995, 26-28, 355, Entry into force: 01/09/1995; 
Reference: (MNE(2003)54262)  
https://www.riigiteataja.ee/akt/834159   
 
3. TSIVIILSEADUSTIKU ÜLDOSA SEADUS  
Legal act : seadus, number: RT I 2005, 39, 308; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2005, 39, 308, Entry into force: 01/01/2006; 
Reference: (MNE(2005)55585)  
https://www.riigiteataja.ee/akt/687028   
 
4. VÕLAÕIGUSSEADUS1  
Legal act : seadus, number: RT I 2005, 39, 308; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2005, 39, 308, Entry into force: 01/01/2006; 
Reference: (MNE(2005)55584)  
https://www.riigiteataja.ee/akt/12876121   
 5. TSIVIILSEADUSTIKU ÜLDOSA SEADUS
 
Legal act : seadus, number: RT I 2002, 35, 216 ; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2002, 35, 216 , Entry into force: 27/12/2003; 
Reference: (MNE(2005)54518)  
 
 123https://www.riigiteataja.ee/akt/95221   
 
6. Infoühiskonna teenuse seadus  
Legal act : seadus, number: RTI 2004, 29, 191; Official Journal: Elektrooniline 
Riigi Teataja, number: RTI 2004, 29, 191, Entry into force: 01/05/2004; 
Reference: (MNE(2004)57749)  
https://www.riigiteataja.ee/akt/780289   
 
7. Tarbijakaitseseadus  
Legal act : seadus, number: RTI, 15.03.2004, 13, 86; Official Journal: 
Elektrooniline Riigi Teataja, number:  RTI, 15.03.2004, 13, 86, Entry into force: 
15/04/2004; Reference: (MNE(2003)55290)  
https://www.riigiteataja.ee/akt/757827   
 
8. VÄLISRIIGIS OMANDATUD KUTSEKVALIFIKATSIOONI 
TUNNUSTAMISE SEADUS  
Legal act : seadus, number: RTI, 15.03.2000, 29, 168 ; Official Journal: 
Elektrooniline Riigi Teataja, number:  RTI, 15.03.2000, 29, 168, Entry into force: 
13/03/2003; Reference: (MNE(2003)54572)  
https://www.riigiteataja.ee/akt/26294   
 
9. Võlaõigusseadus  
Legal act : seadus, number: RT I 2004, 37, 255; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2004, 37, 255, Entry into force: 01/05/2004; 
Reference: (MNE(2003)55345)  
https://www.riigiteataja.ee/akt/745265   
Ireland  Transposition deadline: 17/01/2002  
 1. European Communities (Directive 2000/ 31/EC) Regulations 2003. SI n° 68/2003 of 
24/02/2003  
Reference: (SG(2003)A/02960)  
 
 124http://www.irishstatuteb ook.ie/2003/en/si/0068.html  
Greece  Transposition deadline: 17/01/2002  
 1. Acte législatif 131 FEK A n° 116 du 16/05/2003 p. 1747
 
Legal act : Administrative measures; Official Journal: Εφημερίς  της Κυβερνήσεως  
(ΦΕΚ ) (Τεύχος  Α), Publication date: 16/05/2 003, Page: 1747; Reference: 
(SG(2003)A/05684)  
http://www.et.gr/index.php?option=com _wrapper&view=wrapper&Itemid=104&
lang=en   
Spain  Transposition deadline: 17/01/2002  
 1. Ley 34/2002 de 11de julio, de servicios de la sociedad de la informacion y de 
comercio electronico BOE n° 166 du 12/07/2002 p. 25388  
Legal act : Ley, number: 34/2002; Official Journ al: Boletín Oficial del Estado 
(B.O.E), number: 166, Publication date: 12/07/2002, Entry into force: 11/07/2002; 
Reference: (SG(2002)A/07568)  
http://noticias.juridicas.co m/base_datos/Admin/l34-2002.html  
France  Transposition deadline: 17/01/2002  
 1. Loi n° 575 du 21/6/2004 pour la confiance dans l'économie numérique.
 
Legal act : Loi, number: 575; Official Journal: Journal Officiel de la République 
Française (JORF), Publication date: 22/06/2004, Page: 00001-00022; Reference: 
(MNE(2004)50105)  
http://www.legifrance.gouv.fr/affi chTexte.do?cidTexte=JORFTEXT00000080116
4 
&dateTexte = 
2. Ordonnance n° 2005-674 du 16/6/2005 relative à l'accomplissement de certaines 
formalités contractuelles par voie électronique.  
Legal act : Ordonnance, number: 2005/674; Official  Journal: Journal Officiel de la 
République Française (JORF), Public ation date: 17/06/2005, Page: 00001-00002; 
Reference: (MNE(2005)52425)  
http://admi.net/jo /20050617/JUSX0500112R.html   
 
 
 1253. Décret n° 2005-137 du 16/2/2005 pris pour l'application de l'article L. 134-2 du 
code de la consommation.  
Legal act : Décret, number: 2005/137; Official Jo urnal: Journal Officiel de la 
République Française (JORF), Public ation date: 18/02/2005, Page: 00001-00001; 
Reference: (MNE(2005)50744)  
http://www.legifrance.gouv.fr/affi chTexte.do?cidTexte=JORFTEXT00000044845
1&dateTexte =  
Italy Transposition deadline: 17/01/2002  
 
1. Decreto legislativo 09/04/2003 n. 70 - Attuazione delle direttiva 2000/31/CE 
relativa a taluni aspetti giuridici dei servizi della societa dell'informazione nel 
mercato interno, con particolare riferiment o al commercio ele ttronico GURI Serie 
generale n° 87 du 14/04/2003  
Legal act : Administrative measures; Official Journal: Gazzetta Ufficiale della 
Repubblica Italiana, Publication date: 14/04/2003; Referen ce: (SG(2003)A/03980)  
http://www.senato.it/parlam /leggi/deleghe/03070dl.htm  
Cyprus  Transposition deadline: 01/05/2004  
 1. Ο Περί  Ορισμένων  Πτυχών  των Υπηρεσιών  της Κοινωνίας  της Πληροφορίας  και 
Ειδικά  του Ηλεκτρονικού  Εμπορίου  καθώς  και για Συναφή  Θέματα  
(Τροποποιητικός ) Νόμος  του 2007.  
Legal act : Νόμος , number: Ν. 97(Ι)/2007; Official Journal: Cyprus Gazette, 
number: 4135, Publication date: 18/ 07/2007, Page: 00851-00852, Entry into force: 
18/07/2007; Reference: (MNE(2007)55799)  
http://www.mof.gov.cy/mof/gpo/gp o.nsf/All/257AE9F14E771126C225731E001D76
8A/$file/4135%2018.7.2007%20Parartima%201o%20Meros%20I.pdf   
 2. Ο Περί  Ορισμένων  Πτυχών  των Υπηρεσιών  της Κοινωνίας  της Πληροφορίας  και 
Ειδικά  του Ηλεκτρονικού  Εμπορίου  καθώς  και για Συναφή  Θέματα  Νόμος  του 
2004  
Legal act : Νόμος ; Official Journal: Cyprus Gaze tte, Publication date: 30/04/2004; 
Reference: (MNE(2004)59504)   
Latvia  Transposition deadline: 01/05/2004  
 
 
 1261. Par Vispārējās atļaujas noteikumiem  
Legal act : SPRK padomes l ēmums, number: 118; Offici al Journal: Latvijas 
Vēstnesis, number: 90, Publication date: 08/06/2005, Entry into force: 25/05/2005; 
Reference: (MNE(2006)51147)  
http://www.likumi.lv/doc.php?id=109879&from=off   
 2. Patērētāju tiesību aizsardz ības likums
 
Legal act : Likums; Official Journal: Latvijas V ēstnesis, number: 104/105, 
Publication date: 01/04/1999;  Reference: (MNE(2003)50062)  
http://www.likumi.lv/doc.php?id=23309   
 
3. Par reglament ētajām profesij ām un profesion ālās kvalifik ācijas atzīšanu  
Legal act : Likums; Official Journal: Latvijas V ēstnesis, number: 105, Publication 
date: 06/07/2001, Entry into force:  20/07/2001; Reference: (MNE(2004)50177)  
http://www.likumi.lv/doc.php?id=26021   
 
4. Latvijas Republikas Civillikums  
Legal act : Likums; Official Journal: LR Saeimas un Ministru Kabineta Zi ņotājs, 
number: 4, Publication date: 30/ 01/1992; Reference: (MNE(2003)50827)  
http://www.vvc.gov.lv/export/sites/defau lt/LV/publikacijas /civillikums.pdf   
 
5. Informācijas sabiedr ības pakalpojumu likums  
Legal act : Likums; Official Journal: Latvijas V ēstnesis, number: 183, Publication 
date: 17/11/2004, Entry into force:  01/12/2004; Reference: (MNE(2004)53163)  
http://www.likumi.lv/doc.php?id=96619   
 
6. Grozījumi Patērētāju tiesību aizsardz ības likum ā 
Legal act : Likums; Official Journal: Latvijas V ēstnesis, number: 74, Publication 
date: 12/05/2004, Entry into force:  26/05/2004; Reference: (MNE(2004)51138)  
http://www.likumi.lv/doc.php?id=221390   
 
 127Lithuania:  Transposition deadline: 01/05/2004  
 
 
1. Lietuvos Respublikos informacin ės visuomen ės paslaug ų įstatymas Nr. X-614  
 
Legal act : Įstatymas, number: X-614/2006; Official Journal: Valstyb ės žinios, 
number: 65, Publication date: 10/06 /2006, Entry into force: 01/07/2006; 
Reference: (MNE(2006)54979)  
http://www.regitra.lt/uploads/docume nts/dokumentai/istat_lr_info_pasl.pdf   
 
2. Lietuvos Respublikos informacin ės visuomen ės paslaug ų įstatymo 4, 18, 19 
straipsnių pakeitimo ir papildymo įstatymas Legal act: Įstatymas, number: XI-
800; Official Journal: Valstyb ės žinios, number: 60, Publication date: 25/05/2010, 
Entry into force: 25/05/2010;  
http://tar.tic.lt/Default.aspx?id=2& item=results&aktoid=ACB1D81A-6BCF-
406E-9EB0-421FFF219A69  
 
3. Administracini ų teisės pažeidim ų kodekso 15, 44(1), 189(7), 224, 247(10), 259(1), 
320 straipsni ų pakeitimo ir Kodekso papild ymo 44(3), 44(4), 44(5), 214(25), 
214(26) straipsniais įstatymas Legal act: Įstatymas, number: X-1019; Official 
Journal: Valstyb ės žinios, number: 12, Publicat ion date: 30/01/2007, Entry into 
force: 30/01/2007;  
http://tar.tic.lt/Default.aspx?id= 2&item=results&aktoid=9303239B-69D5-49E7-
A5B9-D1E5F5AF0A4A   
 4. Lietuvos Respublikos Vyriausyb ės 2007 m. rugpj ūčio 2 2d. nutarimas Nr. 881 
“Dėl galimyb ės pasiekti neteis ėtu būdu įgytą, sukurtą, pakeistą ar naudojam ą 
informacij ą panaikinimo tvarkos aprašo patvir tinimo” Legal act: Governmental 
decree, number: 881; Official Journal: Valstyb ės žinios, number: 94, Publication 
date: 01/09/2007, Entry in to force: 02/09/2007;  
http://tar.tic.lt/Default.aspx?id=2& item=results&aktoid=014FC9F3-DB65-42E3-
A0B6-6D6FE55A9CE3   
  
 
 128Luxembourg:  Transposition deadline: 17/01/2002  
 5. Loi du 14 août 2000 relative au commerce éléctr onique modifiant le code civil, le 
nouveau code de procédure civile, le code de commerce, le code pénal et 
transposant la directive 1999/93 relative à un cadre communautaire pour les 
signatures électroniques, la directive relative à certains aspects juridiques des 
services de la société de l'information, certaines dispositions de la directive 
97/7/CEE concernant la vente à distance des biens et des services autres que les 
services financiers  
Reference: (SG(2000)A/11994)  
http://www.legilux.public.lu/le g/a/archives/2000/0096/a096.pdf  
Hungary  Transposition deadline: 01/05/2004  
 1. 2008. évi XLVII.törvénya fogyasztókka l szembeni tisztességtelen 
kereskedelmigyakorlat tilalmáról  
Legal act : Törvény, number: 2008/XLVII.; Of ficial Journal: Magyar Közlöny, 
number: 2008/95., Page: 05782-05813; Reference: (MNE(2008)54528)  
http://www.parlament.hu/irom38/05448/05448.pdf   
 
2. 2003. évi C. törvény az elektronikus hírközlésr ől 
Legal act : Törvény, number: 2003/C; Official  Journal: Magyar Közlöny, number: 
2003/136, Publication date: 27/11/2003, Page: 10420-10483, Entry into force: 
01/01/2004; Reference: (MNE(2003)54694)  
http://www.parlamen t.hu/irom37/5680/5680.htm  
 3. 2001. évi XXXV. törvény az elektronikus aláírásról
 
Legal act : Törvény, number: XXXV/2001; Offi cial Journal: Magyar Közlöny, 
number: 2001/65, Publication date: 12/06/2001, Page: 04137-04149; Reference: 
(MNE(2003)54716)  
http://www.mkogy.hu/irom36/3847/3847.htm  
 4. 2001. évi CVIII. törvény az elektronikus k ereskedelmi szolgáltatások, valamint az 
információs társadalommal összefügg ő szolgáltatások egyes kérdéseir ől 
 
 129Legal act : Törvény; Official Journal: Magyar  Közlöny, number: 153, Publication 
date: 24/12/2001, Page: 11450; Reference: (MNE(2003)54725)  
http://www.navar-honlap.hu/alapveto-jogszabalyok/az-elektronikus-
kereskedelmi-szolgaltatasok-valam int-az-informacios-tarsadalommal-
osszefuggo.html   
Malta:  Transposition deadline: 01/05/2004  
 1. Electronic Commerce Act 2001 (Chapter 426 of 2001)
 
Legal act : Act; Official Journal: The Malta government gazette, number: 17,037, 
Publication date: 16/01/2001;  Reference: (MNE(2003)57439)  
https://secure.gov.mt/e-proc urement/pdfs/chapt426.pdf   
 2. LE{ISLAZZJONI SUSSIDJARJA 426.02REGOLAMENTI DWAR IL-
KOMUNIKAZZJONIJIETU TRAN SAZZJONIJIET ELETTRONI~I  
Legal act : Regolament, number: LS42602; Official Journal: The Malta 
government gazette, Publication date: 24/10/2006, Page: 00001-00016; Reference: 
(MNE(2011)51813)  
Netherlands:  Transposition deadline: 17/01/2002  
 1. Wet van 13 mei 2004 tot aanpassing van he t Burgerlijk Wetboek, het Wetboek 
van Burgerlijke Rechtsvordering, het Wetb oek van Strafrecht en de Wet op de 
economische delicten ter uitvoering van richtlijn nr. 2000/31/EG van het Europees 
Parlement en de Raad van de Europese Unie van 8 juni 2000 betreffende bepaalde 
juridische aspecten van de diensten van de informatiemaatschappij, met name de 
elektronische handel, in de interne mark t (PbEG L 178) (Aanpassingswet richtlijn 
inzake elektronische handel)  
Legal act : Wet; Official Journal: Staatsblad (Bulletin des Lois et des Décrets 
royaux), number: 2004/210, Publicat ion date: 25/05/2004, Page: 00001-00008; 
Reference: (MNE(2004)51461)  
http://cdn.ikregeer.nl/pdf/stb-2004-210.pdf   
 
2. Besluit van 18 juni 2004, houdende vaststell ing tijdstip van inwerkingtreding van 
de wet van 13 mei 2004 tot aanpassing van  het Burgerlijk Wetb oek, het Wetboek 
van Burgerlijke Rechtsvordering, het Wetb oek van Strafrecht en de Wet op de 
economische delicten ter uitvoering van richtlijn nr. 2000/31/EG van het Europees 
Parlement en de Raad van de Europese Unie van 8 juni 2000 betreffende bepaalde 
 
 130juridische aspecten van de diensten van de informatiemaatschappij, met name de 
elektronische handel, in de interne mark t (PbEG L 178) (Aanpassingswet richtlijn 
inzake elektronische handel) (Stb. 210)  
Legal act : Ministerieel besluit; Official Journ al: Staatsblad (Bulletin des Lois et 
des Décrets royaux), number: 2004/285, Publication date: 29/06/2004, Page: 
00001-00002; Reference: (MNE(2004)51463)  
http://cdn.ikregeer.nl/pdf/stb-2004-285.pdf   
Austria  Transposition deadline: 17/01/2002  
 
1. Regelung bestimmter rechtl icher Aspekte des elektronischen Geschäfts- und 
Rechtsverkehrs und Änderung des Signaturgesetzes sowie der 
Zivilprozessordnung Bundesgesetzblatt n° 152, Jahrgang 2001, Teil I vom 
21/12/2001, Seite 1977  
Legal act : Bundesgesetz; Official Journal:  Bundesgesetzblatt für die Republik 
Österreich (BGBl.), number: teil I nr , Publication date: 21/12/2001, Page: 1977; 
Reference: (SG(2002)A/02947)  
http://www.ris.bka.gv.at/Ergebnis.wxe? Abfrage=BgblPdf&Titel=&Bgblnummer=
15 
2%2f2001&SucheNachGesetzen=False &SucheNachKundmachungen=False&Suc
he 
NachVerordnungen=False&SucheNachSons tiges=False&SucheNachTeil1=True&
Su 
cheNachTeil2=False&SucheNachTeil3=F alse&SucheNachTeilAlt=False&VonDat
u 
m=01.05.1945&BisDatum=31.12.2003&ImRisSeit=Un defined&ResultPageSize=50
&Suchworte=&ReturnUrl=%2fSuchen.wxe%3fQueryID%3dBgblPdf  
Poland  Transposition deadline: 01/05/2004  
 1. Ustawa z dnia 18 lipca 2002 r. o świadczeniu us ług drogą elektroniczn ą
 
Legal act : Ustawa; Official Journal: Dz iennik Ustaw, number: 2002/144/1204, 
Publication date: 09/09/2002;  Reference: (MNE(2003)53899)  
http://mediarun.pl/fil es/attach/2007/05/1178548615.pdf   
 
2. Ustawa z 23 kwietnia 1964 Kodeks Cywilny  
Legal act : Ustawa; Official Journal: Dziennik Ustaw, number: 1964/16/93, 
Publication date: 18/05/ 1964; Reference: (MNE(2003)51767)  
 
 131http://isap.sejm.gov.pl/Det ailsServlet?id=WDU19640160093   
Portugal  Transposition deadline: 17/01/2002  
 1. Ministério da Economia e da InovaçãoPro cede à primeira alteração ao Decreto-
Lei n.º 7/2004, de 7 de Janeiro, que transp õe para a ordem jurídica nacional a 
Directiva n.º 2000/31/CE, do Parlamento Eu ropeu e do Conselho, de 8 de Junho, 
relativa a certos aspectos legais dos s erviços da sociedade de informação, em 
especial do comércio electrónico, no mercado interno  
Legal act : Decreto-Lei, number: 62 /2009; Official Journal: Diaro da Republica I, 
number: 48, Publication date: 10/ 03/2009, Page: 01602-01602; Reference: 
(MNE(2009)51108)  
http://www.cnpd.pt/bin/legis/ nacional/DL62-2009-SPAM.pdf   
 
2. Decreto-Lei n° 7/2004 de 7/1 Diário da  republica I-A n° 5 de 7/1/2004 p. 70  
Legal act : Decreto-Lei, number: 7/2004; Offici al Journal: Diaro da Republica I, 
number: serie A nr 5, Publication date: 07/01/2004; Reference: 
(SG(2004)A/00736)  
http://www.cnpd.pt/bin/legis/nacional/DL7.2004.pdf   
Romania  Transposition deadline: 01/01/2007  
 1. Lege pentru modificarea şi completarea Legii nr. 365/2002 privind comer ţul 
electronic  
Legal act : Lege, number: 121; Official Journal : Monitorul Oficial al României, 
number: 403, Publication date: 10/05/ 2006, Page: 00005-00006, Entry into force: 
13/05/2006; Reference: (MNE(2006)58519)  
http://www.legi-internet.ro/legislatie-it c/comert-electronic/ legea-comertului-
electronic/legea-nr- 121-din-4-mai-2006-pentru-modifi carea-i-completarea-legii-
nr-3652002-privind-comerul-electronic.html   
 
2. Lege privind comer ţul electronic  
Legal act : Lege, number: 365; Official Journal : Monitorul Oficial al României, 
number: 483, Publication date: 05/07/ 2002, Page: 00001-00008, Entry into force: 
05/07/2002; Reference: (MNE(2006)58517)  
http://www.legi-internet.ro/index.php?id=22   
 
 132 
3. Lege privind unele m ăsuri pentru asigurarea tranparen ţei în exercitarea 
demnităţilor publice, a func ţiilor publice şi în mediul de afaceri, prevenirea şi 
sancţionarea corup ţiei 
Legal act : Lege, number: 161; Official Journal : Monitorul Oficial al României, 
number: 279, Publication date: 21/04/ 2003, Page: 00002-00060, Entry into force: 
21/04/2003; Reference: (MNE(2006)58518)  
http://legislatie.resurse-p entru-democratie.org/161_2003.php   
Slovenia  Transposition deadline: 01/05/2004  
 
1. Zakon o spremembah in dopolnitvah Zako na o varstvu potrošnikov (ZVPot-C)  
Legal act : Zakon; Official Journal: Uradni list RS, number: 126/ 2007, Publication 
date: 31/12/2007, Page: 18733-18738, Entry into force: 15/01/2008; Reference: 
(MNE(2009)54585)  
http://zakonodaja.gov.si/rps i/r05/predpis_ZAKO5065.html   
 
2. Zakon o elektronskem poslovanju na trgu (ZEPT)  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 61/2006, Publication 
date: 13/06/2006, Page: 06601-06605, Entry into force: 28/06/2006; Reference: 
(MNE(2010)52769)  
http://zakonodaja.gov.si/rps i/r00/predpis_ZAKO4600.html   
 
3. Zakon o varstvu potrošnikov - uradno pre čiščeno besedilo  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 98/2004, Publication 
date: 09/09/2004, Page: 11845-11861, Entry into force: 08/05/2004; Reference: 
(MNE(2004)53658)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=200498&stevilka=4288   
 
4. Zakon o elektronskem poslovanju in elektronskem podpisu - uradno pre čiščeno 
besedilo  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 98/2004, Publication 
date: 09/09/2004, Page: 11809-11817, Entry into force: 03/04/2004; Reference: 
(MNE(2005)54528)  
 
 133http://www.uradni-list.si/1/o bjava.jsp?urlid=200498&stevilka=4284   
 
5. Zakon o spremembah in dopolnitvah Zakona  o elektronskem poslovanju na trgu 
(ZEPT-A)  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 79/2009, Publication 
date: 09/10/2009, Page: 10622-10623, Entry into force: 24/10/2009; Reference: 
(MNE(2010)52770)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=200979&stevilka=3438   
 
6. Zakon o spremembah in dopolnitvah zakona o varstvu potrošnikov  
Legal act : Zakon; Official Journal: Uradni list RS, number: 110/2002, Publication 
date: 18/12/2002, Page: 13152-13164; Reference: (MNE(2003)53651)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=2002110&stevilka=5391   
 7. Zakon o varstvu potrošnikov - uradno pre čiščeno besedilo
 
Legal act: Zakon; Official Journal: Ura dni list RS, number: 14/2003, Publication 
date: 13/02/2003, Page: 1956-1971; Reference: (MNE(2003)53701)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=200314&stevilka=566   
 8. Zakon o spremembah in dopolnitvah zako na o elektronskem poslovanju in 
elektronskem podpisu  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 25/2004, Publication 
date: 19/03/2004, Page: 2839-2842; Reference: (MNE(2003)53091)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=200425&stevilka=1066   
 9. Zakon o varstvu potrošnikov
 
Legal act : Zakon; Official Journal: Uradni  list RS, number: 20/1998, Publication 
date: 13/03/1998, Page: 01293-01301; Reference: (MNE(2003)53422)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=199820&stevilka=815   
 
 
 13410. Zakon o elektronskem poslovan ju in elektronskem podpisu  
Legal act : Zakon; Official Journal: Uradni  list RS, number: 57/2000, Publication 
date: 23/06/2000, Page: 7465-7472; Reference: (MNE(2003)53383)  
http://www.uradni-list.si/1/o bjava.jsp?urlid=200057&stevilka=2615   
Slovakia  Transposition deadline: 01/05/2004  
 1. Zákon č. 160/2005 Z. z., ktor ým sa mení a dop ĺňa zákon č. 22/2004 Z. z. o 
elektronickom obchode a o zmene a doplnení zákona č. 128/2002 Z. z. o štátnej 
kontrole vnútorného trhu vo veciach ochrany spotrebite ľa a o zmene a doplnení 
niektorých zákonov v znení zákona č. 284/2002 Z. z.  
Legal act : zákon, number: 160/2005; Official  Journal: Zbierka zákonov SR, 
number: 68, Publication date: 26/04 /2005, Entry into force: 01/05/2005; 
Reference: (MNE(2005)55614)  
http://www.zbierka.sk/zz/predpisy/def ault.aspx?PredpisID=18606&FileName=05-
z160&Rocnik=2005   
 
2. Zákon č. 22/2004 Z. z. o elektronickom obch ode a o zmene a doplnení zákona č. 
128/2002 Z. z. o štátnej kontrole vnútor ného trhu vo veciach ochrany spotrebite ľa 
a o zmene a doplnení niektorých zákonov v znení zákona č. 284/2002 Z. z.  
Legal act : zákon, number: 22/2004; Official  Journal: Zbierka zákonov SR, 
number: 131, Publication date: 15/01/ 2004, Entry into force: 01/02/2004; 
Reference: (MNE(2004)58245)  
http://www.zbierka.sk/zz/predpisy/def ault.aspx?PredpisID=17650&FileName=04-
z022&Rocnik=2004   
Finland  Transposition deadline: 17/01/2002  
 1. Laki sopimattomasta menettelystä elinkeinotoiminnassa annetun lain 
muuttamisesta Suomen Säädöskokoelma n° 461 du 11/06/2002 p. 3049  
Legal act : Laki  
http://www.finlex.f i/pdf/sk/02/vihko072.pdf   
 2. Laki yksityisyyden suojasta televiesti nnässä ja teletoiminnan tietoturvasta 
annetun lain muuttamisesta Suomen Säädöskokoelma n°459 du 11/06/2002 p. 
3047  
 
 135Legal act : Laki  
http://www.finlex.f i/pdf/sk/02/vihko072.pdf   
 
This has been replaced by "Sähköi sen viestinnän tieto suojalaki (516/2004)"   
http://www.finlex.fi/ fi/laki/alkup/2004/20040516  
 
3. Laki kuluttajansuojalain 2 luvun muutta misesta Suomen Säädöskokoelma n° 460 
du 11/06/2002 p. 3048  
Legal act : Laki  
http://www.finlex.f i/pdf/sk/02/vihko072.pdf   
 
This has been replaced by "Laki kul uttajansuojalain 2 luvun muuttamisesta" 
(561/2008)   
http://www.finlex.fi/ fi/laki/alkup/2008/20080561  
 4. Laki tietoyhteiskunnan palvelujen tarjoam isesta Suomen Säädöskokoelma n° 458 
du 11/06/2002 p. 3039  
Legal act : Laki; Reference: (SG(2002)A/06090)  
http://www.finlex.f i/pdf/sk/02/vihko072.pdf   
 
Sweden  Transposition deadline: 17/01/2002  
 1. Lag om elektronisk handel och andra informationssamhällets tjänster SFS 
2002:562 du 14/06/2002 - SG(2002) A/6456 du 26/06/2002  
Legal act : Administrative measures; Official Journal: Svensk författningssamling 
(SFS), number: 562, Publication date: 14/06/2002; Referen ce: (SG(2002)A/06456)  
http://www.notisum.se/rnp/sls/sfs/20020562.PDF  
United 
Kingdom  Transposition deadline: 17/01/2002  
 
 
 1361. The Electronic Commerce (EC Directive) Regulations 2002 SI n° 2013 of 
21/08/2002  
Legal act : Administative measures; Official Journal: Her Majesty's Stationery 
Office (HMSO), Publication date : 21/08/2002; Reference: (SG(2002)A/08323)  
http://www.legislation. hmso.gov.uk/si/si2002/20022013.htm  
 
2. For separate implementation in  financial services sector:  
http://www.hm-treasu ry.gov.uk/Documents/Financial_Services/  
Regulating_Financial_Services/fin_rsf_edirec.cfm ? 
 
 
 
Other countries belonging to the European Economic Area: 
 
Island 
 1. Lög um rafræn viðskipti og aðra rafræna þjónustu 2002 nr. 30 16. apríl. 
Lagasafn. Uppfært til október 2002. Útgá fa 127B. Prenta í tveimur dálkum. 
(Act No 30/2002 on Electronic Commer ce and other Elect ronic Service) 
http://www.althingi.is/lagas/127b/2002030.html  
Liechtenstein 1. Gesetz vom 16. April 2003 über den elektr onischen Geschäftsverkehr (E-Commerce-
Gesetz; ECG)  Liechtensteinisches Landesgesetzblatt 2003, Nr. 133 am 12. Juni 2003  http://www.gesetze.li/Seite1.jsp?LG Bl=2003133.xml&Searchstring=Gesetz+vom+16.
+April+2003+%FCber+den+elekt ronischen+&showLGBl=true   
Norway 1. Lov 2003-05-23 nr 35: Lov om visse si der av elektronis k handel og andre 
informasjonssamfunnstjenester (ehandelsloven) Publisert: I 2003 hefte 7. http://www.lovdata.no/all/hl-20030523-035.html
  
 
 
 137 
ANNEX II:  NATIONAL LEGISLATION ON "NOTICE AND ACTION" PROCEDURES  
 
NB: This table does not pretend to be ex haustive and provides examples of notice and action procedures of which the Commission services have 
become aware. 
 
Characteri
stics M
S Finland France* Germany Hungary Lithuania UK Portugal Spain Sweden 
1. Law Act on 
provision of 
information of information 
society 
services  
 HADOPI Act 
  Access 
Impediment 
Act (repealed) ACT CVIII of 
2001 on 
certain aspects of e-
commerce 
services  Law on 
information 
society services  Terrorism Act 
2006 /  
 Digital 
Economy Act 
2010 Articles 14-18 
Decree-Law 
7/2004 Royal Decree 
on the 
functioning and operating 
of the IPR 
Commission Act on 
Responsibility 
of Electronic Bulletin 
Boards 
2. Scope 
infringements Copyright  
 Copyright  Child 
pornography Intellectual 
property rights Copyright or 
"information which may 
not be 
published or distributed" Terrorism 
related ./   
Copyright Horizontal Copyright  Horizontal  
3. Notice 
provider = who 
initiates the notice 
procedure? copy right 
owner (CO) Right holders, 
officials of 
professional defence 
bodies, 
royalty collection and 
distribution 
organisations Federal Office 
of Criminal 
Investigation Intellectual 
property rights 
owner  Anybody  Constable /  
 
Copyright owner (CO) Anybody 
(interested 
party) Copyright 
owner (CO) Anybody  
4. Addressee 
notice = which 
service 
provider 
receives the 
notice from whom? Hosting 
service 
providers Mere conduit 
providers Mere conduit 
providers  
 All 
intermediaries Hosting 
service 
provider All 
intermediaries 
/ 
 
Mere conduit 
provider Hosting 
service 
provider or 
content 
aggregator All 
intermediaries Hosting 
service 
provider 
 
 138Characteri
stics M
S Finland France* Germany Hungary Lithuania UK Portugal Spain Sweden 
5. Obligation to 
notify content provider Yes Yes No Yes Yes (if service 
provider has information to 
identify 
content provider) No / Yes  Yes No 
6. 
Requirements 
notice  - Details of the 
notifying party - material in 
itemised form 
- location of material, - confirmation 
that material is 
illegally accessible  
- information that 
notifying party has in vain 
contacted content 
provider  - confirmation 
that notifying 
party is copyright holder 
  Black list must 
provide: domain names, internet 
protocol 
addresses and destination addresses of the 
website - subject-matter of 
injury and description of 
facts 
substantiating infringement - data necessary 
for identification 
of infringement - name, address or 
head office, 
telephone number and electronic 
mail address of 
rights holder Information on: 
- noticeprovider - protected work 
- IPR holder 
- nature infringement - location 
infringing 
material - declaration that 
content is terrorism-related 
- order to secure 
that content is not available to the public or is 
modified 
- warning that failure to comply 
with notice within 
2 working days will result in 
content being 
regarded as having endorsed 
- explanation on 
liability  
/ 
 - name & address 
of the CO 
- identification of relevant work 
- infringement 
statement - description of 
infringement, 
including file name - copyright 
statement 
-date and time - IP address, port 
number , website, 
protocol, or Unique 
infringement  The ISP must be 
notified of the decision of the 
Section and in 
case of non-compliance of the judicial order 
which authorizes 
the decision  No 
 
 139Characteri
stics M
S Finland France* Germany Hungary Lithuania UK Portugal Spain Sweden 
identifier (UII 
a) Should the 
notice contain 
a fully 
qualified URL? No No Yes No No No  No No 
b) Should the 
notice 
exclusively be 
submitted through 
electronic 
means? No No No No No No / Yes  N o  
6. Delay for 
reacting to 
notice / definition of 
"expeditiously
" No No 6 hours 12 hours  24 hours  48 hours / 
 
10 days  48 hours  
7. Possibility 
counter notice? Yes No No Yes Yes No / Yes Possibility 
dispute 
settlement 
procedure. Yes No 
a) obligatory 
counter notice 
before  'take-
down'? No No No No No No  Yes No 
b) Delay for 
giving counter 
notice 14 days No No 8 days 3 days No / 
 
Shall be set by 
the Appeal Body  5 days to 
comment No 
c) Delay for 
reacting to counter notice     3 day  No / 
 Will be 
specified by 
the Appeal Body  5 days   
 
 140Characteri
stics M
S Finland France* Germany Hungary Lithuania UK Portugal Spain Sweden 
8. Liability 
exemption for taking down 
legal content if 
procedure was followed?  No No Yes Yes  Yes; for 
content that is not manifestly 
illegal or for 
manifestly illegal content 
taken down 
expeditiously No  
 
*The French Hadopi law is an example of a law that was specifi cally designed for the purpose of regulating notice and action. H owever, a general legal basis for notice and 
action procedures in France can be found in Article 6.5 of the law of 21 June 2004. Moreover, other laws contain provisions tha t are relevant for notice and action procedures 
in specific fields: 
 - the law of 12 May 2010 contains in its Article 61 a basis for filtering of illegal gambling sites;  - the law of 14 March 2011 contains in its Article 4 a basis for the filtering of child abuse content; 
 - the decree of 20 June 2009 lays down the basis for a public website for reporting cybercrime (notably child abuse content, f inancial crime and racist content).