Proposal for a COUNCIL DECISION relating to the conclusion on behalf of the European Community of Council of Europe Convention No 180 on information and legal cooperation on information society services

(presented by the Commission)

EXPLANATORY MEMORANDUM

Procedure

1. On 20 July 2001 (SEC(2001)1181 final), the Commission adopted a recommendation for a Council Decision authorising the Commission to negotiate on behalf of the European Community, within the competent bodies of the Council of Europe, a draft Convention on information and legal cooperation on information society services.

2. On 27 September 2001, the Commission was authorised to carry out these negotiations on behalf of the European Community.

3. On 2 October 2001, the Committee of Ministers of the Council of Europe, having accepted a series of amendments to the text put forward by the Commission for the purpose of specifying the rules for Community participation in the future mechanism for cooperation, adopted Council of Europe Convention No 180 on information and legal cooperation on information society services.

4. On 4 October 2001, the Convention was opened for signature at the conference of European Ministers of Justice, held in Moscow. Its entry into force is subject to it being signed by at least five parties.

Subject

1. By extending the scope of Directive 98/34/EC (relating to products), Directive 98/48/EC set up a system of prior notification and administrative cooperation between the Member States on draft national legislation targeted specifically at information society services (i.e. services provided at a distance, by electronic means and upon request). This Directive has been operational since 5 August 1999 and has up till now been an effective mechanism for prior information and administrative dialogue in a regulatory context (that of on-line services) which is in constant flux and concerns activities which are eminently cross-border in nature.

2. The objective of the Council of Europe Convention is to set up for cross-border information society services (with no movement of individuals) a system of prior information and cooperation open to a large number of participating countries, but at the same time adapted to the context of the Council of Europe. In particular, the system proposed by the Convention is more flexible than that established by Directive 98/34/EC, as amended by Directive 98/48/EC, in so far as the mandatory prior notification, while referring to the same field, is not accompanied by a standstill period (blockage).

3. The interest of the European Community, and through it, of its Member States, in participating in such a Convention derives from the fact that the proposed system would allow them to be regularly informed about regulatory initiatives being prepared in other countries (at all the regulatory levels concerned: federal, regional and local) and then, if appropriate, to express their observations on any drafts which might have grave legal and economic implications in the on-line context, with particular reference to the exercise of fundamental freedoms and rights (such as for Community citizens or undertakings operating in third countries).

4. In practice, such participation will be based on the operational mechanism which has been used under Directive 98/34/EC, as amended by Directive 98/48/EC. The fact that the scope of the Convention is not wider than that of Directive 98/48/EC will, in particular, make it possible to avoid any additional notification burden on Member States over and above that already incumbent on them by virtue of the Directive.

5. More specifically, the Commission will handle communication between the Community and the Council of Europe. A) It will send to Strasbourg: a) its own draft regulations (proposals for regulations, directives, decisions, etc.) which specifically target information society services, once they have been formally adopted by the Commission (if they are acts of the Council, or of the Parliament and the Council) together with the notifications on services which it already receives from each Member State and forwards to the 14 other Member States under Directive 98/34/EC; b) its own observations and those it receives from each Member State on notifications from the other parties to the Convention, using a procedure of prior coordination between the Member States at Community level. B) It will also receive and forward the communications (notifications and observations) from the other parties to the Convention.

6. In addition to helping reach the number of five parties required for the Convention to enter into force, the Community's participation is considerably important for encouraging the other parties to sign the Convention, given that it is openly based on an already-existing Community instrument for legal and administrative cooperation. Implementing the Convention as quickly as possible is important because of the current stage of rapid evolution of the regulatory environment concerning information society services.

7. As a result, the Commission proposes that the Council sign and conclude Council of Europe Convention No 180 on information and legal cooperation on information society services.

2003/0146 (ACC)

Proposal for a COUNCIL DECISION relating to the conclusion on behalf of the European Community of Council of Europe Convention No 180 on information and legal cooperation on information society services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 133 in conjunction with Article 300(2), first subparagraph, thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C [...] of [...], p. .

Whereas:

(1) Council of Europe Convention No 180 on information and legal cooperation on information society services sets up an international system of prior notification and administrative cooperation specifically aimed at information society services.

(2) As information society services are provided at a distance, by electronic means and at the individual request of a recipient of services (according to the definition set out in Article 2 of Convention No 180) they are services which are provided without requiring physical travel by either the service provider or the recipient. For this reason, they are subject to the common commercial policy and fall under the exclusive competence of the European Community, pursuant to Opinion 1/94 of the Court, regarding the World Trade Organisation [2].

[2] Opinion of the Court of 15 November 1994, European Court Reports 1994, p. I-5267.

(3) Directive 98/34/EC, as amended by Directive 98/48/EC [3], operational since 1999, has been an extremely positive experience as a mechanism for prior information and administrative dialogue in the field of on-line services.

[3] OJ L217 of 5 August 1998, p. 18

(4) A similar international mechanism should be quickly established within the Council of Europe, in which it is in the Community's direct interest to participate. Such a convention would allow it to be regularly informed about regulatory initiatives being prepared in other countries and then, if appropriate, to express its observations on drafts which would have grave legal and economic implications in the context of on-line activities.

(5) In practice, such participation would be based on the operational mechanism set up in 1983 by Directive 83/189/EEC (amended on several occasions and then codified by Directive 98/34/EC), and would, in particular, avoid any additional notification burden on Member States over and above that already incumbent on them by virtue of Directive 98/34/EC, as amended by Directive 98/48/EC.

(6) The Convention should be approved.

HAS DECIDED AS FOLLOWS:

Article 1

Council of Europe Convention No 180 on information and legal cooperation on information society services is approved on behalf of the European Community.

The text of the Convention is annexed to this Decision.

Article 2

The President of the Council is authorised to designate the person empowered to sign the Agreement in order to bind the Community.

Article 3

This Decision will be published in the Official Journal of the European Union.

Done at Brussels,

For the Council

The President

LEGISLATIVE FINANCIAL STATEMENT

1. Title of the operation

Proposal for a Council Decision relating to the conclusion on behalf of the European Community of Council of Europe Convention No 180 on information and legal cooperation on information society services.

2. Budget headings involved

A-110 "Officials and temporary staff holding a post provided for in the establishment plan"

A-7070 "Development of management and information systems"

3. Legal basis

Article 133 EC.

4. Description of operation

4.1. General objective

The purpose of the Convention concerned is to set up within the Council of Europe a mechanism for regulatory transparency on national drafts relating to information society services, broadly based on Directive 98/48/EC.

By extending the scope of Directive 98/34/EC (relating to products), this Directive provides for the prior notification of draft regulations in each of the 15 EC Member States targeted specifically at information society services (i.e. activities carried out remotely, by electronic means and at the request of the recipient: in other words, on-line interactive activities). Under the Directive, subsequent to this notification, there is a standstill period (of at least three months) during which the draft notified may not be adopted at national level.

The mechanism set up under the Convention of the Council of Europe should reproduce, on a wider geographical scale but in a less restrictive fashion (prior notification but without the application of standstill periods), the system already set up at EC level by Directive 98/48/EC on information society services.

The Commission proposes that the Council decide to conclude on behalf of the European Community the aforementioned Convention, since Community participation in such an international system of administrative cooperation would have the significant advantage for the Commission and the 15 EC Member States of receiving systematic prior information on regulatory initiatives in preparation in third countries (with, moreover, the possibility of being able to draw up their observations on the drafts received) in a field - that of information society services - which is in constant regulatory flux and has wide-ranging cross-border implications.

4.2. Period covered and arrangements for renewal

The Convention does not lay down a time-limit for its application. However, it does provide for the possibility of subsequent amendment of its scope.

5. Classification of expenditure

5.1. NCE (non-compulsory expenditure)

5.2. NDA (non-differentiated appropriations)

Type of expenditure

100%

6. Financial impact on operating expenditure

None

7. Impact on staff and administrative expenditure

The requirements in terms of human and administrative resources will be encompassed by the amount allocated to the Directorate-General managing these resources under the annual allocation procedure.

7.1. Impact on human resources

>TABLE POSITION>

The transmission and reception of regulatory drafts between the Commission and the Secretariat of the Council of Europe will be carried out under the framework of the administrative mechanism of Directive 98/34/EC, which has already been operational at EC level since 1983.

The number of drafts from third countries can reasonably be expected to be some 60 per year.

DG Enterprise will be responsible for:

- coordination of the analysis of the drafts by the other Commission departments concerned (essentially the Information Society DG and the Internal Market DG);

- coordination of the comments of the texts from third countries and the comments made by Member States on the texts from Member States of the Community;

- management of the database and transmission of the messages.

The staff required for this activity will be provided by redeployment within DG Enterprise.

7.2. Overall financial impact of human resources

>TABLE POSITION>

The amounts are total expenditure for 12 months.

7.3. Other administrative expenditure deriving from the operation

>TABLE POSITION>

The amounts are total expenditure for 12 months.

>TABLE POSITION>

7.4. Total financial impact

Annual total cost of the operation: (points 7.2 +7.3) EUR167 000

7.4.1.Computer costs

An application will have to be developed for the automatic transmission of the Member States' texts to the Council of Europe.

Setting up and running such an application by adapting the existing application administering the current Community system will require about 10 days work per year, or an annual amount of EUR5 000 (10 days at EUR500/day). This amount will be funded from the existing computer budget of DG Enterprise.

8. Fraud prevention measures

None (in the absence of follow-up operations and studies).

9. Elements of cost-effectiveness analysis

9.1. Specific and quantified objectives and target population

The objective of the Council of Europe Convention is to establish at international level a system of prior information and cooperation, complementary to that set up at Community level by Directive 98/48/EC, with regard to information society services.

The potential geographical coverage of this Convention would be fairly vast because of its extension to a large number of countries: the 44 member countries of the Council of Europe, but also the European Community, the non-member countries which participated in drawing it up, and any non-member country which might subsequently be invited to accede to it.

9.2. Grounds for the operation

The interest of the EC and its Member States in participating in such a Convention derives from the fact that the proposed system would allow them to be regularly informed about regulatory initiatives being prepared in other countries and then, if appropriate, to express their observations on drafts which would have grave legal and economic implications in the context of on-line activities, with particular reference to the exercise of fundamental freedoms and rights (inter alia for Community citizens or undertakings operating in third countries).

As things stand, there is a need for such a mechanism to obtain regular information in this increasingly important field.

9.3. Monitoring and evaluation of the operation

In practice, Community participation in the Convention would be based on the operational mechanism set up in 1983 by Directive 83/189/EEC (amended on several occasions and then codified by Directive 98/34/EC).

In particular, in order to achieve maximum simplification of the internal procedures of the EC, the Commission would send the Council of Europe the notifications on services which it already receives from each Member State and forwards to the 14 other Member States under Directive 98/34/EC.

Overall, the Convention will be a simple but valuable tool for assessing trends in the regulatory panorama and an instrument for administrative cooperation in the field of on-line activities, which is constantly expanding.