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, on a draft Convention on information and legal cooperation on information society services

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. In the course of 2001, the Committee of Ministers of the Council of Europe will be called upon to examine and adopt a draft Convention on information and legal cooperation on "information society services", along the lines of Directive 98/48 [1].

[1] Directive 98/48/EC of the 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. Subsequent to this amendment, Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 is now entitled "Directive of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services".

2. By extending the scope of Directive 98/34/EC (relating to products), this Directive set up a system of prior notification and administrative cooperation between the Member States of the European Union on draft national legislation targeted specifically at information society services (i.e. services provided remotely, by electronic means and upon request). Operational since August 1999, this Directive 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.

3. The objective of the Council of Europe Convention is to set up for information society services, on the basis of the model of regulatory transparency provided by Directive 98/34, as amended by Directive 98/48, 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 would be more flexible than that established by the EC Directive, in so far as, while referring to the same field, the mandatory prior notification would not be accompanied by a standstill period (blockage).

4. 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 on-line context, with particular reference to the exercise of fundamental freedoms and rights (inter alia for Community citizens or undertakings operating in third countries).

5. In practice, this participation would be based on the operational mechanism set up in 1983 by Directive 83/189 (amended on several occasions and then codified by Directive 98/34). 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. The Community will therefore have to ensure that the scope of the future Convention remains in parallel with that of Directive 98/34 as regards draft national regulations targeted specifically at information society services, in particular in order to avoid any additional notification burden on Member States over and above that incumbent on them by virtue of Directive 98/34, as amended by Directive 98/48. The Community will, moreover, endeavour to ensure that each state party to the convention notifies draft regulations at all relevant national levels - whether this be federal or regional - in order to guarantee that the objective of the convention is effectively achieved."

RECOMMENDATION

6. It is therefore recommended that the Council decide

- to authorise the Commission to negotiate with the Council of Europe on a draft European Convention on information and legal cooperation on information society services. The Commission will conduct these negotiations in consultation with the special committee appointed by the Council to assist it in this task and in accordance with the attached negotiating guidelines;

- to entrust the Commission with ensuring on-site coordination with the Member States, so as to guarantee the effectiveness of the Community's negotiating position.

ANNEX: NEGOTIATING GUIDELINES

1. The objective of the negotiations is to ensure that the Council of Europe's Convention on information and legal cooperation on information society services makes it possible to set up, in the field concerned, a mandatory system of prior regulatory information (without a standstill period) and a mechanism for regular administrative cooperation with third countries, along the lines of Directive 98/34, as amended by Directive 98/48.

2. In the discussions with the Council of Europe, the Commission must ensure, in particular

- that the scope of the future Convention remains in parallel with that of Directive 98/34 as regards draft national regulations targeted specifically at information society services, in particular in order to avoid any additional notification burden on Member States over and above that already incumbent on them by virtue of Directive 98/34, as amended by Directive 98/48;

- that the Convention takes full account of the specific situation of the European Community, so as to allow the full participation of the Community, as a contracting party, in the decision-making process set up by the Convention.

Financial statement

1. Title of the operation

Recommendation for a Council Decision authorising the Commission to negotiate a draft Convention of the Council of Europe 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-50 Information technology

3. Legal basis

Article 133 EC

4. Description of operation

4.1. General objective

The purpose of the future 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 envisaged by the draft 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 recommends that the Council decide to authorise the Commission to negotiate on 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)

6. Type of expenditure

100 %7. IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE

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, 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.

The Enterprise DG 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 action

>TABLE POSITION>

The amounts are total expenditure for 12 months.

I. Annual total (7.2 + 7.3)

II. Duration of action

III. Total cost of action (I x II) // EUR171 000

Unlimited

There will be an increase in two kinds of operating expenditure:

Translation costs

The Commission can expect a fair number of texts to be notified because of the field involved, which is in constant flux. One can envisage an average of 60 notifications per year. In about 10% of cases, a translation will have to be requested.

Assuming that the texts are some ten pages long on average, one can expect between 60 and 100 pages of translation per year, at an annual cost of EUR4 000 (100 pages at EUR40/page). This amount is to be funded from the existing budget of DG Enterprise.

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

8. Fraud prevention measures

None (in the absence of follow-up actions 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, 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 41 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 on-line context, 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 for regular information in this increasingly important field.

9.3. Monitoring and evaluation of the operation

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

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.

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.