Amended proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the Internal Market
Date: 1999-08-17
Institutions: European Commission
Subjects: commercial law, intra-EU trade, provision of services, single market, telecommunications

29.8.2000

EN

Official Journal of the European Communities

C 248 E/69

Amended proposal for a European Parliament and Council Directive on certain legal aspects of
electronic commerce in the internal market (1)

(2000/C 248 E/04)

(Text with EEA relevance)

COM(1999) 427 final (cid:151) 98/0325(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 17 August 1999)

(1) OJ C 30, 5.2.1999, p. 4.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

Unchanged

Having regard to the Treaty establishing the European
Community, and in particular Articles 57(2), 66 and 100a
thereof,

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,

Having regard to the proposal from the Commission,

Unchanged

Having regard to the opinion of
Committee (1),

the Economic and Social

Acting in accordance with the procedure referred to in Article
189b of the Treaty,

Acting in accordance with the procedure referred to in Article
251 of the Treaty,

(1) Whereas the European Union is seeking to forge ever
closer links between the States and peoples of Europe,
to ensure economic and social progress; whereas,
in
the internal
accordance with Article 7a of
market comprises an area without internal frontiers in
which the free movement of goods, services and the
freedom of establishment are ensured; whereas the devel-
opment of Information Society services within the area
to eliminating the
frontiers
without
barriers which divide the European peoples;

the Treaty,

internal

is vital

(1) Whereas the European Union is seeking to forge ever
closer links between the States and peoples of Europe,
in
to ensure economic and social progress; whereas,
the
accordance with Article 14(2) of
internal market comprises an area without
internal
frontiers
free movement of goods,
services and the freedom of establishment are ensured;
whereas the development of Information Society services
within the area without internal frontiers is vital to elim-
inating the barriers which divide the European peoples;

in which the

the Treaty,

(2) Whereas the development of electronic commerce within
the Information Society offers significant employment
opportunities in the Community, particularly in small
stimulate
and medium-sized
enterprises,
economic growth and investment
in innovation by
European companies

and will

(2) Whereas the development of electronic commerce within
the Information Society offers significant employment
opportunities in the Community, particularly in small
and medium-sized
stimulate
enterprises,
economic growth and investment
in innovation by
European companies, and can also enhance the competi-
tiveness of European industry, provided that everyone
has access to the Internet;

and will

___________
(1) OJ C 169, 16.6.1999.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(2a) Whereas Community law and the characteristics of the
Community legal order are a vital asset
to enable
European citizens and operators to take full advantage,
without consideration of borders, of the opportunities
afforded by electronic commerce; whereas this Directive
therefore has the purpose of ensuring a high level of
Community legal integration in order to establish a real
area without
internal borders for Information Society
services;

(2b) Whereas

the free movement of

Information Society
services can in many cases be a specific reflection in
Community law of a more general principle, namely
freedom of expression as enshrined in Article 10(1) of
the Convention for the Protection of Human Rights and
Fundamental Freedoms, which has been ratified by all the
Member States; whereas,
reason, Directives
covering the supply of
Information Society services
must ensure that this activity may be engaged freely in
the light of that Article, subject only to the restrictions
laid down in paragraph 2 of that Article and in Article
46(1) of the Treaty;

this

for

(2c) Whereas the definition of

in Community law,

information in the field of

Information Society service
already exists
in the Directive
98/34/EC of the European Parliament and the Council
of 22 June 1998 laying down a procedure for the
provision of
technical
standards and regulations (1), as amended by Directive
98/48/EC of the European Parliament and the Council
of 20 July 1998 (2). Whereas 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 (3), has already refered
to the definition provided by Directive 98/34; whereas
this definition covers any service normally provided for
or against remuneration, at a distance, via networks, by
the processing
equipment
means of
(including digital compression) and storage of data, and
at
the individual request of a recipient of a service;
whereas those services referred to in the indicative list
in annex V of Directive 98/34/EC, as amended by
Directive 98/48/EC, which do not imply data processing
and storage are not covered by this definition;

electronic

for

___________
(1) OJ L 204, 21.7.1998, p. 37.
(2) OJ L 217, 5.8.1998, p. 18.
(3) OJ L 320, 28.11.1998, p. 54.

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INITIAL PROPOSAL

AMENDED PROPOSAL

they are not

(3) Whereas Information Society services span a wide range
of economic activities which can, in particular, consist of
selling goods on line; whereas
solely
restricted to services giving rise to on-line contracting
but also,
they represent an economic
activity, extend to services which are not remunerated
those offering
by those who receive them,
Society
on-line
services also include on line activities via telephony and
telefax

information; whereas

in so far as

Information

such as

include

services

consisting

they are not

(3) Whereas Information Society services span a wide range
of economic activities which can, in particular, consist of
selling goods on line; whereas
solely
restricted to services giving rise to on-line contracting
but also,
in so far as they represent an economic
activity, extend to services which are not remunerated
by those who receive them, such as those offering
on-line information or commercial communications, or
those providing tools allowing for search, access and
retrieval of data; whereas Information Society services
also
transmitting
information via a communication network, in providing
in hosting
to a communication network or
access
information provided by a recipient of
the service;
whereas television broadcasting within the meaning of
the Directive 89/552/EEC (1) of 3 October 1989 on the
coordination of certain provisions laid down by Law,
Regulation or Administrative Action in Member States
television broadcasting
concerning
the pursuit of
activities, and radio broadcasting are not
Information
Society services because they are not provided at indi-
vidual request; whereas by contrast services which are
transmitted point to point, such as video on demand
or
the sending of commercial communications by
e-mail are Information Society services;

in

Unchanged

(4) Whereas the development of Information Society services
within the Community is restricted by a number of legal
obstacles to the proper functioning of the internal market
which hamper or make less attractive the exercise of the
freedom of establishment and the freedom to provide
services; whereas these obstacles arise from divergences
in legislation and from the legal uncertainty as to which
national rules apply to such services; whereas,
in the
absence of coordination and adjustment of legislation in
the relevant areas, obstacles might be justified in the light
of the case-law of the Court of Justice of the European
Communities; whereas legal uncertainty exists with regard
to the extent
to which Member States may control
services originating from another Member State;

(4a) Whereas

it

important

to ensure that electronic
is
commerce can fully benefit
from the internal market
and therefore that, as with Directive 89/552/EEC, a
high level of Community integration should be achieved;

___________
(1) OJ L 298, 17.10.1989, p. 23.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(5) Whereas, in the light of Community objectives, of Articles
52 and 59 of the Treaty and of secondary Community
law, these obstacles should be eliminated by coordinating
certain national
laws and by clarifying certain legal
concepts at Community level to the extent necessary for
the proper functioning of the internal market; whereas, by
dealing only with certain specific matters which give rise
to problems for the internal market, this Directive is fully
consistent with the need to respect the principle of subsi-
diarity as set out in Article 3b of the Treaty;

(5) Whereas,

in the light of Community objectives, of
the Treaty and of secondary
Articles 43 and 49 of
these obstacles should be eliminated
Community law,
by coordinating certain national
laws and by clarifying
certain legal concepts at Community level to the extent
the internal
necessary for the proper functioning of
market; whereas, by dealing only with certain specific
matters which give rise to problems for the internal
market, this Directive is fully consistent with the need
in
to respect
Article 5 of the Treaty;

the principle of subsidiarity as set out

(5a) Whereas, in order to ensure legal certainty and consumer
confidence, this Directive must lay down a clear and
uniform general
certain legal
aspects of electronic commerce in the internal market;

framework to cover

(6) Whereas,

internal

the proper

frontiers as

functioning of

in accordance with the principle of propor-
tionality, the measures provided for in this Directive are
strictly limited to the minimum needed to achieve the
the internal
objective of
market; whereas, where action at Community level
is
necessary, and in order to guarantee an area which is
far as electronic
truly without
commerce is concerned,
the Directive must ensure a
high level of protection of objectives of general interest,
in particular, consumer protection and the protection of
public health; whereas according to Article 129 of the
Treaty,
the protection of public health is an essential
component of other Community policies; whereas this
Directive does not
impact on the legal requirements
applicable to the delivery of goods as such, nor those
applicable to services which are not Information Society
services;

internal

frontiers as

(6) Whereas,
in accordance with the principle of propor-
the measures provided for in this Directive
tionality,
are strictly limited to the minimum needed to achieve
the objective of the proper functioning of the internal
market; whereas, where action at Community level
is
necessary, and in order to guarantee an area which is
far as electronic
truly without
commerce is concerned,
the Directive must ensure a
high level of protection of objectives of general
interest,
the protection of minors and
human dignity, consumer protection and the protection
of public health; whereas according to Article 152 of the
Treaty, the protection of public health is an essential
component of other Community policies; whereas this
Directive does not
impact on the legal requirements
applicable to the delivery of goods as such, nor those
applicable to services which are not Information Society
services;

in particular

(6a) Whereas the rules relating to the protection of personal
data, in particular Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on
individuals with regard to the
the protection of
processing of personal data and the free movement of
such data (1) and Directive 97/66/EC of the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the
protection
telecommunications
in
sector (2) are fully applicable to Information Society
services; whereas these Directives already establish the
of
framework
Community

privacy

legal

field

the

the

of

in

___________
(1) OJ L 281, 23.11.1995, p. 31.
(2) OJ L 24, 30.1.1998, p. 1.

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INITIAL PROPOSAL

AMENDED PROPOSAL

personal data and therefore it is not necessary to cover
this issue in this Directive in order to ensure the smooth
functioning of the internal market, in particular the free
movement of such data between Member States; whereas
the implementation and application of
this Directive
compliance with the principles
should be
relating to the protection of personal data, in particular
as regards unsolicited commercial communication and
the liability regime for
this
Directive cannot prevent the anonymous use of open
networks such as the Internet;

intermediaries; whereas

in full

(7) Whereas this Directive does not aim to establish specific
rules on private international law relating to conflicts of
law or jurisdiction and is therefore without prejudice to
the relevant international conventions;

(7) Whereas this Directive does not aim to establish specific
rules on private international law relating to conflicts of
law or jurisdiction and is not a substitute for the relevant
international conventions;

(8) Whereas

Society

Information

the source of

should
in order

services
the activity,

be
supervised at
to
ensure an effective protection of public interest objectives;
whereas, to that end, it is necessary to ensure that the
competent authority provides such protection not only for
the citizens of its own country but for all Community
to effectively
citizens; whereas, moreover,
guarantee
legal
certainty for suppliers and recipients of services, such
Information Society services should only be subject to
the Member State in which the service
the law of
in order to improve
provider is established; whereas,
it is essential to
mutual trust between Member States,
the
state clearly this
Member State where the services originate;

responsibility on the part of

freedom to provide

in order

services

and

(9) Whereas the place at which a service provider is estab-
lished should be determined in accordance with the
case-law of the Court of
Justice; whereas the place of
establishment of a company providing services via an
internet website is not the place at which the technology
supporting its website is located or the place at which its
website is accessible; whereas, where the same supplier
has a number of establishments, the competent Member
State will be the one in which the supplier has the centre
of his activities; whereas in cases where it is particularly
difficult to assess in which Member States the supplier is
established, cooperative procedures should be established
between the Member
consultative
States
committee should be capable of being convened in
urgent cases to examine such difficulties;

and

the

Unchanged

(9a) Whereas the definition of (cid:145)recipient of a service(cid:146) covers
all types of usage of Information Society services, both
by persons who provide information on open networks
such as
and by persons who seek
information on the Internet for private or professional
reasons;

Internet

the

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INITIAL PROPOSAL

AMENDED PROPOSAL

services

(10) Whereas commercial communications are essential for the
and for
Information Society
financing of
developing a wide variety of new, charge-free services;
whereas in the interests of consumer protection and fair
trading, commercial communications, including discounts,
promotional offers and promotional competitions, must
meet a number of transparency requirements and that
these requirements are without prejudice to Directive
97/7/EC of the European Parliament and of the Council
on the protection of consumers in respect of distance
contracts (1); whereas
this Directive should not affect
in
existing Directives on commercial communications,
particular Directive 98/43/EC of the European Parliament
and of the Council (2) on tobacco advertising;

(11) Whereas Article 10(2) of Directive 97/7/EC and Article
12(2) of European Parliament and Council Directive
97/66/EC of 15 December 1997 concerning
the
processing of personal data and the protection of
privacy in the telecommunications sector (3) address the
issue of consent by receivers to certain forms of unsol-
icited commercial communication and are fully applicable
to Information Society services;

Unchanged

(11) Whereas

the

sending

unsolicited

in particular,

commercial
of
communications by e-mail may be undesirable for
consumers and Information Society service providers
and may disrupt the smooth functioning of interactive
networks; whereas the question of consent by recipients
of certain forms of unsolicited commercial communi-
is not addressed by this Directive, but has
cations
in Directive
already been addressed,
in
97/7/EC and in Directive 97/66/EC; whereas,
Member States which authorise unsolicited commercial
communications by e-mail, the setting up of appropriate
industry filtering initiatives should be encouraged and
facilitated; whereas in addition it is necessary that in
any event unsolicited commercial communications are
clearly identifiable as such in order to improve trans-
parency and to facilitate
such
industry initiatives; whereas unsolicited commercial
communications by e-mail should not result in additional
communication costs for the recipient;

functioning of

the

Unchanged

in particular,

(12) Whereas, in order to remove barriers to the development
of cross-border services within the Community which
professional practitioners might offer on the internet, it
is necessary that compliance be guaranteed at Community
level with professional rules aiming,
to
protect consumers or public health; whereas codes of
conduct at Community level would be the best means
of determining the rules on professional ethics applicable
to commercial communication; whereas the drawing-up
or, where appropriate,
such rules
should in the first place be encouraged by, rather than
laid down in,
the regulated
this Directive; whereas
professional activities governed by this Directive should
be understood in the light of the definition set out in
Article 1d of Council Directive 89/48/EEC of 21
December 1988 on a general system for the recognition
of higher-education diplomas awarded on completion of
professional education and training of at least three years’
duration (4);

the adaptation of

___________
(1) OJ L 144, 4.6.1997, p. 19.
(2) OJ L 213, 30.7.1998, p. 9.
(3) OJ L 24, 30.1.1998, p. 1.
(4) OJ L 19, 24.1.1989, p. 16.

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INITIAL PROPOSAL

AMENDED PROPOSAL

the necessary stages and acts of

(13) Whereas each Member State should amend its legislation
containing requirements, and in particular requirements as
to form, which are likely to curb the use of contracts by
electronic means, subject to any Community measure in
the field of taxation that could be adopted on electronic
invoicing; whereas the examination of
the legislation
should be systematic and
requiring such adjustment
should cover all
the
contractual process, including the filing of the contract;
whereas the result of this amendment should be to make
and
contracts
effectively workable in law and in practice; whereas the
legal effect of electronic signatures
is dealt with by
European Parliament and Council Directive 98/. . ./EC
[on a common framework for electronic signatures] (1);
whereas it is necessary to clarify at what point in time
a contract entered into electronically is considered to be
actually
recipient’s
agreement to enter into a contract may take the form
of an online payment; whereas the acknowledgment of
receipt by a service provider may take the form of the
online provision of the service paid for;

concluded; whereas

electronically

concluded

genuinely

service

the

element

for protecting consumers

(14) Whereas, amongst others, Council Directive 93/13/EEC (2)
regarding unfair contract terms and Directive 97/7/EC,
form a vital
in
contractual matters; whereas those Directives also apply
in their entirety to Information Society services; whereas
that
same Community acquis also embraces Council
Directive 84/450/EEC (3) on misleading advertising, as
amended by European Parliament and Council Directive
97/55/EC (4),
on
consumer credit; as last amended by European Parliament
and Council Directive 98/7/EC (6), Council Directive
90/314/EEC (7) on package travel, package holidays and
package tours, and European Parliament and Council
Directive 98/6/EC (8) on the indication of prices of
products offered to consumers; whereas this Directive
should be without prejudice to Directive 98/43/EC,
adopted within the framework of the internal market, or
to other Directives on the protection of public health,

Council Directive

87/102/EEC (5)

including the filing of

(13) Whereas each Member State should amend its legislation
containing requirements, and in particular requirements
as to form, which are likely to curb the use of contracts
by electronic means, subject to any Community measure
in the field of taxation that could be adopted on elec-
tronic invoicing; whereas the examination of the legis-
lation requiring such adjustment should be systematic
and should cover all the necessary stages and acts of
the contractual process,
the
contract; whereas the result of this amendment should
be to make contracts concluded electronically genuinely
and effectively workable in law and in practice; whereas
the legal effect of electronic signatures is dealt with by
European Parliament and Council Directive 98/. . ./EC
[on
electronic
signatures] (1); whereas it is necessary to clarify at what
point in time a contract entered into electronically is
considered to be
the
service recipient’s agreement
to enter into a contract
may take the form of an online payment; whereas the
acknowledgment of receipt by a service provider may
take the form of
the service
paid for;

actually concluded; whereas

the online provision of

Community

framework

for

a

(14) Whereas,

as

that

others,

Society

Council

amongst

amended

advertising,

services; whereas

the European Parliament and of

Directive
93/13/EEC (2), of 5 April 1993, on unfair
terms in
consumer contracts and Directive 97/7/EC, form a vital
element for protecting consumers in contractual matters;
whereas those Directives also apply in their entirety to
Information
same
Community acquis also embraces Council Directive
84/450/EEC (3) of 10 September 1984 relating to the
the laws, regulations and adminis-
approximation of
the Member States concerning
trative provisions of
by Directive
misleading
97/55/EC (4) of
the
Council of 6 October 1997 amending Directive
84/450/EEC concerning misleading advertising so as to
include
advertising, Council Directive
87/102/EEC (5) of 22 December 1986 for the approxi-
mation of
regulations and administrative
provisions of the Member States concerning consumer
credit; as last amended by Directive 98/7/EC (6) of the
European Parliament and of the Council of 16 February
1998 amending Directive 87/102/EEC for the approxi-
mation of
regulations and administrative
provisions of the Member States concerning consumer
credit, Council Directive 90/314/EEC (7) on package
travel, package holidays
and
Directive 98/6/EC (8) of the European Parliament and of

and package

comparative

the laws,

the laws,

tours,

___________
(1) COM(1998) 297 final, 13.5.1998.
(2) OJ L 95, 21.4.1993, p. 29.
(3) OJ L 250, 19.9.1984, p. 17.
(4) OJ L 290, 23.10.1997, p. 18.
(5) OJ L 42, 12.2.1987, p. 48.
(6) OJ L 101, 1.4.1998, p. 17.
(7) OJ L 158, 23.6.1990, p. 59.
(8) OJ L 80, 18.3.1998, p. 27.

___________
(1) COM(1998) 297 final, 13.5.1998.
(2) OJ L 95, 21.4.1993, p. 29.
(3) OJ L 250, 19.9.1984, p. 17.
(4) OJ L 290, 23.10.1997, p. 18.
(5) OJ L 42, 12.2.1987, p. 48.
(6) OJ L 101, 1.4.1998, p. 17.
(7) OJ L 158, 23.6.1990, p. 59.
(8) OJ L 80, 18.3.1998, p. 27.

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INITIAL PROPOSAL

AMENDED PROPOSAL

the European Parliament and of

the Council of 16 February 1998 on consumer
protection in connection with the indication of
the
prices of products offered to consumers; whereas this
Directive should be without prejudice to Directive
98/43/EC (1) of
the
Council of 6 July 1998 on the approximation of the
laws, regulations and administrative provisions of
the
Member states relating to the advertising and spon-
sorship of
adopted within the
framework of the internal market, or to other Directives
on the protection of public health, especially Council
Directive 92/28/EEC (2) of 31 March 1992 on the adver-
tising of medicinal products for human use;

tobacco products,

(15) Whereas

the confidentiality of electronic messages

is
guaranteed by Article 5 of Directive 97/66/EC; whereas
in accordance with that Directive Member States must
prohibit any kind of interception or surveillance of such
electronic messages by others
than the senders and
receivers

(15) Whereas the confidentiality of electronic messages is
guaranteed by Article 5 of Directive 97/66/EC; whereas
in accordance with that Directive Member States must
prohibit any kind of interception or surveillance of such
electronic messages by others than the senders and
receivers and abstain from prohibiting or restricting the
use of cryptographic methods or tools for protecting
confidentiality
the
or
information transmitted or stored;

authenticity

ensuring

of

(16) Whereas both existing and emerging disparities

services

in
Member States’
legislation and case-law concerning civil
and criminal liability of service providers acting as inter-
mediaries prevent the smooth functioning of the internal
in particular by impairing the development of
market,
cross-border
distortions of
and producing
competition; whereas service providers have a duty to
certain circumstances, with a view to
act, under
preventing or
the
ceasing illegal activities; whereas
provisions of this Directive should constitute the appro-
priate basis for the development of rapid and reliable
procedures for removing and disabling access to illegal
information; whereas
be
developed on the basis of voluntary agreements between
all parties; whereas it
is in the interest of all parties
involved in the provision of Information Society services
to adopt and implement such procedures; whereas the
provisions of
this Directive relating to liability should
not preclude the development and effective operation,
by the different interested parties, of technical systems
of protection and identification

such mechanisms

could

(16) Whereas both existing and emerging disparities

services

in
Member States’ legislation and case-law concerning civil
and criminal liability of service providers acting as inter-
mediaries prevent the smooth functioning of the Internal
in particular by impairing the development of
Market,
cross-border
and producing distortions of
competition; whereas service providers have a duty to
certain circumstances, with a view to
act, under
preventing or halting illegal activities; whereas
the
provisions of this Directive should constitute the appro-
priate basis for the development of rapid and reliable
procedures for removing and disabling access to illegal
could
information; whereas
be
developed on the basis of
agreements
between all parties concerned and should be encouraged
by Member States; whereas it is in the interest of all
parties involved in the provision of Information Society
such procedures;
services
this Directive relating to
whereas
the development and
liability should not preclude
effective operation, by the different
interested parties,
technical systems of protection and identification
of
and of technical surveillance instruments made possible
by digital
technology within the limits laid down by
Directives 95/46/EC and 97/66/EC;

to adopt and implement
the provisions of

such mechanisms
voluntary

___________
(1) OJ L 213, 30.7.1998, p. 9.
(2) OJ L 113, 30.4.1992, p. 13.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(16a) Whereas it is important that the Directive . . ./. . ./EC of
the European Parliament and the Council on the
harmonisation of certain aspects of copyright and
related rights in the Information Society (1) and this
Directive come into force within a similar time scale
with a view to establishing a clear framework of rules
intermediaries for
relevant
copyright
at
infringements
Community level;

to the issue of
related

liability of
rights

and

(16b) Whereas this Directive strikes a balance between the
different
stake and establishes principles
upon which industry agreements and standards can be
based;

interests at

(16c) Whereas the effective exercise of the freedoms of the
internal market makes it necessary to guarantee victims
effective access to means of settling disputes; whereas
damage which may arise in connection with Information
Society services is characterised both by its rapidity and
by its geographical extent; whereas in view of
this
specific character and the need to ensure that national
authorities do not endanger the mutual confidence which
they should have in one another, this Directive requests
Member States to ensure that appropriate court actions
are available; whereas Member States should examine the
need to provide access to judicial procedures by appro-
priate electronic means;

Unchanged

(17) Whereas each Member State should be required, where
necessary,
to amend any legislation which is liable to
hamper the use of schemes for the out-of-court settlement
of disputes through electronic channels; whereas the result
of this amendment must be to make the functioning of
such schemes genuinely and effectively possible in law and
in practice, even across borders; whereas
the bodies
responsible for such out-of-court settlement of consumer
disputes must comply with certain essential principles, as
set out in Commission Recommendation 98/257/EC of 30
March 1998 on the principles applicable to the bodies
responsible for such settlement of consumer disputes (1);

(17a) Whereas in the context of this Directive, notwithstanding
the rule on the control at source of Information Society
services, it would appear legitimate under certain circum-
stances for Member States to take measures to restrict the
free movement of Information Society services; whereas,
however, such measures must be taken in accordance
with Community law and must be necessary to achieve

___________
(1) OJ L 115, 17.4.1998, p. 31.

___________
(1) COM(1999) 250 final, 21.5.1999.

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one of the following public interest objectives pursued:
public policy, in particular the protection of minors, or
the fight against any incitement to hatred on grounds of
race, sex, religion or nationality; the protection of public
health or public security; and consumer protection;
whereas such measures must be strictly proportionate
is
to their objective and must not go beyond what
necessary to achieve it;

Unchanged

this Directive, on the grounds that

(18) Whereas it is necessary to exclude certain activities from
the
the scope of
freedom to provide services in these fields cannot, at
this stage, be guaranteed under the Treaty or existing
secondary legislation; whereas excluding these activities
does not preclude any instruments which might prove
the internal
necessary for
market; whereas taxation, particularly value-added tax
imposed on a large number of the services covered by
this Directive, must be excluded from the scope of this
Directive; whereas, in this respect, the Commission also
intends to extend the application of
the principle of
taxation at source to the provision of services within
the internal market, thus giving its approach a general
coherence;

functioning of

the proper

(19) Whereas as regards the derogation contained in this
Directive regarding contractual obligations concerning
contracts concluded by consumers,
those obligations
should be interpreted as including information on the
essential
contract,
including consumer rights, which have a determining
influence on the decision to contract;

elements of

content of

the

the

(20) Whereas

in view of
it

this Directive should not apply to services
supplied by service providers established in a third
the global dimension of
country; whereas,
is, however, appropriate to
electronic commerce,
ensure that the Community rules are consistent with inter-
national rules; whereas this Directive is without prejudice
to the results of discussions within international organi-
sations
issues;
(WTO, OECD, UNCITRAL) on legal
whereas this Directive should also be without prejudice
to the discussions within the Global Business Dialogue
which were launched on the basis of the Commission
Communication of 4 February 1998 on (cid:145)Globalisation
and the Information Society (cid:151) The need for strengthened
international coordination(cid:146) (1);

it

(20) Whereas this Directive should not apply to services
supplied by service providers established in a third
in view of the global dimension of
country; whereas,
is, however, appropriate to
electronic commerce,
ensure that
the Community rules are consistent with
international rules; whereas this Directive is without
prejudice to the results of discussions within inter-
national organisations (amongst others WTO, OECD,
this Directive
UNCITRAL) on legal
should also be without prejudice to the discussions
within the Global Business Dialogue which were
launched on the basis of the Commission Communi-
cation of 4 February 1998 on (cid:145)Globalisation and the
Information Society (cid:151) The need for strengthened inter-
national coordination(cid:146) (1);

issues; whereas

(20a) Whereas, despite

electronic
global nature of
the
communications, coordination of national
regulatory
measures at European Union level is necessary in order
to avoid fragmentation of the internal market, and for
the establishment of an appropriate European regulatory
such coordination should also
framework; whereas
contribute to the establishment of a common and
strong negotiating position in international fora;

___________
(1) COM(1998) 50 final.

___________
(1) COM(1998) 50 final.

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(20b) Whereas, in order to allow the unhampered development
of electronic commerce, the legal framework must be
clear and simple, predictable and consistent with the
rules applicable at
it does
not adversely affect
the competitiveness of European
industry or impede innovation in that sector;

level so that

international

(20c) Whereas,

in the

if the market is actually to operate by elec-
tronic means
the
European Union and the major non-European areas
need to consult each other with a view to making laws
and procedures compatible;

context of globalisation,

(20d) Whereas cooperation with third countries should be
strengthened in the area of electronic commerce,
in
particular with applicant countries and the European
Union’s main trading partners;

(21) Whereas the Member States need to ensure, that, when
Community acts are transposed into national legislation,
Community law is duly applied with the same effec-
tiveness and thoroughness as national law;

Unchanged

societal

cultural,

and cultural

(22) Whereas the adoption of this Directive will not prevent
the Member States from taking into account the various
social,
implications which are
inherent in the advent of the Information Society nor
policy
hinder
measures, which the Member States might adopt,
in
taking into account
conformity with Community law,
their linguistic diversity, national and regional specificities
and their cultural heritage; whereas, in any case, the devel-
the Information Society must ensure that
opment of
to the cultural
Community citizens can have access
European heritage provided in the digital environment;

audiovisual,

notably

and

(23) Whereas the Council,

stressed that

field; whereas

the protection of

in its Resolution of 3 November
the Information
1998 on the consumer aspects of
consumers
Society,
deserved special attention in this
the
Commission will examine the degree to which existing
consumer protection rules provide insufficient protection
in the context of the Information Society and will identify,
where necessary, the deficiencies of this legislation and
those issues which could require additional measures;
whereas,
the Commission should make
specific additional proposals to resolve such deficiencies
that will thereby have been identified;

if need be,

(22a) Whereas electronic communication offers the Member
States an excellent means of providing public services
in the cultural, educational and linguistic fields;

(23) Whereas the Council,

in its Resolution of 19 January
the Information
1999 on the consumer aspects of
Society (1), stressed that
the protection of consumers
deserved special attention in this field; whereas the
Commission will examine the degree to which existing
consumer protection rules provide insufficient protection
in the context of
the Information Society and will
identify, where necessary, the deficiencies of this legis-
lation and those issues which could require additional
measures; whereas, if need be, the Commission should
make specific additional proposals to resolve such defi-
ciencies that will thereby have been identified;

___________
(1) OJ C 23, 28.1.1999, p. 1.

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(24) Whereas this Directive should be without prejudice to
Council Regulation (EEC) No 2299/89 of 24 July 1989
for computerized reservation
on a code of conduct
systems (1),
(EEC) No
3089/93 (2).

by Regulation

amended

as

Unchanged

(25) Whereas Commission Regulation (EC) No 2027/97 (3) and
the Warsaw Convention of 12 October 1929 place various
obligations upon air carriers regarding the provision of
information to their passengers,
including information
about the liability of the carrier; whereas this Directive
is without prejudice
those
to the
instruments,

requirements of

(25) Whereas Council Regulation (EC) No 2027/97 (3) on air
carrier liability in the event of accidents and the Warsaw
Convention of 12 October 1929 place various obli-
gations upon air carriers regarding the provision of
information to their passengers,
including information
about the liability of the carrier; whereas this Directive
those
is without prejudice to the requirements of
instruments,

HAVE ADOPTED THIS DIRECTIVE:

Unchanged

CHAPTER I

GENERAL PROVISIONS

Article 1

Objective and scope

This Directive seeks to ensure the proper functioning of
free movement of
internal market, particularly the

1.
the
Information Society services between the Member States.

This Directive approximates, to the extent necessary for
2.
in paragraph 1,
the objective set out
the achievement of
national provisions on Information Society services relating
the establishment of
to the internal market arrangements,
service providers,
electronic
contracts,
intermediaries, codes of conduct,
out-of-court dispute settlements, court actions and cooperation
between Member States.

communications,

the liability of

commercial

3.
This Directive complements Community law applicable to
Information Society services without prejudice to the existing
level of protection for public health and consumer interests, as
established by Community acts, including those adopted for the
functioning of the internal market.

___________
(1) OJ L 220, 29.7.1989, p. 1.
(2) OJ L 278, 11.11.1993, p. 1.
(3) OJ L 285, 17.10.1997, p. 1.

___________
(3) OJ L 285, 17.10.1997, p. 1.

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Article 2

Definitions

For the purpose of this Directive, the following terms shall bear
the following meanings:

(a) (cid:145)Information Society services(cid:146): Information Society services
within the meaning of Article 1(2) of Directive 98/34/EC of
22 June 1998 laying down a procedure for the provision of
information in the field of technical standards and regu-
lations as amended by Directive 98/48/EC of 20 July
1998 (1);

(a) (cid:145)Information Society

service normally
services(cid:146):
provided for remuneration, at a distance, by electronic
means and at
the individual request of a recipient of
services;

any

For the purpose of this definition:

(cid:151) (cid:145)at a distance(cid:146) means that the service is provided without

the parties being simultaneously present;

(cid:151) (cid:145)by electronic means(cid:146) means that a service is sent
its destination by means of
initially and received at
electronic equipment
the processing (including
digital compression) and storage of data, and entirely
transmitted, conveyed and received by wire, by radio,
by optical means or by other electromagnetic means;

for

(cid:151) (cid:145)at

the individual request of a recipient of services(cid:146)
means a service provided through the transmission of
data on individual request.

(b) (cid:145)service provider(cid:146): any natural or legal person providing an

Unchanged

Information Society service;

(c) (cid:145)established service provider(cid:146): a service provider who
effectively pursues an economic activity using a fixed estab-
lishment for an indeterminate duration. The presence and
use of the technical means and technologies required to
provide the service do not constitute an establishment of
the provider;

(d) (cid:145)recipient of the service(cid:146): any natural or legal person who,
for professional ends or otherwise, uses an Information
Society service, in particular for the purposes of seeking
information or making it accessible;

(e) (cid:145)commercial communications(cid:146): any form of communication
designed to promote, directly or
the goods,
services or image of a company, organisation or person
pursuing a commercial, industrial or craft activity or exer-
cising a liberal profession. The following do not as such
constitute commercial communications:

indirectly,

___________
(1) OJ L 204, 21.7.1998, p. 37, as amended by Directive 98/48/EC of

20.7.1998, OJ L 217, 5.8.1998, p. 18.

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(cid:151) information allowing direct access to the activity of the
in particular a

company, organisation or person,
domain name or an electronic-mail address,

(cid:151) communications
image of
the
compiled in an independent manner,
without financial consideration.

services or
relating to the goods,
company, organisation or person
in particular

(f)

(cid:145)consumer(cid:146): any natural person who is acting for purposes
which are outside his or her trade, business or profession.

(f)

field(cid:146):

(cid:145)coordinated
to
Information Society service providers and Information
Society services.

requirements

applicable

the

(g) (cid:145)coordinated

field(cid:146):

to
Information Society service providers and Information
Society services.

requirements

applicable

the

Article 3

Internal market

Unchanged

Each Member State shall ensure that

1.
the Information
Society services provided by a service provider established on
its territory comply with the national provisions applicable in
the Member State in question which fall within this Directive’s
coordinated field.

2. Member States may not, for reasons falling within this
Directive’s coordinated field, restrict the freedom to provide
Information Society services from another Member State.

3.
Paragraph 1 shall cover the provisions set out in Articles
9, 10 and 11 only in so far as the law of the Member State
applies by virtue of its rules of private international law.

CHAPTER II

PRINCIPLES

S E C T I O N 1

E S T A B L I S H M E N T A N D I N F O R M A T I O N
R E Q U I R E M E N T S

Article 4

Principle excluding prior authorisation

lay down in their legislation that
1. Member States shall
access to the activity of Information Society service provider
may not be made subject to prior authorisation or any other
requirement
the effect of which is to make such access
dependent on a decision, measure or particular act by an
authority.

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2.
Paragraph 1 shall be without prejudice to authorisation
schemes which are not specifically and exclusively targeted at
Information Society services, or which are covered by Directive
97/13/EC of the European Parliament and of the Council (1).

Article 5

General information to be provided

1. Member States shall
Information Society services shall render easily accessible,
a direct and permanent manner
competent authorities, the following information:

lay down in their legislation that
in
recipients and

to their

1. Without prejudice to the obligations deriving from
Directive 97/7/EC, Member States shall lay down in their legis-
lation that
Information Society services shall render easily
accessible, in a direct and permanent manner to their recipients
and competent authorities, the following information:

(a) the name of the service provider;

Unchanged

(b) the address at which the service provider is established;

(c) the particulars of the service provider, including his elec-
tronic-mail address, which allow him to be contacted
rapidly and communicated with in a direct and effective
manner;

(d) where the service provider is registered in a trade register,
the trade register in which the service provider is entered
and his registration number in that register;

(e) where the activity is subject to an authorisation scheme, the
activities covered by the authorisation granted to the
service provider and the particulars of
the authority
providing such authorisation;

(f) as concerns the regulated professions:

(cid:151) any professional body or similar institution with which

the service provider is registered;

(cid:151) the professional title granted in the Member State of
establishment, the applicable professional rules in the
Member State of establishment and the Member States
in which the Information Society services are regularly
provided;

(g) where the service provider undertakes an activity that is
the VAT number under which he is

subject
registered with his fiscal administration.

to VAT,

2. Member States shall
prices of
accurately and unequivocally

lay down in their legislation that
Information Society services are to be indicated

2. Member States shall
lay down in their legislation that
where Information Society services refer to prices, and other
these are to be indicated
essential
accurately and unequivocally and must include all additional
costs.

terms and conditions,

___________
(1) OJ L 117, 7.5.1997, p. 15.

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S E C T I O N 2

Unchanged

C O M M E R C I A L C O M M U N I C A T I O N S

Article 6

Information to be provided

Member States
legislation that
commercial communication shall comply with the following
conditions:

lay down in their

shall

Without prejudice to the obligations deriving from Directive
97/7/EC, Member States shall lay down in their legislation that
commercial communication shall comply with the following
conditions:

(a) the commercial communication shall be clearly identifiable

Unchanged

as such;

(b) the natural or legal person on whose behalf the commercial

communication is made shall be clearly identifiable;

(c) promotional offers, such as discounts, premiums and gifts,
where authorised, shall be clearly identifiable as such, and
the conditions which are to be met to qualify for them shall
be easily accessible and be presented accurately and
unequivocally;

(c) promotional offers, such as discounts, premiums and gifts,
where authorised by the Member State in which the service
provider is established, shall be clearly identifiable as such,
and the conditions which are to be met to qualify for them
shall be easily accessible and be presented accurately and
unequivocally;

(d) promotional competitions or games, where authorised,
shall be clearly identifiable as such, and the conditions for
participation shall be easily accessible and be presented
accurately and unequivocally.

(d) promotional competitions or games, where authorised by
the Member State in which the service provider is estab-
lished,
such, and the
conditions for participation shall be easily accessible and
be presented accurately and unequivocally.

shall be clearly identifiable as

Article 7

Unsolicited commercial communication

Member States shall lay down in their legislation that unsol-
icited commercial communication by electronic mail must be
clearly and unequivocally identifiable as such as soon as it is
received by the recipient.

1. Member States shall
lay down in their legislation that
unsolicited commercial communication by electronic mail
must be clearly and unequivocally identifiable as such as
soon as it is received by the recipient.

providers

2. Without prejudice to Directive 97/7/EC and Directive
97/66/EC, Member States shall take measures to ensure that
service
commercial
communications by e-mail consult regularly and respect the
opt-out registers in which natural persons not wishing to
receive such commercial communications can register them-
selves.

undertaking

unsolicited

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Article 8

Regulated professions

Unchanged

1. Member States shall lay down in their legislation relating
to commercial communication by regulated professions that
Information Society services is authorised
the provision of
provided that
regarding the inde-
pendence, dignity and honour of the profession, professional
secrecy and fairness towards clients and other members of the
profession are met.

the professional

rules

2. Member States and the Commission shall encourage
professional associations and bodies to establish codes of
conduct at Community level in order to determine the types
of information that can be given for the purposes of providing
the Information Society service in conformity with the rules
referred to in paragraph 1.

3. Where necessary in order to ensure the proper func-
tioning of the internal market, and in the light of the codes
of conduct applicable at Community level, the Commission
may stipulate, in accordance with the procedure laid down in
Article 23, the information referred to in paragraph 2.

S E C T I O N 3

E L E C T R O N I C C O N T R A C T S

Article 9

Treatment of electronic contracts

1. Member States shall ensure that their legislation allows
contracts to be concluded electronically. Member States shall in
particular ensure that the legal requirements applicable to the
contractual process neither prevent the effective use of elec-
tronic contracts nor result in such contracts being deprived of
legal effect and validity on account of their having been made
electronically.

2. Member States may lay down that paragraph 1 shall not
apply to the following contracts:

(a) contracts requiring the involvement of a notary;

(b) contracts which, in order to be valid, are required to be

registered with a public authority;

(c) contracts governed by family law;

(d) contracts governed by the law of succession.

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in
The list of categories of contract provided for
3.
paragraph 2 may be amended by the Commission in
accordance with the procedure laid down in Article 23.

Deleted

4. Member States
to the Commission a
complete list of the categories of contracts covered by the
derogations provided for in paragraph 2.

submit

shall

3. Member States
to the Commission a
complete list of the categories of contracts covered by the
derogations provided for in paragraph 2.

submit

shall

Article 10

Unchanged

Information to be provided

lay down in their legislation that,
1. Member States shall
the
except when otherwise agreed by professional persons,
manner of the formation of a contract by electronic means
shall be
clearly and
unequivocally, and prior to the conclusion of the contract.
The information to be provided shall include, in particular:

explained by the

service provider

(a) the different stages to follow to conclude the contract;

(b) whether or not the concluded contract will be filed and

whether it will be accessible;

(c) the expedients for correcting handling errors.

2. Member States shall provide in their legislation that the
different steps to be followed for concluding a contract elec-
tronically shall be set out in such a way as to ensure that
parties can give their full and informed consent.

lay down in their legislation that,
3. Member States shall
the
except when otherwise agreed by professional parties,
service providers
to
indicate any codes of conduct
which they subscribe and information on how those codes
can be consulted electronically.

shall

Article 11

Moment at which the contract is concluded

1. Member States shall
lay down in their legislation that,
save where otherwise agreed by professional persons, in cases
is
where a recipient,
required to give his consent
through technological means,
such as clicking on an icon,

in accepting a service provider’s offer,

in accepting a service provider’s offer,

1. Member States shall
lay down in their legislation that,
save where otherwise agreed by professional persons, in cases
is
where a recipient,
required to give his consent
through technological means,
such as clicking on an icon, the contract is concluded when
the recipient of
the service has received from the service
provider, electronically, an acknowledgement of receipt of the
recipient’s acceptance

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following principles apply:

The following principles apply:

(a) acknowledgement of receipt is deemed to be received when

the recipient of the service is able to access it;

(b) the service provider is obliged to immediately send the

acknowledgement of receipt.

(a) the contract is concluded when the recipient of the service:

Deleted

(cid:151) has received from the service provider, electronically, an
recipient’s

receipt

the

of

of

acknowledgement
acceptance, and

(cid:151) has confirmed receipt of

the acknowledgement of

receipt;

(b) acknowledgment of receipt is deemed to be received and
confirmation is deemed to have been given when the
parties to whom they are addressed are able to access them;

(c) acknowledgement of receipt by the service provider and
the service recipient shall be sent as

confirmation of
quickly as possible.

lay down in their legislation that,
2. Member States shall
save where otherwise agreed by professional persons,
the
service provider shall make available to the recipient of the
service appropriate means allowing him to identify and
correct handling errors

lay down in their legislation that,
2. Member States shall
save where otherwise agreed by professional persons,
the
service provider shall make available to the recipient of the
service appropriate means that are effective and accessible
allowing him to identify and correct handling errors and acci-
dental
the contract.
Contract
conditions provided to the
consumer must be made available in a way that allows him
to store and to reproduce them.

transactions before the conclusion of

terms and general

S E C T I O N 4

S E C T I O N 4

L I A B I L I T Y O F I N T E R M E D I A R I E S

L I A B I L I T Y O F I N T E R M E D I A R Y S E R V I C E
P R O V I D E R S

Article 12

Mere conduct

Unchanged

1. Where an Information Society service is provided that
consists of the transmission in a communication network of
information provided by the recipient of the service, or the
provision of access to a communication network, Member
States shall provide in their legislation that the provider of
such a service shall not be liable, otherwise than under a
prohibitory injunction,
for the information transmitted, on
condition that the provider:

(a) does not initiate the transmission;

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(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the

transmission.

The acts of

2.
transmission and of provision of access
referred to in paragraph 1 include the automatic, intermediate
and transient storage of the information transmitted in so far as
this takes place for the sole purpose of carrying out the trans-
mission in the communication network, and provided that the
information is not
than is
reasonably necessary for the transmission.

stored for any period longer

Article 13

Caching

transmission in a

Where an Information Society service is provided that consists
in the
communication network of
information provided by a recipient of the service, Member
States shall provide in their legislation that the provider shall
not be liable, otherwise than under a prohibitory injunction,
for the automatic, intermediate and temporary storage of that
information, performed for the sole purpose of making more
the information’s onward transmission to other
efficient
recipients of the service upon their request, on condition that:

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the

information;

(c) the provider complies with rules regarding the updating of
the information, specified in a manner consistent with
industrial standards;

(d) the provider does not

interfere with the technology,
consistent with industrial standards, used to obtain data
on the use of the information; and

(e) the provider acts expeditiously to remove or to bar access
to the information upon obtaining actual knowledge of one
of the following:

(cid:151) the information at the initial source of the transmission

has been removed from the network;

(cid:151) access to it has been barred;

(cid:151) a competent authority has ordered such removal or

barring.

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Article 14

Hosting

1. Where an Information Society service is provided that
consists in the storage of information provided by a recipient
of the service, Member States shall provide in their legislation
that the provider shall not be liable, otherwise than under a
prohibitory injunction,
the
for
request of a recipient of the service, on condition that:

the information stored at

(a) the provider does not have actual knowledge that

the
is
facts or circumstances from which illegal

activity is illegal and, as regards claims for damages,
not aware of
activity is apparent; or

(b) the provider, upon obtaining such knowledge or awareness,
acts expeditiously to remove or to disable access to the
information.

2.
Paragraph 1 shall not apply when the recipient of the
service is acting under the authority or the control of the
provider.

Article 15

No obligation to monitor

1. Member States shall not impose a general obligation on
providers, when providing the services covered by Articles 12
and 14, to monitor the information which they transmit or
store, nor a general obligation actively to seek facts or circum-
stances indicating illegal activity.

1. Member States shall not impose a general obligation on
providers, when providing the services covered by Articles 12
to 14, to monitor the information which they transmit or store,
nor a general obligation actively to seek facts or circumstances
indicating illegal activity.

Paragraph 1 shall not affect any targeted,

temporary
2.
judicial authorities
surveillance activities required by national
in accordance with national
legislation to safeguard national
security, defence, public security and for the prevention, inves-
tigation, detection and prosecution of criminal offences.

Unchanged

CHAPTER III

IMPLEMENTATION

Article 16

Codes of conduct

1. Member States and the Commission shall encourage:

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(a) the drawing-up of codes of conduct at Community level, by
trade
associations or organisations
designed to contribute to the proper implementation of
Articles 5 to 15;

and professional

(a) the drawing-up of codes of conduct at Community level, by
trade, professional and consumer associations or organi-
sations designed to contribute to the proper implemen-
tation of Articles 5 to 15;

(b) the transmission of draft codes of conduct at national or
Community level to the Commission so that the latter may
examine their compatibility with Community law;

Unchanged

(c) the

accessibility of

these

codes of

conduct

in the

Community languages by electronic means;

(d) the

communication to the Member States

and the
Commission, by professional associations or organisations,
of their assessment of the application of their codes of
conduct and their
impact upon practices, habits or
customs relating to electronic commerce.

(d) the

communication to the Member States

and the
Commission, by professional and consumer associations
or organisations, of their assessment of the application of
their codes of conduct and their impact upon practices,
habits or customs relating to electronic commerce.

(e) the drawing up of codes of conduct
protection of minors and human dignity

regarding the

Unchanged

as

In so far

2.
consumer
they may be
associations shall be involved in the drafting and implemen-
tation of codes of conduct drawn up according to point (a) of
paragraph 1.

concerned,

Article 17

Out-of-court dispute settlement

shall

ensure

between

in the event of
1. Member States
disagreement
service
provider and its recipient, their legislation allows the effective
use of out-of-court schemes for dispute settlement, including
appropriate electronic means.

that,
Information

Society

an

settlement of

2. Member States shall ensure that bodies responsible for
apply,
the out-of-court
inde-
whilst abiding by Community law,
pendence
techniques,
of
procedural efficacy,
legality of the decision, and freedom of
the parties and of representation.

the principles of
adversarial

consumer disputes

transparency,

and

3. Member States shall encourage bodies responsible for
out-of-court dispute settlement to inform the Commission of
the decisions they take regarding Information Society services
and to transmit any other information on the practices, usages
or customs relating to electronic commerce.

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Article 18

Court actions

1. Member States shall ensure that effective court actions
can be brought against Information Society services’ activities,
by allowing the rapid adoption of interim measures designed to
remedy any alleged infringement and to prevent any further
impairment of the interests involved.

Acts in breach of the national provisions incorporating
2.
Articles 5 to 15 of
this Directive which affect consumers’
interests shall constitute infringements within the meaning of
Article 1(2) of Directive 98/27/EC of the European Parliament
and Council (1).

Article 19

Cooperation between authorities

1. Member States shall ensure that their competent auth-
orities have the appropriate powers of supervision and inves-
tigation necessary to implement this Directive effectively and
supply those authorities with the
that
requisite information.

service providers

2. Member States shall ensure that their national authorities
cooperate with the authorities of other Member States; they
shall, to that end, appoint a contact person, whose coordinates
they shall communicate to the other Member States and to the
Commission.

3. Member States shall, as quickly as possible, provide the
assistance and information requested by authorities of other
Member States or by the Commission, including by appropriate
electronic means.

4. Member States shall establish, within their administration,
contact points which shall be accessible electronically and from
which recipients and service providers may:

(a) obtain information on their contractual rights and obli-

gations;

(b) obtain the particulars of authorities, associations or organi-
services may obtain
sations
information about their rights or with whom they may
file complaints; and

from which recipients of

(c) receive assistance in the event of disputes.

___________
(1) OJ L 166, 11.6.1998, p. 51.

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5. Member States shall ensure that their competent auth-
inform the Commission of any administrative or
orities
judicial decisions taken in their territory regarding disputes
relating to Information Society services and practices, usages
and customs relating to electronic commerce.

6.
The rules governing cooperation between national auth-
orities as referred to in paragraphs 2 to 5 shall be laid down by
the Commission in accordance with the procedure set out in
Article 23.

7. Member States may ask the Commission to convene
urgently the committee referred to in Article 23 in order to
examine difficulties over the application of Article 3(1).

Article 20

Electronic media

The Commission may take measures, in accordance with the
procedure provided for in Article 23, to ensure the proper
functioning of electronic media between Member States, as
referred to in Articles 17(1) and 19(3) and (4).

Article 21

Sanctions

Member States shall determine the sanctions applicable to
infringements of national provisions adopted pursuant to this
Directive and shall take all measures necessary to ensure that
they are enforced. The sanctions they provide for shall be
effective, proportionate and dissuasive. Member States shall
notify these measures to the Commission no later than the
date specified in Article 25 and shall inform it of all subsequent
amendments to those measures without delay.

CHAPTER IV

EXCLUSIONS FROM SCOPE AND DEROGATIONS

Article 22

Exclusions and derogations

1.

This Directive shall not apply to:

(a) taxation;

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(b) the field covered by Directives 95/46/EC of the European

Parliament and of the Council (1);

(b) the

field
97/66/EC (2) of
Council;

covered

by Directives

95/46/EC (1);
the European Parliament and of

and
the

(c) the activities of Information Society services referred to in
Annex I. This list of activities may be amended by the
Commission in accordance with the procedure laid down
by Article 23.

Unchanged

Article 3 shall not apply to the fields referred to in

2.
Annex II.

By way of derogation from Article 3(2), and without
3.
competent authorities of
prejudice
to court action,
Member States may take
restricting the
freedom to provide an Information Society service as are
consistent with Community law and with the following
provisions:

the
such measures

(a) the measures shall be:

(i) necessary for one of the following reasons:

(cid:151) public policy,

in particular
minors, or the fight against any incitement
hatred on grounds of
nationality,

the protection of
to
religion or

race,

sex,

(cid:151) the protection of public health,

(cid:151) public security,

(cid:151) consumer protection;

(ii) taken against an Information Society service which
prejudices the objectives referred to in point
(i) or
which presents a serious and grave risk of prejudice
to those objectives,

(iii) proportionate to those objectives;

(b) prior to taking the measures in question, the Member State

has:

(cid:151) asked the Member State referred to in Article 3(1) to
take such

take measures and the latter did not
measures, or the latter were inadequate;

(cid:151) notified the Commission and the Member State in
its

established of

which the
intention to take such measures

service provider

is

___________
(1) OJ L 281, 23.11.1995, p. 31.

___________
(1) OJ L 281, 23.11.1995, p. 31.
(2) OJ L 24, 30.1.1998, p. 1.

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(c) Member States may lay down in their legislation that, in the
case of urgency, the conditions stipulated in point (b) do
not apply. Where this is the case, the measures shall be
notified in the shortest possible time to the Commission
and to the Member State in which the service provider is
established, indicating the reasons for which the Member
State considers that there is urgency.

(d) the Commission may decide on the compatibility of the
a
measures with Community law. Where
the Member States shall refrain from
negative decision,
taking any proposed measures or shall be required to
urgently put an end to the measures in question.

adopts

it

CHAPTER V

ADVISORY COMMITTEE AND FINAL PROVISIONS

Article 23

Committee

The Commission shall be assisted by a committee of an
the
advisory nature composed of
the representatives of
the
Member States and chaired by the representative of
Commission.

a draft of

the Commission shall submit

to the
The representative of
taken. The
committee
committee shall deliver its opinion on the draft, within a
time-limit which the chairman may lay down according to
the urgency of the matter, if necessary by taking a vote.

the measures

to be

The opinion shall be recorded in the minutes; in addition, each
Member State shall have the right to ask to have its position
recorded in the minutes.

The Commission shall take the utmost account of the opinion
delivered by the committee. It shall inform the committee of
the manner in which its opinion has been taken into account.

Article 24

Re-examination

Not later than three years after the adoption of this Directive,
and thereafter every two years, the Commission shall submit to
the European Parliament, the Council and the Economic and
Social Committee a report on the application of this Directive,
accompanied, where necessary, by proposals for adapting it to
developments in the field of Information Society services.

Not

later than three years after the adoption of

this
1.
Directive, and thereafter every two years,
the Commission
shall submit to the European Parliament, the Council and the
Economic and Social Committee a report on the application of
this Directive, containing statistical results and accompanied,
where necessary, by proposals for adapting it to developments
in the field of digital technologies and Information Society
services.

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The report shall examine the need for adaptation in the
2.
light of technical and economic developments and emerging
jurisprudence in the Member States.
It should in particular
analyse the need for proposals concerning the liability of
providers of hyperlinks and location tool services, notification
liability following the
requirements and the attribution of
taking down of content;

Article 25

Implementation

Unchanged

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive within one year of its entry into force. They shall
forthwith inform the Commission thereof.

these provisions,

When Member States adopt
these shall
contain a reference to this Directive or shall be accompanied
by such reference at the time of their official publication. The
methods of making such reference shall be laid down by
Member States.

Article 26

Entry into force

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

Article 27

Addressees

This Directive is addressed to the Member States.

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ACTIVITIES EXCLUDED FROM THE SCOPE OF APPLICATION OF THE DIRECTIVE

ANNEX I

Information Society services’ activities, as referred to in Article 22(1), which are not covered by this Directive:

(cid:151) the activities of notaries;

(cid:151) the representation of a client and defence of his interests before the courts;

(cid:151) gambling activities, excluding those carried out for commercial communication purposes.

ANNEX II

DEROGATIONS FROM ARTICLE 3

As referred to in Article 22(2) in which Article 3 does not apply:

(cid:151) copyright, neighbouring rights, rights referred to in Directive 87/54/EEC (1) and Directive 96/9/EC (2) as well as

industrial property rights;

(cid:151) the emission of electronic money by institutions in respect of which Member States have applied one of the

derogations provided for in Article 7(1) of Directive . . ./. . ./EC (3);

(cid:151) Article 44 paragraph 2 of Directive 85/611/EEC (4);

(cid:151) Article 30 and Title IV of Directive 92/49/EEC (5), Title IV of Directive 92/96/EEC (6), Articles 7 and 8 of Directive

88/357/EEC (7) and Article 4 of Directive 90/619/EEC (8);

(cid:151) contractual obligations concerning consumer contracts;

(cid:151) unsolicited commercial communications by electronic mail, or by an equivalent individual communication.

(1) Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products; OJ L 24,

27.1.1987, p. 36.

(2) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases; OJ L 77,

27.3.1996, p. 20.

(3) European Parliament and Council Directive . . ./. . ./EC of . . . (on the taking up and the prudential supervision of the business of

electronic money instituions).

(4) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to
undertaking for collective investment in transferable securities (UCITS), OJ L 375, 31.12.1985, p. 3, as last amended by Directive
95/26/EC of the European Parliament and of the Council (OJ L 168, 18.7.1995, p. 7).

(5) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct
insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) OJ L
228, 11.8.1992, p. 1, as amended by Directive 95/26/EC.

(6) Council Directive 92/56/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to
direct life insurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), OJ L 360, 9.12.1992, p. 1,
as amended by Directive 95/26/EC.

(7) Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating
to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide
services and amending Directive 73/239/EEC, OJ L 172, 4.7.1988, p. 1, as last amended by Directive 92/49/EEC.

(8) Council Directive of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life
freedom to provide services and amending Directive

assurance laying down provisions to facilitate the effective exercise of
79/267/EEC, OJ L 330, 29.11.1990, p. 50, as amended by Directive 92/96/EEC.