Common Position (EC) No 22/2000 of 28 February 2000 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce)
Date: 2000-02-28
Institutions: Council of the European Union
Subjects: consumer protection, cross-frontier data flow, distance selling, information network, personal data, telecommunications

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COMMON POSITION (EC) No 22/2000

adopted by the Council on 28 February 2000

with a view to adopting a Directive 2000/.../EC of the European Parliament and of the Council
of ... on certain legal aspects of information society services, in particular electronic commerce,
in the internal market (‘Directive on electronic commerce’)

(2000/C 128/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

(3) 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; 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.

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (3),

(4)

Whereas:

(1) The European Union is seeking to forge ever closer links
between the States and peoples of Europe, to ensure
in accordance with
economic and social progress;
Article 14(2) of the Treaty, the internal market comprises
an area without internal frontiers in which the free
movements of goods, services and the freedom of estab-
lishment are ensured; the development of information
society services within the area without internal frontiers
is vital
to eliminating the barriers which divide the
European peoples.

(2) The development of electronic commerce within the
information society offers significant employment oppor-
tunities in the Community, particularly in small and
medium-sized enterprises, and will stimulate economic
growth and investment in innovation by European com-
panies, and can also enhance the competitiveness of
European industry, provided that everyone has access to
the Internet.

(1) OJ C 30, 5.2.1999, p. 4.
(2) OJ C 169, 16.6.1999, p. 36.
(3) Opinion of the European Parliament of 6 May 1999 (OJ C 279,
1.10.1999, p. 389), Council common position of 28 February
2000 and decision of the European Parliament of ... (not yet
published in the Official Journal).

It is important to ensure that electronic commerce could
fully benefit from the internal market and therefore that,
as with Council Directive 89/552/EEC of 3 October 1989
on the coordination of certain provisions laid down by
law, regulation or administrative action in Member
States concerning the pursuit of television broadcasting
activities (4), a high level of Community integration is
achieved.

(5) The development of information society services within
the Community is hampered by a number of
legal
obstacles to the proper functioning of the internal market
which make less attractive the exercise of the freedom of
establishment and the freedom to provide services; these
obstacles arise from divergences in legislation and from
the legal uncertainty as to which national rules apply
to such services;
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; legal uncertainty
exists with regard to the extent to which Member States
may control services originating from another Member
State.

(4) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
97/36/EC of the European Parliament and of the Council (OJ
L 202, 30.7.1997, p. 60).

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(6)

In the light of Community objectives, of Articles 43 and
49 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; 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 subsidiarity as set out
in Article 5 of the Treaty.

(7)

In order to ensure legal certainty and consumer confi-
dence, this Directive must lay down a clear and general
framework to cover certain legal aspects of electronic
commerce in the internal market.

(8) The objective of

this Directive is to create a legal
framework to ensure the free movement of information
society services between Member States and not
to
harmonise the field of criminal law as such.

(9) 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; for this
reason, directives covering the supply of information
society services must ensure that this activity may be
engaged in 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
this Directive is
not intended to affect national fundamental rules and
principles relating to freedom of expression.

the Treaty;

unfair terms is consumer contracts (1) and Directive
97/7/EC of the European Parliament and of the Council
of 20 May 1997 on the protection of consumers in
respect of distance contracts (2) form a vital element
for protecting consumers in contractual matters; those
Directives also apply in their entirety to information
society services; that same Community acquis, which is
fully applicable to information society services, also
embraces in particular Council Directive 84/450/EEC of
10 September 1984 concerning misleading and compara-
tive advertising (3), Council Directive 87/102/EEC of
22 December 1986 for the approximation of the laws,
regulations and administrative provisions of the Member
States concerning consumer credit (4), Council Directive
93/22/EEC of 10 May 1993 on investment services in
the securities field (5), Council Directive 90/314/EEC of
13 June 1990 on package travel, package holidays and
package tours (6), Directive 98/6/EC of the European
Parliament and of the Council of 16 February 1998 on
consumer production in the indication of prices of
products offered to consumers (7), Council Directive
92/59/EEC of 29 June 1992 on general product safety (8),
Directive 94/47/EC of the European Parliament and of
the Council of 26 October 1994 on the protection of
purchasers in respect of certain aspects on contracts
relating to the purchase of the right to use immovable
properties on a timeshare basis (9), Directive 98/27/EC of
the European Parliament and of the Council of 19 May
1998 on injunctions for the protection of consumers’
interests (10), Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations
and administrative provisions concerning liability for
defective products (11), Directive 1999/44/EC of the Euro-
pean Parliament and of the Council of 25 May 1999 on
the sale of consumer goods and
certain aspects of
associated guarantees (12), Directive 2000/.../EC of ... of ...
concerning the distance marketing of consumer financial
services (13) and Council Directive 92/28/EEC of 31 March
1992 on the advertising of medicinal products (14); this
Directive should be without prejudice to Directive

(10) In accordance with the principle of proportionality, the
measures provided for in this Directive are strictly limited
to the minimum needed to achieve the objective of the
proper functioning of the internal market; where action
at Community level is necessary, and in order to guarantee
an area which is truly without internal frontiers as far as
electronic commerce is concerned, the Directive must
ensure a high level of protection of objectives of general
interest, in particular the protection of minors and human
dignity, consumer protection and the protection of
public health; according to Article 152 of the Treaty, the
protection of public health is an essential component of
other Community policies.

(11) This Directive is without prejudice to the level of
protection for, in particular, public health and consumer
interests, as established by Community acts; amongst
others, Council Directive 93/13/EEC of 5 April 1993 on

(1) OJ L 95, 21.4.1993, p. 29.
(2) OJ L 144, 4.6.1999, p. 19.
(3) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive
97/55/EC of the European Parliament and of the Council (OJ
L 290, 23.10.1997, p. 18).

(4) OJ L 42, 12.2.1987, p. 48. Directive as last amended by Directive
98/7/EC of the European Parliament and of the Council (OJ L 101,
1.4.1998, p. 17).

(5) OJ L 141, 11.6.1993, p. 27. Directive as last amended by Directive
97/9/EC of the European Parliament and of the Council (OJ L 84,
26.3.1997, p. 22).

(6) OJ L 158, 23.6.1990, p. 59.
(7) OJ L 80, 18.3.1998, p. 27.
(8) OJ L 228, 11.8.1992, p. 24.
(9) OJ L 280, 29.10.1994, p. 83.
(10) OJ L 166, 11.6.1998, p. 51. Directive as amended by Directive

1999/44/EC (OJ L 171, 7.7.1999, p. 12).

(11) OJ L 210, 7.8.1985, p. 29. Directive as amended by Directive

1999/34/EC (OJ L 141, 4.6.1999, p. 20).

(12) OJ L 171, 7.7.1999, p. 12.
(13) OJ L ... .
(14) OJ L 113, 30.4.1992, p. 13.

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98/43/EC of the European Parliament and 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 sponsorship of
tobacco products (1) adopted within the framework of the
internal market, or to directives on the protection of
public health; this Directive complements information
requirements established by the abovementioned Direc-
tives and in particular Directive 97/7/EC.

(16) The exclusion of gambling activities from the scope of
application of this Directive covers only games of chance,
lotteries and betting transactions, which involve wagering
a stake with monetary value; this does not cover pro-
motional competitions or games where the purpose is to
encourage the sale of goods or services and where
payments, if they arise, serve only to acquire the promoted
goods or services.

(12) It is necessary to exclude certain activities from the scope
of this Directive, on the grounds that the freedom to
provide services in these fields cannot, at this stage,
be guaranteed under the Treaty or existing secondary
legislation; excluding these activities does not preclude
any instruments which might prove necessary for the
proper functioning of
taxation,
particularly value added tax imposed on a large number
of the services covered by this Directive, must be excluded
form the scope of this Directive.

the internal market;

(13) This Directive does not aim to establish rules on fiscal
obligations nor does it pre-empt the drawing up of
Community instruments concerning fiscal aspects of
electronic commerce.

(14) The protection of individuals with regard to the pro-
cessing of personal data is solely governed by Directive
95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (2) 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 of privacy in the telecommunications sector (3)
which are fully applicable to information society services;
these Directives already establish a Community legal
framework in the field of 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 personal data between
Member States; the implementation and application of
this Directive should be made in full compliance with the
principles relating to the protection of personal data, in
particular as regards unsolicited commercial communi-
cation and the liability of intermediaries; this Directive
cannot prevent the anonymous use of open networks
such as the Internet.

(15) The confidentiality of communications is guaranteed by
Article 5 Directive 97/66/EC;
in accordance with that
Directive, Member States must prohibit any kind of
interception or surveillance of such communications by
others than the senders and receivers, except when legally
authorised.

(17) The definition of information society services already
exists in Community law in Directive 98/34/EC of the
European Parliament and of the Council of 22 June 1998
laying down a procedure for the provision of information
in the field of technical standards and regulations and of
rules on information society services (4) and in 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 (5); this
definition covers any service normally provided for
remuneration, at a distance, by means of electronic
equipment for the processing (including digital com-
pression) and storage of data, and at the individual request
of a recipient of a service; those services referred to in the
indicative list in Annex V to Directive 98/34/EC which
do not imply data processing and storage are not covered
by this definition.

(18) Information society services span a wide range of econ-
omic activities which take place on-line; these activities
can, in particular, consist of selling goods on-line; activi-
ties such as the delivery of goods as such or the provision
of services off-line are not covered; information society
services are not 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 communi-
cations, or those providing tools allowing for search,
access and retrieval of data; information society services
also include services consisting of the transmission of
information via a communication network, in providing
access to a communication network or in hosting infor-
mation provided by a recipient of the service; television
broadcasting within
of Directive
EEC/89/552 and radio broadcasting are not information
society services because they are not provided at individ-
ual request; by contrast, services which are transmitted
point to point, such as video-on-demand or the provision
of commercial communications by electronic mail are
information society services; the use of electronic mail or
equivalent individual communications for instance by
natural persons acting outside their trade, business or
profession including their use for the conclusion of
contracts between such persons is not an information
society service; the contractual relationship between an

the meaning

(1) OJ L 213, 30.7.1998, p. 9.
(2) OJ L 281, 23.11.1995, p. 31.
(3) OJ L 24, 30.1.1998, p. 1.

(4) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive

98/48/EC (OJ L 217, 5.8.1998, p. 18).

(5) OJ L 320, 28.11.1998, p. 54.

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employee and his employer is not an information society
service; activities which by their very nature cannot be
carried out at a distance and by electronic means, such as
the statutory auditing of company accounts or medical
advice requiring the physical examination of a patient are
not information society services.

(19) The place at which a service provider is established should
be determined in conformity with the case-law of the
Justice according to which the concept of
Court of
establishment involves the actual pursuit of an economic
activity through a fixed establishment for an indefinite
period; this requirement is also fulfilled where a company
is constituted for a given period; the place of establish-
ment of a company providing services via an Internet
website is not the place at which the technology support-
ing its website is located or the place at which its website
is accessible but the place where it pursues its economic
activity; in cases where a provider has several places of
establishment it is important to determine from which
place of establishment the service concerned is provided;
in cases where it is difficult to determine from which of
several places of establishment a given service is provided,
this is the place where the provider has the centre of his
activities relating to this particular service.

it

trust between Member States,

improve mutual
is
essential to state clearly this responsibility on the part of
the Member State where the services originate; moreover,
in order to effectively guarantee freedom to provide
services and legal certainty for suppliers and recipients of
services, such information society services should in
principle be subject to the law of the Member State in
which the service provider is established.

(23) This Directive neither aims to establish additional rules
on private international law relating to conflicts of law
nor does it deal with the jurisdiction of Courts; provisions
of the applicable law designated by rules of private
international law must not restrict the freedom to provide
information society services as established in this Direc-
tive.

(24) In the context of this Directive, notwithstanding the rule
on the control at source of information society services,
it is legitimate under the conditions established in this
Directive for Member States to take measures to restrict
the free movement of information society services.

(20) The definition of ‘recipient of a service’ covers all types of
usage of information society services, both by persons
who provide information on open networks such as the
Internet and by persons who seek information on the
Internet for private or professional reasons.

(25) National courts,

including civil courts, dealing with
private law disputes can take measures to derogate from
the freedom to provide information society services in
conformity with conditions established in this Directive.

(21) The scope of the coordinated field is without prejudice to
future Community harmonisation relating to information
society services and to future legislation adopted at
national level in accordance with Community law; the
coordinated field covers only requirements relating to
on-line activities such as on-line information, on-line
advertising, on-line shopping, on-line contracting and
legal requirements
does not concern Member States’
labelling
relating to goods such as safety standards,
obligations, or liability for goods, or Member States’
requirements relating to the delivery or the transport of
goods, including the distribution of medicinal products;
the coordinated field does not cover the exercise of rights
of pre-emption by public authorities concerning certain
goods such as works of art.

(22) Information society services should be supervised at the
source of the activity, in order to ensure an effective
protection of public interest objectives; to that end, it is
necessary to ensure that the competent authority provides
such protection not only for the citizens of its own
in order to
country but for all Community citizens;

(26) Member States, in conformity with conditions established
in this Directive, may apply their national rules on
criminal law and criminal proceedings with a view to
taking all investigative and other measures necessary for
the detection and prosecution of criminal offences,
without there being a need to notify such measures to the
Commission.

(27) This Directive, together with Directive 2000/.../EC of the
European Parliament and of the Council of ... concerning
the distance marketing of consumer financial services,
contributes to the creating of a legal framework for the
on-line provision of financial services; this Directive does
not pre-empt future initiatives in the area of financial
services in particular with regard to the harmonisation of
rules of conduct in this field; the possibility for Member
States, established in this Directive, under certain circum-
stances of restricting the freedom to provide information
society services in order to protect consumers also covers
measures in the area of financial services in particular
measures aiming at protecting investors.

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(28) The Member States’ obligation not to subject access to
the activity of an information society service provider to
prior authorisation does not concern postal services
covered by Directive 97/67/EC of the European Parlia-
ment and of the Council of 15 December 1997 on
common rules for the development of the internal market
of Community postal services and the improvement of
quality of service(1) consisting of the physical delivery of
a printed electronic mail message and does not affect
voluntary accreditation systems,
in particular for pro-
viders of electronic signature certification service.

(32) In order to remove barriers to the development of
cross-border services within the Community which mem-
bers of the regulated professions might offer on the
Internet, it is necessary that compliance be guaranteed at
Community level with professional rules aiming,
in
particular, to protect consumers or public health; codes
of conduct at Community level would be the best means
of determining the rules on professional ethics applicable
to commercial communication; the drawing-up or, where
appropriate,
the adaptation of such rules should be
encouraged without prejudice to the autonomy of pro-
fessional bodies and associations.

(29) Commercial communications are essential for the finan-
cing of information society services and for developing a
wide variety of new, charge-free services; in the interests
of consumer protection and fair trading, commercial
communications, including discounts, promotional offers
and promotional competitions or games, must meet a
number of transparency requirements; these requirements
are without prejudice to Directive 97/7/EC; this Directive
should not affect existing Directives on commercial
communications, in particular Directive 98/43/EC.

interactive networks;

(30) The sending of unsolicited commercial communications
by electronic mail may be undesirable for consumers and
information society service providers and may disrupt
the smooth functioning of
the
question of consent by recipient of certain forms of
unsolicited commercial communications is not addressed
by this Directive, but has already been addressed,
in
particular, by Directive 97/7/EC and by Directive
97/66/EC; in Member States which authorise unsolicited
the
commercial communications by electronic mail,
setting up of appropriate industry filtering initiatives
should be encouraged and facilitated; in addition it is
necessary that
in any event unsolicited commercial
communities are clearly identifiable as such in order to
improve transparency and to facilitate the functioning of
such industry initiatives; unsolicited commercial com-
munications by electronic mail should not result in
additional communication costs for the recipient.

(31) Member States which allow the sending of unsolicited
commercial by electronic mail without prior consent of
the recipient by service providers established in their
territory have to ensure that the service providers consult
regularly and respect
the opt-out registers in which
natural persons not wishing to receive such commercial
communications can register themselves.

(33) This Directive complements Community law and national
law relating to regulated professions maintaining a coher-
ent set of applicable rules in this field.

(34) Each Member State is to amend its legislation containing
requirements, and in particular requirements as to form,
which are likely to curb the use of contracts by electronic
means; the examination of the legislation requiring such
adjustment should be systematic and should cover all the
necessary stages and acts of the contractual process,
including the filing of the contract; the result of this
amendment should be to make contracts concluded
electronically workable;
the legal effect of electronic
signatures is dealt with by Directive 1999/93/EC of the
European Parliament and of the Council of 13 December
1999 on a Community framework for electronic signa-
tures (2); the acknowledgement of receipt by a service
provider may take the form of the on-line provision of
the service paid for.

(35) This Directive does not affect Member States’ possibility
of maintaining or establishing general or specific legal
requirements for contracts which can be fulfilled by
electronic means, in particular requirements concerning
secure electronic signatures.

(36) Member States may maintain restrictions for the use of
electronic contracts with regard to contracts requiring by
law the involvement of courts, public authorities, or
professions exercising public authority; this possibility
also covers contracts which require the involvement of
courts, public authorities, or professions exercising public
authority in order to have an effect with regard to third
parties as well as contracts requiring by law certification
or attestation by a notary.

(37) Member States’ obligation to remove obstacles to the use
of electronic contracts concerns only obstacles resulting
from legal requirements and not practical obstacles
resulting from the impossibility of using electronic means
in certain cases.

(1) OJ L 15, 21.1.1998, p. 14.

(2) OJ L 13, 19.1.2000, p. 12.

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(38) Member States’ obligation to remove obstacles to the use
of electronic contracts is to be implemented in conformity
with legal requirements for contracts enshrined in Com-
munity law.

(39) The exceptions to the provisions concerning the contracts
concluded exclusively by electronic mail or by equivalent
individual communications provided for by this Directive,
in relation to information to be provided and the placing
of orders, should not enable, as a result, the by-passing of
those provisions by providers of information society
services.

(40) Both existing and emerging disparities in Member States’
legislation and case-law concerning liability of service
providers acting as intermediaries prevent the smooth
functioning of
in particular by
the internal market,
impairing the development of cross-border services and
producing distortions of competition; service providers
have a duty to act, under certain circumstances, with a
view to preventing or stopping illegal activities; this
Directive should constitute the appropriate basis for
the development of rapid and reliable procedures for
removing and disabling access to illegal information; such
mechanisms could be developed on the basis of voluntary
agreements between all parties concerned and should be
encouraged by Member States; it is in the interest of all
parties involved in the provision of information society
services to adopt and implement such procedures; 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 and of technical surveillance
instruments made possible by digital technology within
the limits
laid down by Directives 95/46/EC and
97/66/EC.

(41) This Directive strikes a balance between the different
interests at stake and establishes principles upon which
industry agreements and standards can be based.

(42) The exemptions from liability established in this Directive
cover only cases where the activity of the information
society service provider is limited to the technical process
of operating and giving access to a communication
network over which information made available by third
parties is transmitted or temporarily stored, for the sole
purpose of making the transmission more efficient; this
activity is of a mere technical, automatic and passive
nature, which implies that the information society service
provider has neither knowledge of nor control over the
information which is transmitted or stored.

(43) A service provider can benefit from the exemptions for
‘mere conduit’ and for ‘caching’ when he is in no way
involved with the information transmitted; this requires
among other things that he does not modify the infor-
mation that he transmits; this requirement does not cover
manipulations of a technical nature which take place in
the course of the transmission as they do not alter the
integrity of the information contained in the transmission.

(44) A service provider who deliberately collaborates with one
of the recipients of his service in order to undertake illegal
acts goes beyond the activities of ‘mere conduit’ or
‘caching’ and as a result cannot benefit from the liability
exemptions established for these activities.

(45) The limitations of the liability of intermediary service
providers established in this Directive do not affect
the possibility of injunctions of different kinds; such
injunctions can in particular consist of orders by courts
or administrative authorities requiring the termination or
prevention of any infringement, including the removal of
illegal information or the disabling of access to it.

(46) In order to benefit from a limitation of liability, the
provider of an information society service, consisting
of the storage of information, upon obtaining actual
knowledge or awareness of illegal activities has to act
expeditiously to remove or to disable access to the
information concerned; the removal or disabling of access
has to be undertaken in the observance of the principle
of freedom of expression and of procedures established
for this purpose at national level; this Directive does not
affect Member States’ possibility of establishing specific
requirements which must be fulfilled expeditiously prior
to the removal or disabling of information.

(47) Member States are prevented from imposing a monitoring
obligation on service providers only with respect to
obligations of a general nature; this does not concern
monitoring obligations in a specific case and, in particu-
lar, does not affect orders by national authorities in
accordance with national legislation.

(48) This Directive does not affect the possibility for Member
States of requiring service providers, who host infor-
mation provided by recipients of their service, to apply
duties of care, which can reasonably be expected from
them and which are specified by national law, in order to
detect and prevent certain types of illegal activities.

(49) Member States and the Commission are to encourage the
drawing-up of codes of conduct; this is not to impair the
voluntary nature of such codes and the possibility for
interested parties of deciding freely whether to adhere to
such codes.

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(50) It

that

is important

the proposed directive on the
harmonisation of certain aspects of copyright and related
rights in the information society and this Directive come
into force within a similar time scale with a view to
establishing a clear framework of rules relevant to the
issue of
intermediaries for copyright and
relating rights infringements at Community level.

liability of

(56) 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
elements of the content of the contract, including con-
sumer rights, which have a determining influence on the
decision to contract.

(51) 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; 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.

(57) The Court of Justice has consistently held that a Member
State retains the right to take measures against a service
provider that is established in another Member State but
directs all or most of his activity to the territory of the
first Member State if the choice of establishment was
made with a view to evading the legislation that would
have applied to the provider had he been established on
the territory of the first Member State.

(52) The effective exercise of the freedoms of the internal
market makes it necessary to guarantee victims effective
access to means of settling disputes; damage which may
arise in connection with information society services is
characterised both by its rapidity and by its geographical
extent; 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; Member
States should examine the need to provide access to
judicial procedures by appropriate electronic means.

(53) Directive 98/27/EC, which is applicable to information
society services, provides a mechanism relating to actions
for an injunction aimed at the protection of the collective
interests of consumers; this mechanism will contribute to
the free movement of information society services by
ensuring a high level of consumer protection.

(54) The sanctions provided for under this Directive are
without prejudice to any other sanction or remedy
provided under national
law; Member States are not
obliged to provide criminal sanctions for infringement of
national provisions adopted pursuant to this Directive.

(55) This Directive does not affect the law applicable to
contractual obligations relating to consumer contracts;
accordingly, this Directive cannot have the result of
depriving the consumer of the protection afforded to him
by the mandatory rules relating to contractual obligations
of the law of the Member State in which he has his
habitual residence.

(58) This Directive should not apply to services supplied by
service providers established in a third country; in view
of the global dimension of electronic commerce, it is,
however, appropriate to ensure that the Community rules
are consistent with international rules; this Directive is
without prejudice to the results of discussions within
international organisations
(amongst others WTO,
OECD, Uncitral) on legal issues.

(59) Despite the global nature of electronic 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 framework; such
coordination should also contribute to the establishment
of a common and strong negotiating position in inter-
national forums.

(60) 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

(61) If the market is actually to operate by electronic means in
the context of globalisation, the European Union and the
major non-European areas need to consult each other
with a view to making laws and procedures compatible.

(62) Cooperation with third countries should be strengthened
in the area of electronic commerce, in particular with
applicant countries, the developing countries and the
European Union’s other trading partners.

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(63) The adoption of this Directive will not prevent

the
Member States from taking into account the various
implications which are
social, societal and cultural
inherent in the advent of the information society;
in
particular it should not hinder measures which Member
States might adopt in conformity with Community law
to achieve social, cultural and democratic goals taking
their linguistic diversity, national and
into account
regional specificities as well as their cultural heritage, and
to ensure and maintain public access to the widest
possible range of information society services;
in any
case, the development of the information society is to
ensure that Community citizens can have access to
the cultural European heritage provided in the digital
environment.

(64) Electronic communication offers the Member States an
excellent means of providing public services in the
cultural, educational and linguistic fields.

(65) The Council, in its resolution of 19 January 1999 on
the consumer dimension of the information society (1),
stressed that the protection of consumers deserved special
attention in this field; 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; if need be, the Com-
mission should make specific additional proposals to
resolve such deficiencies that will thereby have been
identified,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Objective and scope

commercial communications, electronic contracts, the liability
of
intermediaries, codes of conduct, out-of-court dispute
settlements, court actions and cooperation between Member
States.

3.
This Directive complements Community law applicable
to information society services without prejudice to the level
of protection for, in particular, public health and consumer
interests, as established by Community acts and national
legislation implementing them in so far as this does not restrict
the freedom to provide information society services.

4.
This Directive does not establish additional rules on
private international law nor does it deal with the jurisdiction
of Courts.

5.

This Directive shall not apply to:

(a) the field of taxation;

(b) questions relating to information society services covered

by Directives 95/46/EC and 97/66/EC;

(c) questions relating to agreements or practices governed by

cartel law;

(d) the following activities of information society services:

— the activities of notaries or equivalent professions to
that they involve a direct and specific

the extent
connection with the exercise of public authority,

— the representation of a client and defence of his

interests before the courts,

— gambling activities which involve wagering a stake
with monetary value in games of chance, including
lotteries and betting transactions.

6.
This Directive does not affect measures taken at Com-
munity or national level, in the respect of Community law, in
order to promote cultural and linguistic diversity and to ensure
the defence of pluralism.

This Directive seeks to contribute to the proper func-
1.
tioning of the internal market by ensuring the free movement
of information society services between the Member States.

This Directive approximates, to the extent necessary for
2.
the achievement of the objective set out in paragraph 1, certain
national provisions on information society services relating to
the internal market, the establishment of service providers,

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

Article 2

Definitions

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

(a)

‘information society services’: services within the meaning
of Article 1(2) of Directive 98/34/EC as amended by
Directive 98/48/EC;

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(b) ‘service provider’: any natural or legal person providing an

information society service;

(c)

‘established service provider’: a service provider who
effectively pursues an economic activity using a fixed
establishment for an indefinite period. The presence and
use of the technical means and technologies required to
provide the service do not, in themselves, constitute an
establishment of the provider;

(d) ‘recipient of the service’: 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)

‘consumer’: any natural person who is acting for purposes
which are outside his or her trade, business or profession;

(f)

‘commercial communication’: any form of communication
designed to promote, directly or indirectly, the goods,
services or image of a company, organisation or person
pursuing a commercial,
industrial or craft activity or
exercising a regulated profession. The following do not in
themselves constitute commercial communications:

— information allowing direct access to the activity of the
in particular a

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

— communications relating to the goods, services or
image of the company, organisation or person com-
piled in an independent manner, particularly when this
is without financial consideration;

(g) ‘regulated profession’: any profession within the meaning
of either Article 1(d) 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 (1) or of Article 1(f) of Council Directi-
ve 92/51/EEC of 18 June 1992 on a second general system
for the recognition of professional education and training
to supplement Directive 89/48/EEC (2);

— the taking up of the activity of an information
society service, such as requirements concerning
qualifications, authorisation or notification,

such as

— the pursuit of the activity of an information society
service,
requirements concerning the
behaviour of the service provider, requirements
regarding the quality or content of the service
including those applicable to advertising and con-
tracts, or requirements concerning the liability of
the service provider;

(ii) The coordinated field does not cover requirements

such as:

— requirements applicable to goods as such,

— requirements applicable to the delivery of goods,

— requirements applicable to services not provided

by electronic means.

Article 3

Internal market

Each Member State shall ensure that the information
1.
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 the coordinated
field.

2. Member States may not, for reasons falling within the
coordinated field, restrict the freedom to provide information
society services from another Member State.

Paragraphs 1 and 2 shall not apply to the fields referred

3.
to in the Annex.

4. Member States may take measures to derogate from
paragraph 2 in respect of a given information society service if
the following conditions are fulfilled:

(h) ‘coordinated field’: requirements laid down in Member
States’
legal systems applicable to information society
service providers or information society services, regardless
of whether they are of a general nature or specifically
designed for them.

(a) the measures shall be:

(i) necessary for one of the following reasons:

(i) The coordinated field concerns requirements with
which the service provider has to comply in respect of:

(1) OJ L 19, 24.1.1989, p. 16.
(2) OJ L 209, 24.7.1992, p. 25. Directive as last amended by
Commission Directive 97/38/EC (OJ L 184, 12.7.1997, p. 31).

— public policy, in particular the prevention, investi-
gation, detection and prosecution of criminal
offences, including the protection of minors and
the fight against any incitement
to hatred on
grounds of race, sex, religion or nationality, and
violations of human dignity concerning individual
persons,

— the protection of public health,

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— public security,

including the safeguarding of

national security and defence,

— the protection of consumers, including investors;

(ii) taken against a given 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) before taking the measures in question and without
prejudice to court proceedings,
including preliminary
proceedings and acts carried out in the framework of a
criminal investigation, the Member State has:

— asked the Member State referred to in paragraph 1 to
take such

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

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 of 10 April 1997 on a common framework for
general authorisations and individual licences in the field of
telecommunications services (1).

Article 5

General information to be provided

1.
In addition to other information requirements estab-
lished by Community law, Member States shall ensure that the
service provider shall render easily, directly and permanently
accessible to the recipients of the service and competent
authorities, at least the following information:

— notified the Commission and the Member State referred
to in paragraph 1 of its intention to take such measures.

(a) the name of the service provider;

5. Member States may, in the case of urgency, derogate
from the conditions stipulated in paragraph 4(b). Where this
is the case, the measures shall be notified in the shortest
possible time to the Commission and to the Member State
referred to in paragraph 1, indicating the reasons for which
the Member State considers that there is urgency.

6. Without prejudice to the Member State’s possibility of
proceeding with the measures in question, the Commission
shall examine the compatibility of the notified measures with
Community law in the shortest possible time; where it comes
to the conclusion that the measure is incompatible with
Community law, the Commission shall ask the Member State
in question to refrain from taking any proposed measures or
urgently to put an end to the measures in question.

CHAPTER II

PRINCIPLES

Section 1: Establishment and information requirements

Article 4

Principle excluding prior authorisation

(b) the geographic address at which the service provider is

established;

(c) the details of the service provider, including his electronic
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 or similar
public register, the trade register in which the service
provider is entered and his registration number, or equiva-
lent means of identification in that register;

(e) where the activity is subject to an authorisation scheme,
the particulars of the relevant supervisory authority;

(f) as concerns the regulated professions:

— any professional body or similar institution with which

the service provider is registered,

— the professional title and the Member State where it

has been granted,

— a reference to the applicable professional rules in the
Member State of establishment and the means to access
them;

(g) where the service provider undertakes an activity that is
subject to VAT, the identification number referred to in
Article 22(1) of sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (2).

1. Member States shall ensure that the taking up and pursuit
of the activity of an information society service provider may
not be made subject to prior authorisation or any other
requirement having equivalent effect.

(1) OJ L 117, 7.5.1997, p. 15.
(2) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive

1999/85/EC (OJ L 277, 28.10.1999, p. 34).

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2.
In addition to other information requirements estab-
lished by Community law, Member States shall at least ensure
that, where information society services refer to prices, these
are to be indicated clearly and unambiguously and, in particu-
lar, must indicate whether they are inclusive of tax and delivery
costs.

Article 8

Regulated professions

Section 2: Commercial communications

Article 6

Information to be provided

In addition to other information requirements established by
Community law, Member States shall ensure that commercial
communications which are part of, or constitute, an infor-
mation society service comply at least with the following
conditions:

(a) the commercial communication shall be clearly identifiable

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 permitted in the Member State where 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 clearly and
unambiguously;

(d) promotional competitions or games, where permitted in
the Member State where the service provider is established,
shall be clearly identifiable as such, and the conditions for
participation shall be easily accessible and be presented
clearly and unambiguously.

1. Member States shall ensure that the use of commercial
communications which are part of, or constitute, an infor-
mation society service provided by a member of a regulated
profession is permitted subject to compliance with the pro-
fessional rules regarding,
the independence,
dignity and honour of the profession, professional secrecy and
fairness towards clients and other members of the profession.

in particular,

2. Without prejudice to the autonomy of professional
bodies and associations, Member States and the Commission
shall encourage professional associations and bodies to estab-
lish codes of conduct at Community level in order to determine
the types of information that can be given for the purposes of
commercial communication in conformity with the rules
referred to in paragraph 1

3. When drawing up proposals for Community initiatives
which may become necessary to ensure the proper functioning
of the Internal Market with regard to the information referred
to in paragraph 2, the Commission shall take due account of
codes of conduct applicable at Community level and shall act
in close cooperation with the relevant professional associations
and bodies.

4.
This Directive shall apply in addition to Community
Directives concerning access to, and the exercise of, activities
of the regulated professions.

Section 3: Contracts concluded by electronic means

Article 7

Unsolicited commercial communication

Article 9

Treatment of contracts

1.
In addition to other requirements established by Com-
munity law, Member States which permit unsolicited commer-
cial communication by electronic mail shall ensure that such
commercial communication by a service provider established
in their territory shall be identifiable clearly and unambiguously
as such as soon as it is received by the recipient.

1. Member States shall ensure that their legal system allows
contracts to be concluded by electronic means. Member States
shall in particular ensure that the legal requirements applicable
to the contractual process neither create obstacles for the use
of electronic contracts nor result in such contracts being
deprived of legal effectiveness and validity on account of their
having been made by electronic means.

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

2. Member States may lay down that paragraph 1 shall not
apply to all or certain contracts falling into one of the
following categories:

(a) contracts that create or transfer rights in real estate, except

for rental rights;

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(b) contracts requiring by law the involvement of courts,
public authorities or professions exercising public au-
thority;

(c) contracts of suretyship granted and on collateral securities
furnished by persons acting for purposes outside their
trade, business or profession;

(d) contracts governed by family law or by the law of

succession.

3. Member States shall
indicate to the Commission the
categories referred to in paragraph 2 to which they do
not apply paragraph 1. Member States shall submit to the
Commission every five years a report on the application of
paragraph 2 explaining the reasons why they consider it
necessary to maintain the category referred to in para-
graph 2(b) to which they do not apply paragraph 1.

Article 10

Information to be provided

1.
In addition to other information requirements estab-
lished by Community law, Member States shall ensure, except
when otherwise agreed by parties who are not consumers, that
at least the following information is given by the service
provider clearly, comprehensibly and unambiguously and
prior to the order being placed by the recipient of the service:

(a) the different technical steps to follow to conclude the

contract;

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

service provider and whether it will be accessible;

(c) the technical means for identifying and correcting input

errors prior to the placing of the order;

(d) the languages offered for the conclusion of the contract.

2. Member States shall ensure that, except when otherwise
agreed by parties who are not consumers, the service provider
indicates any relevant codes of conduct to which he subscribes
and information on how those codes can be consulted
electronically.

3.
Contract terms and general conditions provided to the
recipient must be made available in a way that allows him to
store and reproduce them.

Paragraphs 1 and 2 shall not apply to contracts con-
4.
cluded exclusively by exchange of electronic mail or by
equivalent individual communications.

Article 11

Placing of the order

1. Member States shall ensure, except when otherwise
in cases
agreed by parties who are not consumers, that
where the recipient of the service places his order through
technological means, the following principles apply:

— the service provider has to acknowledge the receipt of the
recipient’s order without undue delay and by electronic
means,

— the order and the acknowledgement of receipt are deemed
to be received when the parties to whom they are addressed
are able to access them.

2. Member States shall ensure that, except when otherwise
agreed by parties who are not consumers, the service provider
makes available to the recipient of the service appropriate,
effective and accessible technical means allowing him to
identify and correct input errors, prior to the placing of the
order.

3.
Paragraph 1, first indent, and paragraph 2 shall not apply
to contracts concluded exclusively by exchange of electronic
mail or by equivalent individual communications.

Section 4: Liability of intermediary service providers

Article 12

‘Mere conduit’

1. Where an information society service is provided that
consists of the transmission in a communication network of
information provided by a recipient of the service, or the
provision of access to a communication network, Member
States shall ensure that the service provider is not liable for the
information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(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 transmission and of provision of access
2.
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
transmission in the communication network, and provided
that the information is not stored for any period longer than
is reasonably necessary for the transmission.

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3.
This Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States’
legal systems, of requiring the service provider to terminate or
prevent an infringement.

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

Article 13

‘Caching’

1. Where an information society service is provided that
consists of the transmission in a communication network of
information provided by a recipient of the service, Member
States shall ensure that the service provider is not liable for
the automatic, intermediate and temporary storage of that
information, performed for the sole purpose of making more
efficient
the information’s onward transmission to other
recipients of the service upon their request, on condition that:

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

3.
This Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States’
legal systems, of requiring the service provider to terminate or
prevent an infringement, nor does it affect the possibility for
Member States of establishing procedures governing the
removal or disabling of access to information.

Article 15

(a) the provider does not modify the information;

No general obligation to monitor

(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 widely recognised
and used by industry;

(d) the provider does not interfere with the lawful use of
technology, widely recognised and used by industry, to
obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable
access to the information it has stored upon obtaining
actual knowledge of the fact that the information at the
initial source of the transmission has been removed from
the network, or access to it has been disabled, or that a
court or an administrative authority has ordered such
removal or disablement.

2.
This Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States’
legal systems, of requiring the service provider to terminate or
prevent an infringement.

Article 14

Hosting

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

2. Member States may establish obligations for information
society service providers promptly to inform the competent
public authorities of alleged illegal activities undertaken or
information provided by recipients of their service or obli-
gations to communicate to the competent authorities, at their
request, information enabling the identification of recipients
of their service with whom they have storage agreements.

CHAPTER III

IMPLEMENTATION

Article 16

Codes of conduct

1. Member States and the Commission shall encourage:

1. Where an information society service is provided that
consists of the storage of information provided by a recipient
of the service, Member States shall ensure that the service
provider is not liable for the information stored at the request
of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal
activity or information and, as regards claims for damages,
is not aware of facts or circumstances from which the
illegal activity or information is apparent; or

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

(b) the voluntary transmission of draft codes of conduct at

national or Community level to the Commission;

(c) the accessibility of these codes of conduct in the Com-

munity languages by electronic means;

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(d) the communication to the Member States and the Com-
mission, by trade, 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 regarding the protec-

tion of minors and human dignity.

2. Member States and the Commission shall encourage the
involvement of associations or organisations representing
consumers in the drafting and implementation of codes of
conduct affecting their interests and drawn up in accordance
with paragraph 1(a). Where appropriate, to take account of
their specific needs, associations representing the visually
impaired and disabled should be consulted.

Article 17

Out-of-court dispute settlement

1. Member States shall ensure that, in the event of disagree-
ment between an information society service provider and the
recipient of the service, their legislation does not hamper the
use of out-of-court schemes, available under national law, for
dispute settlement, including appropriate electronic means.

2. Member States shall encourage bodies responsible for
the out-of-court settlement of, in particular, consumer disputes
to operate in a way which provides adequate procedural
guarantees for the parties concerned.

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

Article 18

Court actions

1. Member States shall ensure that court actions available
under national law concerning information society services’
activities allow for the rapid adoption of measures, including
interim measures, designed to terminate any alleged infringe-
ment and to prevent any further impairment of the interests
involved.

The Annex to Directive 98/27/EC shall be supplemented

2.
as follows:

‘11. Directive 2000/.../EC of the European Parliament and
... on certain legal aspects on

the Council of

of

information society services, in particular electronic
commerce, in the internal market (Directive on elec-
tronic commerce) (OJ L ...).’

Article 19

Cooperation

1. Member States shall have adequate means of supervision
and investigation necessary to implement this Directive effec-
tively and shall ensure that service providers supply them with
the requisite information.

2. Member States shall cooperate with other Member States;
they shall, to that end, appoint one or several contact points,
whose details they shall communicate to the other Member
States and to the Commission.

3. Member States shall, as quickly as possible, and in
law, provide the assistance and
conformity with national
information requested by other Member States or by the
Commission, including by appropriate electronic means.

4. Member States shall establish contact points which shall
be accessible at least by electronic means and from which
recipients and service providers may:

(a) obtain general

information on contractual rights and
obligations as well as on the complaint and redress
mechanisms available in the event of disputes, including
practical aspects involved in the use of such mechanisms;

(b) obtain the details of authorities, associations or organis-
ations from which they may obtain further information or
practical assistance.

5. Member States shall encourage the communication to
the Commission of any significant administrative or judicial
decisions taken in their territory regarding disputes relating to
information society services and practices, usages and customs
relating to electronic commerce. The Commission shall com-
municate these decisions to the other Member States.

Article 20

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.

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CHAPTER IV

FINAL PROVISIONS

Article 21

Re-examination

1.
Before ... (*), and thereafter every two years, the Com-
mission 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 legal, technical and economic
developments in the field of information society services, in
particular with respect to crime prevention, the protection of
minors, consumer protection and to the proper functioning of
the internal market.

2.
In examining the need for an adaptation of this Directive,
the report shall in particular analyse the need for proposals
concerning the liability of providers of hyperlinks and location
‘notice and take down’ procedures and the
tool services,
attribution of liability following the taking down of content.
The report shall also analyse the need for additional conditions
for the exemption from liability, provided for in Articles 12
and 13,
in the light of technical developments, and the
possibility of applying the internal market principles to
unsolicited commercial communications by electronic mail.

Article 22

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before ... (**). They shall forthwith inform the Com-
mission thereof.

2. When Member States adopt the measures referred to in
paragraph 1, 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 23

Entry into force

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

Article 24

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

For the Council

The President

The President

(*) Three years after the date of entry into force of this Directive.

(**) Eighteen months after the date of entry into force of this

Directive.

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ANNEX

DEROGATIONS FROM ARTICLE 3

As provided for in Article 3(3), Article 3(1) and (2) do not apply to:

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

industrial property rights,

— the emission of electronic money by institutions in respect of which Member States have applied one of the

derogations provided for in Article 8(1) of Directive 2000/.../EC (3),

— Article 44(2) of Directive 85/611/EEC (4),

— 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),

— the freedom of the parties to choose the law applicable to their contract,

— contractual obligations concerning consumer contacts,

— formal validity of contracts creating or transferring rights in real estate where such contracts are subject to

mandatory formal requirements of the law of the Member State where the real estate is situated,

— the permissibility of unsolicited commercial communications by electronic mail.

(1) OJ L 24, 27.1.1987, p. 36.
(2) OJ L 77, 27.3.1996, p. 20.
(3) OJ L ... .
(4) OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 95/26/EC (OJ L 168, 18.7.1995, p. 7).
(5) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 95/26/EC.
(6) OJ L 360, 9.12.1992, p. 2. Directive as last amended by Directive 95/26/EC.
(7) OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 92/49/EC.
(8) OJ L 330, 29.11.1990, p. 50. Directive as last amended by Directive 92/96/EC.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 7 January 1999 the Commission submitted a proposal for a European Parliament and Council

Directive on certain legal aspects of electronic commerce in the internal market

2. The European Parliament delivered its opinion at first reading on 6 May 1999 and the Economic

and Social Committee delivered its opinion on 29 April 1999.

3. On 28 February 2000 the Council adopted its common position in accordance with Article 251

of the Treaty.

II. OBJECTIVE

The purpose of the draft Directive on certain legal aspects of electronic commerce (e-commerce) is to
remove barriers to its development in the European Union and to establish a legal framework which
will allow the sector to benefit from the advantages of the internal market. To this end the text
clarifies the application of key internal market principles (the country of origin principle and the free
movement of services) to information society services, whilst supplementing the existing body of
Community law with additional harmonisation of certain specific legal aspects related to such
services, notably concerning commercial communications, the on-line conclusion of contracts, the
liability of intermediaries and the enforcement and implementation of the legal framework.

These measures are intended to eliminate the legal obstacles resulting from divergent or overlapping
Member State legislation and thereby guarantee, in conjunction with the existing acquis, the free
movement of on-line services within the Community.

III. ANALYSIS OF THE COMMON POSITION

A. GENERAL COMMENTS

Although the Council adopted the approach and aims proposed by the Commission and
supported by the Parliament, it considered it necessary, when drawing up its common position,
to make a number of changes to both the substance and the wording of the proposed Directive.

When making these changes the Council’s main concerns were to:

— render the wording of the Directive more precise and thus improve the legal clarity of the

text,

— clarify the scope of certain provisions, in particular those relating to the application of the

country of origin principle and the freedom to provide services,

— take greater account of the diversity of national situations, in particular as regards the moment

at which the contract is concluded,

— foster a higher degree of confidence among consumers,

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— ensure that the Directive does not adversely affect the fight against crime committed in the

Internet environment.

B. SPECIFIC COMMENTS

1. Principal changes made to the Commission proposal

(a) Relationship of the draft Directive with international private law

The Council has considered it necessary to clarify the relationship of the draft Directive’s
provisions on home country control with provisions of international private law, in
particular the existing Brussels and Rome Conventions. With this in mind a new
paragraph 4 in Article 1 states clearly that the Directive does not establish additional rules
on private international law nor does it deal with the jurisdiction of Courts. Furthermore
additions to the Annex (formerly Annex II) to the Directive ensure that the freedom of
parties to choose the law applicable to their contract is preserved, and that certain real
estate contracts are not affected by the home country control provisions.

(b) Ensuring the efficacy of criminal investigations and certain other general interest objectives

The Council was concerned that the draft Directive should not result in it becoming more
difficult to investigate criminal offences occurring in the context of electronic commerce,
and with this in mind a number of modifications of the Commission’s proposal have been
made. Changes to Article 3(4) (Article 22(3) of the Commission proposal) permit Member
States to derogate in particular cases from the Directive’s requirements concerning the
country of origin principle and the free movement of information society services, where
this is necessary for public policy, in particular the prevention, investigation, detection or
prosecution of criminal offences. Article 15(2) now makes it clear that Member States
may require service providers to inform the competent public authorities of alleged illegal
activities or in some cases require service providers to communicate details of their clients.
Finally the requirement to re-examine the Directive laid down in Article 21 (Article 24 of
the Commission proposal) now specifically mentions ‘crime prevention’ as one possible
reason for adapting the Directive in the future.

On related issues it should also be noted that a further addition to Article 3(4) will permit
case-by-case derogations for violations of human dignity, whilst Article 21 also now refers
to the protection of minors.

(c) Modifications regarding electronic contracts

The Council considered that it was not appropriate to harmonise national law regarding
the moment at which a contract is concluded. For this reason Article 11 has been renamed
and now limits itself to certain requirements regarding the placing and receipt of orders
on-line. In addition, the Council, whilst fully supporting the principle in Article 9
guaranteeing the legal validity of electronic contracts, nevertheless considered it necessary
to add exemptions to this provision for contracts transferring rights in real estate and for
certain contracts of involving suretyship and collateral securities.

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(d) Deletion of comitology

(Article 8(3)), electronic contracts

The Commission had proposed that it be granted implementing powers in respect of the
Directive’s scope (Article 22(1)(c) of the Commission proposal), and its provisions on
regulated professions
(Article 9(3)), cooperation
between authorities (Article 19(6) and (7)) and electronic media (Article 20). The Council
considered that the powers granted to the Commission under Articles 9 and 22 went
beyond the implementation framework and were therefore incompatible with Article 202
of the Treaty. The powers granted under Articles 8, 19 and 20 of the proposal were
considered unnecessary. Therefore these parts of the Commission proposal have been
modified or deleted, together with Article 23 of the proposal which established a
consultative committee to assist the Commission.

2. The Council’s position on the European Parliament’s amendments

(a) Amendments incorporated fully or in part into the common position

The Council incorporated the full wording of Amendments 1, 2, 4, 6, 7, 18, 20, 24, 40,
43, 55, 56, 57 and 62 and the principle of Amendments 3, 5, 9, 11, 12, 15, 16, 17, 19,
22, 23, 25, 29, 32, 33, 34, 37, 64 and 67.

The Council incorporated Amendments 14, 38 and 73 in part, generally aligning its
position with that of the Commission.

(b) Amendments not incorporated into the common position

In not incorporating Amendments 8, 10, 21, 26, 27, 28, 30, 39, 45, 46, 47, 48, 49, 53,
54, 58, 59, 60, 61, 63 and 68, the Council followed the Commission’s negative opinion.

In not incorporating Amendments 13, 42 and 65, the Council based its decisions on the
following considerations:

— regarding Amendment 13, the Council noted that Directive 97/66/EC (the ‘Telecom-
munications Data Protection’ Directive) does not include specific provisions requiring
Member States to abstain from prohibiting or restricting the use of cryptographic
tools and that therefore this Amendment was technically incorrect;

— Amendment 42 was considered by the Council to be inconsistent with its overall

approach to Article 11 (see point B.I(c) above);

— regarding Amendment 65, the Council took the view that a requirement to include
statistical results in the report was overly prescriptive, whilst the term ‘digital
technologies’ was better covered by the broader expression chosen.