Common Position (EC) No 9/2002 of 6 November 2001 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 Regulation of the European Parliament and of the Council on the implementation of the .eu Top level Domain (Text with EEA relevance)
Date: 2001-11-06
Institutions: Council of the European Union
Subjects: EU initiative, Internet, data processing, database, electronic commerce, transmission network

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COMMON POSITION (EC) No 9/2002

adopted by the Council on 6 November 2001

with a view to adopting Regulation (EC) No . . ./2002 of the European Parliament and of the
Council of . . . on the implementation of the .eu Top Level Domain

(2002/C 45 E/03)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 156 thereof,

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

Having regard to the opinion of
Committee (2),

the Economic and Social

Following consultation of the Committee of the Regions,

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

Whereas:

(1) The creation of

the .eu Top Level Domain (TLD)

is
included as one of
the targets to accelerate electronic
commerce in the eEurope initiative as endorsed by the
European Council at its meeting in Lisbon on 23 and
24 March 2000.

(2) The communication from the Commission to the Council
and the European Parliament on the organisation and
management of the Internet refers to the creation of the
.eu TLD and the Council resolution of 3 October 2000 on
the Internet (4)
the organisation and management of
charges the Commission to encourage the coordination
of policies in relation to the management of the Internet.

(3) TLDs are an integral part of the Internet infrastructure.
They are an essential element of the global interoperability
of
the World Wide Web ((cid:145)WWW(cid:146) or (cid:145)the Web(cid:146)). The
connection and presence permitted by the allocation of
domain names and the related addresses allow users to
locate computers and websites on the Web. TLDs are also
an integral part of every Internet e-mail address.

(1) OJ C 96 E, 27.3.2001, p. 333.
(2) OJ C 155, 29.5.2001, p. 10.
(3) Opinion of

the European Parliament of 4 July 2001 (not yet
published in the Official Journal), Council Common Position of 6
November 2001 and Decision of the European Parliament of . . .
(not yet published in the Official Journal).

(4) OJ C 293, 14.10.2000, p. 3.

in accordance with Article 154(2) of

(4) The .eu TLD should promote the use of, and access to, the
Internet networks and the virtual marketplace based on
the Internet,
the
registration
Treaty, by providing
domain to existing country code Top Level Domains
(ccTLDs) or global registration in the generic Top Level
Domains, and should in consequence increase choice and
competition.

complementary

a

(5) The .eu TLD should improve the interoperability of trans-
European networks, in accordance with Articles 154 and
155 of the Treaty, by ensuring the availability of .eu name
servers in the Community. This will affect the topology
and technical
in Europe
set of name
which will benefit
servers in the Community.

from an additional

infrastructure of

the Internet

(6) Through the .eu TLD, the internal market should acquire
higher visibility in the virtual market-place based on the
Internet. The .eu TLD should provide a clearly identified
link with the Community, the associated legal framework,
and the European market-place. It should enable under-
takings, organisations and natural persons within the
Community to register in a specific domain which will
make this link obvious. As such, the .eu TLD will not only
be a key building block for electronic commerce in
Europe but will also support the objectives of Article 14
of the Treaty.

(7) The .eu TLD can accelerate the benefits of the information
society in Europe as a whole, play a role in the integration
of future Member States into the European Union, and
help combat the risk of digital divide with neighbouring
countries. It is therefore to be expected that this Regu-
lation will be extended to the European Economic Area
to the existing
and that amendments may be sought
arrangements
and
the
between
European non-member countries, with a view to accom-
modating the requirements of the .eu TLD so that entities
in those countries may participate in it.

European Union

(8) This Regulation is without prejudice to Community law in
the field of personal data protection. This Regulation
should be implemented in compliance with the principles
relating to privacy and the protection of personal data.

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(9) Internet management has generally been based on the
principles of non-interference, self-management and self-
regulation. To the extent possible and without prejudice to
Community law, these principles should also apply to the
.eu ccTLD. The implementation of the .eu TLD may take
into consideration best practices in this regard and could
be supported by voluntary guidelines or codes of conduct
where appropriate.

(10) The establishment of the .eu TLD should contribute to the
promotion of the European Union image on the global
information networks and bring an added value to the
Internet naming system in addition to the national
ccTLDs.

(11) The objective of

to establish the
this Regulation is
conditions of implementation of the .eu TLD, to provide
for the designation of a Registry and establish the general
policy framework within which the Registry will function.
National ccTLDs are not covered by this Regulation.

(12) The Registry is the entity charged with the organisation,
administration and management of the .eu TLD, including
the corresponding databases and the
maintenance of
the accreditation of
associated public query services,
Registrars, the registration of domain names applied for
by accredited Registrars, the operation of the TLD name
servers and the dissemination of TLD zone files. Public
query services associated with the TLD are referred to as
(cid:145)Who is(cid:146)-type databases should be in
(cid:145)Who is(cid:146) queries.
conformity with Community law on data protection and
privacy. Access to these databases provides information
on a domain name holder and is an essential tool
in
boosting user confidence.

of

the

Journal

European

Communities,

(13) After publishing a call for expression of interests in the
the
Official
Commission should, on the basis of an open, transparent
and non-discriminatory selection procedure, designate a
Registry. The Commission should enter into a contract
with the selected Registry which should specify the
conditions applying to the Registry for the organisation,
administration and management of
the .eu TLD and
which should be limited in time and renewable.

that covers any application of ISO 3166-1 that needs a
coded representation in the name of the country, territory
or area involved(cid:146). Such conditions are met by the EU code
which is therefore (cid:145)delegable(cid:146) to the Community.

(15) ICANN is at present responsible for coordinating the
delegation of codes representing ccTLD to Registries.
The Council resolution of 3 October 2000 encourages
the implementation of the principles applied to ccTLD
the Governmental Advisory
Registries
Committee (GAC). The Registry should enter
into a
contract with ICANN respecting the GAC principles.

adopted

by

rights

(16) The adoption of a public policy addressing speculative and
abusive registration of domain names should provide that
recognised or established by
holders of prior
national and/or Community law and public bodies will
benefit from a specific period of time (a (cid:145)sunrise period(cid:146))
during which the registration of their domain names is
exclusively reserved to such holders of prior
rights
recognised or established by national and/or Community
law and public bodies.

(17) Domain names should not be revoked arbitrarily. A revo-
cation may, however, be obtained in particular should a
domain name be manifestly contrary to public order. The
revocation policy should nevertheless provide for a timely
and efficient mechanism.

(18) Rules should be adopted on the question of bona vacantia
to address the status of domain names the registration of
which is not renewed or which, for example because of
succession law, are left without holder.

(19) The new .eu TLD registry should not be empowered to
create second-level domains using alpha -2 codes repre-
senting countries.

(20) When reference is made to interested parties, provision
should be made
in
particular, public authorities, undertakings, organisations
and natural persons. The Registry could establish an
advisory body to organise such consultation.

consultation encompassing,

for

(14) The Commission, acting on behalf of the Community, has
requested the delegation of the EU code for the purpose
of creating an Internet ccTLD. On 25 September 2000,
the
and
Internet Corporation for Assigned Names
Numbers (ICANN),
issued a resolution providing that
(cid:145)alpha-2 codes are delegable as ccTLDs only in cases
where the ISO 3166 Maintenance Agency, on its excep-
tional reservation list, has issued a reservation of the code

(21) The measures necessary for the implementation of this
Regulation, including criteria for the selection procedure
of the Registry, the designation of the Registry, as well as
the adoption of public policy rules, should be adopted in
accordance with Council Decision 1999/468/EC of
the
28 June 1999 laying down the procedures
exercise of
conferred on the
implementing powers
Commission (1).

for

(1) OJ L 184, 17.7.1999, p. 23.

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(22) Since the objective of

the proposed action, namely to
implement the .eu TLD, cannot be sufficiently achieved by
the Member States and can therefore, by reason of the scale
and effects of the action, be better achieved at Community
level, the Community may adopt measures, in accordance
with the principle of subsidiarity as set out in Article 5 of
the Treaty.
In accordance with the principle of propor-
tionality as set out in that Article, this Regulation does
not go beyond what is necessary in order to achieve that
objective,

HAVE ADOPTED THIS REGULATION:

Article 1

Objective and scope

The objective of this Regulation is to implement the .eu
1.
country
code Top Level Domain (ccTLD) within the
Community. The Regulation sets out the conditions for such
implementation,
including the designation of a Registry, and
establishes the general policy framework within which the
Registry will function.

This Regulation shall

2.
apply without prejudice
arrangements in Member States regarding national ccTLDs.

to

Article 2

Definitions

For the purposes of this Regulation:

(a)

(cid:145)Registry(cid:146) means the entity entrusted with the organisation,
administration and management of the .eu TLD including
maintenance of
the corresponding databases and the
associated public query services, registration of domain
the Registry of domain names,
names, operation of
operation of the Registry TLD name servers and dissemi-
nation of TLD zone files;

(b) (cid:145)Registrar(cid:146) means a person or entity that, via contract with
the Registry, provides domain-name registration services to
registrants.

Article 3

Characteristics of the Registry

In accordance with the procedure referred to in Article

1.
6(2), the Commission shall:

(a) establish the criteria and the procedure for the designation

of the Registry;

(b) designate the Registry after publishing a call for expressions
of interest in the Official Journal of the European Communities
and after the procedure for such call has been completed;

(c) enter into a contract which shall specify the conditions
according to which the Commission supervises the organi-
sation, administration and management of the .eu TLD by
the Registry. The contract between the Commission and the
Registry shall be limited in time and renewable.

The Registry may not accept registrations until the registration
policy is in place.

2.
The Registry shall be a non-profit organisation, formed in
accordance with the law of a Member State and having its
registered office, central administration and principal place of
business within the Community.

3.
Having obtained the prior consent of the Commission,
the Registry shall enter into the appropriate contract providing
for the delegation of the .eu ccTLD code. To this effect the
relevant principles adopted by the Governmental Advisory
Committee shall be taken into account.

4.

The .eu TLD Registry shall not act itself as Registrar.

Article 4

Obligations of the Registry

The Registry shall observe

rules, policies and
1.
procedures laid down in this Regulation and the contracts
referred to in Article 3. The Registry shall observe transparent
and non-discriminatory procedures.

the

2.

The Registry shall:

(a) organise, administer and manage the .eu TLD in the general
interest and on the basis of principles of quality, efficiency,
reliability and accessibility;

(b) register domain names

in the .eu TLD through any

accredited .eu Registrar requested by any:

(i) undertaking having its registered office, central admin-
istration or principal place of business within the
Community, or

(ii) organisation

the Community
without prejudice to the application of national law, or

established within

(iii) natural person resident within the Community;

(c)

impose fees directly related to costs incurred;

(d) implement the extra-judicial settlement of conflicts policy
and a procedure to resolve promptly disputes between
domain name holders regarding rights relating to names
including intellectual property rights as well as disputes
in relation to individual decisions by the Registry. This
policy shall be adopted in accordance with Article 5(1)
and take into consideration the recommendations of the
World Intellectual Property Organisation. The policy shall
provide adequate procedural guaranties for
the parties
concerned, and shall apply without prejudice to any
court proceeding;

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(e) adopt procedures for, and carry out, accreditation of .eu
Registrars and ensure effective and fair conditions of
competition among .eu Registrars;

cation, the Commission shall take measures, in accordance with
the procedure referred to in Article 6(2)
to remedy the
situation.

(f) ensure the integrity of the database.

Article 5

Policy framework

After consulting the Registry and following the procedure
1.
referred to in Article 6(2), the Commission shall adopt public
policy rules concerning the implementation and functions of
the .eu TLD and the public policy principles on registration.
Public policy shall include:

(a) an extra-judicial settlement of conflicts policy;

(b) public policy on speculative and abusive registration of
domain names including the possibility of registrations of
domain names in a phased manner to ensure appropriate
temporary opportunities for the holders of prior rights
recognised or established by national and/or Community
law and for public bodies to register their names;

(c) policy on possible revocation of domain names, including

the question of bona vacantia;

(d) issues of language and geographical concepts;

(e)

treatment of intellectual property and other rights.

2. Within three months of the entry into force of this Regu-
lation, Member States may notify to the Commission and to
the other Member States a limited list of broadly-recognised
names with regard to geographic and/or geopolitical concepts
which affect their political or territorial organisation that may
either:

(a) not be registered, or

(b) be registered only under a second level domain according

to the public policy rules.

The Commission shall notify to the Registry without delay the
list of notified names to which such criteria apply. The
Commission shall publish the list at
the same time as it
notifies the Registry.

Where a Member State or the Commission raises an objection
to an item included in a notified list within 30 days of publi-

3.
Before starting registration operations, the Registry shall
adopt the initial registration policy for the .eu TLD in consul-
tation with the Commission and other interested parties. The
Registry shall implement in the registration policy the public
policy rules adopted pursuant
to paragraph 1 taking into
account the exception lists referred to in paragraph 2.

The Commission shall periodically inform the Committee

4.
on the activities referred to in paragraph 3.

Article 6

Committee

1.

The Commission shall be assisted by a Committee.

2. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three months.

3.

The Committee shall adopt its rules of procedure.

Article 7

Reservation of rights

The Community shall retain all rights relating to the .eu TLD
including, in particular, intellectual property rights and other
rights
required to ensure the
implementation of this Regulation and the right to re-designate
the Registry.

to the Registry databases

Article 8

Implementation report

The Commission shall
to the European
Parliament and the Council on the implementation, effec-
tiveness and functioning of the .eu TLD one year after the
adoption of this Regulation and thereafter every two years.

submit a report

Article 9

Entry into force

This Regulation shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at . . .

For the European Parliament,

The President

For the Council

The President

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. The Commission sent the Council the above proposal for a Regulation on 14 December 2000 (1).

The proposal is based on Article 156 of the Treaty.

2. The European Parliament delivered its opinion on 4 July 2001.

3. The Economic and Social Committee delivered its opinion on 28 March 2001 (2).

4. The Committee of the Regions decided not to deliver an opinion on this proposal.

5. The Commission forwarded its amended proposal to the European Parliament and to the Council on

3 October 2001 (3).

6. The Council adopted its Common Position in accordance with Article 251 on 6 November 2001.

II. AIM OF THE PROPOSAL

The purpose of this proposal for a Regulation is to create the .eu Top Level Internet Domain (TLD), as
mentioned in the eEurope initiative endorsed by the European Council at its Lisbon meeting on 23 and
24 March 2000, with the particular aim of speeding up electronic commerce. It also defines the
characteristics of this Registry and its implementing and operating conditions.

III. ANALYSIS OF THE COMMON POSITION

The Council fully endorses the aim and the main features of the proposal. In its Common Position it
has, however, amended a number of points of the proposal, the most significant of which are as
follows.

1. The Common Position (Article 5(1)) specifies a number of fields in which the Commission is
required to adopt public policy rules. Moreover, Article 5(2) lays down a special procedure for
the use of geographical and or geopolitical names.

2. The Council has replaced the advisory committee under the telecommunications framework

Directive by a specific regulatory committee.

3. The Common Position draws a clear distinction between the Registry and the Registrar (see

Article 2(b), Article 3(4) and Article 4(2)(e)).

4. The Council has made a number of adjustments, particular in Articles 4 and 5,

in order to
differentiate more clearly between the Commission and the Registry’s responsibilities and tasks in
implementing the .eu TLD.

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments accepted by the Council

(cid:151) 1:

recital 10

(cid:151) 2:

recital 15

(cid:151) 3:

recital 12, last sentence

(cid:151) 4:

recital 9

(cid:151) 5:

recital 8

(cid:151) 7:

recital 19

(cid:151) 8:

recital 20

(cid:151) 10: Article 1(2)

(1) OJ C . . .
(2) OJ C 155, 29.5.2001.
(3) OJ C . . .

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(cid:151) 11: Article 2(a)

(cid:151) 12: Article 2(b)

(cid:151) 16: Article 3(3)

(cid:151) 17: Article 3(4)

(cid:151) 19: Article 4(1)

(cid:151) 21: Article 4(2)(a)

(cid:151) 22: The Council agreed to delete the reference to applicable public procurement rules in

Article 3(2) of the Commission proposal

(cid:151) 25: Article 4(2)(e)

(cid:151) 26: Article 4(2)(f)

(cid:151) 29: Article 4(2)(d)

(cid:151) 40: Article 8

2. European Parliament amendments accepted in part or in substance by the Council

(cid:151) 6:

The substance of this amendment, which has not been accepted as a recital, has been
incorporated in more detailed form into Article 5(2) of the Common Position,

(cid:151) 13: The substance of this amendment has been incorporated into Article 3(1)(b). However, the
Common Position does not mention a deadline for launching the call for expressions of
interest (as the European Parliament sought in amendment 9), since the Council considered
that the decision as to dates should be left to the Commission,

(cid:151) 14: The Council welcomed the idea behind this amendment, which specifies the means for
funding the Registry. It preferred, however, to incorporate it into Article 4(2)(c), making the
imposition of fees a Registry right,

(cid:151) 15: The Council has not included this amendment to Article 2, on the grounds that its
(separation between the
(transparency and

substance is covered in the Common Position by Article 3(4)
Registry and the Registrar) and the second sentence of Article 4(1)
non-discrimination),

(cid:151) 20: The Council did not feel it necessary for the Regulation to include a requirement that the
Registry act in accordance with (cid:145)national best practice(cid:146), but this criterion is mentioned in
recital 9,

(cid:151) 30: The substance of

this amendment, differently formulated, has been incorporated into

Article 5(3) and recital 9,

(cid:151) 32: The Council has partially accepted this amendment, in particular as regards the phased
registration of domain names (see Article 5(1)(b) of the Common Position). For the reasons
for rejecting the (cid:145)first come, first served(cid:146) principle, see amendment 23,

(cid:151) 37: The substance of this amendment has been incorporated into Article 5(2), which spells out
the preventive measures that Member States may take with regard to domain names of a
geographical and/or geopolitical nature,

(cid:151) 38: Article 5(1)(c) of the Common Position partially meets the European Parliament’s request
explicitly referring to the question of bona vacantia. However, the Council has placed this
point in the context of the revocation of domain names and opted for it to be regulated
subsequently by the Commission under the rules referred to in Article 5(1) of the Common
Position.

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3. European Parliament amendments not accepted by the Council

(cid:151) 9:

The Council rejected this amendment, as it considered that Article 1 should simply set out
the Regulation’s objective and scope.
(For the call for expressions of interest, see the
Council’s reasons with regard to amendment 13),

(cid:151) 18: The Council felt that the content of this amendment was too detailed for inclusion in the
Regulation. It preferred to see the issue covered by the public policy rules referred to in
Article 5 of the Common Position. However, recital 20, which deals with the establishment
of a body to advise the Registry, is based on this amendment,

(cid:151) 23: The Council has not included the general (cid:145)first come, first served(cid:146) principle in Article 4(2)(b)
of its Common Position, on the grounds that registration policy will be defined more
precisely in the public policy rules referred to in Article 5,

(cid:151) 24: The Council considers the wording of the Commission proposal (Article 3(2)(c)(i)) to be

legally more appropriate,

(cid:151) 27: The Council

took the view that it

is unnecessary to refer to compliance with data-
protection rules in the enacting terms of the Regulation and that the reference in recital
8 was sufficient (following amendment 5),

(cid:151) 28: The Council thought that this request relating to the suspension, cancellation and transfer
of registrations was already implicitly covered by the public policy rules referred to in
Article 5, including the rules on the revocation of domain names,

(cid:151) 29: While welcoming the spirit of this amendment, the Council thought it preferable to make
the Commission responsible for adopting public policy rules for registration (in accordance
with the principles defined in the Regulation) and to charge the Registry with the
subsequent implementation of those rules and principles (see Article 5 of the Common
Position),

(cid:151) 34: The Council did not accept Parliament’s requested additions regarding revocation policy. It
opted to define that policy under the public policy rules referred to in Article 5(1) and to
provide for them to be implemented by the Registry (Article 4(2)(d) of the Common
Position),

(cid:151) 35: The Council did not see fit to include details on the parties’ costs in the settlement of

conflicts procedure (in Article 4(2)(d) of the Common Position),

(cid:151) 36: The Council considered this amendment too detailed,

(cid:151) 39: The Council did not accept this European Parliament amendment on committee procedure,
which follows the Commission proposal, adding a transitional provision. The Council opted
(in Article 6 of the Common Position) for a specific committee and for the regulatory
procedure. Its choice was guided by the consideration that the Committee’s tasks would be
very different from those attributed to the Committee under the proposal for a telecom-
munications framework Directive, and that those tasks, including an opinion on the public
policy rules referred to in Article 5(1) of the Common Position, were regulatory in nature.