WRITTEN QUESTION E-1938/02 by Colette Flesch (ELDR) to the Commission. Implementation of the .eu TLD.
Date: 2002-07-03
Institutions: European Parliament, Provisional data
Subjects: European Union, Internet, data recording, database, documentary reference recording, electronic commerce, intellectual property, regulation of telecommunications

C 309 E/176

Official Journal of the European Communities

EN

12.12.2002

Answer given by Mr Bolkestein on behalf of the Commission

(24 September 2002)

The Honourable Member has informed the Commission about the existence of a draft law in Spain which
aims to govern the advertising of alcoholic drinks. The provisions contained in the draft law include a total
ban on television advertising between 8 a.m. and 9 p.m., the requirement that authorised radio advertising
be accompanied by a message drawing attention to the harmful effects of alcohol consumption, a ban on
outdoor advertising on the public highway of drinks with a volume higher than 20 %, a ban on targeting
young people under 18, and a ban on advertising in publications aimed at young people.

As the Honourable Member points out, the Court of Justice felt in its Gourmet judgment (C-405/98) that
the ban on all advertising of alcohol might affect the marketing of products from other Member States
more heavily than the marketing of domestic products, and that it also had an effect on the cross-border
supply of advertising space. Considering, however,
that such a restriction may be justified by the
protection of public health, it felt that Articles 28 and 49 of the Treaty on the free movement of goods and
services did not preclude a prohibition on advertising, unless it was apparent that, in the circumstances of
law and of fact which characterise the situation in the Member State concerned, the protection of public
health could have been ensured by measures having less effect on intra-Community trade. It is therefore
necessary to take this case law into consideration when assessing whether the measures described by the
Honourable Member are compatible with Articles 28 and 49. Assuming that there is an obstacle to the free
movement of goods and services, it will be necessary to examine whether the provisions of the law adhere
to the principle of proportionality, i.e. that they are appropriate for achieving the objective pursued and
that there is no less restrictive measure which could achieve the same result. The Commission is prepared
to discuss the drafting of the law with the Spanish authorities, if they so desire, in order to forestall the
introduction of measures which may turn out to be contrary to Community law.

The restrictions which could ensue from the adoption of the measures described would not, however, be
similar to those involved in the Commission complaint concerning the Evin law. This complaint relates to
obstacles to the broadcasting of sports events by broadcasters established on the territory of the Member
State in which the restrictive legislation exists. The hypotheses mentioned by the Honourable Member
concern restrictions which could affect broadcasts from other Member States. In this respect, the Court of
Justice pointed out in its Agostini judgment that the ‘Television without frontiers’ Directive (1) ‘does not in
principle preclude application of national rules with the general aim of consumer protection’, on the
condition that they do not involve ‘secondary control of television broadcasts in addition to the control
which the broadcasting Member State must carry out.’ It is stipulated that such measures ‘must not prevent
retransmission, as such, in its territory of broadcasts from this other Member State’ (2).

(1) 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,
OJ L 298, 17.10.1989; amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June
1997, OJ L 202, 30.7.1997.

(2) CJEC, 9 July 1997, Agostini, C-35/95 and C-36/95, ECR 1997 p. I-03843, points 34 and 38.

(2002/C 309 E/204)

WRITTEN QUESTION E-1938/02

by Colette Flesch (ELDR) to the Commission

(3 July 2002)

Subject: Implementation of the .eu TLD

The European Commission has been given the task to define and adopt, following the procedure referred
to in Article 6(3) of Regulation (EC) No 733/2002 (1), public policy rules concerning the implementation
and functions of the. eu TLD and the public policy principles on registration. As part of the framework

12.12.2002

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Official Journal of the European Communities

C 309 E/177

where registrars, registrants and the Registry are included, WHOIS databases are an essential instrument to
promote users’ confidence and to allow the good functioning of the. eu TLD. In order to ensure that
WHOIS databases are efficiently used, it is necessary to take into account all legitimate interests.

Which mechanisms does the Commission intend to implement to ensure that IP rights holders have a
direct and fast access to WHOIS databases and obtain all necessary information to protect their rights?

(1) OJ L 113, 30.4.2002, p. 1.

Answer given by Mr Liikanen on behalf of the Commission

(26 August 2002)

Regulation 733/2002/EC of the Parliament and of the Council of 22 April 2002 on the implementation of
the. eu Top Level Domain (TLD) (1) provides in Article 5, paragraph 1 as part of the public policy
provisions the ‘treatment of intellectual property and other rights’. Within this framework the Commission
is required to adopt public policy rules for the implementation of the. eu TLD, in accordance with the
procedure described in Article 6, paragraph 3 of the Regulation and after consultation with the selected
Registry. These public policy rules would also aim at ensuring an adequate level of protection for
intellectual property rightholders in addition to the possibility provided already in the Regulation for
holder of prior rights recognised or established by national and/or Community law to register their names
during a ‘sunrise’ period.

The purpose of the Whois database is the provision of information about the technical points of contact
that administer the different domain names of a particular TLD. When adopting the public policy rules, the
Commission will take into account all the legitimate interests at stake and comply with the existing
community legal framework.

In particular, it should be stressed that general information about information society service providers are
required to be accessible under the Directive 2000/31/EC (Directive on electronic commerce) and that
following recital 12 of the Regulation, ‘Who is’ type of databases should be in conformity with Community
law on data protection and privacy.

(1) OJ L 113, 30.4.2002.

(2002/C 309 E/205)

WRITTEN QUESTION E-1942/02

by Jens-Peter Bonde (EDD) to the Commission

(3 July 2002)

Subject: Prostitution as an occupation

An article appeared in Svenska Dagbladet on 8 June 2002 concerning prostitution as a legitimate
occupation on an equal footing with other jobs.

What is the Commission’s position on this view (which I do not share)?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 August 2002)

The Commission would first remind the Honourable Member that the issue in question falls within the
national competence of the Member States and that each Member State may opt either to consider
prostitution as a form of exploitation to be abolished or as an occupation to be regulated. The dividing