WRITTEN QUESTION E-2429/02 by Erik Meijer (GUE/NGL) to the Commission. Authorisation of unsolicited e-mail advertising (spamming) contrary to provision for opt-in system in new directive.
Date: 2002-08-26
Institutions: European Parliament, Provisional data
Subjects: EU law - national law, Internet access provider, Netherlands, advertising, consumer protection, data protection, electronic mail, information technology user, interpretation of the law, regulation of telecommunications

C 52 E/166

Official Journal of the European Union

EN

6.3.2003

allocation and charging of train paths to railway undertakings and appeal bodies are necessary to maintain
the relative share of rail transport in 2010 compared to 1998, which is one of the objectives of the
Common Transport Policy as set out in the White Paper on European Transport Policy 2010 (3). Without
the full application of these principles, the rail sector is likely to accumulate even larger problems than
today, and a modal shift from road to rail will certainly not be achieved.

4. and 5.
The Member States must implement the Directives of the infrastructure package by 15 March
2003 at the latest. The Member States and the Commission work closely together in the framework of the
Regulatory Committee, created by Directives 2001/12/EC and 2001/14/EC, to enable a smooth and
successful implementation of the infrastructure package. It will be up to the operators to use this new
framework to ensure cross border services, which are the key for revitalising the rail freight market.
Meanwhile, the Commission has taken the necessary steps to monitor the railway market (4) in the Member
States and the effects of the implementation of the infrastructure package Directives. In accordance with
Article 10b of Directive 91/440/EC as modified by Directive 2001/12/EC, the Commission will submit a
report in March 2005 to the Parliament and the Council on the implementation, accompanied by suitable
proposals on continuing Community action to develop the railway market and the legal framework
governing it. The latter will not prevent the Commission to undertake the necessary steps if it considers
that a Member State has not fulfilled its legal obligations.

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, OJ L 237,

24.8.1991.

(2) Directive 2001/12/EC of the Parliament and of the Council of 26 February 2001 amending Council Directive 91/
440/EEC on the development of the Community’s railways, OJ L 75, 15.3.2001. Directive 2001/13/EC of the
Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of
railway undertakings, OJ L 75, 15.3.2001. Directive 2001/14/EC of
the Council of
26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of
railway infrastructure and safety certification, OJ L 75, 15.3.2001.

the Parliament and of

(3) COM(2001) 370 final.
(4) Article 10b of Directive 91/440/EEC as amended by Directive 2001/12/EC.

(2003/C 52 E/183)

WRITTEN QUESTION E-2429/02

by Erik Meijer (GUE/NGL) to the Commission

(26 August 2002)

Subject: Authorisation of unsolicited e-mail advertising (‘spamming’) contrary to provision for opt-in

system in new directive

1.
Is the Commission aware that, on 18 July 2002, giving judgment in an appeal case between internet
provider XS4ALL and the Ab Fab Interactive Media Group, Amsterdam Court of Appeal ruled that sending
large quantities of unsolicited commercial advertising material by e-mail (‘spamming’) was lawful?

2.
How can this judgment be reconciled with the common position with a view to the adoption of the
Directive of the European Parliament and of the Council concerning the processing of personal data and
the protection of privacy in the electronic communications sector, which was considered at second and
last reading by the European Parliament on 29 and 30 May 2002 and which,
in common with the
Council’s common position, provides for the opt-in system, which means that prior consent must be
obtained from recipients before unsolicited commercial communications can be sent to them by e-mail,
fax or automated calling system?

3.
Does the adoption of this directive mean that a judgment along the lines indicated in paragraph 1
will no longer accord with the legislation in force once Member States have complied with their
obligations under the directive within the two-year time limit?

4.
If so, would it be possible to inform courts about the directive in advance and encourage them to
apply the opt-in system in their judgments even before the requirements of the directive acquire force of
law?

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Official Journal of the European Union

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If not, what scope remains for the continued application of an opt-out system, such that it would
5.
remain possible to send unsolicited advertising material until the recipient objected by means of a
prescribed procedure? What additional measures are required in order to put an end to it?

Answer given by Mr Liikanen on behalf of the Commission

(11 October 2002)

The Commission is aware of the 18 July 2002 judgement by the Amsterdam Court of Appeal

1.
regarding unsolicited commercial bulk e-mail.

2.
The judgement provides further proof of the necessity of the new Directive 2002/58/EC of the
Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (1).
this
Directive there is no solid legal basis in many Member States that would allow internet service providers to
help their customers in taking action against unsolicited commercial e-mail even where it causes
substantial nuisance. One of the reasons behind the Commission proposal for a harmonised Community
wide opt-in for unsolicited commercial e-mail, was to remedy this problem.

It demonstrates that without

3.
As of 31 October 2003 there must be a clear legal basis in all Member States prohibiting unsolicited
e-mail for direct marketing purposes in respect of subscribers who are natural persons unless the prior
consent of the recipient has been received.

4. Whether and to what extent courts can and will take account of imminent changes in national law
depends on the national legal system.

5. Member States are free to implement an opt-in system for unsolicited commercial e-mail in advance
of the new legal obligation under Directive 2002/58/EC and many of them have already done so.
However, Member States may also wait until the ultimate date of transposition of the new Directive and
maintain an opt-out system until then. Moreover, Member States are not obliged to extend the coverage of
the opt-in approach to subscribers who are legal persons. For this category they can maintain or establish
opt-out systems (Article 13.5 of Directive 2002/58/CE).

(1) OJ L 201, 31.7.2002.

(2003/C 52 E/184)

WRITTEN QUESTION E-2430/02

by Graham Watson (ELDR) to the Commission

(26 August 2002)

Subject: Essential oils

Has the Commission considered creating a new industry entitled ‘aromatherapy’ in which essential oils
could be classified in two forms:

1.

2.

agricultural products,

chemical products?

Agricultural products would be derived from a simple distillation process, whereas chemical products
would be altered in their chemical nature and content, and standardised to defined industrial standards.

Answer given by Mr Solbes Mira on behalf of the Commission

(16 October 2002)

For tariff and statistical purposes, goods are generally classified in trade classifications (Harmonised System,
Combined Nomenclature (CN)) according to objective criteria such as physical or chemical properties.