Report from the Commission to the European Parliament and the Council - Evaluation of the application of Directive 98/34/EC in the field of information society services
Date: 2003-02-13
Institutions: European Commission
Subjects: EC Directive, European Commission, Internet, activity report, application of EU law, drafting of EU law, standardisation, telecommunications industry

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 13.02.2003
COM(2003) 69 final

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT
AND THE COUNCIL

EVALUATION OF THE APPLICATION OF DIRECTIVE 98/34/EC
IN THE FIELD OF INFORMATION SOCIETY SERVICES

TABLE OF CONTENTS

1.

2.

2.1.

2.2.

2.3.

3.

3.1.

3.2.

4.

Summary of the report ................................................................................................. 4

Introduction.................................................................................................................. 4

Extension of the scope of Directive 98/34/EC to include Information
Society services............................................................................................................ 4

The transposition of Directive 98/48/EC ..................................................................... 5

Presentation of the report ............................................................................................. 5

Description of the procedure........................................................................................ 6

Scope of Directive 98/34/EC in the field of Information Society services.................. 6

Specific features of the notification procedure in the field of Information
Society services............................................................................................................ 8

Presentation of all notifications transmitted betwen august 1999 and
february 2002 ............................................................................................................. 10

4.1.

Graphic presentation of notified drafts ...................................................................... 10

4.1.1. Annual breakdown ..................................................................................................... 10

4.1.2.

Subject breakdown ..................................................................................................... 11

4.2.

Recurrent themes........................................................................................................ 11

4.2.1.

Electronic signature.................................................................................................... 11

4.2.2.

Electronic commerce.................................................................................................. 13

4.2.3.

Protection of personal data......................................................................................... 13

4.2.4. Digital television and decoders .................................................................................. 13

4.2.5. Domain names............................................................................................................ 14

5.

5.1.

5.2.

Analysis of the Commission's and Member States' responses................................... 14

General presentation .................................................................................................. 14

Commission reaction.................................................................................................. 15

5.2.1. Analysis of detailed opinions ..................................................................................... 15

5.2.2. Analysis of comments ................................................................................................ 23

5.3.

Analysis of Member State's reactions ........................................................................ 25

6.

6.1.

6.2.

6.3.

Specific procedures .................................................................................................... 25

Urgency...................................................................................................................... 25

Confidentiality............................................................................................................ 26

Blocking ..................................................................................................................... 26

2

7.

7.1.

7.2.

7.3.

7.4.

8.

Infringement of the notification procedure ................................................................ 26

Infringements ............................................................................................................. 26

Sectors concerned....................................................................................................... 26

Co-operation between the Commission and the Member States ............................... 27

Committee on Technical Standards and Regulations ................................................ 28

New developments: territorial and international extension ....................................... 28

8.1.

Territorial extension................................................................................................... 28

8.1.1.

European Economic Area .......................................................................................... 28

8.1.2. Candidate countries.................................................................................................... 28

8.2.

International extension: The Council of Europe ........................................................ 29

9.

10.

10.1.

Conclusions................................................................................................................ 29

ANNEXES ................................................................................................................. 34

Procedure for the provision of information in the field of technical standards
and regulations and rules on services in the information society List of national
 measures implementing the directives on this subject .............................................. 34

10.2.

Number of notifications by year ................................................................................ 44

10.3.

Number of notifications by year and by Member State ............................................. 44

10.4.

Number of notifications by sector and by Member State .......................................... 45

10.5.

List of notification references .................................................................................... 46

10.6.

Notifications in the field of the Information Society - Summary table...................... 48

3

1.

SUMMARY OF THE REPORT

The notification procedure introduced by Directive 98/34/EC has been implemented
in the Information Society services sector since August 1999. This report sets out to
take stock of the application of the Directive's provisions in relation to those services.

The  report  provides  an  overview  of  that  procedure  as  an  aid  to  gauging  its
contribution in the field of the services newly covered.

Overall, the functioning of the procedure  is  assessed  in a  positive  light,  confirming
the  actual  value  of  this  Directive  as  an  effective  internal-market  tool  in  this  new
economic  field.  It  has  made  it  possible  to  develop  a  genuine  dialogue  between  the
Commission  and  the  Member  States  and  to  create  greater  transparency  concerning
ongoing regulatory initiatives, which are brought to the attention of all the authorities
and  parties  concerned.  Moreover,  by  dint  of  prior  analysis  of  draft  texts  enabling
numerous  obstacles  to  be  avoided  before  they  can  have  any  negative  impact,  the
Directive  has  made  a  practical  contribution  towards  achieving  the  objective,  set  by
the  Lisbon  European  Council,  of  "better  law-making"  and  of  defining  a  regulatory
framework  geared  to  reinforcing  the  competitiveness  of  the  European  economy  in
such a dynamic and innovative field as Information Society services.

The report starts off with a presentation of the notification procedure in the field of
Information  Society  services.  This  is  followed  by  a  detailed  analysis  of  the
Commission's  and  Member  States'  responses  to  drafts  notified  so  far  and  to  major
problems  of  Community  law  raised  therein.  Specific  (urgency,  confidentiality  and
"blocking") procedures are analysed in detail. The report also takes stock of breaches
of  the  notification  procedure.  Finally,  it  sets  out  new  (national  and  international)
developments in the procedure and concludes with an assessment of its deficiencies
and strong points so as to convey an accurate picture of the situation.

2.

2.1.

INTRODUCTION

Extension  of  the  scope  of  Directive  98/34/EC1  to  include  Information  Society
services

Directive  98/34/EC  is  an  important  instrument  of  transparency  policy  within  the
internal  market.  Over  practically  20 years,  it  has  enabled  over  7 000  draft  national
regulatory texts to be analysed. This instrument obliges Member States to notify, at
the draft stage, any national provisions containing technical regulations. Once a draft
text has  been notified, the other Member  States  and/or  the  Commission  are  able  to
comment on it. The "notification" Directive is thus conducive to dialogue and helps
to avoid litigation that can drag on for several years.

In the wake of this success, the scope of the Directive has been gradually broadened
to  cover  all  industrial,  agricultural  and  fishery  products.  Directive 98/48/EC2
extended the system to include Information Society services.

1

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,
OJ L 204, 21.07.1998, pp. 37-48.

4

                                                
The  reason  for  choosing  this  sector  is  linked  to  the  need  to  find  a  mechanism  for
supervising  this  new  and  rapidly  evolving  field,  while  still  leaving  economic
operators and Member States  alike as  much freedom as  possible  so  as not to block
technological  developments  in  this  sector.  To  be  sure,  Member  States  often  find
themselves having to legislate in order  to  keep up  with  the  ever-increasing  pace  of
developments.  Without  co-ordination  at  Community  level,  a  proliferation  of  new
regulatory provisions would risk creating obstacles to the free movement of services
and  freedom  of  establishment.  This  in  turn  would  lead  to  a  fragmentation  of  the
internal  market,  setbacks  for  investment,  a  slowing-down  of  economic  growth  and
additional costs for companies and users.

Consequently, the challenge of providing a guiding framework for the development
of  national  legislation  while  at  the  same  time  retaining  a  flexible,  rapid-response
system has been met by putting in place a notification procedure in this field.

2.2.

The transposition of Directive 98/48/EC

All EU Member States have transposed Directive 98/48/EC, mostly in the form of a
law or decree, although some have given preference to administrative circulars3.

The system was put in place very quickly4, the first notifications being received by
the  Commission  in  late  September  1999.  This  was  because  Member  States  were
already  familiar  with  the  notification  system,  and  used  the  same  "National  Contact
Points" structure as for the "products" procedure in this new sector.

2.3.

Presentation of the report

This  report  is  intended  to  provide  an  overview  of  the  implementation  of  the
provisions of Directive 98/34/CE in the field of Information Society services and to
take stock of their application, as required by Article 3 of Directive 98/48/EC5.

2

3

4

5

Directive  98/48/EC  of  the  European  Parliament  and  of  the  Council  of  20  July  1998  amending
Directive 98/34/EC laying down a procedure for the provision of information in the field of technical
standards and regulations, OJ L 217, 5.08.1998, pp. 18-26. The provisions of Directive 98/34/EC cited
in  this  report  relate  to  the  version  of  that  Directive  as  amended  by  Directive  98/48/EC  and  entitled
"Directive 98/34/EC  of  the  European  Parliament  and  of  the  Council  laying  down  a  procedure  for  the
provision of information in the field of technical standards and regulations and of rules on Information
Society services".
See the annexed list of acts transposing Directive 98/48/EC in all Member States (point 10.1).
Directive 98/48/EC entered into force in August 1999.
Article  3  of  Directive  98/48/EC:  "Not  later  than  two  years  from  the  date  referred  to  in  the  first
subparagraph of Article 2(1), the Commission shall submit to the European Parliament and the Council
an evaluation of the application of Directive 98/34/EC in particular in the  light  of  technological  and
market developments for the services referred to in point 2 of Article 1. […]".

5

                                                                                                                                                        
3.

DESCRIPTION OF THE PROCEDURE

6

3.1.

Scope of Directive 98/34/EC in the field of Information Society services

In  seeking  to  identify  national  regulations  which  relate  to  Information  Society
services  and  are  covered  by  the  notification  procedure,  the  first  point  of  reference
should be the definitions given in Article 1 of Directive 98/34/EC.

That  Article  provides  all  the  definitions  needed  to  grasp  its  scope.  In  order  to
determine  whether  a  draft  regulation  needs  to  be  notified  to  the  Commission,  the
draft text must be analysed in the light of these definitions.

Analysis is conducted in several stages.

To begin with, it has to be verified that the "rule" concerned is applicable to services,
then whether the service in question is an "Information Society" service and, finally,
whether the rule concerned relates "specifically" to Information Society services.

It  must  first  be  established  whether  the  rule  in  question  concerns  services.  Article
1(5) defines a "rule on services" as "a requirement of a general nature relating to the
taking-up and pursuit of service activities […], in  particular provisions concerning
the service provider, the services and the recipient of services […]".

A  service  is  defined  in  recital  19  of  Directive  98/48/EC  as  follows:  "[…],  under
Article  60  of  the  Treaty  as  interpreted  by  the  case-law  of  the  Court  of  Justice,
"services"  means  those  normally  provided  for  remuneration".  In  its  Wirth
judgement7 of 7 December 1992, the Court held that the "essential characteristic of
remuneration  lies  in  the  fact  that  it  constitutes  consideration  for  the  service  in
question".  This  definition  has  to  be  complemented  in  the  light  of  the  Bond  van
adverteerders  judgement8,  which  specifies  that  Article  60  of  the  Treaty  "does  not
require the service to be paid for by all its recipients".

The  draft  text  then  has  to  be  analysed  to  determine  whether  it  concerns  an
Information Society service. To fall within this category, the service must fulfil three
conditions9:  it  must  be  provided  at  a  distance,  electronically  and  at  the  individual
request of a recipient.

"At  a  distance"  means  that  the  national  measure  must  relate  to  a  service  provided
without the provider and the recipient being simultaneously present.

The second condition, that the service be provided "electronically", refers to the use
of  electronic  data  processing  and  storage  equipment  to  send  the  service  to  its
recipient.

6

7

8

9

For more details on the scope and implementing provisions of this Directive, reference should be made
to the "VADE-MECUM to Directive 98/48/EC which introduces a mechanism for the transparency of
regulations on Information Society services" (document S-42/98 (final) of the Standards and Technical
Regulations Committee, accessible at the following Internet address:
http://europa.eu.int/comm/enterprise/tris/vade9848/index_en.pdf).
Judgement of 7 December 1993, C-109/92, ECR p. I-6447, recital15.
Judgement of 26 April 1988, 352/85, ECR p. 2085.
An indicative list of services not meeting these conditions is given in Annex V to the Directive.

6

                                                
The  third  condition,  that  the  service  be  provided  "at  the  individual  request  of  a
recipient of services" means that data transmissions, which have not been requested
by the recipient (point - multi-point), cannot be regarded as falling within the scope
of the Directive. For instance, the Directive specifically states that it applies neither
to  radio  broadcasting  services  nor  to  television  broadcasting  services  covered  by
Article 1(a) of Directive 89/552/EEC10.

Finally,  if  the  draft national text is to fall under the scope  of  the  Directive,  it  must
relate "specifically" to Information Society services. This avoids the notification of a
large number of legislative texts regulating general economic activities and applying
inter alia to on-line services. In this connection, reference should be made to the fifth
subparagraph of Article 1(5) of Directive 98/34/EC, which states that:

– 

– 

on  the  one  hand,  "a  rule  shall  be  considered  to  be  specifically  aimed  at
Information Society  services  where,  having  regard to its  statement  of  reasons
and  its  operative  part,  the  specific  aim  and  object  of  all  or  some  of  its
individual  provisions  is  to  regulate  such  services  in  an  explicit  and  targeted
manner";

On the other hand,  "a rule  shall not be  considered to  be specifically  aimed at
Information  Society  services  if  it  affects  such  services  only  in  an  implicit  or
incidental manner".

It is, therefore, also necessary to check the statement of reasons and content of a draft
text in order to establish its aim. For instance, even if only  one  paragraph  of a law
deals  with  Information  Society  services,  that  law  must  be  notified  (although  the
procedure  and  associated  deadlines  would  then  apply  only  to  the  paragraph  in
question). If, by contrast, the legislation concerned was designed to regulate the law
of  evidence  in  general,  without  for  example  containing  any  specific  provisions
concerning  on-line  arrangements,  this  would  certainly  have  an  impact  on  the
law  would  not  be  notifiable  under
electronic  signature 
Directive 98/34/EC.

issue  but 

the 

Once  this  analysis  has  been  carried  out,  it  has  to  be  established  whether  a  rule
specifically  relating  to  an  Information  Society  service  constitutes  a  "technical
regulation"  within  the meaning of Article  1(11)  of  Directive  98/34/EC.  Such  is  the
case  if  observance  thereof  is  compulsory,  de  jure  or  de  facto,  in  the  case  of
marketing,  provision  of  a  service,  establishment  as  a  service  operator  or  use  in  a
Member  State  or  a  major  part  thereof.  Also  covered,  subject  to  Article  10  of  the
Directive,  are  Member  States'  legislative,  regulatory  and  administrative  provisions
banning  the  provision  or  use  of  a  service  or  prohibiting  establishment  as  a  service
provider. The case law of the European Court of Justice relating to products provides
numerous  elements  of  interpretation  regarding  Article  1(11),  which  can  be
transposed into this context11.

10

11

OJ L 298, 17.10.1989, pp.23-30.
For a description of the notification procedure provided for in Directive 98/34/EC in respect of products
see,  in  particular,  the  Report  from  the  Commission  to  the  Council,  the  European  Parliament  and  the
Economic  and  Social  Committee  -  The  operation  of  Directive  98/34/EC  from  1995  to  1998,
COM(2000) 429 final of 7.07.2000, point 4.2.

7

                                                
All  these  definitions  highlight  the  targeted  nature  of  the  Directive.  Member  States
have repeatedly indicated that it is difficult to apply criteria defined in this way. The
Commission  has  said  that,  in  such  cases,  they  can  always  contact  its  competent
departments  to  examine  whether  the  drafts  in  question  require  notification.  In
numerous cases, particularly during the first few months of the Directive's operation,
these  informal  contacts  made  it  possible  to  alert  national  authorities  to  their
obligation 
thereby  avoiding  subsequent
to  submit  a 
complications and problems.

formal  notification, 

3.2.

Specific features of the notification procedure in the field of Information Society
services

The procedure provided for in Directive 98/34/EC in respect of rules on Information
Society  services  is  practically  identical  to  that  applicable  to  products,  apart  from
some specific features: the standstill period, the Commission's  scope for  action and
the fact that the notification obligation does not apply to some sectors of Information
Society services.

In  the  three  months  following  notification  of  a  draft  national  text,  the  Commission
and/or one or more Member States can issue a detailed opinion. Under the procedure
to be followed in respect of rules on products, the adoption of the draft text is thus
postponed  by  three  months  (making  a  total  of  six  months  during  which  Member
States  cannot  adopt  their  draft  regulation).  In  the  case  of  Information  Society
services, postponement can be by one additional month only. This particular feature
was  incorporated  specifically  in  order  to  limit  the  waiting  period  for  the  Member
State in question. The downside of this arrangement is that the time remaining after
submission  of  the  detailed  opinion  is  not  sufficient  for  a  discussion  of  the
"conceivable"  solutions.  However,  as  we  have  already  seen,  the  objective  of  the
"notification"  Directive  is  to  establish  a  dialogue  between  the  Commission  and  the
Member States.

Another specific feature lies in the room for manoeuvre available to the Commission
when  a  Member  State  notifies  a  draft  text.  Under  the  98/34/EC  procedure,  the
Commission  and  the  Member  States  have  the  option  of  submitting  observations
(chiefly  general  comments)  or  a  detailed  opinion  (this  is  the  most  coercive
procedural  instrument  under  the  procedure;  it  identifies  possible  obstacles  to  the
proper functioning of the internal market, and requires the Member State concerned
to  respond  and  indicate  what  action  it  intends  to  take).  However,  specific  powers
exist  which  are  available  to  the  Commission  alone,  such  as  the  power  to  require
postponement of a particular national measure in certain circumstances.

As  far  as  draft  technical  regulations  in  respect  of  products  are  concerned,  three
options are open to the Commission and these are set out in Article 9(3),(4) and (5)
of Directive 98/34/EC.

First  scenario: Member States  postpone  the  adoption  of a draft  technical  regulation
for  twelve  months  from  the  date  of  notification  to  the  Commission  if,  within  three
months of that  date, the Commission announces  its  intention  to  propose  or  adopt  a
Directive,  Regulation  or  Decision  on  this  subject  in  accordance  with  Article  249
(ex-Article 189) of the Treaty.

8

Second scenario: Member States postpone the adoption of a draft technical regulation
for  twelve  months  if,  within  three  months  of  the  date  of  notification  to  the
Commission, the latter concludes that the text concerns a matter which is covered by
a  proposal  for  a  Directive,  Regulation  or  Decision  submitted  to  the  Council  in
accordance with Article 249 (ex-Article 189) of the Treaty.

Finally,  if  the  Council  adopts  a  common  position  during  the  above-mentioned
standstill periods, the twelve-month period is extended to eighteen months, subject to
compliance with Article 9(6) of the Directive.

In  the  field  of  Information  Society  services,  the  Commission  cannot  require
postponement of the adoption of a draft simply by stating its intention to propose or
adopt a binding Community act relating to the subject of the text. The  fact  that the
Commission  is  in  the  process  of  drawing  up  a  draft  Community  act  is  thus  not
sufficient  to  justify  a  waiting  period  of  twelve  months  for  the  Member  State
concerned.

Finally, it should be stressed that, in addition to the general exceptions contained in
Directive  98/34/EC,  certain  specific  exceptions  to  the  notification  obligation  have
been added in respect of Information Society services.

These relate firstly to rules governing matters covered by Community legislation in
the field of telecommunications services12. The Directive uses the definition of this
term given in Directive 90/387/EC13.

The  Directive  does  not  apply  to  rules  relating  to  matters  covered  by  Community
legislation in the field of financial services, as listed non-exhaustively in Annex VI14.

By contrast, the Directive does not apply to rules enacted by or for regulated markets
(stock  markets)  or  by  or  for  other  markets  or  bodies  carrying  out  clearing  or
settlement  functions  for  those  markets,  except  as  regards  the  communication  of
definitive  texts  to  the  Commission15.  While  Member  States  are  thus  not  obliged  to
notify  their  draft  texts  in  this  field  to  the  Commission,  they  must  submit  details  of
adopted measures.

12

13

14

15

Article 1(5), second paragraph, of Directive 98/34/EC.
OJ L 192, 24.07.1990, pp. 1-9.
Article 1(5), third paragraph, of Directive 98/34/EC.
Article 1(5), fourth paragraph, of Directive 98/34/CE.

9

                                                
4.

PRESENTATION  OF  ALL  NOTIFICATIONS  TRANSMITTED  BETWEN  AUGUST 1999  AND
FEBRUARY 2002

4.1.

Graphic presentation of notified drafts16

4.1.1.

Annual breakdown

9

12

1999

2000

25

2001

2002

24

Figures established in February 2002

16

The figures presented in this report are based on notifications submitted before February 2002.

10

                                                
4.1.2.

Subject breakdown

9

5

2

8

3

18

Electronic signature

Electronic commerce

25

Decoders

Telephone tapping
Processing of personal
data
Computer-relate crime

Domain name

Other

4.2.

Recurrent themes

Up  to  February  2002,  the  Commission  had  received  a  total  of  70  notifications
relating  to  Information  Society  services.  Whilst  this  is  not  a  very  high  number
because of the limits imposed on the scope of the procedure by the definitions cited
above, it is nevertheless significant.

Notifications  can  essentially  be  classified  under  five  main  headings:  electronic
signature, electronic commerce, data protection, digital television and decoders, and
domain names.17

4.2.1.

Electronic signature

signatures18
The  Directive  on  a  Community 
(referred to hereinafter as the "electronic signature Directive") had to be transposed
before  18  July  2001.  Prior  to  that  date,  therefore,  Member  States  were  obliged  to
adopt national measures in order to comply with that Directive.

for  electronic 

framework 

Under  Article 10 of  Directive  98/34/EC, Member  States  are  not  required  to  inform
the Commission of national measures by means of which they comply with binding
Community acts.

17

18

For details of the 70 notifications, reference should be made to the annexed table, which summarises the
content of each (point 10.6).
Directive 1999/93/EC  of  the  European  Parliament  and  of  the  Council  of  13  December  1999  on  a
Community framework for electronic signatures, OJ L 13, 19.01.2000, pp. 12-20.

11

                                                
In the  case  of Directives concerning  the  Information  Society,  it  should  be  borne  in
mind  that  the  Community  legislator's  aim  has  been  to  develop  a  stable  legal
framework designed to promote legal security in this sector, for example by limiting
and  clearly  defining  exceptions.  So  as  not  to  "freeze"  the  law  in  such  a  rapidly
evolving  domain,  however,  the  Community  legislator  has  adopted  acts  which,  by
requiring a minimum degree of harmonisation, now prohibit any obstacle to the free
cross-border  movement  of  on-line  services.  "A  minimum  degree  of  harmonisation"
means that the Directives "merely" lay down certain fundamental rules which  must
be  observed  in  order  to  ensure  free  movement  whilst  allowing  Member  States  to
impose  more  stringent  requirements  on  their  own  operators.  Where  national
authorities avail themselves of this option, they take measures that go beyond mere
compliance  with  the  Directive  within  the  meaning  of  Article  10  above.  Such
measures have to be notified and may lead to a response from the Commission and
the other Member States.

The  dividing-line  is  not  always  easy  to  draw,  and  Member  States  have  often
complained  about  the  difficulty  of  distinguishing  between  a  straightforward
transposition measure under the terms of Article 10 of Directive 98/34/EC and more
stringent  provisions.  In  response,  the  Commission  has  repeatedly  pointed  out  at
meetings of the Committee set up under the Directive19 that it is always prepared to
assist them in finding an answer to this sometimes-difficult problem.

Where there is any doubt, Member States should notify their drafts; on examination,
the Commission can always inform the originating Member State that the procedure
should be terminated as being subject to the exception provided for under Article 10
of the Directive. By contrast, Member States which fail to notify their draft national
regulations in cases of doubt run the risk that articles that should have been notified
will be considered inapplicable to private individuals - pursuant to the CIA Security
case law20. Moreover, this is liable to create a harmful situation of legal uncertainty
and  could  lead  to  other  complications  such  as  an  obligation  to  commence  a  new
national decision-making procedure and the initiation of infringement proceedings by
the  Commission.  In  its  recent  Canal  Satellite  Digital  judgement21,  the  Court  of
Justice  explicitly  defined  the  scope  of  the  exception  to  the  notification  obligation,
provided for under the first indent of Article 10(1) of the Directive. The Court's strict
interpretation  of  the  exception  in  question  enormously  reduces  both  the  margin  of
discretion allowed to Member States and the possibility of avoiding the notification
obligation.

The  fact  that  the  deadline  for  transposition  of  the  "electronic  signature"  Directive
was  18  July  2001  explains  why  communications  relating  to  electronic  signatures
account  for  a  large  proportion  of  the  notifications  received  to  date:  indeed,  of  the
70 notifications  received,  20  relate  directly,  and  five  indirectly,  to  electronic
signatures.

19

20

21

Article 5 of Directive 98/34/EC.
CIA Security judgement of 30 April 1996, C-194/94, ECR p. 2201.
Canal Satellite Digital judgement of 22 January 2002, C-390/99, ECR p. I-607.

12

                                                
4.2.2.

Electronic commerce

Another  area  in  which  numerous  notifications  have  been  received  is  electronic
commerce.

The remarks made above in respect of the "electronic signature" Directive  can also
be  made  concerning  the  transposition  of  Directive  2000/31/EC  on  certain  legal
aspects  of  Information  Society  services,  in  particular  electronic  commerce,  in  the
internal  market  (referred  to  hereinafter  as  the  "electronic  commerce"  Directive22).
The transposition period for this Directive expired on 16 January 2002.

The Commission has received a total of 13 notifications directly linked to electronic
commerce and seven others that relate indirectly to this topic.

4.2.3.

Protection of personal data

The protection of personal data is also a recurrent theme. A number of notified drafts
concerning  on-line  services  relate  to  the  protection  of  personal  data  in  information
services, insofar  as Member States have to take into  account requirements  deriving
from  Directives  95/46/EC23  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,  and  97/66/EC24  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.

4.2.4. Digital television and decoders

Notifications have also been received in the field of digital television and decoders.
While  these  are  highly  technical  fields,  they  are  very  important  as  they  have  a
defining impact on future audio-visual policy. One of the texts received in this area
was  a  draft  law  adopting  supplementary  provisions  on  the  application  of  television
signals  standards.  This  was  aimed  at  imposing  a  particular  decoder  system  to  the
detriment of other systems available on the market.

Member States are expected to submit numerous notifications in this sector over the
next few years in line with future developments in the field of digital television.

22

23

24

Directive  2000/31/EC  of  the  European  Parliament  and  of  the  Council  of  8  June  2000,  OJ  L 178,
17.07.2000, pp. 1-16.
OJ L 281, 23.11.1995, pp. 31-50.
OJ L 24, 30.01.1998, pp. 1-8.

13

                                                
4.2.5. Domain names

Domain names are to be regarded as a special category, but a particularly important
one  given  than  no  European  legislation  currently  exists  in  this  area.  It  is  thus
desirable  that  Member  States  show  a  minimum  degree  of  consistency  in  the
management  of  their  domain  names,  so  as  to  avoid  fragmentation  of  the  internal
market.  For  its  part,  the  Community  is  currently  developing  a  European  domain
name ".eu" and has adopted a Regulation25 on this subject. It is therefore necessary to
check  draft  national  legislative  texts  relating  to  domain  names  in  order  to  avoid
problems  when  the  ".eu"  domain  name  comes  into  effect  and  to  facilitate  the  free
movement of Information Society services.

Some Member States tend not to notify draft legislation in this sector, while  others
have regularly notified draft texts on this subject. As they are intrinsically linked to
the provision of Information Society services, domain names are a key element in the
development of these services.

5.

ANALYSIS OF THE COMMISSION'S AND MEMBER STATES' RESPONSES

5.1.

General presentation

The Commission has frequently commented on national texts relating to Information
Society  services.  Indeed,  out  of  a  total  of  70  notifications,  the  Commission  has
responded  in  50 %26  of  cases  with  detailed  opinions  or  observations27.  By
comparison it has responded to only 30% of cases in the field of  products over  the
same period.

This situation can be explained in several ways.

Firstly, Information Society services have only recently come under the notification
obligation,  whereas  in  the  products  sector  the  educational  effects  of  the  procedure
have already borne fruit in terms of national legislation.

Secondly,  this  sector  is  experiencing  burgeoning  developments,  bringing  in  their
wake  a  different  regulatory  response  from  each  Member  State.  The  Commission  is
therefore obliged to react more often in order to mark out a general approach making
for consistency within the internal market.

25

26

27

Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the
implementation of the .eu Top Level Domain , OJ L 113, 30.04.2002, pp. 1-5
It should be noted that in the case of 12 notifications the response deadline had not expired at the time
this report was drawn up.
Plus one case of "blockage" for twelve months.

14

                                                
By contrast, there have been practically no reactions from the Member States, which
have submitted observations in only nine cases. But above all, no Member State has
submitted  a detailed  opinion.  In  the  product's  field,  by  comparison,  Member  States
submitted more than 60 detailed opinions over the same period. This result appears
to be deceptive. The lack of participation can probably be explained by the fact that
government  departments  in  charge  of  technical  dossiers  in  Member  States  are  not
used to exploiting the potential offered by the notification  procedure  in  the  field of
services and have not yet drawn up well-defined positions on a rapidly evolving new
field such as that of Information Society services.

5.2.

Commission reaction

5.2.1.

Analysis of detailed opinions

5.2.1.1. General considerations

In  the  field  of  Information  Society  services,  Directive  98/34/EC  provides  the
Commission  and  Member  States  with  scope  for  delivering  detailed  opinions28,  the
effect of which is to extend the three-month standstill period to four months from the
date of receipt of the drafts concerned. A detailed opinion  is  one  "to  the effect that
the measure envisaged may create obstacles to the free movement of services or the
freedom of establishment of service operators  within  the  internal  market"  provided
for by Articles 49 and 43 respectively of the EC Treaty.

Member  States  must  respond  on  receipt  of  detailed  opinions.  As  regards  the
15 detailed  opinions  sent  by  the  Commission  over  the  reference  period  covered  by
this  report,  Member  States  responded  or  withdrew  their  notifications  in  95 %  of
cases.

According to the case-law of the European Court of Justice, Articles 49 and 43 of the
Treaty  require  the  elimination  of  restrictions,  i.e.  of  all  "measures  which  prohibit,
impede  or  render  less  attractive  the  exercise  of  such  freedoms"  (freedom  of
establishment and freedom to provide services)29.

To be admissible as an exception to the fundamental freedoms of the internal market
in a non-harmonised area, a national restriction must, on the basis of  this case law,
fulfil four conditions, i.e. it must:

(1) 

apply without discrimination,

(2) 

(3) 

(4) 

pursue a legitimate objective in the public interest,

be appropriate for the attainment of the objective pursued and

Not  be  disproportionate  to  the  objective  pursued30  or  go  beyond  what  is
necessary for its attainment in that, for example, the same result could not be
achieved by less restrictive rules31.

28

29

30

Article 9(2), 3rd indent of Directive 98/34/EC.
See "trade fairs" judgement of 15 January 2002, C-439/99, ECR p. I-305.
See Dennemeyer judgement of 25 July 1991, C-76/90, ECR. p. I-4221.

15

                                                
In  other  words,  any  national  measure  must  comply  with  the  principles  of  non-
discrimination (1), necessity (2) and proportionality (3 and 4).

As regards freedom to provide services, in particular, this means that a restriction is
liable  to  prove  disproportionate  and  therefore  inadmissible  under  Community  law
where  the  service  in  question  is  provided,  as  in  the  case  of  Information  Society
services,  without  the  provider  having  to  enter  the  territory  of  the  Member  State  in
which the service is received32 and where national regulations make no allowance for
requirements already met by an operator in his Member State of establishment, from
which he offers his services33.

In the light of the foregoing, the Commission issued a total of 15 detailed opinions
on  draft  national  regulations  concerning  Information  Society  services  during  the
reference period covered by this report, on account of problems of compatibility with
freedom of establishment and the freedom to provide services pursuant to the Treaty
and certain Directives,  such  as  those  governing  the  protection  of  personal  data  and
electronic signatures34.

The draft national texts on which the Commission delivered detailed opinions related
to  the  following  subjects:  the  investigation,  interception,  decoding,  processing
transmission,  protection,  recording,  storage,  etc.  of  call  data  and/or  information  on
telecommunications  networks  (6);  electronic  signatures  (4);  media  (3);  domain
names (2).

The  various  detailed  opinions  made  it  possible  to  identify  common  legal  problems
within  the  notified  draft  texts,  which  can  be  classified  according  to  the  following
typology:

– 

– 

– 

– 

– 

– 

extraterritorial applicability of the planned national regulations (point 5.2.1.2.);

imprecise nature of new obligations imposed on operators (point 5.2.1.3.);

inadmissibility of justifications put forward (point 5.2.1.4.);

non-verification  of  obligations  already  met  by  service  providers  in  their
Member State of establishment (point 5.2.1.5.);

disproportionate nature of the planned restrictions (point 5.2.1.6.);

incompatibility  with  certain  Directives  on  Information  Society  services
(point 5.2.1.7.).

31

32

33

34

See Arblade judgement  of  23  November  1999,  C-369/96,  ECR  p.  I-8453,  and  Gebhard judgement  of
30 November 1995, C-55/94, ECR p. I- 4165.
See Dennemeyer judgement cited above, footnote 30.
See Arblade judgement cited above, footnote 31.
Directives cited respectively in points 4.2.3. and 4.2.1.

16

                                                                                                                                                        
(referred 

to  under  5.2.1.2), 

the  duplication  of 

One  general  remark  should  be  made  in  this  regard,  namely  that  extraterritorial
requirements
applicability 
(under 5.2.1.5) and the disproportionate nature of a draft national text (under 5.2.1.6)
represent various facets of the same problem, which the Commission considers to be
absolutely  crucial  in  the  context  of  Directive  98/34/CE.  This  Directive  is  an
instrument geared to prevention and co-operation: it is designed to prevent projected
national  rules  from  imposing  inappropriate  or  excessive  legal  or  administrative
burdens on operators and possibly on users; to this end, it is intended to contribute to
the development of a legal culture in respect of the internal market among legislators.
In other words, it is a question of eliciting from competent bodies (at all levels: state,
regional,  technical,  etc.)  a  reflex  reaction  whereby,  at  the  time  of  initial  drafting,  a
new  regulatory  text  is  discussed  and  adopted  so  as  to  take  account  of  possible
consequences for the operation of our common area without internal frontiers.

An  examination  of  the  cases submitted  and  the  attendant  circumstances  has  led  the
Commission to point out that providing in a draft regulatory text for the application
of a single legal system making no distinction between, on the one hand, operators
who  are  established  in  the  notifying  Member  State  and,  on  the  other,  service
providers who wish to supply services in that country without being established there
but from their Member State of establishment would, according to the case law of the
Court35 undermines effective compliance with and application of the free movement
of  services.  While  this  is  particularly  obvious  in  the  case  of  such  activities  as
Information Society services, which by their very nature rarely make it necessary for
the supplier to travel, there is a more general need to make suitable provision for all
economic  activities  involved  in  cross-border  services,  as  underlined  by  the
Commission in its new Strategy for Services36.

5.2.1.2. Extraterritorial applicability of planned national regulations

The  Commission  expressed  reservations  about  draft  national  texts  containing
requirements,  which  might  be  generally  applicable  to  all  operators,  including  those
based in other Member States, irrespective of their place of establishment.

It  drew  attention  to  the  problems  of  compatibility  that  such  an  across-the-board,
indistinct and unlimited application of national requirements would raise for the free
movement of services.

If the territorial scope of legislative requirements is not precisely specified, providers
of  Information  Society  services,  including  network-access  and  telecommunications
services providers risk being automatically subject  to  different  pieces  of  legislation
(fifteen  at  present  and  more  after  enlargement).  This  would  have  serious
consequences,  not  only  in  terms  of  legal insecurity  and  a  possible  accumulation  of
economic  burdens  and  forms  of  responsibility,  but  also  in  terms  of  prospects  for
investment in and the development and dissemination of on-line services, particularly
as far as SMEs are concerned37.

35

36

37

See, in particular, the Dennemeyer judgement cited above, footnote 30.
Communication from the Commission to the Council and the European Parliament - An Internal Market
Strategy for Services, COM(2000)888 final of 29 December 2000.
For  this  reason,  the  Commission  contested,  in  relation  to  various  notifications:  the  imposition  of  a
systematic  obligation  on  all  operators,  including  -  explicitly  or  implicitly  -  those  established  in  other
Member States, to record and store data; the general possibility of extending data searches to computer

17

                                                
Moreover,  in  several  detailed  opinions,  the  Commission  warned  Member  States
about the risk they would be taking if Directive 2000/31/EC on electronic commerce
were to be poorly transposed. This Directive is intended to ensure effectively the free
movement of Information Society services precisely by laying down that the Member
States  cannot,  for  reasons  deriving  from  the  co-ordinated  field,  restrict  the  free
movement of information society services originating in another Member State38.

This reaffirms the importance of Directive 98/34/EC as an effective legal instrument
for preventing infringements not only of the Treaty but also of Directives, including
cases where the deadline for transposition has not yet expired.

Finally the Commission pointed out that, where the intention of a national legislator
is to rule  out the applicability of draft provisions  to  operators  not  established  in  its
territory, this must be specified unambiguously in the text.

5.2.1.3. Imprecise nature of new obligations imposed on operators

In some detailed opinions, the Commission emphasised the necessity of the operators
concerned being able to recognise with sufficient clarity and precision the extent of
the obligations imposed on them under draft new national legislation39.

This  highlights  an  aspect  with  a  vital  bearing  on  the  effective  exercise  of  both
freedom of establishment and freedom to provide services in conditions of security,
foreseeability and proportionality imposed by Community law and  by the objective
of  promoting  the  development  of  on-line  services.  As  underlined  by  the  Court  of
Justice:  on  the  one  hand,  a  provision  which  imposes  a  restriction  on  an  activity
involving the exercise of a fundamental freedom must express that restriction in clear

38

39

systems  located  abroad;  the  application  of  a  duty  to  co-operate  and  to  provide  (decoded)  access  to
contents,  without  precisely  specified  limitation;  the  across-the-board  imposition,  on  all  operators,  of
restrictive requirements regarding certification; the applicability of national rules to Community citizens
and companies established in other Member States who have registered foreign domain names, etc.
Although the deadline for the final implementation of Directive 2000/31/EC was 17 January 2002, the
Commission, likewise on the basis of Articles 43 and 49 of the Treaty, issued a reminder prior to that
date that, in accordance with the case-law of the European Court of Justice (judgement of 18 December
1997,  C-129/96),  while  Member  States  were  not  obliged  to  adopt  transposition  measures  before  the
expiry  of  the  period  concerned,  they  had  at  all  events  to  refrain  from  making  any  arrangements  that
could  seriously  jeopardise  the  attainment  of  the  desired  result,  i.e.  that  were  incompatible  with  the
Directive's  content  and  objective.  In  particular,  the  Commission  gave  a  reminder  in  those  detailed
opinions that, under Article 3(2) ("internal  market"  clause)  of  Directive  2000/31/EC,  "Member  States
may not, for reasons falling within the co-ordinated field, restrict the freedom to provide Information
Society services from another Member State".
In the case of a draft text relating to the recording and interception of electronically transmitted data, it
pointed  out  hat  the  lack  of  a  sufficiently  clear  and  precise  definition  of  the  objective  criteria,
circumstances and scope of the investigative powers of the competent authorities vis-à-vis operators can
give  rise  to  situations  of  legal  uncertainty  whose  exact  consequences  are  difficult  to  gauge.  The
Commission further noted the lack of clarity surrounding a general obligation to record and store for at
least  12  months  call  data  and  identification  data  of  users  of  telecommunications  services:  indeed,
without precise specifications to the contrary, such an obligation could have extremely broad scope, and
could even cover the content of messages. What is more, the setting of a minimum period for storage of
the  recorded  data  means  that  they  could  be  stored  for  considerably  longer,  which  does  not  guarantee
adequate  legal  foreseeability  either.  As  part  of  this  same  approach,  the  Commission  took  issue  over
another  draft  text  providing  for  the  possibility  of  imposing  on  telecommunications  operators  an
obligation  to  supply  information  to  authorities,  but  without  specifying  the  period  and  maximum
duration.

18

                                                                                                                                                        
terms40 while, on the other hand, the exercise of a fundamental freedom should not
be  subject  to  the  discretion  of  the  administrative  authorities,  lest  it  be  thereby
rendered illusory41.

5.2.1.4. Inadmissibility of justifications put forward

The  Commission  has  taken  pains  to  ensure  that  restrictions  provided  for  in  a  draft
national  text  with  regard  to  freedom  of  establishment  and  freedom  to  provide
services  are  justified  exclusively  and  clearly  by  the  objectives  provided  for  under
Articles 46 and 55 of the EC Treaty (public policy, public security or public health)
or by imperative requirements in the general interest specified by the Court of Justice
(e.g. consumer protection)42.

Moreover,  the  Commission  stressed  that  the  objectives  pursued  by  a  national  draft
must be clearly stated43, in common with obligations.

What  is  more,  the  fact  that  a  draft  may  relate  to  a  legal  field  falling  within  the
national sphere of competence does not make it exempt from such a requirement44.

40

41

42

43

44

See ARD judgement of 28 October 1999, C-6/98.
See  Luisi  and  Carbone  judgement  of  31  January  1984,  C-286/82  and  C-26/83,  ECR.  p.  377,  and
Canal Satellite judgement of 22 January 2002, cited above, footnote 21.
For  this  reason,  the  Commission  opposed  national  provisions  which,  with  the  aim  of  safeguarding
purely economic national interests,  would have authorised the competent bodies of the  Member  State
concerned  to  impose  on  persons  and  companies  providing  on-line  services  via  telecommunications
networks  a  whole  series  of  constraints  and  obligations  relating  to  data  investigation,  interception,
decoding  and  processing,  etc.  This  would  raise  problems  of  compatibility  both  with  their  freedom  of
establishment and with the free circulation of services. Quite apart from the fact that any exception to a
fundamental  freedom  under  the  Treaty  has  to  be  interpreted  restrictively,  it  should  be  noted  that,
although grounds of public policy and public security are expressly allowed under Articles 46 and 55 of
the  EC  Treaty,  the  protection  of  economic  interests  (even  if  they  are  described  as  vital  or  promote
national  economic  well-being)  is  not,  by  contrast,  liable  as  such  to  be  regarded  as  constituting  an
imperative  requirement  in  the  general  interest  that  justifies  a  barrier  to  a  fundamental  freedom
(see  judgements  of  28  April  1998,  C-158/96,  ECR.  p.  I-1931,  and  of  10 July 1984,  72/83,  ECR  p.
2727). Nor can economic interests constitute grounds of public policy within the meaning of Article 46
(ex Article 56) of the EC Treaty (judgement of 4 May 1993, C-17/92, ECR p. I-2239). The Commission
also issued a reminder that the exception of public policy, to be interpreted restrictively, can be cited
only in the event of a genuine and sufficiently serious threat affecting one of the fundamental interests
of society (judgement of 19 January 1999, C-348/96, ECR p. I-11).
For  example,  it  pointed  out,  in  a  detailed  opinion  relating  to  a  draft  law  introducing  new  criminal
offences and legal procedures in the informatics field and laying down, in particular, an obligation for
telecommunications  network  operators  and  service  providers  to  record  and  store  for  a  certain  period
users'  call  and  identification  data,  that  the  draft  did  not  give  an  explicit  indication  of  the  objectives
pursued.
For  example,  the  Commission  noted  with  regard  to  some  notifications  that,  according  to  consistent
case-law  of  the  Court  of  Justice  (see  Calfa  judgement  of  19  January  1999,  C-348/96,  ECR  p.  I-11),
Community law sets certain limits on the exercise of Member States' powers in criminal matters, with
national  legislation  not  being  able,  simply  by  virtue  of  its  being  concerned  with  criminal  activity,  to
justify any type of restriction on the fundamental freedoms of the internal market.

19

                                                
5.2.1.5. Non-verification of obligations already met by service providers

The Commission systematically checked whether notified drafts took due account of
requirements already met in other Member States.

Restrictions  with  regard  to  operators  established  in  another  Member  State  can  be
regarded as  compatible with  Article 49  of  the  EC  Treaty  only  if  it  is  demonstrated
that, inter alia, imperative requirements in the general interest have not already been
met  under  the  rules  of  that  Member  State.  A  measure  which  essentially  duplicates
checks  made  in  the  context  of  other  procedures  could  not  be  considered  to  be
imperative for the attainment of the objective pursued45.

Where a Member State intends to take restrictive measures, therefore, its rules must
provide that, before it can impose certain national requirements, where appropriate, it
must first check, on a case by case basis, which obligations have already been met by
each operator in another Member State46.

5.2.1.6. Disproportionate nature of planned restrictions

With  regard  to  notifications  in  respect  of  Information  Society  services,  the
Commission has been constantly preoccupied with monitoring the emergence of new
obligations  liable  to  hinder  and  severely  encumber  operators'  activities  and  their
future  investment  and  innovation  capabilities  -  even  with  regard  to  operators
established  in  the  notifying  Member  State  (in  the  light,  therefore,  not  only  of
Article 49 but also of Article 43 of the EC Treaty)47.

45

46

47

Irrespective, moreover, of whether in the same or another Member State (see Canal Satellite judgement
of 22 January 2002, C-390/99, cited above, footnote 21, and judgement of 4 December 1986, 205/84,
ECR p. 3755).
Pursuing this approach, the Commission contested a draft national law which, in relation to interception
capabilities and activities, dispensed with such checks and laid down a single system applicable to all
operators without distinction, irrespective of their place of establishment.
However, it criticised a systematic obligation to record and keep data, as well as criminal liability rules
imposing on anyone presumed to have specific knowledge specific obligations regarding collaboration,
confidentiality, access to content, etc. under pain of criminal prosecution.
For  instance,  the  Commission  stated  that  a  requirement  to  maintain  certain  minimum  capacities  for
recording and intercepting electronic data (in terms of duration, quantity or typology of the data to be
supplied)  may  subject  communications  providers  to  considerable  additional  burdens  which  are  liable,
moreover,  to  be  passed  on  in  user  charges.  Even  supposing  that  the  scope  of  these  data  is  to  be
interpreted  in  a  very  limited  way  (without,  for  example,  covering  the  contents  of  call  messages),  the
obligation to record and store a considerable quantity of data in all cases and without distinction over a
minimum  period  of  twelve  months,  given  in  particular  the  rapid  rise  in  the  volume  network  traffic,
produces considerable consequences and costs  for operators. In particular, the rate of increase in data
traffic  on  telecommunications  networks  proves  to  be  markedly  higher  than  the  increase  in  operators'
storage capacity, which over the long term appreciably adds to the burden of the obligations imposed on
them, in both absolute and relative terms (in relation to traffic). Similarly, operators will be required to
store these data for the duration of the period stipulated, applying technical arrangements which ensure
adequate  protection  and  security  against  any  illegal  access  or  use:  this  serves  only  to  make  these
obligations even more burdensome.
The Commission also underlined the serious impact which the mandatory use of a common interface for
receivers, to the exclusion of any equivalent  system,  may have on  scope  for  the  provision  of  pay-TV
services  and,  as  a  result,  on  the  development  of  digital  television  in  Europe,  as  well  as  on  the
dissemination of Information Society services accessible via decoders.
In the same context, it issued a detailed opinion against draft legislation under which it was planned to
require  national  service  providers  issuing  approved  certificates  to  the  public  to  pay  an  annual  tax
proportional to the number of approved certificates issued, subject to a ceiling corresponding to 5 000

20

                                                
When  examining  these  various  dossiers,  the  Commission  generally  underlined  the
serious  restrictive  effects  that  the  application  of  all  the  above-mentioned  national
provisions would have had. It also stressed that the scope and duration of obligations
must not be excessive and must be justified by objective criteria and better adapted to
actual requirements on a case-by-case basis.

In  particular,  it  stressed  the  need  for  national  regulations  to  distinguish  clearly
between the legal provisions applicable to individuals and situations in the context of
(a) the freedom to provide services and (b) the freedom of establishment48. The very
fact  that  Information  Society  services  do  not  normally  involve  the  physical
movement  of  the  provider  to  the  recipient's  country  underlines  the  importance  of
subjecting  new  national 
their
proportionality.

rigorous  examination  of 

restrictions 

to  a 

For  a  Member  State  to  make  the  exercise  of  these  activities  by  any  operator,
regardless  of  his  place  of  establishment,  subject  to  authorisation  and  national
registration would totally negate the freedom to provide services, insofar as it implies
that every operator must be established in the State in question49.

certificates but with no minimum amount being fixed.
The  Commission  also  took  issue  with  the  disproportionate  nature  of  provisions  contained  in  draft
legislation introducing a number of restrictions and prohibitions regarding the transmission, content and
advertising of messages and information. While emphasising that it fully shares objectives such as the
protection of minors vis-à-vis both radio and television broadcasting and the Internet, it pointed out that
a  ban  on  manipulating  any  image  not  recognisable  by  the  viewer  was  formulated  in  absolute  terms,
without any reference or specific link either to the objective referred to above or to a particular context
or recipients: this would also have affected, for example, manipulations carried out for technical reasons
or in the context of an educational, artistic or light-hearted presentation or which, although requested by
the recipient, would not be recognised by the latter.
Similarly,  the  ban  on  any  sale,  including  on-line,  of  video  material,  except  for  expressly  authorised
commercial  sales  activities,  was  laid  down  without  any  direct  link  to  the  objective  pursued  and  was
designed to be applied across the board, without any particular distinction between different activities
and possible contents. Moreover, the ban, formulated in an absolute and extremely generic manner, on
the telematic transmission of messages of any nature liable, in any way whatsoever, adversely to affect
the  rights  of  individuals  or  harm  the  psychological  or  moral  development  of  minors  was  of  such
potentially vast scope that it could have prohibited an indefinite and unlimited number of electronically
transmitted messages, including those inaccessible to minors.
Finally, the obligation for service providers and network operators to classify and,  where appropriate,
prevent the dissemination of (and access to) prohibited material would have imposed disproportionate
burdens on them in terms of having systematically to monitor all the material they made available, and
would  at  all  events  have  run  counter  to  the  "Electronic  commerce  Directive".  Article  15  of  Directive
2000/31/EC, "No general obligation to monitor" explicitly states that Member States shall not impose
on providers of "mere conduit", "caching" and "hosting" services, covered by Articles 12, 13 and 14 of
the  Directive,  "a  general  obligation  to  monitor  the  information  which  they  transmit  or  store,  or  a
general obligation actively to seek facts or circumstances indicating illegal activity".
The Court held that, "[…] In particular, a Member State may not make the provision of services in its
territory subject to compliance with all the conditions required for establishment and thereby deprive of
all  practical  effectiveness  the  provisions  of  the  Treaty  whose  object  is,  precisely,  to  guarantee  the
freedom  to  provide  services.  Such  a  restriction  is  all  the  less  permissible  where,  unlike  the  situation
governed  by  the  third  paragraph  of  Article  60  of  the  Treaty  (re-numbered  Article 50),  the  service  is
supplied without its being necessary for the person providing it to visit the territory of the Member State
where it is provided" (see Dennemeyer judgement of 25 July 1991, cited above, footnote 30.
See Parodi judgement of 9 July 1997, C-222/95, ECR. p. I-3899.

21

48

49

                                                                                                                                                        
Lastly, the Commission pointed out that national rules likely to impede the exercise
of any freedom enshrined in the Treaty are to be interpreted with reference to such
basic rights as the protection of privacy and freedom of speech, which are guaranteed
by Articles 8 and 10 respectively of the European Convention for the Protection of
Human Rights50. It therefore stressed that national measures relating, for example, to
crime  or  data  interception  may  override  the  principle  of  the  freedom  to  provide
services only if they do not infringe these basic rights.

5.2.1.7. Incompatibility with certain Directives relating to Information Society services

The delivery of detailed opinions in response to certain notifications was justified not
only on grounds of incompatibility with the general principles  of the Treaty  -  from
the  different  standpoints  referred  to  -  but  also  in  the  light  of  three  Community
Directives  covering  particularly  sensitive  aspects  of  Information  Society  services,
namely  Directives  95/46/EC  and  97/66/EC  on  the  protection  of  personal  data  and
Directive 99/93/EC on electronic signatures51.

– 

Protection of personal data

The  Commission  expressed  some  concern  in  this  context  with  regard  to  national
notifications which, proposing to use the activities of telecommunication operators –
including  Internet  service  providers  –  as  a  means  of  accessing  personal  data
(communications  content  or  associated  traffic)  do  not,  as  required  by  the  data
protection  Directives,  limit  the  grounds  on  which  the  competent  authorities  may
require data storage by operators52.

50

51

52

See judgement of 18 June 1991, C-260/89, ECR p. I-2925.
Directives already mentioned in points 4.2.3. and 4.2.1.
The  Commission  paid  particular  attention  to  compliance  with  the  following  operator  obligations  in
those Directives: the prohibition on the processing of traffic data relating to telecommunications service
subscribers and users beyond the limits laid down by Directive 97/66/EC (especially, the establishment
of communications and, if necessary, billing); erasure or anonymisation of traffic data; guaranteeing the
confidentiality  of  communications,  and  notification  of  the  individual  concerned  of  the  purpose  of
processing  and  the  processor,  except  in  the  specific  cases  required  for  the  prevention,  investigation,
detection  and  prosecution  of  criminal  offences  or  other 
in  Articles 13  of
Directive 95/46/EC and 14 of Directive 97/66/EC.

interests 

listed 

22

                                                
– 

Electronic signature

In this field, the Commission has attached particular importance to compliance with
certain of the basic principles of Directive 1999/93/EC, such as the legal recognition
and equivalence of electronic and hand-written signatures (based on objective criteria
rather than authorisation by the service providers concerned); the freedom to provide
signature-certification  services  (together  with  other  verification  and  confidentiality
services)  and  their  mutual  cross-border  recognition;  the  establishment  of  effective,
voluntary  (de  jure  and  de  facto)  accreditation  schemes  for  the  issue  of  "qualified"
certificates;  and  personal  data  protection,  including  the  issue  of  pseudonymous
certificates.

5.2.2.

Analysis of comments

Pursuant to Article 8(2), the Commission and Member States may communicate to a
Member State which has notified a draft regulation on Information Society services
comments that should be taken into account, as far as possible, in its finalisation.

The  Commission  availed  itself  of  this  option  on  32  occasions  to  alert  both  the
notifying Member State and the other Member States to, for example, the appropriate
interpretation  and  application  of  certain  national  provisions  in  the  light  of  the
principles  of  the  Treaty  and  relevant  Directives  and  the  need  for  more  transparent
and precise definitions.

Thus, in several cases the Commission felt impelled to point out that draft provisions
must  be  interpreted  as  applicable  only  to  operators  established  in  the  notifying
Member  State.  In  the  event  of  their  application  to  operators  established  elsewhere,
due account must be taken of any checks already carried out and obligations already
discharged by such operators in relation to their own authorities.

In addition, it emphasised the need for national provisions to ensure adequate legal
predictability  and  for  the  obligations  imposed  to  be  limited  in  scope,  justified  by
objective  criteria  and  individually  tailored  to  the  requirements  in  question.  These
conditions also applied to the implementation of legal provisions at the time, where
relevant, of the adoption of regulatory or administrative implementing measures.

It reiterated these principles with reference to several proposals imposing obligations
including  Internet  access
on 
providers53.

telecommunications  network/service  providers, 

53

These  relate,  for  example,  to  data  processing  and  consultation,  the  monitoring  and  processing  of
complaints in respect of intelligence and security services; the organisation of networks or services to
allow the immediate execution of specific acoustic surveillance orders by the competent authority and
satisfy  the  technical  requirements  governing  communication  to  the  authorities;  the  immediate,
obligatory  execution  of  specific  acoustic  surveillance  orders;  the  authorisation  of  competent  national
bodies  to  adopt  a  series  of  information  requisitioning  measures  and  restrict  and  regulate  public
telecommunications  network/service  suppliers;  an  obligation  for  telephone  operators  to  supply
information  on  private  subscriptions  to  transmission  centres  and,  under  certain  conditions,  to  provide
complete  information  on  both  subscriber  identity  and  subscription,  together  with  daily  updates
(including amendments and any new information). The obligations which may be officially imposed on
an operator include: the communication of data to the public prosecutor concerning users and associated
telecommunications  traffic;  the  duration  of  a  requisition  (maximum  three  months),  its  content  (name,
address,  postcode,  domicile  number  -  including  e-mail  or  IP  address)  and  purpose  (fixed  or  mobile

23

                                                
Lastly, the Commission took the opportunity offered by notifications to comment on
certain provisions which, whilst not specifically concerned with Information Society
services,  warranted  more  clarification  both  from  the  standpoint  of  the  freedom  to
provide  services.  In this connection, the Commission  examined  and  commented  on
draft  national  legislation  covering,  inter  alia,  the  authorisation  of  lotteries54,
construction,  including  the  use  of  satellite  dishes55  and  the  allocation  of  cable
programmes by order of priority56.

In  addition  to  the  above-mentioned  considerations  designed  to  ensure  compliance
with the provisions of the Treaty, the Commission has frequently used the comments
procedure to alert national authorities to the need to expand or correct their proposals
with  a  view, 
transposition  of
Directives 99/93/EC  on  electronic  signatures  and  2000/31/EC  on  electronic
commerce  by  the  stipulated  deadlines  of  19 July  2001  and  17  January  2002
respectively57.

the  appropriate 

in  particular, 

to  securing 

In  the  case  of  the  "electronic  commerce"  Directive,  the  Commission  drew  the
attention of the Member States concerned both to the provisions that had not yet been
transposed and to several  points  which,  on  the  basis  of  the  notified  national  drafts,
could  have  given  rise  to  unsatisfactory  transposition.  In  this  connection,  the
Commission  particularly  stressed  the  need  to  observe  the  country-of-establishment
principle  (enshrined  in  Article  3,  "Internal  market  clause")  and  the  liability
arrangements (Articles 12-15).

54

55

56

57

telephone,  Internet  access,  e-mail,  etc.);  supplier  tracing  of  unknown  data  in  the  interests  of  an
investigation;  sanctions  on  non-compliance  with  these  obligations;  types  of  indemnification  for
administrative and staff costs incurred by operators as a result of the requisition obligations.
Whilst acknowledging the legitimacy of certain goals for the maintenance of public order recognised by
the  Court  (see  Schindler  judgement  of  24  March  1994,  C-275/92,  ECR.  p.  I-1039  and  Familiapress
judgement  of  26  June  1997,  C-368/95,  ECR.  p.  I-3689)  and  the  broad  latitude  enjoyed  by  national
authorities with regard to the highly specific nature of games of chance and the particular socio-cultural
practices of each Member State in this area, the Commission was anxious to stress that any restriction
of lottery activities must not entail discrimination.
In this context, the Commission recalled that, in accordance with its Communication on satellite dishes
(COM(2001)  351  of  27  June  2001),  the  right  to  use  this  cross-border  services  reception  equipment
could not be limited by excessive restrictions of a technical, administrative, architectural, fiscal or other
nature and, in particular, by a general prior authorisation requirement.
To  preclude  any  infringement  of  Article  49  of  the  EC  Treaty,  the  Commission  informed  the  national
authorities  that  criteria  relating  to  cable-access  priority  should  not,  in  particular,  result  in  (overt  or
concealed)  discrimination  between  different  operators  on  the  basis  of  nationality  or  place  of
establishment.
Thus,  in  commenting  on  a  draft  decree  laying  down  rules  for  the  formation,  transmission,  storage,
duplication, reproduction and validation of computerised documents, the Commission pointed out that
Article 4(1)  of  Directive  1999/93/EC  denies  Member  States  the  right  to  restrict  the  provision  of
certification-services  originating  in  another  Member  State.  The  Commission  also  sought  to  draw  the
attention of the relevant national authorities to the fact that a decree on the evaluation and certification
of  Information  Society  products  and  systems  could  have  limited  the  freedom  of  evaluation  and
certification bodies to provide services in other Member States. In particular, it highlighted the absence
from  this  text  of  any  reference  to  the  Community  legal  framework,  especially  Article  49  of  the  EC
Treaty,  Directives  99/93/EC  and  2000/31/EC  and  Decision  2000/709/EC  concerning  the  mutual
recognition  of  national  bodies  which,  being  duly  established  in  another  Member  State  (even  in  the
absence of a national certificate), should not be subject to certification or approval requirements in the
notifying Member State.

24

                                                                                                                                                        
5.3.

Analysis of Member State's reactions

As was emphasised in the general introduction (point 5.1.), the Member States have
played very little part in the notification procedure for Information Society services
by comparison with their active involvement in the products sector procedure. This
tendency has, however, recently become less marked, with  the  Member States now
showing  increasing  responsiveness.  Against  the  background  of  70  notifications
relating to Information Society services, nine comments were delivered in respect of
six  notifications,  although  no  detailed  opinion  has  yet  been  issued.  Compared  with
the  results  obtained  in  respect  of  products,  these  figures  are  again  not  particularly
encouraging.

The  Member  States  must  therefore  make  a  real  analytical  effort  in  order  to  allow
genuine dialogue and ex-ante monitoring of national measures.

6.

SPECIFIC PROCEDURES

6.1.

Urgency

Article 9(7)  of  Directive 98/34/EC  allows  Member  States  to  notify  draft  national
texts under the urgency procedure.

During the period covered by this report, the Commission received five requests for
the initiation of  this procedure in respect of  Information Society  services, of which
three  were  rejected  and  one  approved.  The  fifth  was  withdrawn,  since  the  text  in
question did not contain technical regulations.

The  successful  application  concerned  a  German  text.  By  way  of  justification,
Germany  cited  the  attacks  of  11 September  2001,  as  a  result  of  which  the  Federal
Government  had  to  be  able  without  delay  to  require,  inter  alia,  the  operators
concerned  to  make  the  technical  equipment  necessary  for  network  monitoring
available  on  demand.  This  argument,  put  forward  in  the  aftermath  of  the
aforementioned events, was considered to fall within the scope of Article 9(7) which
makes urgency dependent on serious and unforeseeable circumstances.

On  the  other  hand,  the  Commission  refused  to  accept  the  transmission  of  a
preliminary infringement notice highlighting a Member State's failure to transpose a
Directive  as  a  justification  of  urgency.  The  country  in  question  thought  it  could
invoke  the  urgency  procedure,  since  it  was  obliged  to  adopt  a  text  transposing  the
"electronic signature" Directive. This should already have been transposed, since the
implementing  deadline  had  expired  several  months  earlier.  For  the  reasons  already
indicated,  it  was  necessary  to  notify  the  text  because  it  covered  measures  going
beyond  simple  transposition.  The  Commission  rejected  the  urgency  application  on
the ground that the unforeseeability requirement was not satisfied: the Member State
concerned knew of its obligation to transpose the "electronic signature" Directive and
had participated in its preparation and the definition of the transposition period in the
Council.

25

6.2.

Confidentiality

Article  8(4)  of  the  Directive  establishes  the  possibility  of  treating  a  notification  as
confidential,  thereby  limiting  disclosure  of  the  draft  text  to  the  Member  States  and
the  Commission.  The  draft  is  not  made  available  to  the  public  or  published  on  the
TRIS Internet site and the Commission refuses any requests for copies from private
individuals.

On the two occasions on which this procedure was invoked, the Commission acceded
to the requests of the two Member States concerned.

6.3.

Blocking

The  Commission  has  used  the  blocking  power  provided  for  by  Article 9(4)  of  the
Directive only once in two-and-a-half years. Its aim was to await the adoption of the
"electronic  commerce"  Directive.  The notification in question,  relating  to  computer
crime and, more particularly, the responsibility of Internet access providers, had been
received  on  13 August 1999,  with  the  postponement  running  until  14 August 2000
and  the  Directive  being  adopted  on  17  July  2000.  This  confirmed  the  value  of  the
postponement, since it enabled the Community to prevent the formulation of national
measures that might conflict with the Directive prior to its adoption.

7.

INFRINGEMENT OF THE NOTIFICATION PROCEDURE

7.1.

Infringements

Whilst  the  Member  States  have  regularly  communicated  their  draft  texts  under  the
products notification procedure, they have adopted a considerable number of texts on
Information  Society  services  without  prior  notification.  This  discrepancy  is  even
more  marked  if  the number of non-notification infringements is  compared  with  the
number of texts notified since the introduction of the procedure.

Between  2000  and  2001,  the  Commission  initiated  eight  procedures  for  the
infringement  of  Directive 98/34/EC  in  the  services  sector,  relating  specifically  to
failure to notify or the adoption of texts before the end of the standstill period. These
procedures  were  launched  as  a  matter  of  course.  The  Commission  has  not  yet
received any objections from economic operators, probably because of ignorance of
the  extension  of  the  scope  of  Directive 98/34/EC  to  include  Information  Society
services

7.2.

Sectors concerned

The  texts  adopted  by  Member  States  without  notification  can  be  grouped  in  the
following two categories:

– 

– 

texts regulating topics covered by Community Directives;

texts regulating other topics.

The  former  category  essentially  includes  texts  relating  to  electronic  signatures  and
electronic commerce, which are covered by Directives 1999/93/EC and 2000/31/EC
respectively.  As  already  explained  in  points  4.2.1  and  4.2.2,  Member  States  are

26

required to notify any technical regulations contained in these texts which go beyond
the  provisions  of  those  Directives  or  which  take  advantage  of  the  room  for
manoeuvre  allowed  by  the  Directives.  The  exemption  from  the  notification
obligation  allowed  by  the  first  indent  of  Article  10(1)  of  Directive  98/34/EC  could
not be invoked in such cases, insofar as it does not relate to "laws, regulations and
administrative  provisions  of  the  Member  States  […]  by  means  of  which  Member
States  comply  with  binding  Community  acts  which  result  in  the  adoption  […]  of
technical specifications."

It  should  be  noted  that,  pursuant  to  the  case  law  of  the  Court  of  Justice,  technical
specifications adopted in infringement of the requirements of Directive 98/34/EC are
not  binding  on  third  parties.  Consequently,  the  provisions  of  the  above-mentioned
drafts which do not represent a simple transposition of Directives within the meaning
of Article  10 of  Directive  98/34/EC and which  were adopted in infringement  of its
notification or standstill provisions are not applicable.

of 

the 

computerised 

transmission 
services,  with 

The  second  category  relates,  in  particular,  to  texts  dealing  with  electronic
communication, 
and
telecommunications 
those  covered  by
Directive 89/552/EEC. In this connection, it should be remembered that, pursuant to
the second sub-paragraph of Article 1(2), Directive 98/34/EC does not apply  to  the
radio and television services subject to Directive 89/552/EEC. On the other hand, it
covers regulations specifically aimed at all the other audio-visual services defined as
Information  Society  services,  so  that  the  prior  notification  requirement  applies,  for
example, to rules governing video on demand or other interactive digital services.

the  exception  of 

documents 

This obligation also applies to texts on Internet domain names defining, in particular,
certain  conditions  governing  access  to  on-line  activities,  and  their  exercise,  by  on-
line  operators  (professionals,  businesses,  commercial  organisations,  etc.)  who  are
present  and  identified  on  the  Internet  by  domain  names.  To  the  extent  that  the
Internet  activities  directly  and  expressly  covered  by  these  texts  fully  satisfy  the
definition  of  "Information  Society 
in  Article  1(2)  of
Directive 98/34/EC, the texts concerned fall within the scope of the Directive and are
therefore subject to prior notification.

services"  given 

Instances  of  non-notification  have  also  been  identified  in  the  case  of  national
measures intended to  create a legal framework  for the  use  of  electronic  billing  and
allow checks to be made by the tax authorities. Some national measures are designed
to  extend  obligatory  compliance  with  technical  specifications  for  electronic
signatures  to  electronic  billing.  Since  these  provisions  broaden  the  application  of
certain product and service regulations to include other Information Society products
too,  represent  rules  which  should  be  notified  under
and  services 
Directive 98/34/EC

they, 

7.3.

Co-operation between the Commission and the Member States

The  need  to  clarify  implementation  and  interpretation  issues  under  the  notification
procedure for Information Society services prompted the Commission to establish a
dialogue with the Member States. This took the form of bilateral meetings between
the  Member  States  and  the  Commission  departments  responsible  for  implementing
the notification procedure and the Information Society services directives.

27

As a result of these meetings, the national authorities agreed  to  rescind  contentious
acts and notify new proposals.

Lastly,  in  an  effort  to  co-operate  with  the  Member  States  and  anticipate
infringements,  the  Commission  reminded  national  authorities  of  their  obligations
under  Directive  98/34/CE  when  it  became  aware  of  a  government's  intention  to
legislate on  Information  Society services. This led  several  Member  States  to  notify
the texts in question.

7.4.

Committee on Technical Standards and Regulations

In the context of Information Society services, meetings of this Committee enabled
the Commission to inform the Member States of draft regulations that it regarded as
notifiable. This allowed the Directive contact points to alert the Ministries concerned
to the need to notify the drafts in question, thereby avoiding a considerable number
of  infringement  procedures.  This  dialogue  is  not  intended  to  lead  to  permanent
Commission  monitoring  but  to  draw  the  attention  of  the  contact  points  to  national
texts being prepared by different Ministries.

These  Committee  meetings  also  provided  a  forum  for  discussions  with  national
representatives  of  the  legal  and  practical  aspects  of  the  implementation  of  the
procedure and its development as set out below.

8.

NEW DEVELOPMENTS: TERRITORIAL AND INTERNATIONAL EXTENSION

8.1.

Territorial extension

8.1.1.

European Economic Area

The  EFTA  members  of  the  European  Economic  Area  (henceforth  EEA)  have
participated  in  the  notification  procedure  for  Information  Society  services  since
1 March  200158.  These  countries  are  in  the  process  of  notifying  their  transposing
measures to the EFTA Surveillance Authority.

The Commission has already received four texts (three from Norway and one  from
Iceland). It collaborates closely with the  Surveillance Authority  in  analysing  EFTA
notifications.

8.1.2. Candidate countries

Since  1  January  2001,  Turkey  has  been  entitled  to  participate  in  the  products'
notification  procedure.  Nevertheless,  this  procedure  confers  only  limited  powers  of
intervention on the Commission and the other Member States and on Turkey itself as
regards texts published by the Member States.

58

Decision  No  16/2001  of  the  EEA  Joint  Committee  of  28  February  2001  amending  Annexes  II
(Technical  regulations,  standards,  testing  and  certification)  and  XI  (Telecommunications  services)  to
the EEA Agreement (OJ L 117 of 26/4/2001, pp.16-20).

28

                                                
This system could be extended to other candidate countries to cover both Information
Society  products  and  services.  In  non-harmonised  sectors,  these  countries  would
benefit from checks designed to establish the conformity of national  measures with
Community  law,  particularly  Articles  28  et  seq.  of  the  Treaty.  Such  a  procedure
would  have  the  advantage  of  creating  a  genuine  dialogue  between  the  candidate
countries  and  Member  States,  enabling  the  former  to  prepare  more  effectively  for
accession. Clearly, the degree of intervention by the Commission, the Member States
and  the  candidate  countries  should  not  remain  the  same  as  under  the  current
procedure.  It  is  virtually  inconceivable  that  the  Commission  could  take  binding
action  in  respect  of  candidate  country  legislation.  Moreover,  a  candidate  country
seeking to influence a Member State's regulations would be in the same position. It
would  be  worth  monitoring  the  above-mentioned  example  of  Turkey  in  this
connection.

Negotiations are currently in progress with certain candidate countries with a view to
the  adoption  of  a  special  agreement  providing  for  the  introduction  of  a  simplified
notification procedure.

8.2.

International extension: The Council of Europe

Lastly,  on  2 October 2001,  the  Council  of  Europe  adopted  a  Convention  broadly
based on the notification procedure applicable to Information Society services. This
Convention - No 180 on information and legal co-operation concerning "Information
Society Services"59 -  was  opened  for  signature  at the 24th Conference  of European
Ministers of Justice, held in Moscow on 4-5 October 2001.

The implementation of such a system will give the Commission and Member States
access  to  third-country  drafts  on  Information  Society  services  and  enable  them,  in
particular,  to  initiate  discussion  of  these  texts  with  a  view  to  influencing  their
national  formulation.  At  present,  whilst  Member  State  texts  are  accessible  on  the
Directive  98/34/EC  Webster,  there  are  no  reciprocal  arrangements,  so  that  existing
Community instruments have to be transposed at international level.

Although the Convention does not, of course, incorporate the suspension provisions
of  the  Community  Directive,  it  seems  likely  to  prove  an  excellent  source  of
information and transparency with regard to draft regulations on Information Society
services. It should also be noted  that,  whilst the Convention primarily concerns  the
Member States of the Council of Europe, it may, under certain conditions, be opened
to non-member countries, thereby increasing its potential.

9.

CONCLUSIONS

By  way  of  conclusion,  this  report  considers  some  of  the  issues  raised  by  the
notification procedure after two years of implementation, before assessing its overall
contribution to Information Society services and examining future developments.

The  first  problem  concerns  the  difficulty  identified  by  certain  Member  States  of
actually applying the Directive, owing to the complexity of its definitions.

59

www.coe.int/press

29

                                                
As an initial response to this problem, the Commission provided the Member States
with  a  vade-mecum  incorporating  specific  examples  in  an  effort  to  delimit  each
definition more precisely60.

At  meetings  of  the  Technical  Standards  and  Regulations  Committee,  the  relevant
Commission  departments  then  offered  assistance  to  any  Member  State  having
difficulties  in  deciding  whether  texts  required  notification.  As  a  result,  certain
Member States initiated bilateral contacts with the departments in question.

It should also be stressed that, under the procedure, each Member State receives all
the  communications  (comments,  detailed  opinions,  discussions,  etc.)  sent  to  the
others,  which  allows  them  to  refer  to  earlier  Commission  analysis  of  a  particular
subject.

Lastly, this report will provide the Member States with an additional instrument for
the identification of notifiable texts.

The  potentially  close  link  between  services  and  products  constitutes  a  second
problem.  In  several  cases,  the  Commission  has  issued  comments  and/or  detailed
opinions  relating  both  to  Information  Society  services  and  associated  products.  To
take a specific example, the implications of national electronic signature regulations
clearly  influence  the  suppliers  of  the  corresponding  services  and  the  products
required for their provision, such as computers and electronic signature software.

Thirdly, the three-month standstill period is sometimes insufficient for the translation
and  analysis  of  complex  technical  measures  involving  a  considerable  number  of
Commission  departments.  Furthermore,  as  has  already  been  pointed  out,  the
Information  Society  services  procedure  provides  for  a  postponement  of  only  one
month in response to a detailed opinion, by contrast with the three months allowed in
the case of industrial, agricultural and fishery products. One month allows very little
time  either  for  the  Member  State  concerned  to  reply  or  for  the  Commission  to
translate and comment on its response. This is contrary to the spirit of the Directive
that  seeks  to  establish  a  dialogue  aimed  at  the  smooth  functioning  of  the  Internal
Market. At the same time, the Commission is fully aware of  the  need for the  rapid
analysis  of  issues  regulated  in  the  field  of  Information  Society  services.  Even  so,
Directive 98/34/EC makes specific provision under the urgency procedure for cases
requiring rapid treatment.

Fourthly,  the  Member  States  have  also  drawn  attention  to  the  difficulty  of
distinguishing between measures that are notifiable under Article 10 of the Directive
and  those  that  are  not.  On  this  point,  the  Commission  would  again  stress  that
measures  designed  to  ensure  conformity  must  never  be  notified  in  the  context  of
Directive  98/34/EC.  Notification  is  required  only  for  proposals  (or  particular  draft
articles)  which  do  not  involve  the  simple  transposition  of  binding  Community
legislation  into  national  law.  In  this  connection,  two  recent  Court  of  Justice
judgements define this requirement more precisely61.

60

61

See note 6.
Unilever judgement of 26 September 2000, C-443/98, ECR. p. I-7535
Canal Satellite judgement of 22 January 2002, cited above, footnote 21.

30

                                                
The  Commission  would  emphasise  that  it  uses  the  notification  of  national  drafts
covering  both  basic  transposing  measures  within  the  meaning  of  Article  10  of
Directive  98/34/EC  and  more  extensive  measures  to  comment  briefly  on  the
transposing  parts.  From  its  knowledge  of  these  drafts,  it  gives  the  Member  States
non-binding advice aimed  at facilitating optimum  transposition  of  the  Directives  in
question.

The  favourable  impact  of  the  notification  procedure  in  the  field  of  Information
Society services can be summarised under six headings: dialogue on new topics, the
withdrawal  or  amendment  of  draft  regulations  incompatible  with  Community  law,
the  creation  of  a  body  of  law  on  numerous  topics,  exchange  of  ideas,  Commission
examination of  the  need for legislation  in certain  areas and,  lastly, the  provision of
information to undertakings and the public on draft national regulations in this sector.

First and foremost, the Commission took advantage of the dialogue established with
the  Member  States  to  comment  in  its  turn  on  their  arguments.  For  example,
discussions relating to domain names gave rise to an extremely informative exchange
of views. This shows that, in new fields, which are constantly evolving and require
national  regulation,  but  on  which  the  Community  has  no  specific  position,  the
notification  procedure  enables  the  Commission  and  Member  State  concerned  to
define appropriate legislative limits in the sector in question. This represents the first
benefit  -  discussion  of  the  correct  approach  to  new  legal  problems.  Furthermore,
since  the  other  Member  States  enjoy  access  to  all  the  messages  exchanged  in  this
context, they can refer to the different positions adopted if they decide to introduce
similar regulations in the future.

Discussions between the Commission and the Member States also made it possible to
secure  the  withdrawal  or  amendment  of  draft  regulations  which  were  considered
incompatible  with  Community  law.  This  represents  the  second  success  of  the
Directive,  since  dialogue  can  make  the  Member  States  aware  of  the  need  for  such
action.  Discussions  between  the  participants  in  the  notification  procedure  reach  a
culminating  point  in  those  cases  in  which  a  notifying  Member  State  voluntarily
withdraws its draft.

With every notification, the Commission refines its position on a given topic, thereby
facilitating  the  resolution  of  problems  arising  from  other  notifications  in  the  same
field (electronic signature, electronic commerce, data protection, decoders, etc). This
is the third benefit of the procedure, involving the gradual establishment of a body of
law  available  to  the  Member  States  on  a  given  subject.  Moreover,  the  latter
sometimes  refer  to  positions  adopted  during  previous  procedures  to  justify,  for
example, the need for notification of draft national regulations.

31

A fourth benefit of the Directive is the establishment of a discussion forum between
the  Member  States  and  the  Commission  following  the  communication  of  detailed
opinions  and  comments  by  the  latter.  The  Directive  requires  the  Member  States  to
respond  to  detailed  opinions  and  the  Commission  to  comment  on  their  replies.
Although Member States are not formally obliged to respond to those comments  at
Committee meetings, the Commission has certainly pressed for them to be taken into
account  and  answered  at  the  appropriate  time.  Moreover,  the  Member  States  have
generally  been  willing  to  respond  to  the  Commission's  observations.  This  is  an
important factor, demonstrating their readiness for discussions with the Commission,
even if the latter does not avail itself of its most coercive legal powers.

Fifthly, application of the notification procedure has made the Commission aware of
the need to consider the advisability of Community action in certain sectors in view
of contradictory draft national legislation.

Lastly,  thanks  to  its  publicly  accessible  Internet  site62,  the  procedure  gives
undertakings and citizens access to draft regulations on which they can comment to
the Commission or their national governments. It also informs them of regulations to
be implemented by individual Member States

Thus,  the foregoing  makes  clear that  the  notification  procedure  has  a  major  part  to
play  in  the  establishment  of  an  internal  market  in  Information  Society  services  by
avoiding the creation of barriers which would have adverse effects. It has also led to
the  establishment  of  a  genuine  discussion  forum  on  these  complex  and  constantly
evolving issues.

In the particular case of Directive 2000/31/EC laying down a horizontal framework
of  Community  law  in  the  field  of  electronic  commerce,  the  Directive  98/48/EC
notification  procedure  made  it  possible  both  to  conduct  effective  preventive
monitoring  in  the  transposition  phase  and  to  carry  on  a  useful  dialogue  with  the
national  authorities  regarding  factors  not  covered  by  the  later  Directive.  This
demonstrates the complementarity of these two regulatory instruments in the field of
Information Society services.

The  advantages  of  this  procedure  explain  its  adoption  as  a  model  for  a  Council  of
Europe  Convention  which  is,  moreover,  even  open  to  non-member  Countries63.  As
the Convention closely follows the Community approach, the procedure can now be
regarded as a solution that is also becoming internationally established.

Lastly,  it  can  be  said  that,  after  a  running-in  period  when  the  Commission  faced
certain  questions  concerning  the  interpretation  and  application  of  the  Directive  -
which seems inevitable with the introduction of an operational mechanism in a new
field  like  that  of  Information  Society  services  -  an  efficient  information  and  co-
operation instrument has now been provided.

Whilst the involvement of the parties concerned remains inadequate (despite a rising
trend  compared  with  the  early  months  of  operation),  the  Directive  has  nonetheless
contributed  to  the  timely  identification  of  specific  obstacles  to  the  internal  market

62

63

http://europa.eu.int/comm/enterprise/tris
Council  of  Europe  Convention  No  180  on  information  and  legal  co-operation  with  regard  to
information society services.

32

                                                
and, more generally, helped to make national legislators more aware of the principles
of  freedom  of  establishment  and  freedom  to  provide  services,  particularly  in  areas
where these basic freedoms were not in any way taken into account.

The Directive also offers other possibilities, such as help in identifying new areas for
Community  harmonisation  or  the  possible  future  revision  of  existing  Directives  on
Information Society services.

In  view  of  the  proven  benefits  of  Directive  98/34/EC  as  an  instrument  for  the
permanent  monitoring  of  national  regulatory  frameworks,  the  Commission  will
shortly  examine  the  possibility,  where  appropriate,  of  expanding  its  structured
dialogue  model  to  include  other  services  in  addition  to  those  of  the  Information
Society.

33

10.

ANNEXES

10.1.

Procedure  for  the  provision  of  information  in  the  field  of  technical  standards
and regulations and rules on services in the information society
List of national measures64 implementing the directives on this subject65

GERMANY

83/189/EEC

Mitteilung  der  Regierung  der  Bundesrepublik  Deutschland  an  die  Kommission  der
Europäischen  Gemeinschaften  vom  19.  März  1988:  Verwaltungsmäßige
Vorkehrungen

88/182/EEC

Mitteilung  der  Regierung  der  Bundesrepublik  Deutschland  an  die  Kommission  der
Europäischen  Gemeinschaften  vom  22.  Dezember  1988:  Verwaltungsmäßige
Vorkehrungen

94/10/EC

Mitteilung  der  Regierung  der  Bundesrepublik  Deutschland  an  die  Kommission  der
Europäischen  Gemeinschaften  vom  16. 
Juni  1995:  Verwaltungsmäßige
Vorkehrungen

98/48/EC

64

65

Following 
the  consolidation  of  Directive  83/189/EEC  by  Directive  98/34/EC,  amended  by
Directive 98/48/EC,  some  Member  States  have  consolidated  and  repealed  pre-existing  national
transposition  measures.  However,  it  may  be  important  for  individuals  to  know  which  version  of  the
Directive and what national implementing measures were in force at the time of adoption of a national
technical regulation. Indeed, in its judgement of 30 April 1996 CIA Security International, cited above,
footnote 20, the Court of Justice held that technical regulations adopted in breach of the obligation to
notify were inapplicable.
Council  Directive  83/189/EEC  of  28  March  1983  laying  down  a  procedure  for  the  provision  of
information in the field of technical standards  and  regulations  (Official  Journal  L  109  of  26/04/1983,
p. 8-12).
Council  Directive  88/182/EEC  of  22  March  1988  amending  Directive  83/189/EEC  laying  down  a
procedure  for  the  provision  of  information  in  the  field  of  technical  standards  and  regulations
(OJ L 081 of 26/03/1988, p. 75 – 76).
Directive 94/10/EC of the European Parliament and the Council of 23 March 1994 materially amending
for the second time Directive 83/189/EEC laying down a procedure for the provision of information in
the field of technical standards and regulations (OJ L 100 of 19/04/1994, p. 30 – 36).
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
(OJ L 204 of 21/07/1998, p. 37 – 48).
N.B. This Directive consolidates and repeals Directive 83/189/EEC and successive amendments to it. It
does not necessarily require the adoption of national implementing measures.
Directive  98/48/EC  of  the  European  Parliament  and  the  Council  of  20  July  1998  amending
Directive 98/34/EC laying down a procedure for the provision of information in the field of technical
standards and regulations (OJ L 217 of 05/08/1998, p. 18 – 26).

34

                                                
Mitteilung  der  Regierung  der  Bundesrepublik  Deutschland  an  die  Kommission  der
Europäischen  Gemeinschaften  vom  27.  Oktober  1998:  Verwaltungsmäßige
Vorkehrungen

AUSTRIA

83/189/EEC, 88/182/EEC and 94/10/EC

Bundesgesetz  zur  Durchführung  eines  Informationsverfahrens  auf  dem  Gebiet  der
technischen  Vorschriften  und  Normen 
(Notifikationsgesetz-NotifG),  BGBl.
Nr. 180/1996

Landesverfassungsgesetz vom 11. Juni 1996,  mit  dem die  Verfassung  für das  Land
Kärnten erlassen wird (Kärntner Landesverfassung), LGBl. Nr. 85/1996, Art. 32

Nö Landesverfassung 1979 – Nö LV 1979, LG Bl.0001-6

Landesverfassungsgesetz,  mit  dem  das  O.ö.  Landes-Verfassungsgesetz  1991
geändert wird (Oö. Landes-Verfassungsgesetz-Novelle 1998), LGBl. Nr. 17/1998

Landesgesetz  über  internationale  Informationsverfahren  und  Mitteilungen  auf  dem
Gebiet  technischer  Vorschriften  (Oö.  Notifikationsgesetz  –  Oö  NotifG),  LGBl.
Nr. 19/1998

Landesgesetz  über  das  Landesgesetzblatt,  die  Amtliche  Linzer  Zeitung  und  andere
Formen  der  Kundmachung 
in  Oberösterreich  (Oö.  Kundmachungsgesetz  –
Oö. KMG), LGBl. Nr. 55/1998

Gesetz vom 23. September 1997 über die Durchführung des Informationsverfahrens
auf dem Gebiet der technischen Vorschriften (Steiermärkisches Notifikationsgesetz –
StNotifG)

Gesetz  über  internationale  Informationsverfahren  und  Notifizierungen  auf  dem
Gebiet  technischer  Vorschriften  (Wiener  Notifizierungsgesetz  –  WNotifG),  LGBl.
für Wien Nr. 28/1996

Gesetz  über  die  Durchführung  eines  Informationsverfahrens  auf  dem  Gebiet  der
technischen Vorschriften (Notifikationsgesetz), LGBI. Nr. 36/1998 (Vorarlberg)

Landtagsbeschluß  über  eine  Änderung  der  Geschäftsordnung  für  den  Vorarlberger
Landtag, LGBI. Nr. 37/1998 (Vorarlberg)

98/34/EC

Landesverfassungsgesetz, mit dem das Oö. Landes-Verfassungsgesetz 1991 geändert
wird (Oö. Landes-Verfassungsgesetz-Novelle 1998), LGBI. Nr. 17/1998

Landesgesetz  über  internationale  Informationsverfahren  und  Mitteilungen  auf  dem
Gebiet 
(Oö.  Notifikationsgesetz  –  Oö.  NotfG),
LGBI. Nr. 19/1998

technischer  Vorschriften 

35

Landesgesetz  über  das  Landesgesetzblatt,  die  Amtliche  Linzer  Zeitung  und  andere
in  Oberösterreich  (Oö.  Kundmachungsgesetz  –
Formen  der  Kundmachung 
Oö. KMG), LGBI. Nr. 55/1998

98/34/EC and 98/48/EC

Bundesgesetz  zur  Durchführung  eines  Informationsverfahrens  auf  dem  Gebiet  der
technischen  Vorschriften, 
der
der  Vorschriften 
Informationsgesellschaft und der Normen (Notifikationsgesetz 1999 – NotifG 1999),
BGBl. Nr. 183/1999

die  Dienste 

für 

Verordnung  des  Bundesministers  für  wirtschaftliche  Angelegenheiten  über  das
NotifV),
Formblatt 
BGBl. Nr. 450/1999

(Notifikationsverordnung 

Notifikationen 

für 

– 

Landesverfassungsgesetz, mit dem das Oö. Landes-Verfassungsgesetz geändert wird
(Oö. Landes-Verfassungsgesetz-Novelle 1999), LGBI. Nr. 37/1999

BELGIUM

83/189/EEC and 88/182/EEC

Text of the Directive published in the Moniteur belge of 01.02.1989

94/10/EC

Official opinion published in the Moniteur belge of 29.04.1995

98/48/EC

Official opinion published in the Moniteur belge of 15.06.1999

DENMARK

83/189/EEC and 88/182/EEC

Industri-  og  Handelsstyrelsens  cirkulære  af  22.  december  1988 :  Cirkulære  om
gennemførelse 
en
informationsprocedure  med  hensyn 
tekniske  forskrifter  som  ændret  ved
direktiv 88/182/EØF

af  Rådets 
til 

i  Danmark 

83/189/EØF 

direktiv 

om 

94/10/EC

Erhvervsfremme  Styrelsens  cirkulære  nr.  86  af  16.  juni  1995 :  Cirkulære  om
gennemførelse  i  Danmark  af  Rådets  direktiv  om  en  informationsprocedure  med
hensyn til tekniske standarder og forskrifter

98/34/EC and 98/48/EC

Cirkulære  nr.  118  af  9.  juli  1999  om  gennemførelse  af  Europa-Parlamentets  og
Rådets  direktiver 98/34/EF  og  98/48/EF  om  en  informationsprocedure  med  hensyn
til  tekniske  standarder  og  forskrifter  samt  forskrifter  for  informationssamfundets
tjenester (Erhvervsmin., Erhvervsfremme Styrelsen, j. nr. 1998 – 224/14020-3)

36

Bekendtgørelse  nr.  773  af  4.  august  2000  om  EU’s  informationsprocedure  for
tekniske  standarder  og  forskrifter  samt  forskrifter  for  informationssamfundets
tjenester (Erhvervsmin, Erhvervsfremme Styrelsen, j. nr. 2000-224/14020-15)

Bekendtgørelse  nr.  190  af  20.  marts  2001  om  Eu’s  informationsprocedure  for
tekniske  standarder  og  forskrifter  samt  forskrifter  for  informationssamfundets
tjenester (Erhvervsfremme Styrelsen, j. nr. 2000-224/14020-15)

SPAIN

83/189/EEC and 88/182/EEC

Real  decreto  568/1989,  de  12  de  mayo,  por  el  que  se  regula  la  remisión  de
información  en  materia  de  normas  y  reglamentaciones  técnicas  (BOE  núm.  125  de
26 mayo 1989)

94/10/EC

Real  decreto  1168/1995,  de  7  de  julio,  por  el  que  se  regula  la  remisión  de
información  en  materia  de  normas  y  reglamentaciones  técnicas  (BOE  núm.  162  de
8 julio 1995)

Orden  de  13  de  junio  de  1997  por  la  que  se  modifica  la  relación  de  organismos
nacionales de normalización contenida en el Real Decreto 1168/1995, de 7 de julio,
por  el  que  se  regula  la  remisión  de  información  en  materia  de  normas  y
reglamentaciones técnicas (BOE núm. 148 de 21 de junio 1997)

98/48/EC

Real  decreto  1337/1999,  de  31  de  julio,  por  el  que  se  regula  la  remisión  de
información  en  materia  de  normas  y  reglamentaciones  técnicas  y  reglamentos
relativos  a  los  servicios  de  la  sociedad  de  la  información  (BOE  núm.  185  de
4 agosto 1999)

Corrección  de  errores  del  Real  Decreto  1337/1999,  de  31  de  julio,  por  el  que  se
regula la remisión de información en materia de normas y reglamentaciones técnicas
y  reglamentos  relativos  a  los  servicios  de  la  sociedad  de  la  información
(BOE núm. 225 de 20 septiembre 1999)

FINLAND

83/189/EEC, 88/182/EEC and 94/10/EC

N :o 884

Valtioneuvoston päätös

teknisiä määräyksiä koskevien tietojen toimittamisessa noudatettavasta menettelystä

Annettu Helsingissä 15 päivänä kesäkuuta 1995

Nr 884

Statsrådets beslut

37

om informationsförfarandet i fråga om tekniska föreskrifter

Utfärdat i Helsingfors den 15 juni 1995

Landskapslag

Om tillämpning i landskapet Åland av riksförfattningar om produktsäkerhet (59/95)
21.1.1988/8

98/48/EC

N :o 802

Valtioneuvoston päätös

teknisiä määräyksiä koskevien tietojen toimittamisessa noudatettavasta menettelystä

Annettu Helsingissä 15 päivänä heinäkuuta 1999

Suomen Säädöskokoelma 1999

Julkaistu Helsingissä 21 päivänä heinäkuuta 1999 N :o 797-802

Nr 802

Statsrådets beslut

om informationsförfarandet i fråga om tekniska föreskrifter

Utfärdat i Helsingfors den 15 juli 1999

Finlands Författningssamling 1999

Utgiven i Helsingfors den 21 juli 1999 Nr 797-802

FRANCE

83/189/EEC

Circulaire  No  3000/SG  du  7  novembre  1985  du  Premier  ministre  aux  Ministres  et
Secrétaires d’Etat

88/182/EEC

Circulaire No 3421/SG du 30 décembre 1988  du  Premier  ministre  aux  Ministres  et
Secrétaires d’Etat

94/10/EC

Circulaire du 6 mai 1995 du Premier ministre relative à la procédure  d’information
dans  le  domaine  des  règles  techniques  et  des  normes  (directive  83/189/CEE,
modifiée par la directive 88/182/CEE et par la directive 94/10/CE) (Journal Officiel
de la République française du 7 mai 1995)

38

Circulaire  du  7  novembre  1994  du  délégué  interministériel  aux  Normes :  directive
relative à l’établissement des normes

98/48/EC

Circulaire  du  9  décembre  1999  relative  à  la  procédure  d’information  des  autorités
communautaires avant l’édiction de règles applicables aux services de  la société de
l’information (Journal Officiel de la République française du 15 décembre 1999)

GREECE

83/189/EEC

ΠΡΟΕ∆ΡΙΚΟ ∆ΙΑΤΑΓΜΑ ΥΠ΄ΑΡΙΘ. 206

Καθιέρωση  ∆ιαδικασίας  Πληροφόρησης  στον  τοµέα  των  πρότυπων  και  τεχνικών
κανονισµών  σε  συµµόρφωση  προς  την  οδηγία  83/189/ΕΟΚ  της  28.3.1983  του
Συµβουλίου των Ε.Κ. (L 109/26.4.1983) (ΦΕΚ 94/Α/1987)

(Presidential  Decree  No  206  of  26  May  1987  published  in  the  Official  Journal  No
94/A/1987)

88/182/EEC

ΠΡΟΕ∆ΡΙΚΟ ∆ΙΑΤΑΓΜΑ ΥΠ΄ΑΡΙΘ. 523

Τροποποίηση  των  Π.∆.  206/87  (ΦΕΚ  94/Α/1987),  καθιέρωση  διαδικασίας
πληροφόρησης  στον  τοµέα  των  προτύπων  των  τεχνικών  κανονισµών  σε
συµµόρφωση  προς  την  Οδηγία  83/189/ΕΟΚ  της  28.03.1983  του  Συµβουλίου  των
Ε.Κ.  (E.E.L.  109  της  26.04.1983)  και  229/88  (ΦΕΚ 98/Α/1988)  «καθιέρωση
διαδικασίας  πληροφόρησης  στον  τοµέα  των  προτύπων,  των  τεχνικών  κανονισµών
και των συστηµάτων πιστοποίησης», σύµφωνα µε το Νόµο 1727/1987 «Κύρωση της
Συµφωνίας  Τεχνικών  Εµποδίων  στο  Εµπόριο»,  σε  συµµόρφωση  προς  την
οδηγία 88/182/ΕΟΚ». (ΕΕ αριθ. L. 81 της 26.3.1988) (ΦΕΚ 236/Α/1988)

(Presidential Decree No 523 of 13 October 1988 published in the Official Journal No
236 of 24 October 1988)

94/10/EC

ΠΡΟΕ∆ΡΙΚΟ ∆ΙΑΤΑΓΜΑ ΥΠ΄ΑΡΙΘ. 48

του  Π.∆./τος  206/1987
Τροποποίηση  και  συµπλήρωση 
(ΦΕΚ 94Α/18.6.1987)  για  την  καθιέρωση  µίας  διαδικασίας  πληροφόρησης  στον
τοµέα των Προτύπων και των Τεχνικών Κανόνων, σε συµµόρφωση µε την Οδηγία
94/10/ΕΚ  του  Ευρωπαϊκού  Κοινοβουλίου  και  του  Συµβουλίου  (EEL  100/19.4.94)
(ΦΕΚ 44/Α/1996)

των  διατάξεων 

(Presidential  Decree  No  48  of  28  February  1996  published  in  the  Official  Journal
No 44 of 7 March 1996)

39

98/34 and 98/48/EC

ΠΡΟΕ∆ΡΙΚΟ ∆ΙΑΤΑΓΜΑ ΥΠ΄ΑΡΙΘ. 39

Καθιέρωση µίας διαδικασίας πληροφόρησης στον τοµέα των τεχνικών προτύπων και
προδιαγραφών  και  των  κανόνων  σχετικά  µε  τις  υπηρεσίες  της  κοινωνίας  των
πληροφοριών  σε  συµµόρφωση  προς  τις  Οδηγίες  98/34/ΕΚ  και  98/48/ΕΚ.
(ΦΕΚ 28/A/2001)

(Presidential Decree No 39 of 6 February 2001 published in the Official Journal No
28 of 20 February 2001)

IRELAND

83/189/EEC

Circular letter (no date available)

88/182/EEC

Letter dated 7 September 1988 of the Department of Industry  and Commerce to all
other Government Departments

94/10/EC

Letter dated June 1995 of the Department of Enterprise and Employment to all other
Government Departments and the public authorities

98/48/EC

Letter  dated  21  December  1999  sent  by  the  Director  of  the  Office  of  Science  and
Technology in the Department of Enterprise, Trade and Employment to the Secretary
General of each Irish Government Department

ITALY

83/189/EEC

Legge del 21 giugno 1986, n. 317 : Attuazione della direttiva n. 83/189/CEE relativa
alla  procedura  d’informazione  nel  settore  delle  norme  e  delle  regolamentazioni
tecniche (G.U. n. 151 del 2 luglio 1986)

88/182/EEC

Legge  del  29  dicembre  1990,  n.  428 :  Disposizioni  per  l’adempimento  di  obblighi
derivanti dall’appartenenza dell’Italia alle Comunità europee (Legge comunitaria per
il  1990  -  Art.  53 :  procedura  comunitaria  d’informazione  sulle  regolamentazioni
tecniche) (G.U. n. 10 del 12 gennaio 1991)

40

94/10/EC

Legge  del  6  febbraio  1996,  n.  52 :  Disposizioni  per  l’adempimento  di  obblighi
derivanti  dall’appartenenza  dell’Italia  alle  Comunità  europee  (Legge  comunitaria
1994  –  Art.  46 :  attuazione  della  direttiva  94/10/CE  relativa  alla  procedura
tecniche)
d’informazione  nel  settore  delle  norme  e  delle  regolamentazioni 
(G.U. n. 34 del 10 febbraio 1996)

98/34/EC and 98/48/EC

Decreto Legislativo 23 novembre 2000, n. 427 : Modifiche ed integrazioni alla legge
21 giugno 1986,  n.  317,  concernenti  la  procedura  d’informazione  nel  settore  delle
norme  e  regolamentazioni  tecniche  e  delle  regole  relative  ai  servizi  della  società
dell’informazione, in attuazione delle direttive 98/34/CE e 98/48/CE (G.U. n. 19 del
24 gennaio 2001)

LUXEMBOURG

83/189/EEC and 88/182/EEC

Règlement  grand-ducal  du  8  juillet  1992  relatif  aux  normes  et  aux  réglementations
techniques (Mémorial A No 50 du 21 juillet 1992)

Règlement  grand-ducal  du  17  juin  1994  modifiant  le  règlement  grand-ducal  du
8 juillet 1992 relatif aux normes et réglementations  techniques  (Mémorial  A  No 61
du 11 juillet 1994)

94/10/EC

Règlement grand-ducal du 18 août 1995 portant 2e modification du règlement grand-
ducal  du  8 juillet 1992  relatif  aux  normes  et  aux  réglementations  techniques
(Mémorial A No70 du 25 août 1995)

98/34/EC and 98/48/EC

Règlement  grand-ducal  du  17  juillet  2000  prévoyant  une  procédure  d’information
dans le domaine des normes et réglementations techniques et des règles relatives aux
services de la société de l’information (Mémorial A No 75 du 14 août 2000)

NETHERLANDS

83/189/EEC and 88/182/EEC

Brief van 8 januari 1985 (ref. BEB/DI/EEG/IM/184/V/754796207) aan de betrokken
departementen, waarmee de procedureregels van  Richtlijn  83/189/EEG  zijn  bekend
gemaakt

Aanbiedingsbrief  van  16  november  1990  (ref.  BEB/DEUR/90106627)  aan  de
betrokken departementen, waarmee de herziene procedureregels zijn bekend gemaakt

Besluit  van  de  Bestuurskamer  van  de  Sociaal-economische  Raad  van
14 februari 1995  –  Besluit  beleidsregels  toetsingsprocedure  verordeningen  en
uitvoeringsbesluiten (PBO – Blad No 24, 24.03.95)

41

94/10/EC

Brief van 28 juni 1995 (ref. BEB/DEUR/95040586) aan alle betrokkenen Ministeries
betreffende de uitvoeringsverplichtingen met betrekking tot het onderdeel technische
voorschriften

Brief van 3 juli 1995 (ref. ID/CBB/NB/95043155) aan alle betrokkenen Ministeries
waarin  wordt  gewezen  op  de  overeenkomst  tussen  de  Minister  van  Economisch
Zaken  en  het  Nederlandse  Normalisatie  Instituut  (NNI)  en  het  Nederlands
Elektrotechnisch  Comité  (NEC),  welke  is  gesloten  teneinde  te  voldoen  aan  de
bepalingen van Richtlijn 94/10/EG, in het bijzonder de artikelen 2 tot en met 5

Besluit van de Bestuurskamer van de Sociaal-economische Raad van 15 juni 1995 tot
wijziging  van  het  Besluit  beleidsregels,  toetsingsprocedure  verordeningen  en
uitvoeringsbesluiten
(PBO-Blad No 45, 23 juni 1995)

98/34/EC and 98/48/EC

Vaststelling door de Ministerraad op 25 juni  1999  van  de  « Handleiding  notificatie
van regels betreffende producten en elektronische diensten »  (Staatscourant No 145
van 5 juli 1999)

PORTUGAL

83/189/EEC

Resolução  do  Conselho  de  Ministros  No90/86  (Diário  da  República  (I°  série)  de
26 de Dezembro de 1986)

Despacho No148/86 (Diário da República (II° série) de 24 de Janeiro de 1987)

88/182/EEC

Resolução  do  Conselho  de  Ministros  No41/90  (Diário  da  República  (I°  série)  de
13 de Outubro de 1990

94/10/EC

Resolução do Conselho de Ministros No95/95 (Diário da República (1° série-B)  de
3 de Outubro de 1995)

98/34/EC and 98/48/EC

Decreto-Lei  n.°  58/2000  de  18  de  Abril :  Transpõe  para  o  direito  interno  a
Directiva n.°98/48/CE,  do  Parlamento  Europeu  e  do  Conselho,  de  20  de  Julho,
informação  no  domínio  das  normas  et
relativa  aos  procedimentos  de 
regulamentações  técnicas  e  as  regras  relativas  aos  serviços  da  sociedade  da
informação (Diário da República (Ie-A) de 18 de Abril de 2000)

42

UNITED KINGDOM

83/189/EEC

Administrative Circular of June 1984

88/182/EEC

Administrative Circular of 25 August 1988

94/10/EC

Administrative  Circular  of  24  May  1995  accompanied  by  an  explanatory  note
(« Guidance for officials ») and the text of the Directive

98/48/EC

Administrative Circular of 30 July 1999 accompanied by a « Guidance for officials »

SWEDEN

83/189/EEC, 88/182/EEC and 94/10/EC

Förordning  om  ändring  i  förordningen  (1994 :2029)  om  tekniska  regler ;  utfärdad
den 29 juni 1995

(Svensk författningssamling SFS 1995 :1022 den 18 juli 1995)

98/34/EC

Förordning  om  ändring  i  förordningen  (1994 :2029)  om  tekniska  regler ;  utfärdad
den  26 november 1998. 
författningssamling  SFS  1998 :1470  den
8 december 1998)

(Svensk 

Förordning  om  ändring  i  författningssamlingsförordningen  (1976 :725) ;  utfärdad
författningssamling  SFS  1998 :1472  den
den  26 november 1998 
8 december 1998)

(Svensk 

Kommerskollegiums föreskrifter om tekniska regler beslutade den 15 december 1998
den
(Kommerskollegiums 
30 december 1998)

författningssamling 

1998 :1 

KK :1 

KFS 

98/48/EC

Förordning  om  ändring  i  förordningen  (1994 :2029)  om  tekniska  regler ;  utfärdad
den 17 juni 1999 (Svensk författningssamling SFS 1999 :652 den 30 juni 1999)

Förordning  om  ändring  i  författningssamlingsförordningen  (1976 :725) ;  utfärdad
den 17 juni 1999 (Svensk författningssamling SFS 1999 :654 den 30 juni 1999)

Kommerskollegiums  föreskrifter  om  ändring  i  föreskrifterna  (1998 :1)  om  tekniska
regler  beslutade  den  2  juli  1999  (Kommerskollegiums  författningssamling  KFS
1999 :1 KK :1 den 19 juli 1999)

43

10. 2. Number of notifications by year

Year

1999

2000

2001

2002
(February)

Number of
notifications

12

24

25

9

10.3.

Number of notifications by year and by Member State

1999

2000

2001

2002
(February)

Germany

Austria

Belgium

Denmark

Spain

Finland

France

Greece

Ireland

Italy

Luxembourg

Netherlands

Portugal

United Kingdom

Sweden

Total : 70

1

1

-

1

3

-

-

1

-

1

-

3

-

1

-

4

1

3

1

-

1

1

-

1

3

3

4

-

1

1

5

1

2

1

2

6

2

-

-

2

-

1

1

1

1

12

24

25

44

-

-

-

-

-

2

-

-

-

4

-

1

-

-

2

9

10.4.

Number of notifications by sector and by Member State

Electronic
signatures

Electronic
commerce

Decoders

Telephone tapping
Treatment of
personal data

Computer
criminality

Name of field

Other

Germany

Austria

Belgium

Denmark

Spain

Finland

France

Greece

Ireland

Italy

Luxembourg

Netherlands

Portugal

United Kingdom

Sweden

Total MS (70)

Norway

Iceland

Total (74)

4

1

1

1

3

4

2

1

0

3

0

2

1

1

1

25

2

0

27

3

1

1

1

1

2

1

0

1

0

3

1

0

1

2

18

1

1

20

1

0

0

0

0

1

0

0

0

0

0

4

0

1

1

8

0

0

8

0

1

0

1

0

0

0

0

0

1

0

0

0

0

0

3

0

0

3

45

0

0

1

0

0

0

0

0

0

0

0

1

0

0

0

2

0

0

2

0

0

1

0

0

1

0

0

0

3

0

0

0

0

0

5

0

0

5

2

0

1

0

1

1

0

0

0

3

0

1

0

0

0

9

0

0

9

10.5.

List of notification references

Year

Country

Notification

Year

Country

Notification

Germany

1999/0438/D

Austria

1999/448/A

Denmark

1999/535/DK

1999/386/E

Germany

2000/0003/D

2000/0344/D

2000/0470/D

2000/0325/D

Spain

1999/505/E

Austria

2000/0394/A

1999

1999/563/E

2000/0050/B

Greece

1999/456/GR

Belgium

2000/0151/B

Italy

1999/420/I

2000/0742/B

1999/390/NL

Denmark

2000/382/DK

Netherlands

1999/395/NL

Finland

2000/0012/FIN

1999/396/NL

United Kingdom

1999/548/UK

2000

France

Ireland

2000/0007/F

2000/0163/IRL

2000/0397/I

Italy

2000/0539/I

2000/682/I

2000/0130/L

Luxembourg

2000/0452/L

Netherlands

2000/0498/L

2000/0118/NL

2000/0181/NL

2000/0282/NL

2000/0562/NL

United Kingdom

2000/0069/UK

Sweden

2000/0708/S

46

Country

Notification

Year

Country

Notification

Year

2001

2001/0118/D

2001/0240/D

2002
(February)

Finland

Germany

2001/0241/D

Italy

2002/0065/FIN

2002/0100/FIN

2002/0012/I

2002/0019/I

2002/0031/I

2002/0032/I

Netherlands

2002/0007/NL

Sweden

2002/0074/S

2002/0075/S

2001/0264/D

2001/0480/D

Austria

2001/0290/A

Belgium

2001/0474/B

2001/0514/B

Denmark

2001/0316/DK

Spain

2001/0218/E

2001/0334/E

2001/0125/FIN

2001/0161/FIN

2001/0162/FIN

2001/0422/FIN

2001/468/FIN

2001/469/FIN

Finland

France

2001/0272/F

2001/448/F

Italy

2001/0140/I

2001/0236/I

Netherlands

2001/0039/NL

Portugal

2001/053/P

United Kingdom

2001/0527/UK

Sweden

2001/0052/S

47

10.6.

Notifications in the field of the Information Society66 - Summary table

Electronic signatures

Member State No

Title – Sector

the
Reaction  of 
Commission/Memb
er States*

by
Response 
the  Member
State

Title/Content of draft

Spain

99/386/E

Draft 
signatures

law 

on 

electronic

Completed

Spain

99/505/E

Draft 
signatures

law 

on 

electronic

Comments
Art. 8(2)
Directive 98/34/EC

Adopted before expiry  of  the  status  quo  – (Decree
Law 14/1999 of 17/09/1999). Replaced by the draft
covered by notification 99/505/E.

Products and  services  aspects  –  matters  relating  to
compliance with Directive 99/93/EC.

Spain

99/563/E

Electronic 
Draft 
accreditation 
providers

regulation 
of 

Austria

99/448/A

Electronic signatures

Greece

99/456/GR

Electronic signatures

signatures
the
on 
service

Comments
Art. 8(2)
Directive 98/34/EC

Final 
17/09/2001

text

Products and  services  aspects  –  matters  relating  to
the  operating  of  the  accreditation  and  certification
systems.

Comments
Art. 8(2)
Directive 98/34/EC

(COM + D)

Response 
01/02/2000

on

Final 
23/03/2000

text

Products and  services  aspects  –  matters  relating  to
compliance  with  Directive  99/93/EC  and 
the
monitoring and approval system.

Comments
Art. 8(2)
Directive 98/34/EC

Products and  services  aspects  –  matters  relating  to
and
compliance  with  Directive 
certification services.

99/93/EC 

66

*

Document of 25/06/2002.
Access Internet site: http://europa.eu.int/comm/enterprise/tris
Unless otherwise specified, reaction = Commission's reaction (COM).

48

                                                
Electronic signatures

Member State No

Title – Sector

Reaction  of 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of draft

United
Kingdom

99/548/UK

Draft 
Communications 
Electronic signatures

Electronic
–
Bill 

Comments
Art. 8(2)
Directive 98/34/EC

Final 
27/07/2000

text

(COM + SV)

Germany

00/003/D

Amendment  of  the  Decree  on
digital signatures

Comments Art. 8(2)
Directive 98/34/EC

Final 
28/03/2001

text

France

00/007/F

Electronic signatures

Completed

Draft  law  adapting  the  law  of
evidence

Products and services aspects -– matters relating to
telecom 
licences,  compliance  with  Directive
99/93/EC,  the  voluntary  accreditation  system,  the
protection  of  personal  data  (Directive  95/46/EC)
and 
communications
(Directive 97/66/EC).

confidentiality  of 

the 

Products  and  services  aspects  –  matters  relating
to compliance  with  Directive  99/93/EC  and  the
monitoring and approval system.

Only  the  services  aspects  –  refusal  of  urgency
procedure - adopted before expiry of the status quo
(Law  No°2000-230  of  13/12/2000)  –  however,  the
wording  does  not  include  any  technical  rules,  so
there is no mandatory notification.

Belgium

00/050/B 

Electronic signatures

Draft law

Detailed 
opinion
comments
and 
Arts. 9(2)  and  8(2)
Directive 98/34/EC
(I+A+E)

Response
23/08/01
Final 
04/10/2001

text

Products and  services  aspects  –  matters  relating  to
the  consequences  of  the  definitions  used  for
"certificate"  and  "qualified  certificate"  on  the
freedom  to  provide  services  (Article  49  of  the
Treaty) and compliance with Directive 99/93/EC.

49

Electronic signatures

Member State No

Title – Sector

Denmark

00/382/DK

Electronic signatures

Germany

00/470/D

Electronic signatures

Netherlands

00/562/NL

Public land registers

Sweden

00/708/S

Taxation  system  for  electronic
signatures

Reaction  of 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Comments
Art. 8(2)
Directive 98/34/CE

Response 
05/02/01
Final 
05/02/2001

on

text

Two  public  administration  regulations  on  safety
requirements  and  information  summaries  for  the
Telecommunications  Directorate  of  encryption
centres and systems inspectors.

Detailed 
opinion
comments
and 
Arts. 9(2)  and  8(2)
Directive 98/34/CE
(COM +A)

opinion
Detailed 
and 
comments
Art. 9(2)  et  8(2)
Directive 98/34/CE

Detailed  opinion  +
Comments 
by
France
Arts.  9(2)  and  8(2)
Directive 98/34/EC

Final 
05/07/2001

text

Bill  on 
electronic 
regulations.

the 

framework  conditions 
and 

signatures 

amending 

regarding
other

Dialogue

Bill  aimed  at  regulating  the  use  of  electronic
signatures for land registers.

Response 
07/06/01
Final 
05/02/2002

on

text

Bill  providing  for  a  taxation  system  according  to
the number of electronic signatures filed.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

50

                                                
Electronic signatures

Member State No

Title – Sector

Finland

01/125/FIN

Law on electronic signatures

Reaction  of 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Comments
Art. 
8(2)
Directive  98/34/CE
(COM+S)

Completed
01/02/2002
(withdrawal  of
the text)

Title/Content of bill

According to the bill, the provision of certification
services  is  an  unrestricted  professional  activity.
Providers  offering  quality  assurance  certification
should however declare their activity to the Finnish
Communications  Regulatory  Authority,  which
monitors the supply of certification services.

Germany

01/264/D

Decree on electronic signatures

Do nothing

Norway

01/9016/N

Law on electronic signatures

Do nothing

Final 
04/03/2002

text

Final 
07/12/2001

text

Finland

01/468/FIN

Electronic signatures

Do nothing

Finland

01/469/FIN

Electronic signatures

Do nothing

*

Unless otherwise specified, reaction = Commission's reaction (COM).

51

The  decree 
requirements of the law on electronic signatures.

in  greater  detail 

regulates 

the

Draft  legislation  amending  the  legislation  on  fees
invoiced 
and
Telecommunications authority.

the  Norwegian 

Post 

by 

Under the law, certifying bodies must declare their
activity 
the  Communications  Regulatory
Authority before commencing activity.

to 

The provision specifies the requirements laid down
in  the  law  on  electronic  signatures  regarding  the
reliability and security of information in the activity
of  certifying  bodies  offering  quality  assurance
certification to the public.

                                                
Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of draft

final

for 

Request 
text
17/04/2002

Comments
Art 8 (2)
Directive 98/34/EC

Refusal 
request 
urgency procedure

of 
for 

the
the

Law on electronic access to public authorities.

Response
16/04/2002
Final 
30/05/2002

text

Draft  decree  on  the  evaluation  and  certification  of
the  security  offered  by  information  technology
products and systems.

Bill  amending  the  legal  system  for  electronic
signatures and certification activities.

Bill  on  e-mails  exchanged  between  the  public  and
administrative 
between
authorities 
administrative authorities themselves.

and 

Response
06/03/2002

Draft  decree  implementing  Directive  1999/93/EC
concerning electronic signatures.

Electronic signatures

Member State No

Title – Sector

Finland

01/422/FIN

Electronic signatures

France

01/448/F

Electronic signatures

Portugal

01/530/P

Electronic signatures

Netherlands

02/007/NL

Electronic signatures

Do nothing

Do nothing

Italy

02/012/I

Electronic signatures

1) Comments
France
2) Detailed  opinion
comments
and 
Arts.  9(2)  and  8(2)
Directive 98/34/EC

*

Unless otherwise specified, reaction = Commission's reaction (COM).

52

                                                
Electronic signatures

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of draft

Italy

02/019/I

Electronic signatures

Completed

Response
06/03/2002

Bill transposing Directive 1999/93/EC.

Finland

02/065/FIN

Electronic signatures

Do nothing

Germany

02/177/D

Electronic signatures

Being analysed

Draft 
implementing  Directive 1999/93/EC  and
regulating  the  certification  services  relating  to
electronic signatures.

Draft  regulating 
the  possibility  of  electronic
procedures  valid  for  all  administrative  procedures
governed by federal law.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

53

                                                
Electronic commerce

Member State No

Title – Sector

Luxembourg

00/130/L

Electronic commerce

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Comments
Art. 8(2)
Directive 98/34/EC

Response
18/09/2001
Final 
22/01/2002

text

Title/Content of the draft

Products  and  services  aspects  –  far-reaching
changes  to  civil  and  criminal  law,  civil  procedure,
and administration of criminal justice.

Ireland

00/163/IRL

Electronic commerce

Completed

Bill on the legal recognition of electronic contracts,
electronic writing, electronic signatures and original
information  in  electronic  form 
to
commercial  and  non-commercial  transactions  and
operations  and  other  subjects,  the  admissibility  of
the
to 
evidence 
supervision  and  liability  of  certification  service
providers and the registration of domain names, and
related subjects.

these  subjects, 

in  relation 

relation 

in 

Luxembourg

00/452/L

Electronic commerce

Germany

01/118/D

Bill  on 
conditions 
transactions

the  general 

legal
e-commerce

of 

Comments
Art. 8(2)
Directive 98/34/EC

Final 
22/01/2002

text

Renotification  of  draft  00/130/L 
following
amendments to the substance of the text previously
notified.

Comments
Art. 
8(2)
Directive 98/34/EC

Final 
04/03/2002

text

Article  1  of  the  bill  amends  the  current  law  on
teleservices  (TDG).  It  amends  or  supplements  the
existing provisions and adopts new ones.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

54

                                                
Electronic commerce

Member State No

Title – Sector

Finland

01/161/FIN

on 

Law 
of
the 
information society services and
other related laws

supply 

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Comments
Art. 8(2)
Directive 98/34/EC

Final 
28/12/2001

text

Finland

01/162/FIN

Law  on 
the  protection  of
information society services and
related laws

Do nothing

*

Unless otherwise specified, reaction = Commission's reaction (COM).

55

Title/Content of the draft

The  proposal  includes  provisions  regarding  the
directive  concerning  procedures  for  combating
illegal documents or the prevention of their receipt
by  storage  services.  The  other  bills  regarding
implementation  are  the  law  on  the  protection  of
privacy  in  the  telecommunications  sector  and  the
amendment  to  the  law  on  information  security  in
the  telecommunications  sector,  the  law  on  the
amendment  to  chapter  2  of  the  law  on  consumer
protection and the law on the amendment to the law
on inappropriate conduct in industrial activity.

Encryption  systems  for  the  protection  of  pay-TV
broadcasts, satellite broadcasts and cable broadcasts
and  various  offers  on  the  Internet  and  services
requiring  authorisation  for  use  of  the  service
offered.

                                                
Electronic commerce

Member State No

Title – Sector

Germany

01/240/D

State agreement – Media I

Germany

01/241/D

State Agreement – Media II

France

01/272/F

Information Society

Austria

01/290/A

Electronic commerce

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

opinion
Detailed 
and 
comments
Arts. 9(2)  and  8(2)
Directive 98/34/EC

Detailed 
opinion
comments
and 
Arts.  9(2)  and  8(2)
Directive 98/34/EC

Comments
Art. 8(2)
Directive 98/34/EC
(COM + NL).

Comments
Art. 8(2)
Directive 98/34/EC

Response
28/02/2002

Response
28/02/2002

Article  1  number  13  of  the  draft  public  contract
amending  the  public  contract  on  media  services
(public  contract  amendment  concerning  media
services)

Article 1 numbers 1 to 12 and 14 to 17 of the draft
public  contract  amending  the  public  contract  on
media 
(public  contract  amendment
services 
concerning media services).

Response
24/04/2002

Bill  on  the  information  society.  Many  points
relating  to  the  E-commerce  Directive  and  data
protection are developed in this text.

Response
21/12/2001
Final 
29/01/2002

text

Bill  regulating  various  aspects  of  electronic,
commercial and legal relations (E-commerce  law  -
ECG).

*

Unless otherwise specified, reaction = Commission's reaction (COM).

56

                                                
Electronic commerce

Member State No

Title – Sector

Denmark

01/316/DK

Electronic commerce

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Comments
Art. 8(2)
Directive 98/34/EC

Response
22/11/2001

Title/Content of the draft

by 

definitions,  monitoring 

The  bill  contains  provisions  on  the  field  of
application, 
the
authorities and mutual recognition, the obligation to
provide information for identification of the service
information  on  prices,  commercial
provider, 
communications, 
to  provide
information  when  an  order  is  placed,  the  rules  on
indemnification  and  the  establishment  of  contact
points.

the  obligation 

Spain

01/334/E

Electronic commerce

Comments
Art. 8(2)
Directive 98/34/EC

Response
03/12/2001

Preliminary  draft 
services and e-commerce.

law  on 

information  society

Iceland

01/9020/IS

Electronic  commerce  and  other
services

Do nothing

Bill on certain legal  aspects  of  information  society
services, in particular e-commerce.

Norway

01/9022/N

Electronic commerce

Comments
Art. 8(2)
Directive 98/34/EC

Response
17/04/2002

Bill on certain legal  aspects  of  information  society
services, in particular e-commerce.

Sweden

02/0074/S

Electronic commerce

Do nothing

Bill regulating the use of e-mail for prospecting.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

57

                                                
Electronic commerce

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Sweden

02/075/S

Electronic 
services

commerce 

and

Comments
Art. 8(2)
Directive 98/34/EC

Bill  transposing  Directive 2000/31/EC  on  certain
legal  aspects  of  information  society  services,  in
particular  electronic  commerce,  in  the  Internal
Market.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

58

                                                
Decoders

Member State No

Title – Sector

Italy

99/420/I

Television decoders

Denmark

99/535/DK

Television decoders

Austria

00/394/A

Transmission 
signals

of 

television

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

opinion
Detailed 
and 
comments
Arts. 9(2)  and  8(2)
Directive 98/34/EC

Comments
Art. 8(2)
Directive 98/34/EC

Response
20/01/2000
Com. Reaction
16/03/2000
Final 
17/12/2001

text

Final 
07/11/2001

text

opinion
Detailed 
and 
comments
Arts. 9(2)  and  8(2)
Directive 98/34/EC

Completed
(Withdrawal
of text)

Products and  services  aspects  –  matters  relating  to
"television  without frontiers"  -  definition  problems
regarding equipment, staff and decoder standards.

Products  and  services  aspects  -  matters  relating  to
"television  without  frontiers"  -  concept  of  shared
antenna systems

Federal  law  adopting  supplementary  provisions  on
the use of television signal standards.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

59

                                                
Telephone tapping – Treatment of personal data

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Netherlands

99/395/NL

Draft  regulation  concerning  the
dissemination  of  information  on
telecommunication

Comments  Art 8(2)
Directive 98/34/EC

Netherlands

99/396/NL

Draft  Order:  implementing  the
Regulation  on  the  tapping  of
telecommunications networks

Comments
Art. 8(2)
Directive 98/34/EC

Response
22/12/1999
Final 
06/03/2001

Response
22/12/1999
Final 
06/03/2001

Impact on protection of personal data

text

(Directive 95/46/EC)

Impact on the protection of personal data (Directive
95/46/EC)

text

.

Finland

00/012/FIN

Law  amending  the  Law  on  the
maintenance  of 
in
telecommunications

secrecy 

Do nothing

Final 
17/09/2001

text

Implications  on 
97/66/EC and 95/46/EC)

the  penal  sector 

(Directives

United
Kingdom

00/069/UK

Regulation 
Powers Bill

of 

Investigatory

Request  for  final
text

Final 
02/10/2001

text

This bill aims to regulate powers of investigation in
three  areas: 
interception  of  communications,
intrusive  investigation  techniques  and  access  to
encrypted material.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

60

                                                
Telephone tapping – Treatment of personal data

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Netherlands

00/181/NL

Land register data

Do nothing

Final 
23/10/2000

text

Computer  processing  of  data  relating  to  the  land
register.

Netherlands

00/282/NL

Intelligence 
services

and 

security

Germany

00/344/D

Protection of teleservices data

The  draft  (new)  law  on  intelligence  and  security
services proposes an exhaustive regime concerning
Dutch 
intelligence  and  security  and  also  a
regulation on the processing of intelligence.

Amendment 
protection.

to 

the 

law  on 

teleservice  data

opinion
Detailed 
and 
comments
Arts. 9(2)  and  8(2)
Directive 98/34/EC

opinion
Detailed 
and 
comments
Arts. 9(2)  and  8(2)
Directive 98/34/EC

Response
11/12/2000
Com.  reaction
on  29/06/2001
Final 
text
23/05/2002

Response
20/12/2000
Com. Reaction
28/05/2001
Dialogue
04/07/2001
Final 
04/03/2002

text

*

Unless otherwise specified, reaction = Commission's reaction (COM).

61

                                                
Telephone tapping – Treatment of personal data

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Netherlands

00/733/NL

Telephone 
Amendment

tapping 

–

Comments
Art 8(2)
Directive 98/34/EC

Response
04/05/2001

Decision amending the Regulation on the tapping of
networks  and  public  telecommunications  networks
and services.

Netherlands

00/734/NL

Telephone tapping

Comments
Art 8(2)
Directive 98/34/EC

Response
04/05/2001

Notification classified as confidential.

Netherlands

01/039/NL

Obligation 
telecommunications data

to 

provide

Do nothing

Sweden

01/052/S

Rules 
Telecommunications Agency

Post 

the 

of 

and

opinion

Detailed 
Art. 9(2)
Directive 98/34/EC

Response
05/07/2001
Com. Reaction
25/10/2001
Final 
29/01/2002

text

Amendment  to  the  criminal  proceedings  code  and
other  laws  following  the  change  in  jurisdiction
regarding  the  requisition  of  telecommunications
information.

These  rules  concern  the  obligation  for  telephone
operators  to  provide  information  on  the  telephone
subscriptions of individuals for the purposes of the
intelligence services.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

62

                                                
Telephone tapping – Treatment of personal data

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Belgium

02/0139/B

Protection  of  privacy  regarding
telephone-  and  other  forms  of
tapping

Refusal  of  urgency
procedure
Being analysed

Interception  of  telecommunications  for  judicial
purposes.

Computer crime

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Netherlands

99/390/NL

Bill : computer crime II

Blocking  procedure
Art. 9(4)
Directive 98/34/EC

Response
26/04/2000

Notification  on  a  subject  covered  by  a  proposal
submitted by the Council Directive published in the
Official Journal on 17/07/2000.

Belgium

00/151/B

Bill on computer crime

Detailed  opinion  +
Comments
Art. 9(2)  et  8(2)
Directive 98/34/EC

Final 
11/05/2001

text

Aspects  linked  to  the  free  movement  of  services
and freedom of establishment.

*

*

Unless otherwise specified, reaction = Commission's reaction (COM).
Unless otherwise specified, reaction = Commission's reaction (COM).

63

                                                
Domain name

Member State No

Title – Sector

Italy

00/539/I

Internet site names

Belgium

00/742/B

Illicit  registration  of  domain
names

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Introduction of a system for recording Internet sites
laying down precise, binding rules.

The system set up by the Belgian authorities aims to
prevent the illicit registration of domain names and
to provide a system to settle disputes quickly.

Detailed 
opinion
+ 
communication
9(2)
Art. 
Directive 98/34/EC

Detailed 
opinion
9(2)
Art. 
Directive 98/34/EC

Meeting  with
national
the 
authorities
(26/04/2001)
Written
response
12/07/2001
Com  response
12/07/2001
Dialogue
l05/02/2002
and
14/05/2002

Italy

02/031/I

Internet site names

opinion
Detailed 
Art. 
9(2)
Directive 98/34/EC

Regulation  on  the  recording  and  use  of  domain
names.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

64

                                                
Domain name

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Finland

02/100/FIN

Domain names

Do nothing

Italy

02/032/I

Internet site names

opinion
Detailed 
Art. 
9(2)
Directive 98/34/EC

Bill  regulating  the  form  of  the  network  identifier
and the restrictions on its use.

Rules  on  the  registration and  protection  of  domain
names.

*

Unless otherwise specified, reaction = Commission's reaction (COM).

65

                                                
Other

Member State No

Title – Sector

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft

Netherlands

00/118/NL

Trade register – draft decree

Do nothing

Final 
21/01/2001

text

Products and services aspects.

00/397/I

Automatic computer systems

Do nothing

Computer system for public procurement.

Italy

Italy

00/682/I

Protection  of  minors  covering
all media

Detailed 
opinion
comments
and 
Art.  9(2)  +  8(2)
Directive 98/34/EC

Italy

01/140/I

Bill on the provision of  Internet
access services

Do nothing

Spain

01/218/E

royal  decree  on 

Draft 
the
development  of  Article  81  of
Law 66/1997 of 30 December

Final 
21/01/2002

text

*

Unless otherwise specified, reaction = Commission's reaction (COM).

66

Drawing up of a charter to protect minors as regards
television, the Internet, CD-ROM, advertising, etc.

The  bill  notified  aims  to  restore  competitive
conditions  between  Internet  access  suppliers  and
operators  working 
the
telecommunications licence-holding bodies

in  conjunction  with 

This  draft  covers  fiscal,  administrative  and  social
measures  regarding 
the  provision  of  security
services,  by  the  royal  mint  -  Real  Casa  de  la
computer
electronic 
Moneda 
communications with the public authorities.

and 

in 

- 

                                                
Other

Member State No

Title – Sector

Belgium

01/474/B

Digital identity card

Reaction  by 
the
Commission/Memb
er States*

Response 
by
the  Member
State

Title/Content of the draft.

Response

Classified confidential.

Detailed  opinion  +
comments
Art. 9(2)
Directive 98/34/EC

Netherlands

02/131/NL

Public land register

Do nothing

Draft  introducing  tariffs  for  electronic  services
(increase in cadastral incomes).

*

Unless otherwise specified, reaction = Commission's reaction (COM).

67