Proposal for a Council Decision relating to the conclusion on behalf of the European Community of Council of Europe Convention No 180 on information and legal cooperation on information society services
Date: 2003-07-07
Institutions: European Commission
Subjects: administrative cooperation, electronic document, information industry, information society, legal cooperation, provision of services

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 07.07.2003
COM(2003) 398 final

2003/0146 (ACC)

Proposal for a

COUNCIL DECISION

relating to the conclusion on behalf of the European Community of Council of Europe
Convention No 180 on information and legal cooperation on information society services

(presented by the Commission)

EXPLANATORY MEMORANDUM

Procedure

1. 

2. 

3. 

4. 

Subject

1. 

2. 

3. 

On 20 July 2001 (SEC(2001)1181 final), the Commission adopted a recommendation
for  a  Council  Decision  authorising  the  Commission  to  negotiate  on  behalf  of  the
European Community, within the competent bodies of the Council of Europe, a draft
Convention on information and legal cooperation on information society services.

On  27  September  2001,  the  Commission  was  authorised  to  carry  out  these
negotiations on behalf of the European Community.

On  2  October  2001,  the  Committee  of  Ministers  of  the  Council  of  Europe,  having
accepted a series of amendments to the text put forward by the Commission for the
purpose of specifying the rules for Community participation in the future mechanism
for cooperation, adopted Council of Europe Convention No 180 on information and
legal cooperation on information society services.

On  4  October  2001,  the  Convention  was  opened  for  signature  at  the  conference  of
European  Ministers  of  Justice,  held  in  Moscow.  Its  entry  into  force  is  subject  to  it
being signed by at least five parties.

By  extending  the  scope  of  Directive  98/34/EC  (relating  to  products),  Directive
98/48/EC  set  up  a  system  of  prior  notification  and  administrative  cooperation
between  the  Member  States  on  draft  national  legislation  targeted  specifically  at
information society services (i.e. services provided at a distance, by electronic means
and upon request). This Directive has been operational since 5 August 1999 and has
up  till  now  been  an  effective  mechanism  for  prior  information  and  administrative
dialogue in  a regulatory  context  (that  of  on-line  services)  which  is  in  constant  flux
and concerns activities which are eminently cross-border in nature.

The  objective  of  the  Council  of  Europe  Convention  is  to  set  up  for  cross-border
information  society  services  (with  no  movement  of  individuals)  a  system  of  prior
information and cooperation open to a large number of participating countries, but at
the  same  time  adapted  to  the  context  of  the  Council  of  Europe.  In  particular,  the
system  proposed  by  the  Convention  is  more  flexible  than  that  established  by
Directive 98/34/EC, as amended by Directive 98/48/EC, in so far as the mandatory
prior notification, while referring to the same field, is not accompanied by a standstill
period (blockage).

The  interest  of  the  European  Community,  and  through  it,  of  its  Member  States,  in
participating  in  such  a  Convention  derives  from  the  fact  that  the  proposed  system
would  allow  them  to  be  regularly  informed  about  regulatory  initiatives  being
prepared in other countries (at  all  the regulatory  levels concerned:  federal,  regional
and local) and then, if appropriate, to express their observations on any drafts which
might  have  grave  legal  and  economic  implications  in  the  on-line  context,  with
particular reference to the exercise of fundamental freedoms and rights (such as for
Community citizens or undertakings operating in third countries).

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4. 

5. 

6. 

7. 

In practice, such participation will be based on the operational mechanism which has
been  used  under  Directive  98/34/EC,  as  amended  by  Directive  98/48/EC.  The  fact
that the scope of the Convention is not wider than that of Directive 98/48/EC will, in
particular,  make  it  possible  to  avoid  any  additional  notification  burden  on  Member
States over and above that already incumbent on them by virtue of the Directive.

More  specifically,  the  Commission  will  handle  communication  between  the
Community and the Council of Europe.
A) It will send to Strasbourg:
a)  its  own  draft  regulations  (proposals  for  regulations,  directives,  decisions,  etc.)
which specifically target information society services, once they have been formally
adopted by the Commission (if they are acts of the Council, or of the Parliament and
the  Council)  together  with  the  notifications  on  services  which  it  already  receives
from each Member State and forwards to the 14 other Member States under Directive
98/34/EC;
b)  its  own  observations  and  those  it  receives  from  each  Member  State  on
notifications  from  the  other  parties  to  the  Convention,  using  a  procedure  of  prior
coordination between the Member States at Community level.
B)  It  will  also  receive  and  forward  the  communications  (notifications  and
observations) from the other parties to the Convention.

In addition to helping reach the number of five parties required for the Convention to
enter  into  force,  the  Community’s  participation  is  considerably  important  for
encouraging the other parties to sign the Convention, given that it is openly based on
an already-existing Community instrument for legal and administrative cooperation.
Implementing  the  Convention  as  quickly  as  possible  is  important  because  of  the
current  stage  of  rapid  evolution  of  the  regulatory  environment  concerning
information society services.

As a result, the Commission proposes that the Council sign and conclude Council of
Europe  Convention  No  180  on  information  and  legal  cooperation  on  information
society services.

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2003/0146 (ACC)

Proposal for a

COUNCIL DECISION

relating to the conclusion on behalf of the European Community of Council of Europe
Convention No 180 on information and legal cooperation on information society services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article
133 in conjunction with Article 300(2), first subparagraph, thereof,

Having regard to the proposal from the Commission1,

Whereas:

(1) 

(2) 

(3) 

(4) 

Council  of  Europe  Convention  No  180  on  information  and  legal  cooperation  on
information  society  services  sets  up  an  international  system  of  prior  notification  and
administrative cooperation specifically aimed at information society services.

As information society services are provided at a distance, by electronic means and at
the individual request of a recipient of services (according to the definition set out in
Article  2  of  Convention  No  180)  they  are  services  which  are  provided  without
requiring physical travel by either the service provider or the recipient. For this reason,
they  are  subject  to  the  common  commercial  policy  and  fall  under  the  exclusive
competence  of  the  European  Community,  pursuant  to  Opinion  1/94  of  the  Court,
regarding the World Trade Organisation2.

Directive 98/34/EC, as amended by Directive 98/48/EC3, operational since 1999, has
been  an  extremely  positive  experience  as  a  mechanism  for  prior  information  and
administrative dialogue in the field of on-line services.

A similar international mechanism should be quickly established within the Council of
Europe,  in  which  it  is  in  the  Community’s  direct  interest  to  participate.  Such  a
convention would allow it to be regularly informed about regulatory initiatives being
prepared  in  other  countries  and  then,  if  appropriate,  to  express  its  observations  on
drafts which would have grave legal and economic implications in the context of on-
line activities.

(5) 

In practice, such participation would be based on the operational mechanism set up in
1983  by  Directive  83/189/EEC  (amended  on  several  occasions  and  then  codified  by
Directive 98/34/EC), and would, in particular, avoid any additional notification burden

1

2

3

OJ C […] of […], p. .
Opinion of the Court of 15 November 1994, European Court Reports 1994, p. I-5267.
OJ L217 of 5 August 1998, p. 18

4

                                                
on  Member  States  over  and  above  that  already  incumbent  on  them  by  virtue  of
Directive 98/34/EC, as amended by Directive 98/48/EC.

(6) 

The Convention should be approved.

HAS DECIDED AS FOLLOWS:

Article 1

Council of Europe Convention No 180 on information and legal cooperation on information
society services is approved on behalf of the European Community.

The text of the Convention is annexed to this Decision.

The  President  of  the  Council  is  authorised  to  designate  the  person  empowered  to  sign  the
Agreement in order to bind the Community.

Article 2

Article 3

This Decision will be published in the Official Journal of the European Union.

Done at Brussels,

For the Council
The President

5

LEGISLATIVE FINANCIAL STATEMENT

1.

TITLE OF THE OPERATION

Proposal for a Council Decision relating to the conclusion on behalf of the European
Community  of  Council  of  Europe  Convention  No  180  on  information  and  legal
cooperation on information society services.

2.

BUDGET HEADINGS INVOLVED

A-110

“Officials  and  temporary  staff  holding  a  post  provided  for  in  the
establishment plan”

A-7070

“Development of management and information systems”

3.

LEGAL BASIS

Article 133 EC.

4.

DESCRIPTION OF OPERATION

4.1.

General objective

The purpose of the Convention concerned is to set up within the Council of Europe a
mechanism  for  regulatory  transparency  on  national  drafts  relating  to  information
society services, broadly based on Directive 98/48/EC.

By extending the scope  of  Directive 98/34/EC  (relating  to  products),  this  Directive
provides for the prior notification of draft regulations in each of the 15 EC Member
States targeted specifically at information society services (i.e. activities carried out
remotely, by electronic means and at the request of the recipient: in other words, on-
line interactive activities). Under the Directive, subsequent to this notification, there
is a  standstill period  (of  at  least  three  months)  during  which  the  draft  notified  may
not be adopted at national level.

The  mechanism  set  up  under  the  Convention  of  the  Council  of  Europe  should
reproduce,  on  a  wider  geographical  scale  but  in  a  less  restrictive  fashion  (prior
notification but without the application of standstill periods), the system already set
up at EC level by Directive 98/48/EC on information society services.

the  aforementioned  Convention, 

The  Commission  proposes  that  the  Council  decide  to  conclude  on  behalf  of  the
European  Community 
since  Community
participation  in  such  an  international  system  of  administrative  cooperation  would
have the significant advantage for the Commission and the 15 EC Member States of
receiving systematic prior information on regulatory initiatives in preparation in third
countries (with, moreover, the possibility of being able to draw up their observations
on the drafts received) in a field – that of information society services – which is in
constant regulatory flux and has wide-ranging cross-border implications.

6

4.2.

Period covered and arrangements for renewal

The Convention does not lay down a time-limit for its application. However, it does
provide for the possibility of subsequent amendment of its scope.

5.

5.1.

5.2.

CLASSIFICATION OF EXPENDITURE

NCE (non-compulsory expenditure)

NDA (non-differentiated appropriations)

Type of expenditure

100%

6.

FINANCIAL IMPACT ON OPERATING EXPENDITURE

None

7.

IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE

The  requirements  in  terms  of  human  and  administrative  resources  will  be
encompassed  by  the  amount  allocated  to  the  Directorate-General  managing  these
resources under the annual allocation procedure.

7.1.

Impact on human resources

Description of tasks deriving
from the operation

Types of post

Officials or

Temporary staff

A

B

C

Other human resources

Total

Staff to be assigned to management of the
operation using existing and/or additional
resources

Number of
permanent posts

Number of
temporary posts

0.5

0.5

0.5

Total

0.5

0.5

0.5

1.5

The transmission and reception of regulatory drafts between the Commission and the
Secretariat of the Council of Europe will be carried out under the framework of the
administrative  mechanism  of  Directive  98/34/EC,  which  has  already  been
operational at EC level since 1983.

The number of drafts from third countries can reasonably be expected to be some 60
per year.

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DG Enterprise will be responsible for:

-

-

-

coordination of the analysis of the drafts by the other Commission departments
concerned  (essentially  the  Information  Society  DG  and  the  Internal  Market
DG);

coordination  of  the  comments  of  the  texts  from  third  countries  and  the
comments  made  by  Member  States  on  the  texts  from  Member  States  of  the
Community;

management of the database and transmission of the messages.

The  staff  required  for  this  activity  will  be  provided  by  redeployment  within  DG
Enterprise.

7.2.

Overall financial impact of human resources

Type of human resources

Amounts €

Method of calculation *

Officials

Temporary staff

Other human resources

162 000

108 000 x 1,5

(specify budget line)

Total

162 000

The amounts are total expenditure for 12 months.

7.3.

Other administrative expenditure deriving from the operation

Budget line

(number and heading)

Information systems (A-7070)

Amounts €

Method of calculation

5 000

5 000

Total

10 days at €500/day

The amounts are total expenditure for 12 months.

I.

II.

Annual total (7.2 + 7.3)

Duration of the operation

III.

Total cost of the operation (I x II)

7.4.

Total financial impact

 €167 000

Unlimited

Annual total cost of the operation: (points 7.2 +7.3) €167 000

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7.4.1.Computer costs

An  application  will  have  to  be  developed  for  the  automatic  transmission  of  the
Member States’ texts to the Council of Europe.

Setting  up  and  running  such  an  application  by  adapting  the  existing  application
administering  the  current  Community  system  will  require  about  10  days  work  per
year,  or  an  annual  amount  of  €5  000  (10  days  at  €500/day).  This  amount  will  be
funded from the existing computer budget of DG Enterprise.

8.

FRAUD PREVENTION MEASURES

None (in the absence of follow-up operations and studies).

9.

ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

9.1.

Specific and quantified objectives and target population

The  objective  of  the  Council  of  Europe  Convention  is  to  establish  at  international
level a system of prior information and cooperation, complementary to that set up at
Community level by Directive 98/48/EC, with regard to information society services.

The potential geographical coverage of this Convention would be fairly vast because
of  its  extension  to  a  large  number  of  countries:  the  44  member  countries  of  the
Council  of  Europe,  but  also  the  European  Community,  the  non-member  countries
which  participated  in  drawing  it  up,  and  any  non-member  country  which  might
subsequently be invited to accede to it.

9.2.

Grounds for the operation

The interest of the EC and its Member States in participating in such a Convention
derives  from  the  fact  that  the  proposed  system  would  allow  them  to  be  regularly
informed  about  regulatory  initiatives  being  prepared  in  other  countries  and  then,  if
appropriate, to express their observations on drafts which would have grave legal and
economic implications in the context of on-line activities, with particular reference to
the exercise of fundamental freedoms and rights (inter alia for Community citizens or
undertakings operating in third countries).

As things stand, there is a need for such a mechanism to obtain regular information
in this increasingly important field.

9.3.

Monitoring and evaluation of the operation

In  practice,  Community  participation  in  the  Convention  would  be  based  on  the
operational mechanism set up in 1983 by Directive 83/189/EEC (amended on several
occasions and then codified by Directive 98/34/EC).

In particular, in order to achieve maximum simplification of the internal procedures
of  the  EC,  the  Commission  would  send  the  Council  of  Europe  the  notifications  on
services which it  already  receives  from  each  Member  State  and  forwards  to  the  14
other Member States under Directive 98/34/EC.

9

Overall, the Convention will be a simple but valuable tool for assessing trends in the
regulatory panorama and an instrument for administrative cooperation in the field of
on-line activities, which is constantly expanding.

10