COMMISSION STAFF WORKING DOCUMENT Online services, including e-commerce, in the Single Market
Date: 2012-01-11
Institutions: European Commission
Subjects: Internet, consumer protection, digital technology, electronic commerce, electronic money, single market, technical barriers to trade, trade promotion, trade regulations

EUROPEAN COMMISSION 

Brussels, 11.1.2012 
SEC(2011) 1641 final 

COMMISSION STAFF WORKING DOCUMENT 

Online services, including e-commerce, in the Single Market 

Accompanying the document 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITEE OF THE REGIONS 

A coherent framework to boost confidence in the Digital Single Market of e-commerce 
and other online services 

{COM(2011) 942 final} 
{SEC(2011) 1640 final} 

 
 
 
 
  
 
TABLE OF CONTENTS  

3 

3.1 

3.3 
3.4 

2.1 
2.2 

1  General Introduction .......................................................................................................... 3 
The market for online services: state of play ..................................................................... 6 
2 
Description of e-commerce in the economy .............................................................. 6 
The regulatory framework.......................................................................................... 8 
2.2.1  The E-Commerce Directive ................................................................................... 8 
2.2.1.1  The Internal Market clause and establishment requirements (Articles 3-4 ECD)
............................................................................................................................ 8 
2.2.1.2 
Information requirements (Article 5 ECD) ...................................................... 12 
2.2.1.3  Commercial communications and regulated professions (Articles 6-8 ECD) . 13 
2.2.1.4  Electronic contracting (Articles 9-11 ECD)..................................................... 15 
2.2.1.5  Liability of online intermediaries (Articles 12-15 ECD) ................................. 16 
Implementation and application (Articles 16-20 ECD) ................................... 17 
2.2.1.6 
2.2.2  Other relevant EU rules........................................................................................ 17 
Issues and obstacles linked to the ECD............................................................................ 18 
Need for further information on the application of the ECD ................................... 19 
3.1.1  Lack of information on actual implementation in the Member States................. 19 
3.1.2  Lack of statistics on e-commerce ......................................................................... 19 
3.2 
Need for better co-operation in the application and implementation of the ECD 
("governance")...................................................................................................................... 19 
3.2.1  Transparency Directive 98/48/EC........................................................................ 19 
3.2.2  Case-by-case derogations of Article 3 (4) ECD................................................... 20 
3.2.3  Administrative cooperation under Article 19 ECD.............................................. 22 
Need for better enforcement of the ECD ................................................................. 23 
Need for further clarification on the intermediaries regime of the ECD ................. 24 
3.4.1  Liability issues...................................................................................................... 24 
3.4.2  The activities covered by Articles 12-15 ECD..................................................... 26 
3.4.2.1  National law ..................................................................................................... 26 
3.4.2.2  EU law.............................................................................................................. 30 
3.4.3  The conditions in Article 12 to 14 ECD............................................................... 32 
3.4.3.1  Absence of actual knowledge........................................................................... 32 
3.4.3.2  Acting expeditiously ........................................................................................ 37 
3.4.3.3  Other conditions ............................................................................................... 38 
3.4.4  Notice-and-action procedures .............................................................................. 39 
3.4.4.1  The European legislative framework ............................................................... 39 
3.4.4.2  The developments in the last ten years............................................................. 40 
3.4.4.3  Persisting issues................................................................................................ 43 
3.4.4.4  An EU initiative on procedures for notifying and acting on illegal online 
.......................................................................................................................... 46 
content 
3.4.5  The prohibition in Article 15 ECD....................................................................... 47 
3.4.5.1  EU law.............................................................................................................. 47 
3.4.5.2  National law ..................................................................................................... 49 
3.4.5.3  Filtering ............................................................................................................ 50 
4  Need for integration with other Digital Single Market policies....................................... 51 
Trust ......................................................................................................................... 52 
4.1.1  Trustmarks............................................................................................................ 52 
4.1.2  Personal data protection ....................................................................................... 53 
4.1.2.1  Personal data protection in the online environment ......................................... 53 

4.1 

1

 
 
 
 
 
4.1.2.2  Spam and the ePrivacy Directive ..................................................................... 55 
4.1.2.3  Cookies and the ePrivacy Directive ................................................................. 56 
4.1.2.4  Self-regulation in behavioural advertising ....................................................... 58 
4.1.2.5  Data Protection Directive ................................................................................. 59 
4.1.3  Online gambling................................................................................................... 60 
4.1.4  Online pharmacies and other health issues .......................................................... 60 
Information............................................................................................................... 63 
4.2.1  Price comparison websites ................................................................................... 63 
4.2.2  Restrictions on advertising ................................................................................... 64 
4.2.3  Unfair commercial practices ................................................................................ 65 
4.2.4  Code of EU Online Rights ................................................................................... 67 
4.2.5  Business awareness .............................................................................................. 67 
Access....................................................................................................................... 67 
4.3.1  Discrimination: Article 20 (2) of the Services Directive ..................................... 67 
4.3.2  Access to capital for SMEs .................................................................................. 69 
4.3.3  Domain names...................................................................................................... 69 
4.3.4  Net neutrality........................................................................................................ 70 
4.3.5 
Intellectual property rights ................................................................................... 71 
4.3.6  Grey markets ........................................................................................................ 74 
4.3.7  Re-use of public information................................................................................ 75 
4.3.8  Competition.......................................................................................................... 76 
4.3.8.1  General ............................................................................................................. 76 
4.3.8.2  Vertical distribution agreements ...................................................................... 77 
Contracting ............................................................................................................... 79 
4.4.1  Contract law ......................................................................................................... 79 
4.4.2  Unfair business practices...................................................................................... 83 
4.4.3  E-signatures, e-identification and e-authentication.............................................. 84 
Electronic payment and invoicing............................................................................ 86 
4.5.1  Electronic payment............................................................................................... 86 
4.5.2  Electronic invoicing ............................................................................................. 88 
Delivery.................................................................................................................... 89 
4.6.1  Delivery services in an e-commerce environment ............................................... 89 
4.6.2  Delivery problems ................................................................................................ 90 
4.6.3  Parcel and express delivery services under the Postal Services Directive ........... 91 
4.6.4  Market trends and enhanced application of the EU postal legislation ................. 94 
Dispute resolution in an online environment ........................................................... 96 
4.7.1  Alternative Dispute Resolution and Online Dispute Resolution.......................... 96 
4.7.2  European Small Claims Procedure..................................................................... 100 
4.7.3  Collective redress ............................................................................................... 101 
International Private Law ................................................................................... 101 
4.7.4 
Cross-cutting issues................................................................................................ 103 
4.8.1  VAT.................................................................................................................... 103 
4.8.2  Networks and infrastructure ............................................................................... 105 
4.8.3  Environmental dimension .................................................................................. 106 
International dimension...................................................................................... 107 
4.8.4 

4.2 

4.3 

4.4 

4.5 

4.6 

4.7 

4.8 

Annex I 
Annex II 

Transposition of Directive 2001/31/EC in the European Economic Area 
National legislation on "notice-and-takedown" procedures 

2

 
 
 
1  General Introduction 

The  "Single  Market  Act"1  identifies  information  society  services,  including  e-commerce,  as 
one of the measures which can boost economic growth and drive forward the Internal Market 
of the 21st century. They also have a major role to play in achieving the objectives of smart, 
sustainable and inclusive growth in Europe by 2020.2 The "Digital Agenda for Europe3" sets 
the  objectives  of  developing  electronic  commerce  across  Europe  and  facilitating  access  to 
electronic  commerce  for  SMEs  engaged  in  sales  and  purchasing.  The  strategy  includes 
quantitative targets: by 2015 33% of SMEs should be conducting online purchases/sales. By 
contrast,  during  2008,  24%  of  enterprises  were  purchasing  and  12%  selling  electronically 
volumes  that  equalled  or  exceeded  1%  of  their  total  purchases/turnover.  Moreover,  it  is 
anticipated  that  20%  of  the  population  will  be  buying  goods  online  from  cross-border 
providers by 2015.  

Information  society  services  (ISS)  or  online  services  can  contribute  to  achieving  crucial 
policy objectives in a number of ways: 

- Information  society  services are key to growth. Over the  past  decade,  these new activities 
have  generated  jobs  and  created  enterprises,  thus  adding  value  and  representing  a  major 
engine for European growth, even in a time of crisis.  

- E-commerce is seen as the best way to transcend national borders and enable businesses and 
consumers to get the most out of the European Single Market, even if national markets still 
dominate  today.  For  instance,  only  9%  of  consumers  in  2010  (against  8%  in  2009)  used  e-
commerce across borders.4 

-  E-commerce  can  help  attain  regional  policy  objectives:  it  can  improve  access  to  an 
increasingly  large  range  of  products  and  services  for  citizens  and  businesses  located  in 
isolated areas. 

- E-commerce can enhance the quality of life of vulnerable populations: new technologies and 
new sales channels can often better meet the needs of at-risk social groups such as the elderly 
and  allow  them  to  have  access  to  an  extensive  range  of  services  and  products  not  easily 

1   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  Single  Market  Act,  Twelve  levers  to  boost  growth  and 
strengthen  confidence,  "Working  together  to  create  new  growth",  COM(2011)  206  final,  13.04.2011; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0206:FIN:EN:PDF.  

2   Communication from the Commission, Europe 2020, A strategy for smart, sustainable and inclusive 

growth, COM(2010) 2020 final, 03.03.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:2020:FIN:EN:PDF. 

3   Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Committee of the Regions, A Digital Agenda for Europe, COM(2010) 245 final/2, 
26.08.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0245:FIN:EN:PDF. 

4   European  Commission,  DG  Sanco,  5th  Consumer  Scoreboard,  Consumers  at  home  in  the  Single  Market, 

March 2011, available at: http://ec.europa.eu/consumers/consumer_research/editions/cms5_en.htm  

3

 
 
 
 
 
 
 
 
 
                                                 
 
 
available  to  them  in  the  physical  world,  such  as  cultural  events.  Moreover,  information 
society services and e-commerce can contribute to meeting the demographic challenge of an 
ageing European population. 

- E-commerce can help protect the environment: e-commerce has a role to play in achieving 
the objectives of sustainable growth, since according to some studies5, it uses less CO2 than 
traditional commerce. 

Ten years after the adoption of the Directive on certain legal aspects of information society 
services,  in  particular  electronic  commerce,  in  the  Internal  Market  (Directive  on  electronic 
commerce)6,  e-commerce  is  still  limited  to  less  than  4%  of  total  European  trade.  As 
announced  in  the  Communication  "Towards  a  Single  Market  Act"7,  the  European 
Commission  wants  to  explore  the  various  reasons  for  the  limited  take-off  of  retail  e-
commerce outlined in the retail market monitoring report: “Towards more efficient and fairer 
retail  services  in  the  Internal  Market  for  2020."8  In  addition,  the  Commission  is  using  this 
Staff Working Document to present its evaluation of the implementation of the E-Commerce 
Directive (hereafter: ECD) in conformity with Article 21 of the Directive, and as announced 
in the Communication "Towards a Single Market Act."9  

The  analysis  presented  below  covers  information  society  services,  defined  as  those  services 
provided  at  a  distance,  electronically  and  at  the  request  of  a  recipient  of  services  against 
remuneration10,  and  also  the  much  wider  domain  of  e-commerce  transactions  in  goods  and 
services.11  Online  retailing,  online  press,  search  engines,  social  networks,  blogs,  media 
streaming,  online  gambling  and  e-health  are  included  in  our  analysis.  The  main  focus, 

5   E.g. Estia et  Médiamétrie//NetRatings pour la FEVAD, Etude de l’impact environnemental de l’achat sur 
at: 

traditionnel, 
internet 
http://www.fevad.com/uploads/files/Prez/fevad_estia_110609.pdf  

commerce 

available 

2009; 

dans 

Juin 

le 

et 

6   Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects 
of information society services, in particular electronic commerce, in the Internal Market (Directive on 
electronic commerce, hereafter ECD), OJ L 178/1, 17.07.2000; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML.  

7   Communication from the Commission to the European Parliament, the Council, the Economic and Social 
Committee and the Committee of the Regions, Towards a Single Market Act, For a highly competitive 
social market economy, 50 proposals for improving our work, business and exchanges with one another, 
(hereafter ‘Towards a Single Market Act’) COM(2010) 608,  27.10.2010, available at: 
http://ec.europa.eu/internal_market/smact/docs/single-market-act_en.pdf. 

8   Report from the Commission to the European Parliament, the Council, the Economic and Social Committee 
and the Committee of the Regions, Retail market monitoring report, “Towards more efficient and fairer 
retail services in the internal market for 2020”, COM(2010) 355, OJ C 84/19, 17.03.2011; available at: 
http://ec.europa.eu/internal_market/retail/docs/monitoring_report_en.pdf. 

9   Towards a Single Market Act, COM(2010) 608,  27.10.2010. 

10   Article 1 of 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 
204/37, 21.07.1998; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF. 

11   This is defined by Eurostat/OECD as purchases and sales orders made via websites or systems of electronic 

data interchange, excluding manually typed e-mails. 

4

 
 
 
 
 
                                                 
 
 
 
however,  is  on  issues  related  to  the  E-Commerce  Directive  and  the  obstacles  to  its 
implementation that have been identified. The document does not attempt to cover all topics 
of  interest  to  online  services  or  cross-cutting  issues  such  as  social  aspects  or  SME 
development. 

The  detailed  analysis  included  in  this  Staff  Working  Document  and  the  Communication  is 
partly  based  on  the  results  of  an  open  public  consultation  carried  out  between  August  and 
November  2010.  The  consultation  sought  opinions  on  seven  broad  themes:  (1)  the  level  of 
development,  both  national  and  cross-border,  of  information  society  services;  (2)  issues 
concerning the application of Article 3 (4) by the Member States (administrative cooperation); 
(3)  contractual  restrictions  on  cross-border  online  sales;  (4)  cross-border  online  commercial 
communications, in particular from regulated professions; (5) the development of online press 
services;  (6)  the  interpretation  of  the  provisions  concerning  the  liability  of  intermediary 
information society service providers; (7) the resolution of online disputes.  

The  consultation  generated  valuable  input  and  almost  420  responses  were  received.  The 
responses  are  published  online  and  summarised  in  a  separate  report.12  While  50%  of  the 
answers were from companies or business associations, a significant proportion - 31% - came 
from European citizens, with lesser proportions composed by consumer associations, lawyers, 
public  authorities  and  regulated  professions  drawn  from  13  Member  States.13  Besides  the 
answers from European entities (federations etc.), responses from France, the Netherlands, the 
United  Kingdom  and  Germany  were  particularly  numerous.  Only  three  Member  States 
(Romania, Bulgaria, and Lithuania) failed to provide any response. 

This  Staff  Working  Document  also  draws  on  other  sources  of  information  available  e.g. 
studies, participation in conferences, interviews with stakeholders and the deliberations of the 
expert group on e-commerce etc. 

This  document  constitutes  one  of  the  two  annexes  to  the  Communication  "A  coherent 
framework to boost confidence in the Digital Single Market of e-commerce and other online 
services" and is divided into two main parts. The first part contains an in-depth analysis of the 
legal and economic state of play in the online services sector. It also evaluates the remaining 
obstacles  to  the  full  and  proper  application  of  the  E-Commerce  Directive.  The  second  part 
covers regulatory barriers related to other EU policies, and the EU response to them. Annex I 
gives  an  overview  of  national  legislation  transposing  the  E-Commerce  Directive.  Annex  II 
summarizes national legislation on so-called "notice-and-takedown" procedures. 

The document, and in particular Chapters 2 and 3, serves as an application report within the 
meaning  of  Article  21  of  the  E-Commerce  Directive.  The  Staff  Working  Document  is  not 
legally binding and does not constitute Commission guidelines. 

The second annex to the Communication identifies the latest trends in business-to-consumer 
e-commerce in the EU and examines the potential benefits for consumers if current obstacles 
are  overcome  and  the  true  potential  of  e-commerce  in  the  Single  Market  is  fulfilled 
(Commission Staf Working Paper, "Bringing e-commerce benefits to consumers"). 

12  See http://ec.europa.eu/internal_market/e-commerce/directive_en.htm.  

13

   Belgium, Chech Republic, Estonia, Finland, Luxemburg, Latvia, Malta, Poland, Portugal, Sweden, United 

Kingdom and Norway. 

5

 
 
 
 
 
 
 
 
                                                 
 
2  The market for online services: state of play 

E-commerce and online services are some of the most significant innovations in the economy 
in  recent  decades  and  have  precipitated  an  evolution  in  the  legal  framework  for  doing 
business  online.  This  framework  consists  of  the  E-Commerce  Directive  and  many  other 
pieces of subsequent EU legislation.  

2.1  Description of e-commerce in the economy 

Online services play an increasingly important role in the everyday life of EU citizens. These 
services  help  to  reduce  the  time  spent  on  paperwork  and  increase  activity  online  (reading 
newspapers,  consulting  bank  accounts  and  making  payments,  sending  mail,  searching  for 
information,  communicating  via  social  networks,  etc.).  Electronic  commerce  continues  to 
grow  substantially,  even  in  the  current  economic  crisis.  It  plays  an  important  role  in  B2B 
exchanges as 27% of European enterprises purchase online and 13% sell online. Nevertheless, 
it  is  currently  limited  to  3.4%  of  retail  sales  in  the  27  Member  States.  The  highest  level  of 
online retail sales is 7.7%, in the United Kingdom.14 The development of e-commerce is very 
uneven among Member States, with a clear North-South divide. The United Kingdom, France 
and  Germany  account  for  70%  of  European  e-commerce.  The  level  of  cross-border  online 
retailing  also  appears  to  be  modest.  Indeed,  only  9%  of  European  consumers  said  they 
shopped online cross-border in 2010.15 

E-commerce in Europe lags behind Korea, Japan and the United States. In the USA, 66% of 
internet  users  made  purchases  online,  while  94%  did  in  South  Korea.16  This  compares  with 
57% in the EU.17 However, the growth rate of electronic commerce is now higher in the EU 
than in the US. 

Finally, m-commerce (electronic commerce conducted from a mobile phone, tablet etc.) in the 
EU  plays  a  more  modest  part  in  the  growth  of  electronic  commerce  than  in  the  USA  and 
Japan.  According  to  a  KPMG  study18,  the  percentage  of  consumers  who  visited  an  online 
retailer site from their mobile phone increased from 10% in 2008 to 28% in 2010 against 41% 
in the Asia-Pacific region. However, the use of mobile phones for financial services is more 
widespread:  46%  of  consumers  surveyed  said  they  had  used  them.  This  was  an  increase  on 
19% in 2008 but contrasts with 61% for in Asia-Pacific. 

14   Euromonitor International, 2010.  

15   Eurostat, Information Society Statistics, 2010. 

16   Forrester Research Inc, The Global eCommerce Adoption Cycle, 15.01.2010 (using 2009 data). 

17   Eurostat, Data in Focus 50/2010: Internet Usage in 2010 – Households and Individuals, 14.12.2010, 

available at:  
http://epp.eurostat.ec.europa.eu/portal/page/portal/product_details/publication?p_product_code=KS-QA-10-
050 

18   KPMG,  Consumer  and  Convergence  Survey  IV,  April  2010,  available  at:  http://www.kpmg.co.il/e-

vite/3b.pdf  

6

 
 
 
 
 
 
 
 
 
                                                 
 
 
 
Some  sectors  have  already  been  profoundly  transformed  by  electronic  commerce.  These 
include  travel  agencies  (39%  of  sales  were  online  in  2008),  sales  of  electronic  and  cultural 
goods  (22%),  financial  services,  gambling  and  sports  betting.  Clothing  sales  are  growing 
(10%), while food sales are still relatively undeveloped (7%).19 Online sales of cultural goods 
are hard to quantify accurately. There are high levels of consumption of music online, but it is 
still largely illegal, which has a very destabilizing effect on the sector. The development of an 
attractive, high quality and legal offer is crucial for the sale of cultural products. However, the 
responses to the public consultation (mentioned above) show that consumers have contrasting 
views depending on the types of content (digital books, music, movies, cultural and sporting 
events) and their Member State of residence. Overall, the market for online music is 4 times 
larger in the USA than in Europe, although it is now growing faster in Europe.20  

The past decade has seen on the one hand the emergence of a number of (mainly US-based) 
large  providers  ("pure  players")  which  only  have  a  presence  online  and,  on  the  other,  a 
tendency  for  big  retailers  to  deploy  "multichannel"  strategies.  According  to  Experian 
Hitwise21, only 7 of the 10 largest UK online retailers have physical stores and the trend away 
from  "bricks  and  mortar"  is  growing.  In  addition,  half  of  consumers  first  get  information 
online  before  buying.  In  comparison,  the  position  of  SMEs  in  e-commerce  is  still  limited. 
They  often  choose  platforms  organized  by  large  companies  to  grow  online.  Overall,  the 
development of electronic commerce appears, however, to be creating new complementarities 
and business activity and there is little evidence that "cannibalization" of physical commerce 
by e-commerce is taking place. This is true even if there are problems between franchisee and 
franchisor, or other sector-specific problems (see above). 

From a wider perspective, the internet economy has generated 21 % of the GDP growth of the 
last 5 years22 and could represent as much as 20% of GDP growth in the period up to 2015 in 
the Netherlands and the UK. Internet consumption and expenditure already exceeds the share 
of GDP of agriculture or energy, and its GDP is bigger than the GDP of Canada or Spain.23 It 
represents 7% of UK GDP, 3.7% in France, 2.2% in Spain, 2% in Italy, 2.7% in Poland, 3.6% 
in the Czech Republic, 4.3% in the Netherlands, 5.8% in Denmark, 6.6% in Sweden, 3.4% in 
Germany  and  2.5%  in  Belgium.24  According  to  IMRG,  in  March  2010,  600,000  jobs  were 
linked to electronic commerce in the United Kingdom. The "Internet stream" (which is wider 
than ISS because it includes telecoms) has accounted for 25% of net job creation and growth 

19   Forrester consulting, May 2009, Study on "A Single Market for Information Society".  

20   Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to 
the European Parliament, the Council, the European Economic and Social Committee and the Committee of 
the  Regions  —  A  Digital  Agenda  for  Europe,  COM(2010)  245,  OJ  C  54/58,  19.02.2011,  available  at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:054:0058:0064:EN:PDF. 

21   IMRG Experian Hitwise Hot Shops List, May 2011. 

22   McKinsey  Global  Institute,  Internet  matters :  The  net's  sweeping  impact  on  growth,  jobs,  and  prosperity, 
May  2011,  on  the  G8  countries,  South  Korea,  Sweden,  Brazil,  China  and  India.  Available  at : 
http://ww1.mckinsey.com/mgi/publications/internet_matters/pdfs/MGI_internet_matters_full_report.pdf  

23   Boston Consulting Group, Turning local: from Madrid to Moscow, the Internet is going native, September 

2011, available at: http://www.bcg.com/documents/file84709.pdf  

24   How  the  Internet  is  transforming  the  economy,  a  series  of  studies  by  the  Boston  Consulting  Group 
commissioned by Google, 2010-2011; McKinsey & Company, Impact d'Internet sur l'économie française, 
March 2011, available at: http://www.economie.gouv.fr/files/rapport-mckinsey-company.pdf  

7

 
 
 
 
                                                 
in  France  since  2000.25  Overall,  the  Internet  economy  creates  2.6  jobs  for  every  job 
destroyed.26  The  value  of  the  e-commerce  market  per  se  is  between  €  100  and  150  billion 
which is similar in  the EU  and  the US.27 This sector is expected to generate further growth 
especially as SMEs come increasingly to explore the potential of "digital conversion".  

2.2  The regulatory framework  

The  E-Commerce  Directive  (ECD)  is  the  main  legislative  tool  dealing  with  information 
society  services.  Following  its  adoption  in  2000,  the  Directive  has  been  complemented  by 
other EU legislation, covering various aspects such as data protection and consumer affairs. 

2.2.1   The E-Commerce Directive 

The ECD is designed to help remove obstacles to cross-border online services in the Internal 
Market  and  to  provide  legal  certainty  to  administrations,  businesses  and  customers.  It  was 
drafted  in  a  technologically  neutral  manner  in  order  to  avoid  amendments  of  the  legal 
framework  arising  from  the  fast  pace  of  innovation  in  the  IT  sector.  On  the  one  hand,  the 
Directive contains principles which should encourage the functioning of the Internal Market 
such  as  the  Internal  Market  clause,  the  cornerstone  of  the  Directive.  On  the  other  hand,  it 
regulates  certain  legal  aspects  of  online  services.  The  Directive  harmonises  for  instance 
certain information requirements, commercial communications, electronic contracting and the 
liability regime for online intermediaries. The Directive does not apply to a number of areas 
including  taxation,  questions  related  to  the  Data  Protection  Directive  and  gambling 
activities28.  

2.2.1.1  The Internal Market clause and establishment requirements (Articles 3-4 

ECD) 

The Internal Market clause aims to ensure the free movement of information society services 
between the Member States. It has two complementary components: 

a. 

b. 

Each  Member  State  must  ensure  that  information  society  services  provided  by  a 
service  provider  established  on  its  territory  comply  with  the  national  provisions 
applicable  in  the  Member  State  in  question  which  fall  within  the  coordinated  field 
(Article 3 (1) ECD); 
Member  States  may  not,  for  reasons  falling  within  the  coordinated  field,  restrict  the 
freedom to provide information society services from another Member State (Article 3 
(2) ECD). 

The  terms  "information  society  services"  and  "coordinated  field"  are  crucial  for  a  proper 
understanding of the Internal Market (or country of origin) clause.  

25   Forrester Consulting, produced by DIW-econ. 

26   Boston Consulting Group, Turning local: from Madrid to Moscow, the Internet is going native, September 

2011, available at: http://www.bcg.com/documents/file84709.pdf 

27   Forrester consulting produced by DIW-econ.  

28   See in particular Article 1 (5) and Recital 12 of the ECD. 

8

 
 
 
 
 
 
 
                                                 
The  term  "information  society  services"  is  not  defined  in  the  ECD  but  in  the  Transparency 
Directive  98/38/EC  as  amended  by  Directive  98/48.29  The  basic  definition  of  "information 
society  services"  covers  any  service  normally  provided,  for  remuneration,  at  a  distance,  by 
electronic means and at the individual request of a recipient of services.30 

•  The  definition  of  a  "service"  and  "normally  provided  for  remuneration"  derives  from 
Article  57,  first  paragraph,  of  the  TFEU31,  as  interpreted  by  the  European  Court  of 
Justice  (hereafter:  ECJ).  The  ECJ  has  stipulated  that  the  "essential  characteristic  of 
remuneration  […]  lies  in  the  fact  that  it  constitutes  consideration  for  the  service  in 
question". Such a characteristic is absent in the activities the State undertakes within the 
framework of its public tasks, particularly in social, cultural, educational and legal areas. 
•  The  concept  of  "at  a  distance"  implies  that  the  service  is  provided  without  the  parties 
(i.e.  the  service  provider  and  the  recipient)  being  simultaneously  present.  Medical 
advice requiring the physical examination of a patient does not fall, for instance, within 
the  definition  of  an  "information  society  service".32  However,  certain  telemedicine 
services may be covered because they are by definition provided in situations where the 
healthcare  professional  and  the  patient  (or  two  healthcare  professionals)  are  not  in  the 
same location.33  

•  The expression "by electronic means" is taken to mean that a service is sent initially and 
received  at  its  destination  using  electronic  equipment  for  the  processing  (including 
digital compression) and storage of data, and that it is entirely transmitted, conveyed and 
received  by  wire,  by  radio,  by  optical  means  or  by  other  electromagnetic  means.  The 
service must be conveyed from its point of departure to its point of arrival by means of 
electronic (processing and storage) equipment and by telecommunications means. 

•  Finally,  the  service  must  be  provided  via  the  transmission  of  data  "at  an  individual 
request".  This  constitutes  the  element  of  interactivity  which  characterises  information 
society services and sets them apart from other services that are sent without a request 
from the recipient being necessary. For this reason, the Directive does not apply to radio 
or television broadcasting services.34 

29   Directive 98/34/EC of the European Parliament and 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  204/37, 
21.07.1998; 
http://eur-
available 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF 

at: 

30   Article 1(2) of the Commission Directive 98/38/EC of 3 June 1998 adapting to technical progress Council 
Directive  74/151/EEC  on  certain  components  and  characteristics  of  wheeled  agricultural  or  forestry 
http://eur-
tractors, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:170:0013:0014:EN:PDF, as amended by Directive 
98/48/EC, OJ L 204/37, 21.07.1998.  

16.06.1998; 

available 

170/13, 

OJ 

at: 

L 

31   Treaty on the Functioning of the EU, OJ C 155/47, 09.05.2008, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF.  

32   See Case C-108/09, Ker-Optika bt v ANTSZ Dél-dunántúli Regionális Intézete, judgment of 02.12.2010, 
(hereafter ‘Ker-Optika’) par. 37-38, available at: http://curia.europa.eu/juris/recherche.jsf?language=en  

33   Commission Staff Working Paper, Telemedicine for the benefit of patients, healthcare systems and society, 
at: 

SEC(2009)943 
http://ec.europa.eu/information_society/activities/health/docs/policy/telemedicine/telemedecine-swp_sec-
2009-943.pdf.  

available 

2009; 

final, 

June 

34   See  for  example  Case  C-89/04,  Mediakabel  BV  v  Commissariaat  voor  de  Media,  ECR  [2005]  I-04891, 
judgment  of  05.06.2005,  Par.38:  "Pay-per-view"  services  to  watch  movies  at  the  times  indicated  on  the 

9

 
 
 
                                                 
This is a broad definition spanning a variety of online activities. More detailed examples are 
provided in a Vademecum to Directive 98/48/EC published by the Commission.35  

For  the  majority  of  the  aspects  of  electronic  commerce,  the  Directive  is  not  intended  to 
achieve harmonisation of substantive rules, but defines a "coordinated field" in the context of 
which the mechanism in Article 3 must allow information society services to be, in principle, 
subject to the law of the Member State in which the service provider is established.36 Article 2 
(h)  of  the  ECD  defines  the  "coordinated  field"  of  the  Directive  as  those  requirements  laid 
down  in  Member  States'  legal  systems  which  are  applicable  to  information  society  service 
providers  or  information  society  services,  regardless  of  whether  the  requirements  are  of  a 
general  nature  or  specifically  targeted  at  this  sector.  At  a more  detailed  level,  the  provision 
states that the coordinated field concerns the requirements with which the service provider has 
to comply with respect to: 

•  The taking up of the activity of an information society service, such as requirements 
concerning  qualifications,  authorisation  or  notification.  Specific  examples  might  be 
the requirement to demonstrate professional qualifications and good repute, to provide 
specific  financial  guarantees,  or  to  obtain  a  licence  and  meet  the  conditions  for  that 
licence. 

•  The  pursuit  of  the  activity  of  an  information  society  service,  such  as  requirements 
concerning the behaviour of the service provider, the quality or content of the service 
linked  to  aspects  such  as  advertising  and  contracts,  or  requirements  concerning  the 
liability of the service providers.  

The  coordinated  field  covers  rules  related  to  a  wide  range  of  activities  such  as  online 
information,  online  advertising,  online  shopping  and  online  contracting.  Various  national 
rules  may  also  have  consequences  for  to  the  taking  up  and  pursuit  of  the  activity  of  an 
information  society  service.  The  "coordinated  field",  however,  does  not  cover  requirements 
applicable to goods (e.g. safety standards, labelling and liability, classification for the purpose 
of protecting children37) or conditions for the delivery or the transport of goods sold via the 
Internet, generally to the customer's home.38 

Recent  case-law  of  the  ECJ  confirms  the  broad  principles  underlying  the  Internal  Market 
mechanism.  In  the  Ker-Optika  judgment  of  2  December  2010,39  the  Court  recognised  the 

screen or in a programme guide are not services provided "at the individual request" of a recipient because 
the  selection  of  films  is  offered  to  all  subscribers  on  the  same  terms,  accessible  at  the  broadcasting  times 
determined by the provider, available at: http://curia.europa.eu/juris/recherche.jsf?language=en  

35   See: http://ec.europa.eu/enterprise/policies/european-

standards/files/standards_policy/vademecum/doc/98_34_ec_consolidated_version_en.pdf  

36   See Recital 22 in the preamble of the ECD, and the judgment of the ECJ in Joined Cases C-509/09 and C-
161/10,  eData  Advertising  a.o.  v  X  a.o.,  judgment  of  25.10.2011,  (hereafter  ‘eData’)  par.  57,  available  at 
http://curia.europa.eu/juris/recherche.jsf?language=en.  

37   Case C-244/06, Dynamic Medien Vertriebs GbmH v Avides Media AG, ECR [2008] I-00505, judgment of 

14.02.2008, Par. 22; available at: http://curia.europa.eu/juris/recherche.jsf?language=en.  

38   Those conditions not covered by the E-Commerce Directive must therefore be assessed under primary law, 
in particular Articles 34-36 TFEU on the free movement of goods. See par.41 of the Ker-Optika judgment. 

39   See par. 40 of Ker-Optika judgment. 

10

 
 
 
 
 
 
                                                                                                                                                         
wide scope of the "coordinated field" and held that a national prohibition on selling contact 
lenses via the Internet falls, in principle, within the coordinated field of the ECD. In the eData 
Advertising judgment of 25 October 2011, the Court underlined that the mechanism provided 
for by the ECD prescribes, also in private law, respect for the substantive law requirements in 
force in the country in which the service provider is established. In the absence of binding EU 
harmonisation, only the acknowledgment of the binding nature of national law to which the 
legislature has decided to make the service providers and their services subject can guarantee 
the full effect of the free provision of those services. In this request for a preliminary ruling on 
the  question  as  to  whether  the  provisions  of  Articles  3  (1)  and  (2)  of  the  ECD  have  the 
character of a conflict-of-laws rule, the Court held that Article 3 ECD must be interpreted as 
not  requiring  transposition  in  the  form  of  a  specific  conflict-of-rules  rule.  Nevertheless,  in 
relation to the coordinated field, Member States must ensure that, subject to the derogations of 
Article  3  (4)  ECD,  the  provider  of  an  electronic  commerce  service  is  not  made  subject  to 
stricter requirements than those provided for by the substantive law applicable in the Member 
State in which that service provider is established.40 

Article 3 (4) of the ECD provides a derogation from the Internal Market clause of Article 3 
(2) ECD for a limited number of subjects. These are set out in the Annex of the Directive and 
include in particular intellectual property rights; the freedom of the parties to choose the law 
applicable  to  the  contract;  contractual  obligations  concerning  consumer  contracts  and  the 
permissibility  of  unsolicited  commercial  communications  by  e-mail.  The  conditions  under 
which  Member  States  may  derogate  from  the  Internal  Market  clause  must  be  regarded  as 
exhaustive.41 

In the public consultation on e-commerce there were relatively few responses to the Annex as 
a whole. Some of the respondents (mostly business organisations and enterprises) had doubts 
about  the  added  value  of  all  or  some  of  the  derogations  in  the  Annex.  Some  respondents 
pointed out that the lack of (full) harmonization in the area of consumer contracts makes the 
derogation still  necessary.42 Contradicting observations  were made in relation to intellectual 
property rights derogations,  mostly on copyright. Right holders tended to claim that the EU 
acquis  has  promoted  the  cross-border  availability  of  copyright  protected  works.  Many  other 
stakeholders took the opposite view and identified the present copyright situation within the 
EU  as  a  major  barrier  to  the  availability  of  content  beyond  the  national  borders  and  the 
establishment of a true Digital Internal Market.43 

Article 4 (1) of the ECD prohibits Member States from making the taking up and pursuit of 
the  activity  of  an  information  society  service  provider  subject  to  prior  authorisation  or  any 
other  requirement  having  an  equivalent  effect.  This  provision  ensures  that  establishing  an 
information  society  service  in  a  Member  State  is  a  relatively  smooth  process  without 
administrative hurdles. No specific difficulties have been reported on the application of this 
provision.  

40   eData judgment par. 59, 68.  

41   eData judgment, par. 59. 

42   Refer to Chapter 4.4.1 for further developments. 

43   For further information refer to Chapter 4.3.5. 

11

 
 
 
 
 
                                                 
2.2.1.2  Information requirements (Article 5 ECD) 

Article 5 (1) of the ECD obliges the online trader to provide, as a minimum44, the following 
information: name, geographical address, e-mail address, registration number if registered in a 
trade or similar public register.  

This information is important and may even be vital for customers claiming their rights. The 
country of origin of the web trader can have major consequences, for example, for their right 
of  withdrawal.  If  the  web  trader  is  established  in  a  non-EEA  country,  the  provisions  of  the 
ECD do not apply45 and the EU consumer cannot benefit from legal protection under the EU 
consumer acquis.  

Moreover,  Article  5  requires  the  online  service  provider  to  establish  an  effective  direct 
communication  channel  with  its  customers.  Article  5  (1)  (c)  imposes  the  obligation  on  the 
service provider to render "easily, directly and permanently accessible" to both recipients of 
services  and  the  competent  authorities  "the  details  of  the  service  provider,  including  its 
electronic e-mail address, which allow it to be contacted rapidly and communicated with in a 
direct and effective manner". The European Court of Justice has interpreted this provision as 
meaning "that a service provider is required to supply to recipients of the service, before the 
conclusion  of  a  contract  with  them,  in  addition  to  its  electronic  mail  address,  other 
information which allows the service provider to be contacted rapidly and communicated with 
in a direct and effective manner. That information does not necessarily have to be a telephone 
number. That information may be in the form of an electronic enquiry template through which 
the  recipients  of  the  service  can  contact  the  service  provider  via  the  internet,  to  whom  the 
service  provider  replies  by  electronic  mail  except  in  situations  where  a  recipient  of  the 
service, who, after contacting the service provider electronically, finds himself without access 
to  the  electronic  network,  requests  the  latter  to  provide  access  to  another,  non-electronic, 
means  of  communication".46  The  judgment  implies  that  service  providers  cannot  limit 
themselves to offering an e-mail address accessible for their customers through the website. 
They must also provide for other forms of direct communication.47 

44   The  information  requirements  do  not  prevent  Member  States  from  imposing  additional  information 
requirements  but  these  are  nowadays  often  harmonised  or  unified  at  EU-level.  See  for  example  the  new 
Consumer  Rights  Directive,  which  completes  Article  5  of  the  ECD  by  fully  harmonising  the  information 
requirements for B2C distance contracts. 

45   See Recital 58 of the ECD.  

46   Case C-298/07, Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale 
Bundesverband  eV  v  deutsche  internet  versicherung  AG,  ECR  [2008]  I-07841,  judgment  of  16.10.2008; 
available at: http://curia.europa.eu/juris/recherche.jsf?language=en.  

47   See also Article 6 (1) (c) of the Directive 2011/83/EU of the European Parliament and of the Council of 25 
October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC and 
repealing  Council  Directive  85/577/EEC  and  Directive  97/7/EC  of  the  European  Parliament  and  of  the 
Council, OJ L304/64, 22.11.2011 (Hereafter ‘Consumer Rights Directive’) This obliges the trader to provide 
the  consumer  with  the  following  information:  the  trader's  geographical  address,  telephone  number,  fax 
number  and  e-mail  address,  where  available,  to  enable  the  consumer  to  contact  the  trader  quickly  and 
communicate with him efficiently and, where applicable, the geographical address and identity of the trader 
on 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:304:0064:01:EN:HTML  

Available 

acting. 

whose 

behalf 

at: 

he 

is 

12

 
 
 
 
 
 
                                                 
A recent Mystery Shopping study carried out by the ECC-Net reveals that: 

• 
• 

• 

• 

in 2% of purchases, the trader's name was not available at all; 
in  9%  of  purchases,  consumers  had  to  search  for  the  country  of  origin  of  the  trader 
and in 3% of purchases, the information was not even available;  
the  physical  address  was  not  available  in  3%  of  the  purchases,  and  in  43%  of  the 
purchases, the company's registration number was not available; 
in 8% of purchases, the phone number and in 12% of purchases, the e-mail address 
could not be found.48 

Article  5  (2)  obliges  web  traders,  where  information  society  services  refer  to  prices,  to 
provide a clear and unambiguous indication of the prices, including taxes and delivery costs. 
This  provision  complements  price  transparency  requirements  laid  down  in  other  EU 
legislation  (see  Chapter  2.2.2).  The  "Mystery"  survey  above  suggests  that,  in  34%  of 
purchases, it was not clear whether the VAT was included in the price presented.  

2.2.1.3  Commercial communications and regulated professions (Articles 6-8 ECD) 

Article 6 of the ECD emphasises the need for transparency when advertisements are displayed 
on  the  Internet.  It  obliges  the  Member  States  to  ensure  that  online  commercial 
communications 
(including  promotional  offers,  discounts,  premiums,  promotional 
competitions  or  games)  meet  certain  transparency  requirements.  Both  the  commercial 
communication and the natural or legal person responsible for it must be clearly identifiable, 
and  any  conditions  attached  to  the  offers,  discounts  etc.  must  be  easily  accessible.    For 
example, advertising originating from the operator of an online marketplace and displayed by 
a  search  operator  must  always  disclose  both  the  identity  of  the  online  marketplace  operator 
and  the  fact  that  the  trade-marked  goods  advertised  are  being  sold  through  that  online 
marketplace.49 

Article 7 of the ECD preserves the possibility for Member States to either prohibit or allow 
the sending of unsolicited commercial communications ("spams") by e-mail. Those Member 
States  permitting  unsolicited  commercial  communication  must  ensure 
that  such 
communication is clearly and unambiguously identifiable, and that service providers respect 
the  opt-out  registers  to  which  natural  persons  not  wishing  to  receive  such  commercial 
communications can sign up.  

In practice it is not always easy to define notions such as "unsolicited" and "commercial". For 
example, not every unsolicited e-mail may be classified as "spam". The term "unsolicited" has 
posed  particular  problems  in  the  context  of  "tell-a-friend"  services.  These  popular  services 
allow an internet user to enter the e-mail address of one or more "friends" who then receive a 
standard  message  e.g.  inviting  them  to  visit  a  particular  website.  Whether  a  message  is 
"commercial" or not leaves room for divergent interpretations as well.  

48   ECC-Net,  Online  Cross-border  Mystery  Shopping:  State  of  the  e-Union,  September  2011,  available  at : 
http://ec.europa.eu/consumers/ecc/docs/mystery_shopping_report_en.pdf. The research was conducted in all 
the  EU  Member  States,  Iceland  and  Norway,  with  purchases  made  for  10  different  consumer  product 
categories. 

49   Cf.  Case  C-324/09,  L'Oréal  v  eBay, 

judgment  of  12  July  2011,  par.  95-96,  available  at: 

http://curia.europa.eu/juris/recherche.jsf?language=en.  

13

 
 
 
 
 
 
                                                 
Unsolicited commercial communication is also covered by other consumer rules such as the 
Unfair  Commercial  Practices  Directive.50  One  of  the  practices  which  Annex  I  of  the  UCP 
qualifies  as  unfair  under  all  circumstances  is  the  "persistent  and  unwanted  solicitations  by 
telephone,  fax,  e-mail  or  other  remote  media  except  in  circumstances  and  to  the  extent 
justified  under  national  law  to  enforce  a  contractual  obligation".  Member  States  must 
therefore  provide  effective,  proportionate  and  dissuasive  sanctions  against  spam-related 
activities of this kind.  

These rules have been complemented by Directive 2002/58/EC concerning the processing of 
personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector,  most 
commonly  known  as  the  ePrivacy  Directive51,  which  has  become  the  central  instrument 
against spam in the EU (see Chapter 4.1.2.2). Article 13 of the E-Privacy Directive deals with 
the use of email (including sms, mms), automatic calling machines and requires prior opt-in 
consent.  It  applies  in  principle  only  to  subscribers  who  are  natural  persons.  Member  States 
may decide to extend the prior opt-in requirement to subscribers who are legal persons. The 
ECD rule requirement for the commercial communications to be "clearly and unambiguously 
identifiable" remains applicable. 

Article  8  of  the  ECD  obliges  the  Member  States  to  ensure  that  members  of  regulated 
professions  may  use  commercial  communications  online,  subject  to  compliance  with  such 
professional  rules  governing  the  independence,  honour  and  dignity  of  the  profession.  This 
provision  has  forced  Member  States  to  abolish  restrictions  on  online  commercial 
communications for such professions.  

The Services Directive complements the rules on online commercial communications set out 
in the ECD. According to Article 24 (1) of Directive 2006/12352, Member States shall remove 
all  total  prohibitions  on  commercial  communications  by  the  regulated  professions.  The 
obligation  to  remove  all  "blanket"  prohibitions  also  covers  national  legislation  which  only 
prohibits a particular form of commercial communiation. In a judgment of 5 April 2011, the 
ECJ ruled that a ban on accountants' canvassing (direct marketing) must be regarded as a total 
prohibition of commercial communication, which is not allowed under Article 24 (1) of the 
Services Directive.53  

50   Directive  2005/29/EC  of  the  European  Parliament  and  of  the  Council  of  11  May  2005  concerning  unfair 
business-to-consumer  commercial  practices  in  the  internal  market  and  amending  Council  Directive 
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council 
and  Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the  Council  (‘Unfair  Commercial 
http://eur-
L 
Practices 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:EN:PDF  

11.06.2005, 

Directive’), 

available 

149/22, 

OJ 

at: 

51   Directive  2002/58/EC  of  the  European  Parliament  and  of  the  Council  of  12  July  2002  concerning  the 
processing of personal data and the protection of privacy in the electronic communications sector (Directive 
on  privacy  and  electronic  communications),  OJ  L  201/37,  31.07.2002;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:EN:HTML      As  revised  by  Directive 
2009/136/EC of the European Parliament and of the Council of 25 November 2009.  

52   Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in 
http://eur-
376/36, 

L 
the 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:01:EN:HTML 

27.12.2006; 

available 

internal 

market, 

OJ 

at: 

53   Case  C-119/09,  Société  fiduciaire  nationale  d'expertise  comptable  v  Ministre  du  Budget,  des  Comptes 
at: 

05.04.2011; 

judgment 

available 

of 

publics 
http://curia.europa.eu/juris/recherche.jsf?language=en.  

publique, 

Fonction 

de 

la 

et 

14

 
 
 
 
 
                                                 
Article  8  of  the  ECD  encourages  regulated  professions  to  develop  codes  of  conduct  at  EU 
level  related  to  the  use  of  commercial  communications.  Certain  professions  such  as 
accountants,  lawyers,  doctors,  pharmacists  and  real  estate  agents  established  EU  codes  of 
conduct almost a decade ago. These codes laid down professional rules in particular related to 
the  independence,  dignity  and  integrity  of  the  profession.  Technological  progress  in 
combination with the increasing use of the Internet by regulated professions may require that 
these codes be updated.  

2.2.1.4  Electronic contracting (Articles 9-11 ECD)  

Articles 9-11 of the ECD contain essential and mandatory contracting requirements for online 
transactions. These conditions apply in addition to other EU requirements on contracts, such 
as  pre-contractual  information  rights  or  unfair  contract  terms  for  consumer  contracts  (see 
Chapter 4.4.1).  

Pursuant to Article 9 (1) of the ECD, contracts concluded by electronic means should have the 
same  validity  as  contracts  concluded  offline  by  "traditional"  means  (equivalence  principle). 
This applies to all stages and acts of the contractual process, such as the contractual offer, the 
negotiation and the conclusion of the contract by electronic means. Legal provisions obliging 
hand-written contracts, for example, are no longer allowed. But the principle only covers legal 
requirements  and  not  practical  obstacles  such  as  cases  where  the  conclusion  of  a  contract 
requires the physical presence of parties, e.g. must be signed before a notary.54  

Article 9 (2) of the ECD leaves Member States the option of excluding certain categories of 
contracts used in the context of real estate transfer that require the involvement of courts and 
other  public  authorities,  those  related  to  family  and  succession  law,  as  well  as  contracts 
dealing  with  certain  securities.  Article  9  (3)  of  the  ECD  obliges  the  Member  States  to 
regularly inform the Commission about the contracts for which the equivalence principle does 
not apply.  

Article 9 of the ECD has been complemented by the Electronic Signatures Directive55 which 
regulates the legal recognition of e-signatures (see Chapter 4.4.3). 

According to Article 10 of the ECD, online traders must provide the consumer with specific 
information prior to the order being placed and, in particular: 

• 
• 
• 

• 

the steps to follow to conclude a contract,  
the filing of the contract by the service provider,  
the technical means for identifying and correcting input errors prior to the placing of 
the order, and  
the languages offered for the conclusion of the contract.  

54   Cf. Recitals 34 and 37, ECD.  

55   Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community 
at:  http://eur-

signatures,  OJ  L  013/12,  19.01.2000; 
framework 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0093:en:HTML  

electronic 

available 

for 

15

 
 
 
 
 
 
 
 
 
                                                 
In  addition,  online  service  providers  must  make  available  any  relevant  codes  of  conduct, 
contract  terms  and  general  conditions.56  Consumers  should  not  only  be  able  to  store  the 
contract terms and general conditions, but they must also be able to reproduce (print) them.  

Article  11  of  the  ECD  harmonises  the  placing  of  the  order  in  B2C  contracts.  The  online 
contract  has  to  be  concluded  through  an  "order"  placed  by  the  consumer,  followed  by  an 
electronic  "acknowledgment"  of  the  online  trader  without undue  delay.  The  "order"  and  the 
"acknowledgement" are deemed to be received when the involved contracting parties are able 
to access them. In addition, the online trader has to provide the consumer with the technical 
means allowing him/her to identify and correct input errors prior to the placing of the order.57 

A  recent  EU-wide  survey  carried  out  by  the  ECC-Net  in  2011  suggests  that  the  obligations 
under  Articles  10  and  11  are  often  neglected.  The  survey  shows  that  the  online  traders 
fulfilled the obligation to inform the consumer about the process of completing the purchase 
only in 68% of consumer purchases. The opportunity to review the details of the order before 
placing the order was not offered in 11% of purchases. In 6% of purchases it was not clear 
when  the  final  stage  was  reached,  i.e.,  when  the  order  had  been  placed.  In  almost  half  the 
purchases  (48%),  the  purchaser  had  to  actively  accept  the  terms  and  conditions.  As  to 
compliance with the rules in Article 11, 81% of purchasers received a confirmation order both 
on screen and by e-mail. In 10% of purchases, a confirmation of the order was received only 
by e-mail and in 8% only on screen. In 1% of purchases, no confirmation was received58. 

Commission  services  do  not  have  further  reliable  and  detailed  information  on  the  practical 
application  of  the  formation  of  contracts.  It  has  never  received  reports  from  the  Member 
States on the excluded categories of contracts referred to in Article 9 (2) of the ECD. It would 
welcome the opportunity to learn more about the experiences of both internet consumers and 
online businesses in respect to  the process of placing orders. One the one hand, the ECC-Net 
survey  shows  that  online  traders  too  often  do  not  respect  national  law  transposing  the 
provisions of the ECD. Awareness of these requirements should be increased in order to make 
sure that businesses adapt their websites. On the other hand, respondents to the e-commerce 
consultation expressed concerns that the contracting requirements of the ECD may have been 
legitimate and useful at the time when it was adopted, but they now believe that they could 
become obsolete or even a burden for devices operating with newer technologies.  

2.2.1.5  Liability of online intermediaries (Articles 12-15 ECD)  

The ECD introduced a specific liability regime for three categories of services: mere conduit 
operators,  "caching"  providers  and  hosting  services.  The  details  of  the  application  of  this 
regime are discussed in Chapter 3.4.  

56   With  the  exception  of  the  contract  terms  and  conditions,  these  transparency  requirements  do  not  apply  to 

contracts concluded exclusively by e-mail or by equivalent individual communications. 

57   The  acknowledgement  of  receipt  and  the  revision  mechanism  do  not  apply  to  contracts  concluded 

exclusively by e-mail or by equivalent individual communications. 

58   ECC-Net,  Online  Cross-border  Mystery  Shopping:  State  of  the  E-Union,  September  2011,  available  at: 

http://ec.europa.eu/consumers/ecc/docs/mystery_shopping_report_en.pdf 

16

 
 
 
 
 
 
                                                 
2.2.1.6  Implementation and application (Articles 16-20 ECD) 

The  horizontal  nature  of  the  Directive,  meaning that  it  affects  several  fields  of  national  law 
(administrative,  civil,  penal  law)  has  led  to  delays  in  the  transposition  of  the  Directive  into 
national law. Following accessions in 2004 and 2007, all 27 Member States have formally put 
into place implementing legislation and the Commission has currently no infringement cases 
pending. The EEA countries have also notified implementing legislation in accordance with 
the  EEA  Agreement.  Annex  II  of  the  Staff  Working  Document  contains  a  list  of  national 
measures transposing the Directive.  

2.2.2  Other relevant EU rules 

Since  the  adoption  of  the  ECD  more  than  a  decade  ago,  EU  law  on  e-commerce  has 
developed considerably. New legislation has been adopted, and further initiatives have been 
proposed  or  are  currently  being  considered.  The  following  instruments  are  most  directly 
linked to the provisions of the Directive: 

•  The  need  for  Member  States  to  notify  derogations  to  the  Internal  Market  clause  has 
diminished due to the operation of the CPC-networks since 2007 (see Chapter 3.2.2) 
•  The information requirements  laid  down in Article 5 ECD have been complemented 
by  specific  rules  e.g.  in  the  Unfair  Commercial  Practices  Directive59  (2005),  the 
Regulation on Passenger Rights60 (2004), the Services Directive61 (2006) and the new 
Consumer Rights Directive62 (2011) (see Chapters 4.2.3 and 4.4.1). 
In the area of Intellectual Property Rights, the most relevant legislation concerns the 
Copyright  Information  Society  Directive63  (2001)  and 
the  IPR  Enforcement 
Directive64 (2004) (see Chapter 4.3.5) 

• 

•  On  electronic  contracting,  Article  9  of  the  ECD  has  been  complemented  by  the 
Electronic Signatures Directive65 which regulates the legal recognition of e-signatures 
and is currently under revision (see Chapter 4.4.3). 

59   Unfair Commercial Practices Directive, OJ L 149/22, 11.06.2005. 

60   Regulation  (EC)  No  261/2004  of  the  European  Parliament  and  of  the  Council  of  11  February  2004 
establishing common rules on compensation and assistance to passengers in the event of denied boarding 
and  of  cancellation  or  long  delay  of  flights,  and  repealing  Regulation  (EEC)  No  295/91,  OJ  L  046/1, 
at: 
17.02.2004; 
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:EN:PDF  

available 

61   Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in 
http://eur-
376/36, 

L 
the 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:01:EN:HTML 

27.12.2006; 

available 

internal 

market, 

OJ 

at: 

62   Consumer Rights Directive, OJ L304/64, 22.11.2011 

63   Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation 
of  certain  aspects  of  copyright  and  related  rights  in  the  information  society,  OJ  L 167/10,  22.06.2001; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF  

64   Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement 
http://eur-

rights,  OJ  L 
of 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:157:0045:0086:EN:PDF  

intellectual 

30.4.2004; 

available 

property 

157/16, 

at: 

17

 
 
 
 
 
                                                 
•  The  E-Privacy  Directive66  (2002  and  2009)  complements  and  particularises  the  Data 
Protection Directive67 with regard to the processing of personal data in the electronic 
communication sector. The latter adds to the rules on "spam" in the ECD and regulates 
confidentiality of communications (See Chapter 4.1.2.2). The UCP Directive68 (2005) 
is  also  relevant  for  the  application  of  Articles  6  and  7  E-Commerce  Directive  (see 
Chapter 4.2.3). 
In  addition,  the  prohibition  of  any  commercial  communications  for  regulated 
professions  according  to  Article  24  Services  Directive69  has  supplemented  the 
provision of Article 8 of the ECD (see Chapter 4.2.2). 

• 

Even though they are beyond the direct scope of the ECD, the following initiatives can also 
be mentioned: 

•  The ban on discrimination in Article 20 Services Directive (see Chapter 4.3.1). 
•  Various new developments in the area of payment services (see Chapter 4.5.1). 
•  New rules on the application of VAT to digital services (see Chapter 4.8.1). 
•  New rules on vertical distribution agreements (see Chapter 4.3.8.2). 
•  Developments in private international law and dispute resolution (see Chapter 4.7). 

3  Issues and obstacles linked to the ECD 

E-commerce  has  certainly  developed,  but  it  has  still  not  reached  its  full  potential.  Certain 
issues arising from both the E-Commerce Directive and other parts of the EU acquis can go 
some way towards explaining this. 

The results of the public consultation and the analysis of the Commission services show that, 
despite praise for the positive role it has played in the development of online services, there is 
a  need  for  further  information  on  the  application  of  the  E-Commerce  Directive.  More 
administrative  cooperation,  improved  enforcement  and  greater  clarification  in  the  liability 
regime of internet intermediaries are required to increase its impact.  

65   Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community 
at:  http://eur-

framework 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:013:0012:0020:EN:PDF  

signatures,  OJ  L  013/12,  19.01.2000; 

electronic 

available 

for 

66   Directive  2002/58/EC  of  the  European  Parliament  and  of  the  Council  of  12  July  2002  concerning  the 
processing of personal data and the protection of privacy in the electronic communications sector (Directive 
on  privacy  and  electronic  communications),  OJ  L  201/37,  31.07.2002;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:201:0037:0047:EN:PDF.  Directive  2002/58/EC 
repealed  Directive  97/66/EC  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.  

67   OJ L 281, 23.11.1995, p. 31. 

68   Unfair Commercial Practices Directive, OJ L 149/22, 11.06.2005 

69   Directive 2006/123/EC of the European Parliament and the Council of 12 December 2006 on services in the 
http://eur-

available 
internal 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF  

27.12.2006; 

market; 

376/36, 

OJ 

at: 

L 

18

 
 
 
 
 
 
                                                                                                                                                         
3.1  Need for further information on the application of the ECD   

3.1.1  Lack of information on actual implementation in the Member States 

Rapid  technological  and  market  developments,  in  combination  with  the  adoption  of  further 
EU legislation (see Chapter 2.2.2), have led to national laws on e-commerce being amended 
on several occasions. In recent years there has also been an increase in domestic case law, in 
particular  linked  to  the  liability  regime  of  the  ECD  (see  Chapter  3.4.2).  In  order  to  better 
monitor  these  and  other  related  developments,  the  Commission  services  will  increase  their 
screening of the actual implementation and application of the ECD in the Member States (see 
Chapter 3.2.1). A conformity assessment will be carried out of the transposition in each of the 
27 Member States, including an evaluation of national case-law and conformity with the most 
recent ECJ case-law (2012). 

3.1.2  Lack of statistics on e-commerce  

Reliable statistics are a useful tool for measuring trends in the e-commerce sector. The OECD 
and Eurostat have contributed to  the development of classifications of the ICT sector supply 
side, which includes information society services, using the new NACE Rev. 2 classification 
on  economic  activities.  However,  it  is  not  possible  to  directly  measure  the  share  of 
employment, GDP, or the value added of electronic commerce activities.  

The information society services financed by advertising but provided for free on the Internet 
are  even  more  difficult  to  assess.  Eurostat  conducts  surveys  to  measure  the  extent  to  which 
businesses  and  households  use  the  Internet,  applying  such  indicators  as  the  percentage  of 
users who bought online in a given period of time. Additional data are necessary to measure 
the progress of online services in the European economy. Some data are available in private 
research  institutes,  but  they  do  not  always  cover  the  27  Member  States,  and  their 
comparability  is  not  guaranteed.  This  lack  of  information  calls  for  a  new  framework  for 
measuring the value of the Internet including services provided via the Internet. 

The Commission services will, together with the E-commerce Expert Group, explore means 
of  improving  (public)  statistics  on  electronic  commerce  and  of  developing  tools  to  collect 
more detailed statistics about internet sales volumes. 

3.2   Need for better co-operation in the application and 
implementation of the ECD ("governance")  

Within the context of the ECD, three levels of administrative co-operation can be identified 
between Member States and the Commission services. 

3.2.1   

Transparency Directive 98/48/EC 

Directive  98/34/EC70,  as  amended  by  Directive  98/48/EC71  (the  "Transparency  Directive"), 
lays  down  a  procedure  for  the  provision  of  information  about  rules  on  information  society 

70   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 204/37, 
31.07.1998; 
http://eur-
available 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:204:0037:0048:EN:PDF  

at: 

19

 
 
 
 
 
 
 
 
                                                 
services. The Directive is intended to help avoid the creation of new barriers to trade within 
the EU.  

The Directive requires Member States to notify their rules on information society services in 
draft  form,  and  generally  observe  a  standstill  period  of  at  least  three  months  before  formal 
adoption, in order to allow other Member States and the Commission to raise concerns about 
potential  barriers  to  trade.  Where  notified  drafts  are  liable  to  create  barriers  to  the  free 
provision  of  information  society  services  under  primary  or  secondary  EU  law,  the 
Commission  and  other  Member  States  may  submit  a  detailed  opinion  to  the  Member  State 
that  has  notified  the  draft.  Private  stakeholders  can  submit  comments,  thereby  assisting  the 
Commission and national authorities in identifying possible trade barriers at an early stage.  

Over the years, the  active  participation of Member States in assessing the notified draft has 
generated an effective dialogue between them and the Commission. In the period 2006-2008, 
over  100  notifications  were  submitted  by  the  Member  States,  many  of  them  on  online 
gambling.72  Recent  notifications  have  dealt  with  issues  such  as  notice-and-takedown 
procedures73 and have highlighted the trend whereby proposed national rules can affect new 
business models, as shown in the case ofe-books.74  

However,  Member  States  do  not  always  respect  the  obligation  to  notify  draft  laws  on 
information  society  services  under  the  Transparency  Directive.  Commission  services  will 
remain vigilant to ensure that unlawful barriers to online services are detected at the earliest 
possible stage. 

3.2.2  Case-by-case derogations of Article 3 (4) ECD 

Article 3 (4) ECD contains a case-by-case limitation to the Internal Market clause. Member 
States may take measures to restrict the provision of a particular online service from another 
Member State. However limitations must meet certain requirements. 

Firstly,  there  must  be  a  need  to  protect  certain  interests,  in  particular  public  policy  aims 
(protection  of  minors;  actions  against  hatred  on  the  grounds  of  race,  sex,  religion  or 
nationality; human dignity), and interests on the grounds of public health, public security and 

71   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, 
http://eur-
217/18, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:217:0018:0026:EN:PDF  

05.08.1998; 

available 

OJ 

at: 

L 

72   See  the  Report  from  the  Commission  to  the  Council,  the  European  Parliament  and  the  ECOSOC,  The 
Operation  of  Directive  98/34/EC  from  2006-2008,  COM(2009)  690  final,  21.12.2009;  available  at: 
http://ec.europa.eu/enterprise/tris/reps_2008_2006/EN.pdf  

73   For example, the Commission received notifications from France on the "Loi Hadopi", from Spain on the 
the  "Digital  Economy  Act",  available  at 

so-called  "Ley  Sinde",  and 
http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?lang=EN.  

the  UK  on 

from 

74   France notified the original and amended version of the Loi relative au prix du livre numérique, see TRIS 
2010/710F, 

notification 
http://ec.europa.eu/enterprise/tris/default.htm?CFID=70911363&CFTOKEN=31040420. 

2010/616/F 

numbers 

and 

20

 
 
 
 
 
 
 
                                                                                                                                                         
consumers,  including  investors.75  Article  3  (4)  of  the  ECD  contains  an  exhaustive  list  of 
general interests. With the exception of the protection of consumers, this provision does not 
cover the other public interests the European Court of Justice has recognised in its "mandatory 
requirement" case law, or the Treaty exceptions which justify cross-border trade restrictions. 
For instance, the  national authorities cannot invoke  the protection of culture, the fairness of 
trade  or  economic  objectives  to  justify  restrictions  on  online  services  from  other  Member 
States. 

Secondly,  the  measures  in  question  must  be  necessary  and  proportionate.  They  must  be 
suitable for achieving the objective sought and they must not go beyond what is necessary to 
obtain  that  objective.  Recently,  the  European  Court  of  Justice  has  held  that  these  principles 
must  be  interpreted  in  the  same  manner  as  those  governing  the  Internal  Market  freedom 
provisions of the Treaty.76 

Thirdly, these measures may only be taken if certain procedural requirements are fulfilled:  

• 

• 

• 

the Member State taking the measure must have consulted with the Member State in 
which the provider is established; 
the former must not have taken any measures, or any measure taken must have been 
deemed inadequate in the view of the Member State of destination; 
the  former  must  have  notified  the  Commission  and  the  Member  State  in  which  the 
provider  is  established  of  its  intention  to  take  such  a  measure.  The  notification 
procedure  enables  the  Commission  to  exercise  its  competence  to  examine  the 
compatibility of the notified measure with EU law. 

Contrary to what might have been expected, the derogation appears to  have been used very 
rarely.  In  the  last  decade,  the  Commission  services  have  received  only  30  notifications, 
mainly  dealing  with  measures  to  protect  consumers.  It  has  never  declared  a  measure 
incompatible with EU law. 

The relatively small number of notifications can be explained because of the establishment  of 
the  Consumer  Protection  Co-operation  Network  (CPC-Network),  which  became  operational 
in  December  2006.  The  CPC  Regulation77  established  a  framework  for  cross-border 
cooperation  between  public  authorities  responsible  for  the  enforcement  of  certain  EU 
legislation protecting consumer's interests, including those arising from or affected by the E-
Commerce  Directive.  The  national  authorities  in  the  CPC  Network  have  investigative  and 
enforcement powers which they can exercise on their territory whenever there is a reasonable 
suspicion  of  intra-EU  infringements.  Article  8  of  the  CPC  Regulation  notably  sets  out  an 
arrangement for cross-border cooperation. It enables an authority in one Member State to take 
the necessary enforcement measures to stop an infringement when requested to do so by the 

75   See  the  Communication from  the  Commission  to  the  Council,  the European  Parliament  and  the  European 
Central Bank, Application to Financial Services of Article 3 (4) to (6) to the Electronic Commerce Directive, 
COM(2003) 
http://eur-
available 
14.05.2003; 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0259:FIN:EN:PDF  

final, 

259 

at: 

76   Ker-Optika judgment, par. 76 

77   Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  the  Council  of  27  October  2004  on 
cooperation between national authorities responsible for the enforcement of consumer protection laws (‘The 
Regulation  on  consumer  protection  cooperation’),  OJ  364/1,  09.12.2004;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:364:0001:0011:EN:PDF  

21

 
 
 
 
 
 
                                                 
relevant authority in another Member State. This could have the effect of making recourse to 
Article 3 (4)-(6) of the E-Commerce Directive unnecessary. For example, when an authority 
in Member State A considers that the website of an online trader established in Member State 
B  does  not  fulfil  the  transparency  requirements  of  Article  5  of  the  ECD,  following  for 
instance complaints lodged by consumers in Member State A, it may request the authority in 
Member  State  B  to  investigate  the  case  and  if  necessary,  take  measures  to  stop  the 
infringement.  In  that  event,  there  would  be  no  further  need  for  cross-border  administrative 
measures under Article 3 of the ECD.  

The  statistics  show  that  in  2007  there  were  15  requests  and  in  2008  48  requests  for 
enforcement  measures  within  the  CPC-Net  for  alleged  infringements  of  the  E-Commerce 
Directive.78 In 2009, the number of requests increased to 54 and, in 2010, dropped again to 
40.  These  figures  correspond  with  the  considerable  drop  in  notifications  received  by  the 
Commission under the ECD after 2006, with almost no notifications in the last five years.   

Referrals  under  the  CPC  mechanism  are  mostly  about  alleged  infringements  concerning 
Article  5  ECD.  Many  cases  concern  websites  which  give  incomplete  information  such  as 
failing  to  indicate  all  the  taxes  and  costs  included  in  a  price.  Other  cases  concern  websites 
where  the  trader's  identity,  location  and  VAT-numbers  were  missing,  or  where  terms  and 
conditions  were  only  available  in  English  and  not  in  the  language  of  the  targeted  Member 
State.  

The  CPC-Network  offers  an  effective  tool  in  addressing  cross-border  infringements,  thus 
making  it  unnessary  for  Member  States  to  take  direct  measures  against  ISS  providers  from 
other countries. However this is in itself not a sufficient explanation for why Member States 
have not notified more measures (sanctions, injunctions) adopted against ISS providers from 
other Member States in the last decade. A lack of awareness on the part of the administrative 
services of Member States may be a reason for the small number of measures adopted. Some 
Member  States,  in  particular  those  with  a  more  federal  structure  and  decentralised 
enforcement systems, have experienced problems attaining sufficient internal coordination to 
ensure the functioning of the notification and cooperation procedures in the ECD. Language 
and translation issues have also been raised in relation to cross-border cooperation.  

The Commission services will raise awareness about the obligation to notify draft measures. 
They  will  also  explore  with  the  Member  States  ways  in  which  to  strengthen  administrative 
cooperation  by  integrating  the  notification  systems  under  the  ECD  in  the  Internal  Market 
Information (IMI) system.  

3.2.3  Administrative cooperation under Article 19 ECD 

All  Member  States  have  set  up  national  contact  points  for  e-commerce.  An  updated  list  is 
available  on  the  e-commerce  website  of  DG  MARKT.79  National  websites  contain  general 

78   Report  from  the  Commission  to  the  European  Parliament  and  of  the  Council  on  the  application  of 
Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the  Council  of  27  October  2004  on 
cooperation between national authorities responsible for the enforcement of consumer protection laws (‘The 
Regulation  on  consumer  protection  cooperation’),  COM(2009)  336  final,  02.07.2009;  available  at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0336:FIN:EN:PDF  

79   See: http://ec.europa.eu/internal_market/e-commerce/contact-points-central_en.htm  

22

 
 
 
 
 
 
 
                                                 
information on e-commerce which is relevant for businesses and consumers. While national 
contact  points  are  useful  for  citizens,  there  is  nevertheless  still  room  for  improvement  in 
cooperation between the Member States and cooperation with the Commission.  

In 2005, the Commission established an expert group on electronic commerce.80 The expert 
group is composed of representatives of the Member States, in principle the national points of 
contact.  Chaired  by  the  European  Commission,  it  meets  on  a  regular  basis81  to  discuss  any 
issues  related  to  the  E-Commerce  Directive.  Topics  that  have  been  dealt  with  include  the 
application of the notification procedure under Article 3 (4) ECD; codes of conduct; liability 
of  intermediaries  and  national  "notice-and-action"  procedures.  The  expert  group  also 
discusses studies, andthe Commission services make presentations on both new and ongoing 
(legislative) initiatives relevant for the e-commerce sector. 

Commission  services  consider  the  expert  group  a  good  forum  for  the  exchange  of  views, 
experiences  and  best  practices  amongst  the  Member  States  and  between  them  and  the 
Commission.  

However, the creation of national contact points and the e-commerce expert group has not led 
to a well-functioning system of notifications of national administrative and judicial decisions 
in  the  meaning  of  Article  19  (5)  ECD.    The  Commission  does  not  receive  national 
administrative  or  judicial  decisions  despite  the  substantial  amount  of  national  practices  and 
case-law  that  have  been  developed  relating  to,  for  instance,  the  liability  regime  of  the 
Directive. 

Commission  services  will,  together  with  the  Member  States,  closely  monitor  the  system  of 
notifications  and  invite  the  expert  group  to  reconsider  and  improve  the  enforcement 
framework  for  national  notifications.  One  improvement  would  be  to  make  better  use  of 
electronic tools. Guidance documents such as guidelines and FAQ could be  developed. The 
use  of  the  Internal  Market  Information  System  (IMI)  for  Article  19  ECD  could  also  be 
explored. 

3.3  Need for better enforcement of the ECD  

Under the co-ordination  of  Commission services, the CPC-Network enforcement authorities 
both  screen  a  sample  of  websites  in  a  given  sector  for  compliance  with  EU  consumer 
legislation and take appropriate enforcement actions. This screening exercise is called a sweep 
and  is  carried  out  on  an  annual  basis.  Commission  services  will  continue  coordinating  and 
monitoring  the  sweep  activities  carried  out  by  the  CPC-Network.  Commission  services  are 
also  supporting  the  online  enforcement  capacities  of  the  CPC-Network  through  financing 
projects  that  aim  to  develop  a  common  platform  at  EU-level  of  e-enforcers  which  will  (1) 
enhance  investigators'  skills  by  training  enforcers  and  developing  common  investigation 
standards,  (2)  develop  the  exchange  of  best  practices  through  a  common  website  and  (3) 
develop tools and techniques to identify emerging online threats for consumers. 

80   Commission  Decision  of  24  October  2005  establishing  an  expert  group  on  electronic  commerce,  OJ  L 
http://eur-

282/20, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:282:0020:0021:EN:PDF  

26.10.2005; 

available 

at: 

81   Since November 2005 ten meetings have been held. 

23

 
 
 
 
 
 
 
 
                                                 
It is important that the ECD is fully and consistently implemented in all the Member States, in 
particular in view of technological and market developments. As guardian of the EU Treaties, 
the Commission is determined to ensure that Member States respect the ECD. If there are new 
indications of incomplete or incorrect implementation or application of the ECD, it will take 
the necessary remedial steps and, when needed, take strong enforcement measures. 

3.4  Need for further clarification on the intermediaries regime 

of the ECD 

3.4.1  Liability issues  

The  E-Commerce  Directive  provides  for  exemptions  from  liability  for  information  society 
service providers when they host or transmit illegal content that has been provided by a third 
party.  Information  society  service  providers  can  under  certain  conditions  benefit  from  these 
exemptions when they provide one of the so-called intermediary services set out in Articles 
12 to 14 of the Directive. Moreover, Article 15 of the Directive prohibits Member States from 
imposing  on  providers  of  these  services  a  general  obligation  to  monitor  content  that  they 
transmit  or  host.  The  Directive  provides  for  a  technologically  neutral  framework  and  the 
liability regime strikes a balance between the several interests at stake, in particular between 
the development of intermediary services, the societal interest that illegal information is taken 
down quickly, and the protection of fundamental rights82. 

Stakeholders,  by  means  of  the  public  consultation  on  e-commerce,  indicated  that  these 
provisions are essential for the provision of intermediary activities. They argue that, in their 
absence, intermediaries could be held liable under both national civil and criminal codes for 
information  of  which  they  were  unaware.  By  way  of  example,  a  major  video-sharing  site 
reported that more than 24 hours of video are uploaded on its site every minute.83 Checking 
all  videos  that  are  uploaded  from  possibly  illegal  sites  would  be  too  heavy  a  burden  to 
continue  providing  the  service  and  would  still,  not  exclude  the  possibility  that  illegal 
information would "slip through the net". This stakeholder further stated that in the absence of 
liability exceptions, offering a video-sharing site would probably be too great a commercial 
risk.  Other  intermediaries  also  maintained  that  the  liability  exemptions  of  the  E-Commerce 
Directive are essential for their trust in online activities. 

Article  14  on  hosting  applies  to  illegal  activity  or  information.  The  E-Commerce  Directive 
does not define the notions of "illegal activity" or "illegal information". It could be understood 

82   Recital 41 provides the following: "This Directive strikes a balance between the different interests at stake 
and establishes principles upon which industry agreements and standards can be based". Recital 46 provides: 
"In order to benefit from a limitation of liability, the provider of an information society service, consisting of 
the  storage  of  information,  upon  obtaining  actual  knowledge  or  awareness  of  illegal  activities  has  to  act 
expeditiously  to  remove  or  to  disable  access  to  the  information  concerned;  the  removal  or  disabling  of 
access has to be undertaken in the observance of the principle of freedom of expression and of procedures 
established  for  this  purpose  at  national  level;  this  Directive  does  not  affect  Member  States'  possibility  of 
establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of 
information." 

83   Google contribution to the public consultation on the future of electronic commerce in the internal market 
the  Directive  on  electronic  commerce  (2000/31/EC),  available  at: 

and 
https://circabc.europa.eu/d/d/workspace/SpacesStore/316395ec-5caf-4684-8538-
fdfb207464de/EU%20GOOGLE%20ENTR%20%28th%201-2%264-5%29%20808590.pdf  

implementation  of 

the 

24

 
 
 
 
 
                                                 
that  the  liability  exemption  of  Article  14  applies  to  any  content  which  is  considered  to  be 
illegal  according  to  EU  or  national  legislation.  This  could  include,  for  example,  sites 
containing  infringements  of  intellectual  property  rights  (such  as  trademark  or  copyright 
infringements),  but  also  sites  containing  child  pornography,  racist  and  xenophobic  content, 
defamation,  incitements  to  terrorism  or  violence  in  general,  illegal  gambling  offers,  illegal 
pharmaceutical offers, fake banking services (phishing), data protection infringements, illicit 
tobacco  or  alcohol  advertisements,  unfair  commercial  practices  or  breaches  of  the  EU 
consumer rights acquis.   

Although  the  Directive  aimed  at  being  technologically  neutral,  innovations  and  economic 
developments since the adoption of the Directive in 2000 have rendered the interpretation of 
above-mentioned provisions increasingly challenging. Diverging case law at the national level 
on  the  application  of  the  Directive  confirms  this.  Moreover,  the  responses  to  the  public 
consultation on e-commerce indicated that a wide variety of stakeholders face a high degree 
of regulatory uncertainty about the application of the intermediary liability regime of the E-
Commerce Directive. 

The source of this uncertainty can be subdivided into four areas: 

1. The definition of intermediary activities in Articles 12 to 14. The main question is to 
what extent new services that have not been explicitly mentioned in these articles (e.g. 
because  they  did  not  exist  at  the  time  of  the  adoption  of  the  Directive)  are 
intermediary activities in the sense of Articles 12 to 14 and can therefore benefit, in 
principle, from a liability exemption. 

2. The material conditions for benefiting from the "safe harbour" in Articles 12 to 14. 
Information  society  service  providers,  even  when  they  are  covered  by  the  scope  of 
Article  12  to  14,  can  only  benefit  from  liability  exemptions  when  they  fulfil  certain 
conditions.  It  has  not  always  been  clear  exactly  when  these  conditions  are  met.  The 
interpretation  of  the  terms  “actual  knowledge”  and  “expeditious”  is  essential  in  this 
context. 

3.  So-called  "Notice-and-takedown"  procedures.84  The  E-Commerce  Directive 
provides  the  basis  for  these  procedures,  according  to  which,  following  a  notice  of 
illegal  information  or  activity,  an  intermediary  takes  down  or  prevents  access  to  the 
information or activity (see Article 14 (2) of the ECD). In practice a multitude of often 
vary  different  procedures  exist  and  it  is  not  easy  either  for  intermediary  service 
providers or for victims of illegal content to determine which one applies and in what 
way.  

4. The prohibition in Article 15. Article 15 prohibits Member States from imposing on 
intermediaries  a  general  obligation  to  monitor.  National  courts  have  in  recent  years 
produced decisions imposing injunctions on intermediaries obliging them to prevent a 

84   One of the conditions for an information society service provider to benefit from a liability exemption for 
illegal  content  provided  by  a  third  party  is  that,  once  it  becomes  aware  of  illegal  content  it  is  hosting,  it 
immediately acts to "remove or disable access" to it. The ECJ eBay vs. l'Oréal judgment in case C-324/09 
confirms  that  awareness  in  the  sense  of  Article  14  can  be  obtained  through  a  "notice"  that  is  sent  to  an 
intermediary and that is sufficiently precise and substantiated. The E-commerce Directive therefore contains 
a  basis  for  the  takedown  or  blocking  of  illegal  content  by  intermediaries,  following  receipt  of  a  notice 
(hereafter "notice and takedown" or "NTD", or also "notice-and-takedown-and-blocking"). 

25

 
 
 
 
 
 
 
 
                                                 
particular  infringement,  which  implies  a  certain  degree  of  monitoring.  Yet  what  is  a 
general  monitoring  obligation  as  opposed  to  a  "specific"  monitoring  obligation,  the 
second of which could be allowed in the meaning of recital 47 of the Directive? There 
remains  uncertainty  over  what  degree  of  monitoring  is  acceptable  in  the  sense  of 
Article 15. 

These topics will be addressed below in more detail. Each review will describe the main 
obstacles that have been raised by stakeholders, the interpretation of the Directive by national 
judges and the state of EU law. It should, however, be recalled that this Staff Working 
Document is not legally binding, does not create any new legislative rules and does not 
constitute Commission guidelines. It should also be noted that, in any event, interpretation of 
Union law is ultimately the role of the ECJ. 

3.4.2  The activities covered by Articles 12-15 ECD 

It  follows  from  the  wording  of  Articles  12  to  14  ECD  that  the  liability  exemption  regime 
applies  to  specific  activities  rather  than  to  service  providers  in  general.  This  has  been 
confirmed in recent case law of the European Court of Justice.85  

A service provider can conduct various activities of which some are intermediary (in the sense 
that  the  service  provider  transmits  or  hosts  information  from  a  third  party)  while  others  are 
not. The liability exemptions are limited to the first category. They do not extend to all other 
activities carried out by a service provider (cf. also recitals 42 to 46 of the Directive).   

Since  the  E-Commerce  Directive  was  adopted,  several  new  services  and  activities  have 
emerged  that  the  legislators  could  not  have  foreseen,  such  as  video-sharing  sites,  selling 
platforms, social networks and peer-2-peer services. This section provides an overview of the 
interpretations that have been given to the definition of activities listed in Articles 12 to 14 of 
the  Directive,  in  particular  as  regards  their  applicability  to  services  that  are  not  explicitly 
mentioned in those provisions, but that could nevertheless be covered. 

3.4.2.1  National law 

Member  States  have  in  general  carried  out  a  more  or  less  literal  transposition  of  the 
definition of activities in Articles 12 to 14. However, some Member States have provided for 
specific  liability  exemptions  for  information  location  services  (search  engine  services)  and 
hyperlinking  services.  Austria,  Hungary,  Spain  and  Portugal  have  adopted  specific  liability 
exemptions  for  search  engines  according  to  which  a  company  can  benefit  if  it  meets  the 
conditions that  hosting service providers are required to meet in order to to secure a liability 
exemption.  Similarly,  Austria,  Spain  and  Portugal  have  adopted  liability  exemptions  for 
hyperlinks  applying  the  same  conditions  as  the  Directive's  liability  exemption  for  hosting 
activities.  

Despite the frequent literal transposition of Articles 12-14 ECD, divergent national case law 
has emerged particularly in regard to the application of liability exemptions to "new services", 
location tool services and hyperlinking services. This has resulted in a degree of regulatory 

85   Joined  cases  C-236/08  to  C-238/08,  Google  vs.  LVMH,  judgment  of  23.03.2010,  for  instance  par.  113; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0236:EN:HTML  

26

 
 
 
 
 
 
 
 
                                                 
uncertainty.  Respondents  to  the  e-commerce  consultation  called  on  the  Commission  to 
clarify the status of these new services in view of often contradictory national case law. Some 
respondents,  in  particular  right  holders,  asked  for  the  exclusion  of  several  new  online 
activities  from  the  scope  of  Articles  12-14,  whereas  others,  in  particular  selling  platforms, 
video  sharing  sites,  social  networks  and  search  engines,  favoured  the  inclusion  of  those 
activities within the "safe harbour" regime. 

Where  specific  exemptions  from  liability  for  search  engine  services  and  hyperlinking 
services  have  not  been  explicitly  included  in  national  legislation,  these  services  have  either 
been classified as mere conduit services, caching services or hosting services, or courts have 
excluded them from the scope of any exemption. For instance: 

• 

• 

• 

in  the  UK  case  "TV  Links"  (R  v  Rock  and  Overton),86  the  court  without  further 
reasoning  ruled  that  a  hyperlinking  website  was  a  mere  conduit  activity  that  could 
benefit from the liability exemption of Article 12 ECD;  
the Belgian court in the "Copiepresse" case (Copiepresse et al vs. Google Inc.)  stated 
that the Directive was  not  relevant for the liability  of a news search  service because 
that service would be actively editing content and could therefore not be considered an 
intermediary service provider;87 
in  the  German  "Thumbnails"  case  the  Bundesgerichtshof  considered  in  an  obiter 
dictum  (the  focus  of  the  case  being  copyright)  that  an  image  search  service  could 
benefit  from  the  liability  exemption  for  hosting  ex.  Article  14  ECD.88  The  court  did 
not specify why a search engine should be classed as a hosting provider. 

Similarly, there is divergent national case law on video-sharing sites:  

•  French  case  law  recently  confirmed  that  video-sharing  sites  can  benefit  from  the 
liability exemption for hosting activities, for instance in the Magdane vs. Dailymotion 
case.89  The  fact  that  DailyMotion  received  advertisement  revenues  was  irrelevant  in 
determining  whether  it  was  a  hosting  service  provider  or  not.  The  fact  that 
DailyMotion  put  in  place  a  specific  architecture  allowing  it  to  format  and  to  encode 
certain  content  should  not  lead  to  the  conclusion  that  it  is  not  a  hosting  service 
provider. According to the court, these technical operations would, on the contrary, be 
part  of  the  essence  of  the  hosting  activity  and  would  not  at  all  be  equivalent  to  the 
selection of content; 
In  Germany,  however,  the  Hamburg  Court  held  (in  Peterson  v  Google  Inc  and 
others90) that a video sharing site for videos uploaded by third parties cannot benefit 

• 

86   Crown Court, Gloucester, 06.02.2010, ref. no. T20097013, available at: 

http://merlin.obs.coe.int/iris/2010/4/article26.en.html  

87   Brussels Court of First Instance, 15.02.2007, ref. no. 7964; available at: http://www.copiepresse.be/13-02-

07-jugement-en.pdf.  

88  Deutscher  Bundesgerichtshof 

(BGH), 

29.04.2010, 

ref. 

no. 

I  ZR 

69/08; 

available 

at: 

http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2011&nr=51998&linked=urt&Blank=1&
file=dokument.pdf 

89   Paris Court of Appeal, 13.10.2010; available at: http://legalis.net/spip.php?page=jurisprudence-

decision&id_article=3001#.  

90   Hamburg Regional Court, 03.09.2010, ref. no. 308 O 27/09; available at: 

http://rechtsprechung.hamburg.de/jportal/portal/page/bshaprod.psml?doc.id=JURE100070104&st=ent&sho
wdoccase=1&paramfromHL=true#focuspoint. 

27

 
 
 
 
                                                 
from a liability exemption when it presents the  uploaded content  as its own content. 
The court ruled that YouTube could not benefit from a liability exemption for hosting 
providers  as,  for  the  following  reasons,  it  would  have  adopted  uploaded  third  party 
content as its own:  

o  YouTube provides a specific layout of the website and YouTube's logo is 

shown in rather big letters above the playing video;  

o  YouTube provides links to related videos; 
o  YouTube  displays  commercial  video  clips  and  not  only  content  that 

expresses a personal opinion.  

o  Because of the arrangement of the website the average user cannot tell at 
first sight that the videos were uploaded by the user and not by YouTube;  
o  The  homepage  of  YouTube  suggests  that  YouTube  exercises  editorial 

control as it suggests certain videos;  

o  YouTube actively connects advertisements to uploaded videos; 
o  YouTube's  Terms  and  Conditions  indicate  that  YouTube  can  use  the 

content uploaded on its site as its own content. 

• 

In Italy the Civil Court of Rome (RTI and others vs. YouTube and others)91 also 
considered  that  a  video-sharing  site  could  not  benefit  from  a  liability  exemption. 
The court stated that YouTube was not to be regarded as a hosting provider but as 
a "digital broadcaster" and was consequently considered fully responsible for the 
published  content.  YouTube  would  play  an  active  role  and  would  not  limit  its 
activities to providing server space for users to  independently upload and organise 
content. 

The case law on online selling platforms is also fragmented: 

•  The  Paris  Commercial  Court  considered  that  eBay  might  not  benefit  from  a  liability 
exemption for its hosting activities.92 The court considered that the sellers on eBay's 
website (recipients of eBay's services in terms of the E-commerce Directive) act under 
the authority or the control of eBay (the provider of an information society service in 
terms of the E-commerce Directive), in which case, in accordance with Article 14 (2) 
of the Directive, the liability exemption for hosting activities does not apply. The court 
came to this conclusion because eBay plays an active role in promoting sales with the 
objective  of  increasing  profits  by,  for  instance,  appointing  sales  managers,  creating 
online "boutiques" and offering the option of becoming a "power seller".  
In the L’Oréal vs. eBay case93 the Paris Civil Court considered that eBay could offer 
its clients various services on the same site without losing the right to benefit from a 
liability  exemption.  However,  only  some  of  eBay’s  activities  are  covered  by  the 
definition  of  hosting  of  Article  14  of  the E-Commerce Directive and eligible for the 
liability  exemption  (for  instance  eBay's  selection  of  "daily  deals"  could  not  be 
covered)  

• 

91   Appeal  Panel  Decision  of  Civil  Court  of  Rome,  IP  specialist  section,  22.02.2010,  and  Court  of  Rome, 
15.12.2009,  Section  IX,  RG  n.54218/08,  available  at:  http://www.scribd.com/doc/38060158/Ordinanza-
Tribunale-di-Roma-16-dicembre-2009-RTI-vs-Youtube  

92   Paris Commercial Court, 30.06.2008; available at: http://www.legalis.net/spip.php?page=jurisprudence-

decision&id_article=2354  

93   Paris  Civil  Court,  13.05.2009;  available  at:  http://www.legalis.net/spip.php?page=jurisprudence-

decision&id_article=2639 

28

 
 
 
                                                 
• 

In the eBay vs.  Maceo case94, the Paris Civil Court  considered  that eBay’s activities 
are covered by the definition of hosting. That eBay receives revenues related to sales 
carried out on its website was considered irrelevant in this context. In this case, it was 
considered that eBay was not an editor as it could not be proven that eBay checks the 
messages that users post on the site. The fact that eBay has designed the architecture 
and structure of its site and that it has developed systems for organising and ranking 
the  content  on  its  site  is  not  sufficient  to  conclude  that  it  cannot  benefit  from  the 
hosting liability exemption. 

•  The UK High Court in L'Oreal vs. eBay95 considered, without any further reasoning, 
that  eBay’s  activities  could  not  be  covered  by  Article  14  of  the  ECD  because  its 
activities  would  go  far  beyond  the  mere  passive  storage  of  information  provided  by 
third parties. EBay actively organises and participates in the processing and use of this 
information. The UK High Court has not yet decided on the hosting status of eBay as 
it requested guidance from the European Court of Justice (see the judgement referred 
to in Chapters 3.4.2.2 and 3.4.3.1). 

Similarly  fragmented  case  law  exists  in  relation  to  blogs,  discussion  fora  and  social 
networks. For example: 

•  Usenet  (a  system  in  which  users  post  messages  to  a  newsgroup)  was  considered  a 
caching provider by the German Regional Court of Munich96 because information was 
mirrored and stored on its service for about 30 days. 

•  A UK court, however, considered that British Telecom operated a hoster in providing 

Usenet newsgroups (in the case Bunt v Tilley.)97   

•  The High Court of England and Wales (Kaschke v. Gray Hilton)98 refused to apply the 
liability  exemption  for  hosting  to  a  blog  owner,  even  for  those  parts  posted  by  third 
parties.  The  defendant's  involvement  in  the  pages  exceeded  mere  storage  as  he 
exercised some editorial control on parts of the website. 

•  The  Paris  Court  of  First  Instance99  refused  to  recognise  a  content  aggregator 
displaying on its website links posted by third parties as a hosting provider because the 
owner had played an active role in how the links should be classified and presented, 
making him a publisher according to the court.  

•  The  Tribunal  de  Grande  Instance  in  France  (Lafesse  vs.  MySpace)100  held  that  the 
social  network  service  MySpace  was  not  offering  a  hosting  activity  and  therefore 

94   Paris Tribunal de Grande Instance (TGI), 26.10.2010; available at: 

http://www.legalis.net/spip.php?article3144  

95   High Court of England and Wales, 22.05.2009, [2009] EWHC 1094 (Ch); available at: 

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1094.html.  

96   Regional Court of Munich, 19.04.2007, ref. no. 7 O 3950/07; available at: http://medien-internet-und-

recht.de/pdf/vt_MIR_Dok._155-2007.pdf.  

97   Queen's Bench Division, 10.03.2006, [2006] EWHC 407 (QB); available at: 

http://www.bailii.org/ew/cases/EWHC/QB/2006/407.html  

98   High Court of England and Wales, 29.03.2010, [2010] EWHC 690 (QB); available at: 

http://www.bailii.org/ew/cases/EWHC/QB/2010/690.html  

99   Paris Court of First Instance, 08.06.2009, ref. no. 08/11342; available at: 

http://www.juriscom.net/documents/tgiparis20090608.pdf 

100   TGI Paris, 22.06.2007; available at: http://www.legalis.net/jurisprudence-decision.php3?id_article=1965 

29

 
 
 
                                                 
could not benefit from a liability exemption. MySpace goes beyond offering technical 
hosting  activities  by  offering  an  architecture  based  on  frames  and  by  receiving 
advertisement revenue linked to the content that is viewed. 

•  The  Cour  d'Appel  de  Paris101  considered  that  an  aggregator  of  news  article  links, 
provided by users, could benefit from a liability exemption for hosting. The fact that 
the  site  allowed  the  classification  and  structuring  of  certain  information  provided  by 
users did not imply an editing activity. Moreover, the hosting provider status was seen 
to follow from the fact that the site did not offer a possibility to check the information 
on certain websites referred to in users' posts.  

National jurisprudence on file sharing services also diverges. For instance: 

•  The Italian Court of Cassation102 considered that PirateBay, a peer-2-peer file sharing 
service  particularly  known  for  sharing  pirated  works,  was  not  a  hosting  service 
provider. 

•  The  Stockholm  District  Court103,  without  providing  details  of  its  argumentation, 
considered that PirateBay should be considered a hosting service provider. However, 
PirateBay was not held to fulfil the requirements to benefit from a liability exemption 
for hosting activities since it had knowledge of the infringements committed through 
its service and did not act against it. 

3.4.2.2  EU law 

Not only are the relevant provisions of the Directive informative but also its recitals provide 
guidance  for  determining  whether  certain  services  can  benefit  from  a  liability  exemption. 
First,  recital  42  mentions  that  an  activity  should  be  "of  a  mere  technical,  automatic  and 
passive  nature".  Second,  recital  43  mentions  that  an  intermediary  should  be  “in  no  way 
involved  with  the  information  transmitted”.  Lastly,  recital  44  states  that  an  intermediary 
"cannot deliberately collaborate with one of the recipients of its service in order to undertake 
illegal acts”.  

Despite the clear divergence of interpretation at the national level, EU case law in this field is 
still limited. It is only in two recent preliminary rulings that the European Court of Justice has 
had the opportunity to provide more clarity on the scope of Article 14.  

The  first  case  concerned  Google's  paid  referencing  service,  "Adwords",  and  its  liability  for 
infringements of trademarks held by the French luxury group LVMH, 104 "Adwords", enables 
an  economic  operator  to  display  advertising  links  to  its  site  accompanied  by  a  commercial 
message that appears on the right hand side of the screen whenever one carries out "a search" 

101   Cour d'Appel de Paris, 21.11.2008, ref. no. 08/09553; available at: 

http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=2488  

102   Court of Cassation, Third Criminal Chamber, 29.09.2009, ref. no. 49437; available at: 

http://www.ilsole24ore.com/fc?cmd=document&file=/art/SoleOnLine4/Norme%20e%20Tributi/2009/12/ca
ssazione-sentenza-49437-2009.pdf?cmd=art.  

103   Stockholm  District  Court,  Division  5  Unit  52,  17.04.2009,  ref.  no.  B  13301-06;  available  at: 

http://www.ifpi.org/content/library/Pirate-Bay-verdict-English-translation.pdf  

104   Joined  cases  C-236/08  to  C-238/08,  Google  vs.  LVMH,  judgment  of  23.03.2010;  available  at:  http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0236:EN:HTML  

30

 
 
 
 
 
 
                                                 
through Google's search engine. These advertisement links appear whenever a "keyword" that 
can be reserved by an economic operator corresponds to the word(s) entered as a request in 
the search engine.  

In the national proceedings LVMH (the holder of the "Louis Vuitton" trademark) complained 
about the fact that both competitors and counterfeiters of the firm had reserved the keyword 
"Louis  Vuitton"  (meaning  their  advertisements  would  appear  in  response  to  a  search  for 
"Louis Vuitton") and that Google had not prevented them from doing so. The French Cour de 
Cassation  asked  the  ECJ  whether  the  reservation  of  keywords  could  be  interpreted  as  a 
trademark infringement and, if  this were the case, whether, the  referencing  service  provider 
(Google) could be held liable for this. 

The ECJ in this case refers to recital 42 in the preamble of the Directive to conclude that an 
intermediary  service  provider  "has  neither  knowledge  of  nor  control  over  the  information 
which is transmitted or stored". Accordingly, in order to establish whether the liability of a 
referencing service provider may be limited under Article 14 of the ECD, the ECJ considers it 
necessary "to examine whether the role played by that service provider is neutral, in the sense 
that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or 
control of the data which it stores" (paragraphs 113 and 114) 

In analysing the Google "Adwords" service, the ECJ notes that "with the help of software it 
has developed, Google processes the data entered by advertisers and the resulting display of 
the ads is made under conditions which Google controls. Thus, Google determines the order 
of  display  according  to,  inter  alia,  the  remuneration  paid  by  the  advertisement"  (paragraph 
116). However, the ECJ considers that to examine Google's activity in the light of recital 42, 
"the role played by Google in the drafting of the commercial message which accompanies the 
advertisement  link  or  in  the  establishment  or  selection  of  keywords  is  relevant"  (paragraph 
118, underlining added).  

The second ruling from the ECJ on the liability exemption regime concerns eBay and L'Oréal. 
In its ruling of 12 July 2011 in Case C-324/09 (see also Chapters 3.4.2.1 and 3.4.3.1) the ECJ 
had  been  asked,  inter  alia,  whether  the  selling  platform  eBay  could  be  held  liable  for 
trademark infringements committed (and possibly to be committed) through its site. In order 
to attract new customers to its website, eBay had bought keywords, including trademarks held 
by L'Oréal, from paid internet referencing services (such as Google's "Adwords"). In parallel 
to this, L'Oréal had identified several infringements of its trademarks through/by the selling 
platform eBay. The question posed to the ECJ was to what extent eBay could benefit from the 
exemption of liability on account of "hosting".  

The ECJ first confirms that an online selling platform in principle offers an information 
society service and therefore is covered by the E-commerce Directive. The ECJ argues that, in 
order to define whether such a service is also an intermediary service in the sense of Article 
14 of the Directive, one should not only look at the text of the Directive, but also at the 
intention of the legislator:  

"(Article 14 of the ECD) must, in fact, be interpreted in the light not only of its wording but 
also of the context in which it occurs and the objectives pursued by the rules of which it is 
part (see, by analogy, Case C-298/07 Bundesverband der Verbraucherzentralen und 
Verbraucherverbände [2008] ECR I-7841, paragraph 15 and the case law cited).  

31

 
 
 
 
 
 
 
 
 
In that regard, the Court has already stated that, in order for an internet service provider to 
fall within the scope of Article 14 of Directive 2000/31, it is essential that the provider be an 
intermediary provider within the meaning intended by the legislature in the context of Section 
4 of Chapter II of that directive (see Google France and Google, paragraph 112)". 
(Paragraphs 110-112) 

The ECJ then discusses when a service is not covered by the liability exemption of Article 14 
ECD: 

"That is not the case where the service provider, instead of confining itself to providing that 
service neutrally by a merely technical and automatic processing of the data provided by its 
customers, plays an active role of such a kind as to give it knowledge of, or control over, 
those data (Google France and Google, paragraphs 114 and 120)". (Paragraph 113) 

"(..) the mere fact that the operator of an online marketplace stores offers for sale on its 
server, sets the terms of its service, is remunerated for that service and provides general 
information to its customers cannot have the effect of denying it the exemptions from liability 
provided for by Directive 2000/31 (see, by analogy, Google France and Google, paragraph 
116). 

Where, by contrast, the operator has provided assistance which entails, in particular, 
optimising the presentation of the offers for sale in question or promoting those offers, it must 
be considered not to have taken a neutral position between the customer-seller concerned and 
potential buyers but to have played an active role of such a kind as to give it knowledge of, or 
control over, the data relating to those offers for sale. It cannot then rely, in the case of those 
data, on the exemption from liability referred to in Article 14(1) of Directive 2000/31". 
(Paragraphs 115 and 116) 

The ECJ suggested that Ebay would potentially in some instances not have such a neutral 
position: 

"In some cases, eBay also provides assistance intended to optimise or promote certain offers 
for sale" (paragraph 114). 

3.4.3  The conditions in Article 12 to 14 ECD 

Articles 12 to 14 of the ECD contain a number of specific material conditions to be met in 
order to benefit from a liability exemption. The responses to the public consultation confirm 
that the respondents perceive a lack of clarity on the interpretation of these conditions and in 
particular  of  the  terms  "actual  knowledge"  and  "expeditious",  both  of  which  are  part  of  the 
conditions for a liability exemption for hosting activities. National case law that has emerged 
on the interpretation of these conditions is often contradictory across borders or even within 
the same Member State. This section below will discuss the variations in defining conditions 
for exemptions including absence of actual knowledge, and acting expeditiously. 

3.4.3.1  Absence of actual knowledge 

Article  14  of  the  Directive  specifies  that  a  provider  can  benefit  from  a  liability  exemption 
regime for hosting activities if "the provider does not have actual knowledge of illegal activity 

32

 
 
 
 
 
 
 
 
 
 
or  information  and,  as  regards  claims  for  damages,  is  not  aware  of  facts  or  circumstances 
from which the illegal activity or information is apparent".  

Most Member States have literally transposed the condition of not having actual knowledge, 
but some Member States have deviated from the explicit text of the ECD. For example: 

•  Germany does not use the term "actual knowledge" in its transposition of Article 14 

• 

but refers merely to "knowledge"; 
the Czech transposition requires the receipt of provable information about the illegal 
nature of the content in order for an intermediary to be judged to have obtained actual 
knowledge; 

•  Hungary  and  Malta  restrict  their  liability  exemptions  for  hosting  to  liability  for 

damages and exclude criminal liability from the scope of the exemption;  

•  Spanish  legislation  mentions  that  actual  knowledge  can  be  obtained  through  a  court 

order or notice by an administrative authority; 

•  Portuguese legislation refers to knowledge (instead of actual knowledge) of manifestly 

• 

illegal information or activity; 
legislation in The Netherlands specifies that a hosting service provider cannot be held 
liable for damages if it "cannot reasonably be expected to know of the illegal nature of 
an activity or information". 

Even  when  the  term  "actual  knowledge"  has  been  literally  transposed,  it  has  given  rise  to 
diverging interpretations. The responses to the public consultation demonstrated that, roughly 
speaking,  there  are  three  interpretations  that  are  given  on  how  actual  knowledge  can  be 
obtained: 

1.  An intermediary can only obtain actual knowledge through a court order; 
2.  An intermediary can only obtain actual knowledge through a notice (ranging from an 

'informal' notice from a user, such as a red flag under a video, to a court order) 

3.  An  intermediary  can  obtain  knowledge  even  in  the  absence  of  a  notice  if  it,  for 

instance, has a "general awareness" that its site hosts illegal information. 

The  first  interpretation  is  commonly  defended  by  civil  organisations  in  defence  of,  in 
particular  the  freedom  of  speech,  but  also  by  some  ISPs  and  other  stakeholders.  The 
underlying argument is twofold:  

•  On the one hand, it is argued that it would not be legitimate if private parties were to 
define what is legal and illegal and on that basis decide whether to take down or block 
the content. Taking down or blocking information is considered to be a restriction to 
the fundamental right of freedom of expression and information. Such a restriction can 
only  be  justified  on  the  basis  of  democratic  oversight  and  legal  expertise.  Such 
decisions should therefore only be taken on the basis of a court's assessment. 

•  On the other hand, it is argued that entrusting ISPs with the role of assessing what is 
legal  and  what  is  illegal  would  create  an  excessive  economic  burden  for  them.  ISPs 
would  not  have  the  legal  expertise  in-house  to  assess  the  legality  of  the  content  and 
procuring this legal expertise would hamper their activities. 

Recital  40  of  the  E-Commerce  Directive  states,  in  this  regard,  that  the  Directive  "should 
constitute  the  appropriate  basis  for  the  development  of  rapid  and  reliable  procedures  for 
removing  and  disabling  access  to  illegal  information"  and  that  "such  mechanisms  could  be 
developed on the basis of voluntary agreements between all parties concerned and should be 
encouraged by Member States".  

33

 
 
 
 
 
 
 
The second interpretation is also defended by many ISPs and right holders. The main point of 
discussion among those sharing this interpretation is the required level of detail of the notice. 
This is discussed in more detail in Chapter 3.4.3 on notice-and-takedown procedures.  

The  third  interpretation  is  mainly  defended  by  right  holders.  They  claim  that  intermediaries 
often have a general awareness of the possible existence of illegal information or activities on 
their  sites  and  that  this  constitutes  actual  knowledge.  ISPs  that  advertise  the  possibility  of 
downloading music and videos of the consumer's choice would for instance have this form of 
actual knowledge.  

Some  ISPs  argue  that  actual  knowledge  cannot  be  interpreted  as  general  knowledge  as  this 
would in practice lead to a general monitoring obligation in order to avoid liability, which is 
prohibited  under  Article  15  of  the  Directive.  In  this  context,  respondents  to  the  public 
consultation  also  argued  that  actual  knowledge  should  be  human  knowledge  and  not 
"computer knowledge". 

Stakeholders  sometimes  defend  a  differentiated  approach  on  the  basis  that  the  means  by 
which  actual  knowledge  can  be  obtained  depends  on  the  kind  of  illegal  activity  or 
information. A key concept here is the degree to which information or activity is manifestly 
illegal. Some stakeholders who defend the first interpretation (actual knowledge can only be 
obtained through a court order) make an exception for child pornography or manifestly racist 
content. They consider that this content could be taken down immediately on the basis of a 
notice, although some of them argue that this decision should then still be validated by a court 
order. The court order would then be required ex post rather than ex ante. 

National case law has further defined the concept of "manifestly illegal content":  

• 

In  Austria  this  concept  has  been  interpreted  as  "obvious  to  any  non-lawyer  without 
further  investigation".  A  domain  name  registration  on  the  basis  of  the  name  of  a 
political party by a third party was considered manifestly illegal because the website 
of  the  third  party  was  almost  identical  to  the  website  of  the  political  party,  but 
contained  hyperlinks  to  racist  content,  meaning  it  could  tarnish  the  reputation  of  the 
political  party  if  internet  users  confused  the  two  websites.105  Also,  defamation  has 
been  considered  manifestly  illegal  in  some  instances.106  By  contrast,  infringements 
relating  to  advertising  and  general  terms  and  conditions107  or  trademark  law108  have 
not been  considered  manifestly illegal because a layman would not be able to easily 
identify the content as manifestly illegal without further research.  

105   OGH, 13.09.2000, ref. no. 4 Ob 166/00s; available at: 

http://www.internet4jurists.at/entscheidungen/ogh4_166_00s.htm  

106   OLG Innsbruck, 24.05.2005, ref. no. 2 R 114/05i; available at: 

http://www.internet4jurists.at/entscheidungen/olgi_114_05i.htm  

107   OGH, 06.07.2004, ref. no. 4 Ob 66/04s; available at: 

http://www.internet4jurists.at/entscheidungen/ogh4_66_04s.htm  

108   OGH, 19.12.2005, ref. no. 4 Ob 194/05s; available at: 

http://www.internet4jurists.at/entscheidungen/ogh4_194_05s.htm  

34

 
 
 
 
 
 
 
 
                                                 
• 

• 

• 

In Germany, however, the Federal Court109 considered, in proceedings for injunctive 
relief and without any further reasoning, that the trademark infringements were clear 
as  some  of  them  had  been  ascertained  in  previous  proceedings.  The  court  also  held 
that the liability limitation was not applicable in injunctive relief proceedings.  
In  France  the  Paris  Court  of  Appeal  ruled  that  all  racist110,  anti-Semitic111  or 
revisionist  content112  as  well  as  texts  which  excuse  war  crimes,  paedophilia  or 
pornographic pictures113 could be considered manifestly illegal. Moreover, the sale of 
copyrighted video114 games well below counter price has been considered manifestly 
illegal in France. The Paris TGI, however, considered that privacy infringements were 
not manifestly illegal infringements.115  
In  Belgium  child  pornography,  revisionism  or  incontestable  defamation  have  been 
considered  manifestly  illegal.  The  Belgian  Supreme  Court  has  even  considered  that 
without notice the existence of manifestly illegal content can lead to actual knowledge. 
A  host  of  a  website  containing  hyperlinks  leading  to  to  child  pornography  was 
attributed knowledge of these illegal hyperlinks even if it did not insert them and had 
not received a notification about them (Belgian Supreme Court).116 

Another issue that was raised in many responses to the public consultation is the impact that 
voluntary  actions  of  an  ISP  can  have  on  its  "actual  knowledge".  A  wide  variety  of 
stakeholders  expressed  concerns  that  ISPs  would  be  reluctant  to  take  voluntary  measures  to 
prevent illegality as this could make it more difficult to claim an absence of actual knowledge. 
This was confirmed by a judgment from the Hamburg regional court where an ISP that had 
voluntarily implemented a flagging system (that enables users to put red flags next to content 
they considered to be potentially illegal) was considered to have actual knowledge of illegal 
content because of this very flagging system it had voluntarily introduced (Gisele Spiegel vs. 

109   BGH, 19.04.2007, ref. no. I ZR/04; available at: 

http://juris.bundesgerichtshof.de/cgibin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2007
&Sort=3&anz=45&pos=0&nr=40136&linked=urt&Blank=1&file=dokument.pdf and BGH, 11.03.2004, ref 
no. I ZR 304/01; available at: 
http://juris.bundesgerichtshof.de/cgibin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2004
&Sort=3&anz=31&pos=0&nr=30359&linked=urt&Blank=1&file=dokument.pdf.  

110   TGI Paris, 12.07.2001; available at: http://www.legalis.net/spip.php?page=breves-article&id_article=213  

111   TGI Nanterre, 24.05.2000; available at: http://www.juriscom.net/txt/jurisfr/cti/tginanterre20000524.htm 

112   TGI  Paris,  13.06.2005; 

available 

at:  http://www.foruminternet.org/telechargement/documents/ca-

par20061124.pdf  

113   TGI Paris, 27.02.2006; available at: http://www.legalis.net/breves-article.php3?id_article=1648  

114   Commercial Court of Paris, 17.10.2006; available at: http://www.droit-

technologie.org/jurisprudence/details.asp?id=224  

115   TGI Paris, 19.10.2010, ref. no. 06/58312; available at: 

http://www.juriscom.net/documents/tgiparis20061019.pdf  

116   Cour de Cassation de Belgique, 03.02.2004, R.D.T.I., 2004, n° 19, P.03.1427.N; available at: 

http://jure.juridat.just.fgov.be/pdfapp/download_blob?idpdf=F-20040203-3  

35

 
 
 
                                                 
YouTube  LLC).117  Some  stakeholders,  in  particular  intermediaries,  therefore  suggested  that 
the Commission should propose a so-called "Good Samaritan clause". Such a clause, which in 
the US has been introduced in the Communications Decency Act118, would ensure that taking 
voluntary actions would in principle not be punished.  

In  this  regard,  it  can  be  noted  that  Recital  40  of  the  ECD  states  that  "the  provisions  of  this 
Directive relating to liability should not preclude the development and effective operation, by 
the different interested parties, of technical systems of protection and identification methods 
and  of  technical  surveillance  instruments  made  possible  by  digital  technology  within  the 
limits of Directives 95/46/EC and 97/66/EC".  

There  is  also  national  case  law  on  a  variety  of  other  aspects  related  to  the  term  "actual 
knowledge". For instance: 

•  The  Regional  Court  of  Hamburg119  took  a  very  wide  interpretation  of  "knowledge" 
and  considered  that  "there  is  thus  a  sliding  obligation  to  exercise  due  care  with  a 
graded  range  of  monitoring  obligation:  if  it  is  almost  certainly  predictable  that  an 
infringement  of  the  right  of  personality  will  happen,  the  operator's  monitoring 
obligation  can  increase  to  a  continuing  monitoring  obligation  or  an  advance 
monitoring obligation". In another judgment the Higher Regional Court of Hamburg120 
held,  however,  that  a  complainant  should  sufficiently  substantiate  his/her  complaint 
and that a simple hint should not be sufficient to obtain knowledge. 
In  France  the  Constitutional  Council,  in  its  decision121  on  the  French  law  that 
transposes the E-Commerce Directive, ruled that this law can only lead to liability of 
an  intermediary  that  has  not  taken  down  allegedly  illegal  information  following  a 
notice,  if  the  information  is  not  manifestly  illegal  and  if  its  takedown  has  not  been 
ordered by a court. 

• 

In Case C-324/09, L'Oréal vs. eBay (see also Chapters 3.4.2.1 and 3.4.2.2) the referring court 
referred the question of what is actual knowledge and or awareness in the sense of Article 14 
ECD to the European Court of Justice. In the judgment of 12 July 2011 the ECJ clarified that 
the relevant question relating to the conditions for benefiting from a liability exemption was 

117   Regional Court of Hamburg, 05.03.2010, ref. no. 324 O 565/08; available at: 

http://rechtsprechung.hamburg.de/jportal/portal/page/bshaprod.psml?showdoccase=1&doc.id=JURE100058
567&st=ent  

118   See Telecommunications Act of 1996: http://transition.fcc.gov/telecom.html  

119   Regional Court of Hamburg, 03.12.2007, ref. no. 324 O 794/07; available at: 

http://www.landesrecht.hamburg.de/jportal/portal/page/bshaprod.psml?showdoccase=1&doc.id=JURE0800
02256&st=ent ; Regional Court of Hamburg, 05.03.2010, ref. no. 324 O 565/08; available at: 
http://landesrecht.hamburg.de/jportal/portal/page/bshaprod.psml?showdoccase=1&doc.id=JURE100058567
&st=ent  

120   Higher Regional Court of Hamburg, 02.03.2010, ref. no. 7 U 70/09; available at: 

http://www.telemedicus.info/urteile/Internetrecht/Haftung-von-Webhostern/1014-OLG-Hamburg-Az-7-U-
7009-Blogspot.html  

121   Constitutional Council of France, 10.06.2004, decision no. 2004-496 DC; available at: 

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801165&dateTexte=.  

36

 
 
 
 
 
                                                 
whether  eBay  was  aware  of  facts  and  circumstances  from  which  the  illegal  activity  was 
apparent:122 

"(…)  it is sufficient, in order for the provider of an information society service to be denied 
entitlement to the exemption from liability provided for in Article 14 of Directive 2000/31, for 
it  to  have  been  aware  of  facts  or  circumstances  on  the  basis  of  which  a  diligent  economic 
operator should have identified the illegality in question and acted in accordance with Article 
14(1)(b) of Directive 2000/31. (Paragraph 120) 

The  Court  then  clarifies  how  one  can  obtain  this  awareness:  The  situations  thus  covered 
include, in particular, that in  which the operator of an online marketplace uncovers, as the 
result  of  an  investigation  undertaken  on  its  own  initiative,  an  illegal  activity  or  illegal 
information, as well as a situation in which the operator is notified of the existence of such an 
activity  or  such  information.  In  the  second  case,  although  such  a  notification  admittedly 
cannot  automatically  preclude  the  exemption  from  liability  provided  for  in  Article  14  of 
Directive  2000/31,  given  that  notifications  of  allegedly  illegal  activities  or  information  may 
turn out to be insufficiently precise or inadequately substantiated, the fact remains that such 
notification  represents,  as  a  general  rule,  a  factor  of  which  the  national  court  must  take 
account  when  determining,  in  the  light  of  the  information  so  transmitted  to  the  operator, 
whether  the  latter  was  actually  aware  of  facts  or  circumstances  on  the  basis  of  which  a 
diligent economic operator should have identified the illegality. 

In  view  of  the  foregoing,  the  answer  to  the  ninth  question  is  that  Article  14(1)  of  Directive 
2000/31 must be interpreted as applying to the operator of an online marketplace where that 
operator has not played an active role allowing it to have knowledge or control of the data 
stored.  The  operator  plays  such  a  role  when  it  provides  assistance  which  entails,  in 
particular, optimising the presentation of the offers for sale in question or promoting them". 
(Paragraphs 121-123, underlining added) 

The ECJ  concludes  that  it  is up  to the  national court to decide whether eBay  provides such 
assistance  but  it  already  indicated  that  "in  some  cases"  (without  further  specification)  eBay 
does play such an active role. The ECJ does not elaborate explicitly on how a hosting service 
provider can obtain "actual knowledge". 

3.4.3.2 

 Acting expeditiously 

Article 14 of the Directive specifies that, for hosting activities, a provider can benefit from a 
liability  exemption  regime  either  if  there  is  an  absence  of  actual  knowledge  (as  discussed 
above) or if "the provider, upon obtaining such knowledge or awareness, acts expeditiously to 
remove or to disable access to the information" (italics added). The Directive does not specify 
what removing or disabling expeditiously exactly means. 

122   In his opinion of 9 December 2010 the Advocate General interprets Article 14 differently than the ECJ did 
in the LVMH vs. Google case. The AG claims to "have some difficulties" with the conclusion of the Court 
that  recital  42  would  contain  conditions  for  all  intermediary  services  for  benefiting  from  a  liability 
exemption  and  argues  that  recital  42  would  only  concern  the  activities  of  mere  conduit  and  caching.  He 
considers  that  "it  is  recital  46  which  concerns  hosting  providers  mentioned  in  Article  14  (...).  Hence,  the 
limitation of liability of a hosting provider should not be conditioned and limited by attaching it to recital 
42". 

37

 
 
 
 
 
 
 
 
                                                 
Most  Member  States  have  transposed  the  condition  of  removing  or  disabling  expeditiously 
literally, but some Member States have chosen a slightly different wording than the text 
of the E-Commerce Directive.  

For instance: 

•  Lithuanian, Polish and Finnish law only requires that illegal information be disabled, 

but does not require that it be removed; 

•  Slovakia  has,  in  contrast,  implemented  an  obligation  to  remove  information  but  not 

one to disable information; 

•  Sweden has introduced a general obligation "to prevent further dissemination" without 

specifying the means for doing this; 

•  Finnish law has provided for an exemption from liability for taking down legal content 

in good faith if the entity follows the legal notice-and-takedown procedure; 

•  Poland  also  explicitly  exempts  providers  from  contractual  liability  for  blocking 
content  if  they  have  disabled  information  following  an  injunctive  relief  against  the 
provider. 

No Member State has, however, clarified the term "expeditious" in the transposition of the E-
Commerce  Directive.  This  was  only  done  by  certain  Member  States  (Hungary,  Finland  and 
Lithuania)  when  adopting  legislation  on  notice-and-takedown  procedures  for  specific 
categories  of  illegal  content  at  a  later  stage  (see  Annex  2  and  Chapter  3.4.4.2).  Moreover, 
national case law that interprets the term "expeditious" is very limited. 

The  term  expeditious  is  discussed  in  more  detail  under  the  heading  "timeframe"  in  Chapter 
3.4.4.3  on  notice-and-takedown  procedures.  In  the  consultation,  generally,  ISPs  have 
defended  a  more  flexible  interpretation  and  right  holders  are  in  favour  of  a  fixed  and  short 
time  frame.  Some  stakeholders  expressed  fear  that  defining  "expeditious"  could  increase 
pressure on ISPs to take down content on notice even before correctly assessing the alleged 
illegality of the information. 

Some stakeholders (and national judgments) consider that the extent to which information or 
activity is manifestly illegal seems to be essential. It determines whether an intermediary can 
quickly and with certainty assess the legality and then proceed to either withdraw or disable 
access.  When  the  illegality  of  information  or  activity  is  not  manifest,  assessing  the  legality 
may require considerably more time. 

3.4.3.3  Other conditions 

The E-Commerce Directive also contains other conditions for intermediaries to benefit from a 
liability exemption. Article 12 of the Directive provides that for mere conduit activities, a 
provider can benefit from a liability exemption regime if "the provider does not initiate the 
transmission, does not select the receiver of the transmission and does not select or modify 
the information contained in the transmission". Moreover, Article 13 of the Directive 
provides that, for caching activities, a provider may for instance only benefit from an 
exemption from liability if it "acts expeditiously to remove or to disable access to the 
information it has stored upon obtaining actual knowledge of the fact that the information at 
the initial source of the transmission has been removed from the network, or access to it has 
been disabled, or that a court or an administrative authority has ordered such removal or 
disablement" 

38

 
 
 
 
 
 
  
 
As  is  the  case  with  conditions  for  a  liability  exemption  for  hosting  activities,  the  Directive 
does  not  specify  how  exactly  these  conditions  can  be  met.  However,  their  interpretation 
appears  to  have  led  to  fewer  disputes  than  the  interpretation  of  the  conditions  for  hosting 
activities. 

The  transposition  of  these  provisions  has  been  almost  literal  across  the  EU,  with  a  few 
exceptions: 

•  Lithuania provides that, where information held in cache memory has to be modified 

for technical reasons, the liability exemption still applies; 

•  Malta restricts its liability exemption for caching to liability for damages and excludes 

criminal liability from the scope of the exemption. 

The  responses  to  the  public  consultation  indicated  that  some  issues  could  be  further 
clarified.  In  particular,  according  to  the  respondents,  it  is  not  always  clear  to  what  extent 
technical  manipulations  would  preclude  benefiting  from  the  liability  exemption  for  mere 
conduit activities.  For instance,  traffic management by internet providers (see Chapter 4.3.4 
on  net  neutrality)  could,  according  to  some  stakeholders,  be  interpreted  as  selecting  or 
modifying.  Recital  43  of  the  Directive  provides  in  this  regard  that  the  requirement  of  not 
modifying information "does not cover manipulations of a technical nature which take place 
in the course of the transmission as they do not alter the integrity of the information contained 
in the transmission" 

3.4.4  Notice-and-action procedures  

3.4.4.1  The European legislative framework 

Article 14 of  the  E-Commerce Directive contains the basis for procedures for  notifying and 
acting on online illegal content. It provides that hosting providers, in order to benefit from a 
liability  exemption,  should  act  expeditiously  to  remove  (take  down)  or  to  disable  access  to 
(block) illegal activity or information of which they have obtained actual knowledge.123  

Recital  40  states  that:  "this  Directive  should  constitute  the  appropriate  basis  for  the 
development  of  rapid  and  reliable  procedures  for  removing  and  disabling  access  to  illegal 
information;  such  mechanisms  could  be  developed  on  the  basis  of  voluntary  agreements 
between  all  parties  concerned  and  should  be  encouraged  by  Member  States;  it  is  in  the 
interest  of  all  parties  involved in  the  provision  of  information  society  services  to  adopt  and 
implement such procedures. (…)". 

An  explicit  reference  to  "notice-and-takedown"  can  be  found  in  Article  21  (2)  ECD,  which 
provides that the application reports on the Directive "shall in particular analyse (...) "notice-
and-takedown"  procedures  and  the  attribution  of  liability  following  the  taking  down  of 
content". 

The liability regime of the E-Commerce Directive applies to all illegal activity or information 
and it provides for both removing and disabling access (blocking). Blocking is of particular 
importance when takedown is not possible because the illegal activity or information is stored 
outside the European Union.  

123   See in particular Chapter 3.4.3.1 on "actual knowledge" and the eBay vs L'Oréal case.  

39

 
 
 
 
 
 
 
 
                                                 
 
Apart from the E-Commerce Directive, there are other pieces of European legislation relevant 
for NTD procedures. For example, the Directive on the enforcement of intellectual property 
rights124 (Enforcement  Directive) provides  in its Articles  9  and 11 that Member States  shall 
ensure  that  right  holders  are  in  a  position  to  apply  for  an  injunction  against  intermediaries 
whose  services  are  being  used  by  a  third  party  to  infringe  intellectual  property  rights. 
Moreover,  its  Article  17  provides  that  Member  States  shall  encourage  the  development  of 
self-regulatory  codes  of  conduct  contributing  to  the  enforcement  of  intellectual  property 
rights.  The  Commission  will  propose  a  revision  of  the  Enforcement  Directive  (see  also 
Chapter 4.3.5).125 

Article 21 of the Proposal for a Directive on combating sexual abuse, sexual exploitation of 
children  and  child  pornography126  obliges  Member  States  to  take  the  necessary  measures  to 
obtain  the  blocking  of  access  by  internet  users  in  their  territory  and  the  removal  of  internet 
pages containing or disseminating child pornography. 

Furthermore,  fundamental  rights  are  relevant,  as  set  out,  inter  alia,  in  the  Charter  of 
Fundamental Rights of the EU (see Article 6 TEU). Reference is made in particular to Article 
11 of this Charter on the freedom of expression and information, as well as to its Article 16 on 
the freedom to conduct a business. 

3.4.4.2  The developments in the last ten years 

Self-regulatory developments 

The  Directive  obliges  Member  States  to  encourage  voluntary  agreements  for  removing  and 
disabling access to illegal information (cf recital 40). There are however only few examples of 
voluntary codes in Member States: 

• 

In the United Kingdom a broad group of intermediaries (comprising providers of mere 
conduit  and  hosting  activities)  have  set  up  a  procedure  in  cooperation  with  a  non-
governmental organisation, specifically targeted at removing child abuse content.127  

124   Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement 
http://eur-

rights,  OJ  L 
of 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:157:0045:0086:EN:PDF  

30.04.2004; 

intellectual 

available 

property 

157/16, 

at: 

and 

services 

125   Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  A  Single  Market  for  Intellectual  Property 
RightsBoosting  creativity  and  innovation  to  provide  economic  growth,  high  quality  jobs  and  first  class 
at 
24.05.2011; 
Europe, 
products 
http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf. 
The 
Communication  announces  a  review  of  the  Enforcement  Directive  that  should  in  particular  find  ways  to 
combat  “infringements  of  IPR  via  the  internet  more  effectively"  by  "tackling  the  infringements  at  their 
source  and,  to  that  end,  foster  cooperation  of  intermediaries,  such  as  internet  service  providers  while 
respecting all fundamental rights recognised by the EU Charter of Fundamental Rights, in particular also 
the  rights  to  private  life,  protection  of  personal  data,  freedom  of  expression  and  information  and  to  an 
effective remedy". 

COM(2011) 

available 

287 

in 

126   Proposal for a Directive of European Parliament and the Council on combating the sexual abuse, sexual 

exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA, COM(2010) 
94, 29.03.2010; available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010PC0094:EN:NOT  

127   See: http://www.iwf.org.uk/members/funding-council/code-of-practice  

40

 
 
 
 
 
 
 
                                                 
• 

• 

In  the  Netherlands,  ISPs,  national  enforcement  authorities  and  associations  of  right 
holders have subscribed to a notice-and-takedown code of conduct for all content that 
is punishable or unlawful;128 
In  December  2009  several  French  internet  platforms  and  right  holders  agreed  on  a 
charter  for  the  fight  against  the  sale  of  counterfeit  goods  on  the  Internet.129  An 
extension of this charter is currently being discussed.130 

Recently, a number of voluntary codes have been developed at EU level:  

• 

In 2009 the Commission brokered an agreement on a code between a large group of 
social networks with the objective of ensuring the safety of minors online.131 

•  On 4 May 2011 a representative group of right holders and internet platforms signed, 
under  the  auspices  of  the  Commission,  a  Memorandum  of  Understanding  aimed  at 
reducing the sale of counterfeits via e-commerce platforms. The MoU sets out a series 
of  joint  principles  including  effective  and  balanced  measures  to  prevent  offers  of 
counterfeit goods from being listed on internet platforms.132  

•  A similar EU level dialogue on online piracy (copyright infringements) was launched 

in 2009 but did not result in a final agreement. 

It should be noted, however, that most NTD procedures are not based on agreements between 
stakeholders, but result from the unilateral policy of individual companies.  

In  the  responses  to  the  public  consultation,  some  stakeholders,  in  particular  civil  rights 
organisations,  complained  about  a  lack  of  transparency  and  democratic  oversight  with  the 
policies  of  individual  companies.  Private  companies  are  able  to  judge  the  legality  and 
illegality  of  content  without  anyone  looking  over  their  shoulders.  Some  stakeholders  are 
worried that intermediaries are in a position, for the sake of simplicity and to avoid liability 
claims, to simply take down any content about which they are notified without assessing the 
legality  of  the  content  and  without  informing  or  consulting  the  provider  of  the  allegedly 
illegal content.133  

As  a  result  of  a  survey  amongst  the  Member  States  for  the  preparation  of  a  Commission 
Report  on  the  implementation  of  the  1998  and  2006  Recommendations  on  Protection  of 
Minors,  it  can  be  stated  that  ISPs  are  becoming  increasingly  involved  in  the  protection  of 

128   See: 

http://www.nederlandtegenterrorisme.nl/fileadmin/user_upload/Bedrijven/PDF_s/Gedragscode_Notice_and
_Take_Down_tcm91-293746.pdf 

129   See 

la 
http://www.minefe.gouv.fr/actus/pdf/091216charteinternet.pdf 

Charte 

contre 

lutte 

de 

contrefaçon 

sur 

Internet: 

130   See 

recent 

developments 

on 

the  web-page 

of 

the  Ministère 

de 

l’Economie: 

http://www.minefe.gouv.fr/actus/11/contref_internet.html 

131   See: http://ec.europa.eu/information_society/activities/social_networking/docs/sn_principles.pdf  

132   See: http://ec.europa.eu/internal_market/iprenforcement/docs/memorandum_04052011_en.pdf   

133 The website www.chillingeffects.org, an initiative from several US law faculties and some NGOs, reports on 

cases of blocked legal content.    

41

 
 
 
 
 
 
                                                 
 
minors,  despite  their  limited  liability  and  responsibility  under  the  E-Commerce-Directive. 
This  applies  to  their  legal  obligations  regarding  illegal  content  and  particularly  to  joint 
voluntary  commitments  and  adherence  to  codes  of  conduct.  The  large  majority  of  Member 
States  reported  that  notice-and-takedown  procedures  have  been  developed  and  are  applied. 
However, there are considerable differences in the functioning of hotlines and particularly of 
notice-and-takedown procedures. This concerns the decision that certain content is illegal, the 
review  of  such  decisions,  the  tracking  of  its  source  and  identification  of  the  web  hosting 
provider  and,  in  particular,  the  notification  to  the  competent  authorities.  Moreover,  in  some 
Member States the response time is considered to be too long.  

Legislative developments 

Some Member States have enacted notice-and-takedown and blocking procedures in national 
legislation. This has happened in at least Finland, France, Germany, Hungary, Lithuania, the 
United Kingdom, Spain and Sweden. 

These procedures all apply to mere conduit providers. Except for the Swedish rules on online 
forums, they do not apply to providers of hosting activities in the meaning of Article 14 ECD. 
Article  13  of  the  Directive  does  not  contain  the  requirement  for  providers  of  mere  conduit 
activities to take down illegal information, even after having obtained actual knowledge of it, 
in order to qualify for an exemption of liability. It limits the obligation of the mere conduit 
provider  in  this  regard  to  not  initiating  the  transmission,  to  not  selecting  the  receiver  of  the 
transmission and to not modifying or selecting the information contained in the transmission.  

The Commission services have been made aware of the following national laws (see Annex II 
of this Staff Working Document for a more detailed description): 

•  The  Finnish  Act  on  provision  of  information  society  services  (transposing  the  E-
Commerce  Directive)  contains  a  detailed  notice-and-takedown  procedure  for  mere 
conduit and caching providers applying to infringements of copyright; 

•  The  French  HADOPI  law  provides  for  a  so  called  "three  strike"  procedure  for 
copyright  infringements  whereby,  following  a  notice,  an  individual  downloader  may 
receive a warning that he or she is in breach of the law and may eventually, in case of 
repeated infringement, be cut off from internet access; 

•  The  German  Access  Impediment  Act  obliges  the  Federal  Office  of  Criminal 
Investigation  to  compile  a  black  list  containing  child  pornography  websites,  on  the 
basis of which ISPs have to block access to those websites; 

•  The Hungarian Act on certain aspects of e-commerce and information society services 
(transposing the E-Commerce Directive) provides for a notice-and-takedown for mere 
conduit and caching providers as regards infringements of intellectual property rights; 
•  The  Lithuanian  law  on  information  society  services  (transposing  the  E-Commerce 
Directive)  also  provides  for  a  notice-and-takedown  procedure  for  mere  conduit  and 
caching providers in cases of infringements of intellectual property rights;   

•  The  UK  Digital  Economy  Act  follows  a  three-tier  approach.  First,  ISPs  must  notify 
their subscribers of infringements which have been reported by copyright owners and 
they have to submit to the copyright owners a list of serious repeat infringers. Second, 
ISPs can be obliged to limit the internet access of subscribers and, thirdly, they can be 
forced to block access to copyright-infringing websites;  

•  The  UK  Terrorism  Act  provides  a  specific  procedure  for 

terrorism-related 

information; 

42

 
 
 
 
 
 
•  The Spanish "Ley Sinde" does not target the end user but the illegal service that can be 

taken down or, in the event that it is stored outside Spain, blocked; 

•  The  Swedish  Act  on  responsibility  of  Electronic  Bulletin  Boards  (online  forums  or 

blogs) applies to several categories of illegal content;  

•  The  Italian  law  on  child  pornography  through  the  internet  establishes  a  blocking 

mechanism for child abuse content; 

•  The  French  Law  on  the  performance  of  internal  security  also  puts  in  place  a 

mechanism for blocking child pornography. 

3.4.4.3  Persisting issues 

According  to  a  majority  of  stakeholders  that  responded  to  the  public  consultation,  NTD 
procedures  are  heavily  fragmented  and  this  forms  an  important  barrier  to  the  Digital  Single 
Market. In particular, it leads to legal uncertainty for intermediaries. Certain stakeholders also 
consider  it  socially  undesirable  that  the  takedown  of  manifestly  illegal  information  (for 
instance  child  pornography)  is  sometimes  less  fast  than  the  takedown  of  illegal  information 
where there is a financial gain involved in the takedown (for instance phishing websites). A 
majority  of  the  respondents  to  the  consultation  proposed  a  European  notice-and-takedown 
procedure, either on a voluntary or on an obligatory basis. The views on what such a common 
standard for NTD procedures should look like are, however, divided. 

This sub-section provides an overview of the main elements of the NTD procedures that cause 
the fragmentation.  

a) The requirements for notice 

The main question as regards the requirements for the notice is how a notice can lead to actual 
knowledge  (see  a  more  detailed  discussion  in  Chapter  3.4.3.1)  without  placing  an 
unreasonable burden on the notice provider. 

Many right holders indicate that the required level of information for submitting a notice is 
often too detailed and amounts to a burdensome procedure. Some right holders for instance 
consider  that  the  NTD  procedure  should  not  require  specific  information  such  as  a  URL 
reference or information about why specific content is illegal. Moreover, the procedure should 
be accessible by electronic means and easy to subscribe to. Many right holders also expressed 
a wish that NTD procedures become notice and stay down procedures, where a single notice 
would  lead  to  actual  knowledge  of  all  potential  future  infringements  that  are  similar  to  the 
notified infringement. 

Intermediaries,  on  the  other  hand,  stress  the  importance  of  a  detailed  notice  and  complain 
about the fact that notices are often not detailed enough to allow them to assess the alleged 
illegality of information. They argue that a notice should contain information which enables 
the intermediary to indentify the complainant, locate the content (e.g. should include URLs) 
and  assess  the  alleged  illegality.  Some  intermediaries  specified  that  certain  complainants 
refuse to use the NTD procedure proposed by a particular site and provide information in a 
way that makes it difficult to identify the illegal information and its location (for instance by 
sending photocopies of URLs that have to be typed in manually by the intermediary). 

43

 
 
 
 
 
 
 
 
 
 
 
b) The possibility of a defence for providers of information 

Takedown and blocking of certain content may have a negative impact on the exercise of the 
rights to freedom of expression and information. The E-Commerce Directive (in its recital 46) 
states that the removing or disabling of access "has to be undertaken in the observance of the 
principle of freedom of expression and of procedures established for this purpose at national 
level".  Many  stakeholders  consider  it  important  that  the  provider  of  allegedly  illegal 
information  should  be  given  the  opportunity  to  submit  a  counter-notice  and  defend  the 
legality of the information at issue.  

Civil society organisations and the vast majority of intermediaries support the inclusion of a 
possibility  of  a  counter-notice  as  a  means  to  increase  the  legitimacy  of  takedowns  and  to 
minimise restrictions to the freedom of speech. Some national NTD procedures (in particular 
those in place in Finland, Hungary, Lithuania, Spain and UK) also recognise this by including 
an obligation for intermediaries to offer a possibility to submit a counter-notice. 

Right holders and ISPs, however, consider that the possibility of counter-notice would make 
NTD  procedures  more  burdensome,  slower  and  less  effective.  Moreover,  as  indicated  by 
stakeholders, offering the possibility of submitting a counter notice is perhaps not appropriate 
in the context of manifestly illegal information. For instance, it appears excessive to ask for 
the prior opinion of the provider of child pornographic content before it can be taken down. It 
has  also  been  suggested  that  a  requirement  to  offer  the  possibility  of  submitting  a  counter-
notice  could  be  in  breach  of  data  protection  rules  since  it  would  require  identifying  the 
content provider. 

c) The timeframe 

As  discussed  in  Chapter  3.4.3.2,  intermediaries  have  an  obligation  to  take  down  or  block 
illegal  information  expeditiously  once  they  have  obtained  actual  knowledge  of  it,  so  as  to 
benefit from a liability exemption for hosting activities.  

Most  self-regulatory  NTD  procedures  do  not  specify  a  timeframe  for  takedown134.  Some 
legislative  NTD  procedures  have  established  a  specific  timeframe  for  the  takedown  or 
blocking of information, while others have not. For instance:  

• 
• 
• 
• 
• 

in Finland an intermediary has to act "immediately" for copyright infringements;  
in Hungary intermediaries have to act within 12 hours in the field of IPR;  
in Lithuania, intermediaries have to act within 1 day for copyright infringements;  
in Spain, ISPs have to act within 72 hours for copyright infringements; 
in  the  UK,  intermediaries  have  to  act  within  2  days  for  terrorism-related  illegal 
content.  

According to the responses to the public consultation it is often unclear when time begins to 
run and, in particular, whether this happens from the moment of notice or from the moment 
that the notice has been assessed. 

134    For  example,  the  agreement  on  child  pornography  between  UK  intermediaries  and  a  NGO  according  to 

which an intermediary has to act "expeditiously". 

44

 
 
 
 
 
 
 
 
 
 
                                                 
Intermediaries argue that the term "expeditious", found in Article 14 of the Directive, does not 
need to be clarified as it  allows  the  intermediaries  to  take  account of every individual  case. 
The  flexibility  of  the  term  is  considered  necessary  by  many  ISPs  because  they  would 
normally  need  to  seek  legal  advice  or  translation  and  eventually  make  a  judgment  which 
could take some time.  

Right holders, however, in general argue that "expeditious" should be specified and that this 
specification should correspond to a short time period. For instance, a takedown period of one 
hour  would  already  be  too  long  for  live  streaming.  Moreover,  a  long  time  period  would  in 
regular  circumstances  be  unnecessary  for  assessing  the  illegality  of  information.  In  some 
Member  States,  the  time  before  takedown  would  "be  long"  because  a  specific  authorisation 
would be required for this purpose.135  

It  has  also  been  argued  that  a  lack  of  a  specification  of  the  timeframe  would  also  be 
detrimental  to  the  fight  against  child  pornography.  A  report  conducted  by  Cambridge 
University136 demonstrates that the average time before takedown of child pornography sites 
is much longer than the time before takedown of phishing sites. 

d) Liability for providing wrongful notices or for taking down or blocking legal content  

NTD procedures do not exclude a risk that wrongful notices are provided to intermediaries (in 
good  faith  or  bad  faith)  and  that  intermediaries,  acting  on  such  notices,  take  down  legal 
content. 

Some respondents to the public consultation on e-commerce have raised the issue of holding 
notice providers liable for submitting wrongful notices. They consider that this could decrease 
the number of wrongful notices. But once a wrong notice has been submitted, the question is 
how  the  intermediary  should  deal  with  it.  Some  stakeholders  consider  that  intermediaries 
should  not  be  held  liable  for  taking  down  "illegal"  information  if  it  turns  out  that  the 
information was not illegal, provided they have respected a NTD procedure and that, on the 
basis of a  notice submitted in the context of such a procedure, had good reason to  consider 
that the information which was the subject of that notice was illegal. Some national legislative 
NTD  procedures  provide  that,  by  following  the  procedure  in  good  faith,  intermediaries  are 
exempted from liability, whereas others do not.  

e) Private operators assessing the legality of information 

Many respondents to the public consultation on e-commerce expressed concerns that private 
operators  judging  the  legality  of  information  on  the  Internet  represented  "private  judges". 
They believed it would not be legitimate or feasible for intermediaries  to assess the alleged 
illegality  of  certain  information.  Private  operators  would  have  a  tendency  to  take  down 
allegedly illegal information without even assessing the legality. Moreover, there would be no 
transparency and oversight on (the application of) NTD procedures of private companies. 

135   According to several respondents this would be the case in Italy for instance. 

136   Moore/Clayton, The Impact of Incentives on Notice and Takedown, Seventh Workshop on the Economics of 
at: 

available 

2008), 

25–28 

2008; 

June 

Information 
Security 
http://www.cl.cam.ac.uk/~rnc1/takedown.pdf  

(WEIS 

45

 
 
 
 
 
 
 
 
 
 
                                                 
Many stakeholders consider that the legitimacy of private operators deciding on the takedown 
of  content  without  the  intervention  of  a  court  depends  on  the  extent  to  which  the  alleged 
illegal information is manifestly illegal (see Chapter 3.4.3.1). For instance, many stakeholders 
do  not  consider  that  the  intervention  of  a  court  is  required  to  takedown  manifest  child 
pornography. 

It  has  been  held  that  the  term  manifestly  could  be  helpful  in  interpreting  the  E-Commerce 
Directive. Portugal has introduced the concept to its national legislation transposing the ECD. 

f) The need for NTD procedures to complement other policies 

Some respondents to the public consultation on e-commerce take the view that takedown or 
blocking  would  not  be  a  solution  to  the  existence  of  illegal  information  on  the  Internet. 
Certain  right  holders  consider  that  the  emphasis  should  be  on  prevention  rather  than 
enforcement  and  propose  the  use  of  filtering  techniques.  Other  stakeholders,  in  particular 
intermediaries,  also  favour  a  focus  on  prevention,  but  in  the  form  of  offering  attractive, 
accessible  and  legal  services  on  the  Internet.  Moreover,  some  intermediaries,  in  particular 
video-sharing  sites,  argue  that  right  holders  should  favour  "monetisation"  over  takedown. 
"Monetisation" involves receiving a share of advertisement revenues that can be attributed to 
content to which they hold the rights. 

3.4.4.4  An EU initiative on procedures for notifying and acting on illegal online 

content 

The cross-border nature of the Internet, the existing fragmentation of NTD systems, the lack 
of development of regulatory codes at European level and conflicting jurisprudence within 
and across Member States justify an analysis of the need for EU action. In 2012 the 
Commission will publish an impact assessment on procedures for notifying and acting137 on 
illegal online content which will determine the content of the initiative. Its main policy 
objectives are the following: 

•  Contribute to developing trust and therefore growth in (cross-border) online services, 

thus enhancing the functioning of the Digital Single Market. 

•  Contribute to combating illegality on the Internet. 
•  Ensure the transparency, effectiveness, proportionality and fundamental rights 

compliance of NTD procedures. 

•  Ensure a balanced and workable approach towards NTD procedures, with a focus on 
the impact on innovation and growth, while ensuring respect for fundamental rights. 

The initiative will have a horizontal scope in the sense that it will cover all types of online 
services (including entertainment, adult, health, gambling etc.) representing many societal 
interests. Stakeholders to be consulted include Member States, internet intermediaries, right 
holders, child protection organisations, civil rights organisations and citizens in general.  

The impact assessment will address a number of issues including the requirements for a 
notice; the time for an intermediary to act following a notice; the need to inform or consult the 
provider of the alleged illegal information; the need for further transparency on NTD 

137   The term "acting" is broader than "takedown" of illegal content and includes also "blocking" of websites. 

46

 
 
 
 
 
 
 
 
 
                                                 
procedures; the consequences of submitting wrong notices; the instruments for removing or 
disabling access to illegal content, etc. Several options including no EU action, European soft 
law (such as already piloted in the Memorandum of Understanding on the sale of 
counterfeited goods) and legislative instruments will be assessed, in particular taking into 
account their respective proportionality. 

In parallel the Commission will review the Directive on the enforcement of intellectual 
property rights. The objective is to fight illegal content whilst fully respecting internal market 
rules and fundamental freedoms, in particular by paying attention to procedural safeguards. 
The initiative on notice and action procedures is without prejudice to this initiative 

3.4.5   

The prohibition in Article 15 ECD 

3.4.5.1  EU law 

Article 15 provides that "Member States shall not impose a general obligation on providers, 
when  providing  the  services  covered  by  Articles  12,  13  and  14,  to  monitor  the  information 
which they transmit or store, nor a general obligation actively to seek facts or circumstances 
indicating illegal activity". 

Although  such  monitoring  could  constitute  an  infringement  of  other  rules  (e.g.  certain 
fundamental  rights),  Article  15  itself  does  not  prohibit  monitoring  by  private  companies  as 
such, but prevents Member States from imposing such an obligation on companies.  It aims to 
avoid placing a disproportionate burden on intermediaries that would seriously restrict them 
in providing their intermediary services. 

Respondents to the public consultation on e-commerce raised three main issues related to the 
prohibition set out in Article 15 which they feel require further clarification. 

First,  recital  47  of  the  Directive  states  that  "Member  States  are  prevented  from  imposing  a 
monitoring  obligation  on  service  providers  only  with  respect  to  obligations  of  a  general 
nature;  this  does  not  concern  monitoring  obligations  in  a  specific  case  and,  in  particular, 
does not affect orders by national authorities in accordance with national legislation". This 
raises the question as to what exactly a specific monitoring obligation could be as opposed to 
a general monitoring obligation.  

Second, recital 48 of the Directive states that the E-Commerce Directive "does not affect the 
possibility for Member States of requiring service providers, who host information provided 
by recipients of their service, to apply duties of care, which can reasonably be expected from 
them and which are specified by national law, in order to detect and prevent certain types of 
illegal  activities".  Some  respondents  wondered  what  the  exact  duties  of  care  are  and  where 
the  border  lies  between  an  obligation  to  apply  duties  of  care  and  a  general  obligation  to 
monitor.  

Third, some respondents raised doubts about the application of Article 15 to injunctions. The 
provision is silent about injunctions.  

47

 
 
 
 
 
 
 
  
 
 
 
In  the  L'Oréal  vs.  eBay  case138  the  European  Court  of  Justice  accepts,  in  principle,  the 
compatibility of effective and proportionate injunctions against providers such as operators of 
online marketplaces. In the Scarlet vs. SABAM case139, the ECJ, however, considers that that 
under  the  circumstances  of  the  case  at  hand  a  court  injunction  forcing  an  internet  access 
provider  to  introduce  filtering  software  for  the  prevention  of  copyright  ingringements  is 
incompatible  with  Article  15  of  the  Directive,  construed  in  the  light  of  the  requirements 
stemming from the protection of the applicable fundamental rights. 

One  of  the  preliminary  questions  refered  by  the  Brussels  Cour  d'Appel  to  the  ECJ  was 
whether the applicable instruments of EU  law, "read together and construed in the light of 
the requirements stemming from the protection of the applicable fundamental rights, must be 
interpreted as precluding an injunction imposed on an ISP to introduce a system for filtering 

–        all  electronic  communications  passing  via  its  services,  in  particular  those 

involving the use of peer-to-peer software;  

–        which applies indiscriminately to all its customers;  

–        as a preventive measure;  

–        exclusively at its expense; and 

–        for an unlimited period,  

which is capable of identifying on that provider’s network the movement of electronic 
files  containing  a  musical,  cinematographic  or  audio-visual  work  in  respect  of  which 
the  applicant  claims  to  hold  intellectual  property  rights,  with  a  view  to  blocking  the 
transfer of files the sharing of which infringes copyright (…)". 

The  Court  first  considers  the  applicable  instruments  of  secondary  EU  law.  It  clarifies  that 
Directives  2001/29  (Copyright  in  the  information  society)  and  2004/48  (Enforcement  of 
intellectual property rights), which both contain a basis for injunctions against intermediaries, 
"may not affect the provisions of Directive 2000/31 and, more specifically, Articles 12 to 15 
thereof". 

As  regards  the  above-mentioned  question  it  notes  that  "it  must  be  held  that  the  injunction 
imposed  on  the  ISP  concerned  requiring  it  to  install  the  contested  filtering  system  would 
oblige it to actively monitor all the data relating to each of its customers in order to prevent 
any  future  infringement  of  intellectual-property  rights.  It  follows  that  that  injunction  would 
require  the  ISP  to  carry  out  general  monitoring,  something  which  is  prohibited  by  Article 
15(1) of Directive 2000/31" (paragraph 40). 

Secondly, the Court considers the applicable fundamental rights recognised under EU law. In 
this regard, the Court decides that the injunction: 

138   Case  C-324/09,  L'Oréal  v  eBay, 

judgment  of  12 

July  2011,  par.  141,  available  at  

http://curia.europa.eu/juris/recherche.jsf?language=en  

139   Case C-70/10, Scarlet Extended v Société belge des auteurs compositeurs et éditeurs (SABAM), available at 

http://curia.europa.eu/juris/recherche.jsf?language=en.  

48

 
 
 
 
 
                                                 
•  "would result in a serious infringement of the freedom of the ISP concerned to conduct 
its business since it would require that ISP to install a complicated, costly, permanent 
computer system at its own expense" (paragraph 48). 

•  "is  to  be  regarded  as  not  respecting  the  requirement  that  a  fair  balance  be  struck 
between, on the one hand, the protection of the intellectual-property right enjoyed by 
copyright  holders,  and,  on  the  other  hand,  that  of  the  freedom  to  conduct  business" 
(paragraph 49). 

•  "may also infringe the fundamental rights of that ISP’s customers, namely their right 
to  protection  of  their  personal  data  and  their  freedom  to  receive  or  impart 
information,  which  are  rights  safeguarded  by  Articles  8  and  11  of  the  Charter 
respectively" (paragraph 50).  

•  "could  potentially  undermine  freedom  of  information  since  that  system  might  not 
distinguish  adequately  between  unlawful  content  and  lawful  content,  with  the  result 
that its introduction could lead to the blocking of lawful communications" (paragraph 
52). 

The  Court  concludes  that  "Consequently,  it  must  be  held  that,  in  adopting  the  injunction 
requiring the ISP to install the contested filtering system, the national court concerned would 
not  be  respecting  the  requirement  that  a  fair  balance  be  struck  between  the  right  to 
intellectual  property,  on  the  one  hand,  and  the  freedom  to  conduct  business,  the  right  to 
protection of personal data and the freedom to receive or impart information, on the other" 
(paragraph 53). 

A  similar  case,  on  the  compatibility  of  such  a  filtering  obligation  for  a  social  network,  is 
currently pending before the ECJ.140 

3.4.5.2  National law 

Article 15 has been transposed in different ways across the EU. Some Member States did not 
consider  it  necessary  to  introduce  a  prohibition  of  general  monitoring  in  their  legislative 
framework  because  their  legislation  did  not  have  any  such  obligations  at  the  time  of 
transposing  the  Directive.  Denmark,  Finland,  Spain,  Ireland  and  the  Netherlands  have  for 
instance not introduced an explicit prohibition. Most Member States have, however, opted for 
a more or less verbatim transposition of the Directive. 

Independently from the mode of transposition, across the EU there have been questions about 
the interpretation of Article 15. This has become apparent in a number of cases where courts 
have  imposed  or  have  been  asked  to  impose  the  use  of  filtering  software  to  prevent  illegal 
information and activity by means of injunctions on intermediaries. For instance: 

• 

In a case concerning the Belgian collecting society SABAM and the internet service 
provider  Tiscali141  (now  Scarlet)  a  judge  on  29  June  2007  ordered  Tiscali  to  use  a 
specific  filtering  software  ("Audible  Magic")  to  prevent  infringements  of  copyright 

140   Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM) v N.V. NETLOG, 

available at http://curia.europa.eu/juris/recherche.jsf?language=en  

141   District Court of Brussels, 29.06.2007, ref. no. 04/8975/A; available at: 

http://www.cardozoaelj.net/issues/08/case001.pdf.  

49

 
 
 
 
 
 
 
                                                 
managed  by  SABAM.  The  court  considered  that  this  software  had  proven  to  be 
effective  and  considered  that  the  average  cost  of  implementing  the  measure  did  not 
appear excessive. Moreover, the Court argued that implementing a filtering technique 
should  not  be  confused  with  monitoring  as  recital  40  of  the  Directive  explicitly 
mentions  that  the  Directive's  provisions  relating  to  liability  should  not  preclude  the 
development  and  use  of  technical  surveillance  instruments.  Scarlet  filed  an  appeal 
against  the  decision  and  on  28  January  2010  the  Brussels  Court  of  Appeal  made  a 
preliminary reference to the European Court of Justice (see above for the judgment). 
In  a  case  concerning  Rolex,  Ricardo  and  eBay,  two  online  selling  platforms,  the 
Bundesgerichtshof142  (the  German  Federal  Supreme  Court)  considered  that  an 
injunction  against  the  two  intermediaries  forcing  them  to  apply  filtering  software 
would not be infringing Article 15. The Court considered that the protection offered to 
intermediaries by the E-Commerce Directive would not apply to injunctive claims and 
that therefore such a measure could be ordered, although it was left to a lower court to 
assess whether it would be technically feasible. 
In France, in a ruling of 13 May 2009 in a case concerning eBay and L'Oreal,143 the 
Court refused to oblige eBay to implement filtering software for its "health and beauty 
section"  to  prevent  infringements  of  L'Oréal's  trademark.  The  Court  considered  that 
filtering software was not necessary as eBay had made the required efforts to prevent 
trademark  infringements,  suggesting  that  to  some  extent  there  is  an  obligation  of 
surveillance. 
In the UK, BT and TalkTalk, two internet service providers, had contested the validity 
of the Digital Economy Act (DEA, discussed above) under the European law and in 
particular Article 15 thereof144. The High Court, however, on 20 April 2011 took the 
position  that  the  DEA  does  not  involve  any  monitoring  in  the  sense  of  Article  15. 
Under  the  DEA.  The  Court  notes  that  copyright  owners  may  well  "monitor 
information  (...),  but  they  are  not  ISPs  and  they  are  under  no  duty  by  virtue  of  the 
DEA  to  carry  out  "monitoring.""  BT  and  TalkTalk  have  been  granted  permission  to 
appeal this decision. 

• 

• 

• 

3.4.5.3  Filtering 

As discussed above, the main question concerning Article 15 is to what extent injunctions that 
impose  filtering  software  are  compatible  with  the  prohibition  of  a  general  monitoring 
obligation.  However,  one  can  imagine  that  if  filtering  techniques  had  become  flawless  and 
costless, the need for a prohibition on imposing a general monitoring obligation would have 
become  obsolete.  For  this  reason,  the  public  consultation  on  e-commerce  consulted 
stakeholders  on  the  effectiveness  and  efficiency  of  filtering  techniques  ten  years  after  the 

142   BGH, 19.04.2007, ref. no. I ZR/04; available at: 

http://juris.bundesgerichtshof.de/cgibin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2007
&Sort=3&anz=45&pos=0&nr=40136&linked=urt&Blank=1&file=dokument.pdf and BGH, 11.03.2004, ref 
no. I ZR 304/01; available at: 
http://juris.bundesgerichtshof.de/cgibin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2004
&Sort=3&anz=31&pos=0&nr=30359&linked=urt&Blank=1&file=dokument.pdf.  

143   TGI Paris, 13.05.2009; available at: http://www.legalis.net/spip.php?page=jurisprudence-

decision&id_article=2639.  

144  High Court of Justice of England and Wales, Queen's Bench Division, 20.04.2011; available at http://high-

court-justice.vlex.co.uk/vid/-287515403  

50

 
 
 
                                                 
adoption of the Directive. A wide variety of stakeholders mentioned several disadvantages of 
filtering techniques and confirmed that Article 15 is still relevant today. 

First, respondents expressed technical concerns about filtering. Filtering techniques can range 
in  effectiveness  from  not  being  in  any  way  effective  to  being  very  promising,  but  filtering 
techniques  may  involve  some  degree  of  overblocking  (blocking  legal  content)  and 
underblocking (not blocking illegal content). An example of content that could not be filtered 
would be content in so-called ‘flat pdf files’ (that are similar to non-searchable images), such 
as scientific articles or books.  

However,  video  is  an  example  of  a  form  of  content  to  which  filtering  techniques  can  be 
usefully  applied.  Video  hosting  sites  have,  for  instance,  voluntarily  and  in  cooperation  with 
right holders, developed so-called fingerprinting techniques that identify the unique hash code 
of a file.  Techniques such as these have also been shown to be effective in the fight against 
on-line child sex abuse images and videos. An important element is for the relevant file(s) to 
be  "fingerprinted"  (for  example  by  Interpol).  A  similar  technology  has  also  been  developed 
for audio files. 

Any filtering approach brings the risk of a technological "arms race" between those imposing 
filters and pirates. For instance, in France, the HADOPI law (mentioned in Chapter 3.4.4.2) is 
said to have led to an increased use of encryption of traffic, the use of VPN (virtual private 
networks)  and  the  use  of  proxies.  These  developments  make  it  more  difficult  to  identify 
seriously harmful content and to identify a user’s real location and IP address.  

A variety of stakeholders raised concerns about significant traffic speed reductions as a result 
of certain filtering techniques. In particular so-called deep packet filtering techniques (where 
one looks at what is inside trafficked "packages" rather than at the "packaging") would require 
large amounts of processing power and network reconfiguration. This would eventually lead 
to more limited broadband internet access and negatively affect consumers. 

Second,  stakeholders  also  expressed  concerns  about  the  costs  associated  with  filtering 
techniques. ISPs tend to argue that implementing filtering techniques would be a significant 
financial  burden.  Some  right  holders  would  want  to  shift  more  of  this  burden  on  ISPs,  in 
particular  for  the  development  of  fingerprinting  techniques.  The  fact  that  there  is 
interoperability  between  these  techniques  for  different  video  sharing  sites  would  be  a 
particular burden according to some right holders.   

Third,  a  variety  of  stakeholders  raised  concerns  about  tensions  between  the  protection  of 
fundamental rights and filtering techniques. On the one hand, filtering can, depending on the 
technology used, risk restricting freedom of speech by blocking legal content by mistake. On 
the other hand, filtering techniques such as deep packet inspection could restrict the right of 
personal  data  protection.  There  are,  however,  legitimate  concerns  about  the  protection  of 
minors and public decency as regards, in particular, child sex abuse images that circulate on 
the internet and as discussed above in the area of video and image content filtering. 

4  Need for integration with other Digital Single Market policies  

Although  the  regulatory  framework  described  in  Chapter  3  is  vast,  better  enforcement, 
enhanced  administrative  cooperation  and  providing  clarifications  are  not  in  themselves 

51

 
 
 
 
 
 
 
 
 
 
sufficient  to  tap  the  full  potential  of  e-commerce  and  online  services  within  the  Single 
Market.  Horizontal  issues  such  the  development  of  broadband  and  IT  infrastructures  or  IT 
literacy  across  the  Member  States,  social  groups  and  generations  are  also  key  to  the 
development of online services.145  

This  Staff  Working  Document  does  not  cover  infrastructure  but  deals  with  regulatory 
obstacles which still need to be addressed within the Single Market. This Chapter is based on 
the  flow  of  a  typical  (retail)  transaction,  starting  with  the  willingness  to  engage  in  e-
commerce  and  following  through  the  process  of  gathering  of  information  on  products  and 
services  on  offer,  the  actual  access  to  products  and  services,  the  issues  surrounding  the 
conclusion of a contract, the payment and delivery of the products and services bought/sold, 
ending  with  redress  if  things  go  wrong.  Finally,  certain  cross-cutting  issues  are  analysed 
which are relevant along this chain. 

This  analysis  is  based  on  an  integrated  approach  to  the  development  of  online  services, 
without attempting to cover all relevant issues.   

4.1  Trust 

Trust  is  recognised  as  a  prerequisite  for  the  development  of  online  services,  without  which 
potential  buyers  and  sellers  may  not  even  consider  going  online.  Trustmarks,  personal  data 
requirements, specific policies for online gambling and pharmacies and liability provisions for 
businesses all contribute to enhancing trust online.  

4.1.1   

Trustmarks  

Trustmarks  are  generally  considered  a  useful  instrument  for  traders  to  foster  consumer 
confidence.  Typical  trustmark  systems  consist  of  an  accreditation  mechanism  with  an 
independent  supervisor  for  an  online  trader  to  meet  the  trustmark's  requirements  (including 
creditworthiness, security mechanisms, price transparency, provision of information, customer 
service, data protection and dispute settlement). Well-known trustmarks within the EU include 
Thuiswinkel146 (the Netherlands), Trusted Shops147 (UK) and Confianza Online148 (ES).  

However, a major disadvantage of these trustmarks is that they operate mainly on a domestic 
level.  They  are  characterised  by  different  certification  and  business  models  and  provide 
different guarantees of service.  

To  overcome  such  fragmentation,  the  Commission  announced  in  the  Digital  Agenda  for 
Europe (2010) its intention to create a stakeholder platform by 2012 for EU online trustmarks, 
especially for retail websites.  

145    See  in  particular  the  Commission  Communication  "A  Digital  Agenda  for  Europe",  COM  (2010)  245  of 
19.5.2010,  available  at:  http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-
communication-en.pdf  

146   See: http://www.thuiswinkel.org/engelstalig/-new/home/homepage-thuiswinkel  

147   See: http://www.trustedshops.com  

148   See: http://www.confianzaonline.es  

52

 
 
 
 
 
 
 
 
                                                 
The Working Group on E-Commerce, set up by the EP Committee on the Internal Market and 
Consumer  Protection  (IMCO),  considered  an  EU  Trustmark  scheme  a  major  instrument  for 
completing  the  Internal  Market  for  e-commerce.  The  Working  Group  concluded  at  its  most 
recent  meeting  (June  2011)  that  further  discussion  was  needed  as  well  as  the  involvement  of 
policy  makers,  stakeholders  and  experts  to  carefully  analyse  the  implementation  process  for 
setting up the EU trustmark scheme. 149 

In order to lay the groundwork, the Commission services organised a workshop on "trust and 
confidence in the Internal Market" during the first Digital Agenda Assembly (June 2011). The 
key  outcome  of  the  discussion  was  a  general  agreement  that  there  is  a  need  for  EU-level 
involvement in the co-regulation of trustmarks between the EU, national authorities, consumer 
organisations and trustmark suppliers. A study was launched to evaluate the most effective and 
proportionate means to reinforce consumer confidence in e-commerce and in particular assess 
the costs and benefits of (different models) for setting up an EU online trustmark stakeholder 
platform.  

4.1.2  Personal data protection 

4.1.2.1  Personal data protection in the online environment 

It is widely acknowledged that trust is the currency of the digital economy. In today's digital 
context, buyers of goods and services provide – often without much thought - their bank or 
credit card details when paying for their purchase. Millions of citizens publish photos, blogs 
and text about families, friends and colleagues on social networks such as Netlog, LinkedIn 
and  Facebook,  often  without  being  aware  of  privacy  policies.  The  use  and  exchange  of 
personal data have become essential factors in the online economy.150 Professional players are 
aggregating  massive  amounts  of  data  for  professional  use,  in  particular  for  behavioural 
advertising.151 In situations where hosting services are requested to take down illegal material 
such as pirated or counterfeited works, information about both up- and downloaders needs to 
be shared between the right holders and intermediaries.  

149    The  IMCO  Committee  mandated  Mr  Pablo  Arias  Echeverria,  Rapporteur  for  the  own-initiative  report 
"Completing the internal Market for E-Commerce", to set up this working group to provide a forum for an 
exchange  of  views  between  policy-makers  and  respective  stakeholders  and  analyse  the  steps  required  to 
improve  E-Commerce,  enhance  consumer  confidence  and  develop  a  European  Trustmark.  The  Working 
Group  presented 
at:   
http://www.europarl.europa.eu/document/activities/cont/201107/20110715ATT24204/20110715ATT24204
EN.pdf . The Working Group will organize a second cycle of workshops in the first half of 2012. 

the  Committee  on  12 

July  2011, 

conclusions 

available 

its 

to 

150   McKinsey  Global  Institute, Big  data:  The  next  frontier  for  innovation,  competition and  productivity,  May 

2011; available at: http://www.mckinsey.com/mgi/publications/big_data/index.asp. 

151   Behavioural targeting or behavioural advertising is a technique used by online publishers and advertisers to 
increase  the  effectiveness  of  their  campaigns.  Information  is  collected  on  an  individual's  web-browsing 
behavior, such as the pages they have visited or the searches they have made, to select which advertisements 
to  display  to  that  individual.  Behavioural  marketing  can  be  used  on  its  own  or  in  conjunction  with  other 
forms  of  targeting  based  on  factors  like  geography,  demographics  or  the  surrounding  content.  This  helps 
marketeers  to  deliver  their  online  advertisements  to  the  users  who  are  most  likely  to  be  interested.  For 
example,  a  user  may  often  visit  sport  sites  and  thus  be  categorised  in  the  "sports  fan" segment.  This  user 
would then be shown advertisements that are relevant to the interests of a sports fan. 

53

 
 
 
 
 
 
                                                 
Articles 7 and 8 of the Charter of Fundamental Rights of the EU152 recognize the respect for 
private and family life, and the right to the protection of personal data. Data protection rules 
organise  and  control  the  way  personal  data  are  processed.  These  rules  take  account  of  the 
importance  of  the  freedom  of  expression  and  provide  for  specific  regime  applicable  to  the 
processing of personal data carried out solely for freedom of expression purposes.153 

The ECD does not apply to questions relating to information society services covered by the 
EU legislation on the protection of personal data (Article 1 (5) (b) ECD). The Data Protection 
Directive154 constitutes the fundamental legal framework for the processing of personal data 
in the EU. It was adopted to harmonise the legislation of the Member States with the twofold 
objective of protecting fundamental rights, namely the right to personal data protection, and 
ensuring  the  free  flow  of  personal  data  between  Member  States  within  the  context  of  the 
Internal Market. According to the Data Protection Directive, personal data must be processed 
fairly  and  lawfully,  collected  for  specified,  explicit  and  legitimate  purposes  (data 
minimisation principle) and not further processed in a way incompatible with those purposes 
(principle of finality). Personal data must be adequate, relevant and not excessive in relation 
to  the  purposes  for  which  they  are  collected  (purpose  limitation  principle).  The  Directive 
furthermore provides for the right of individuals to be given information on the purposes of 
the processing, how and by whom their data are processed and the rights to access, rectify and 
delete  personal  data.  Monitoring  of  compliance  with  data  protection  laws  implementing  the 
Directive  is  entrusted  to  national  public  independent  authorities  endowed  with  investigative 
and  enforcement  powers.  The  data  protection  authorities  also  hear  claims  lodged  by 
individuals regarding the processing of their personal data. 

A major factor enabling individuals to know about the processing of their personal data and 
exercise  the  rights  granted  by  the  Data  Protection  Directive  is  the  provision  of  information 
(principle  of  transparency).155  Service  providers  that  qualify  as  data  controllers  have  to 
provide users with clear, easily understandable and affordable privacy notices in line with the 
requirements of the Data Protection Directive. This rule is, however, not always observed. 

Since its adoption in 1995, other EU legislation has come into force which complements the 
Data Protection Directive. The most significant instrument for e-commerce and other online 
services  is  Directive  2002/58/EC  concerning  the  processing  of  personal  data  and  the 
protection  of  privacy  in  the  electronic  communications  sector  (Directive  on  privacy  and 
electronic  communications),156  as  amended  by  Directive  2009/136/EC  (Citizen's  Rights 

152   Charter  of  Fundamental  Rights  of 

the  EU,  OJ  C  364/1,  18.12.200; 

available 

at: 

http://www.europarl.europa.eu/charter/pdf/text_en.pdf  

153   See:  ECJ,  Case  C-101/01,  Bodil  Lindqvist,  6.11.2003,  and  Case  C-73/07,  Tietosuojavaltuutettu  v. 
at 

16.12.2008; 

available 

both 

Oy, 

Satakunnan  Markkinapörssi 
Satamedia 
http://curia.europa.eu/juris/recherche.jsf?language=en.  

Oy, 

154   Directive 95/46/EC 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,  OJ  L 
281/31, 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML 

Protection  Directive’); 

23.11.1995 

(hereafter 

available 

‘Data 

at: 

155   See: Data Protection Directive, Art. 10 and 11. 

156   Directive on privacy and electronic communications, OJ L 201/37, 31.07.2002 

54

 
 
  
 
 
                                                 
Directive),157 hereafter the ePrivacy Directive.158 The ePrivacy Directive intends inter alia to 
give  citizens  control  over  which  information  is  stored  on  or  retrieved  from  users'  terminal 
equipment,  including  computers,  smartphones  or  other  devices  connected  to  the  internet. 
Users  should  be  able  to  know  and  control  who  is  using  their  information,  and  how  the 
information is being used. 

Many  respondents  to  the  public  consultation  on  e-commerce  commented  on  the  data 
protection  and  privacy  dimension  of  online  services.  The  potential  importance  of  personal 
data  for  the  development  of  the  Digital  Single  Market  has  been  outlined,  but  also  concerns 
about  the  use  of  data  have  been  raised.  The  following  sections  focus  on  spam  as  well  as 
cookies, and recall the upcoming revision of the data protection framework.  

4.1.2.2  Spam and the ePrivacy Directive 

Recent  studies  suggest  that  unsolicited  commercial  communication  or  spam  accounts  for 
more than 90% of global e-mail traffic.159 Spam is popular because costs for senders are low 
even with a wide range of unsolicited messages. Only a limited number of recipients need to 
respond in order for spam to be commercially viable. This is even truer for types of spam that 
intend to gain access to information such as credit card numbers or company secrets.  

Spam can seriously harm the development of online services. Their costs do not only relate to 
the unnecessary use of broadband capacity or the purchase of expensive anti-virus software. 
Unsolicited  messages  infringe  individual  privacy  rights,  they  can  infect  computers  with 
viruses  and  the  illegal  offer  of  pharmaceuticals  affects  consumer  confidence  and  threatens 
their health.160  

157   Directive  2009/136/EC  of  the  European  Parliament  and  the  Council  of  25  November  2009  amending 
Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks 
and  services,  Directive  2002/58/EC  concerning  the  processing  of  personal  data  and  the  protection  of 
privacy  in  the  electronic  communications  sector  and  Regulation  (EC)  No  2006/2004  on  cooperation 
between  national  authorities  responsible  for  the  enforcement  of  consumer  protection  laws,  OJ  L  337/11, 
18.12.2009; 
http://eur-
available 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:En:PDF  

at: 

158   Reference can also be made to the Data Retention Directive (Directive 2006/24/EC of 15 March 2006 on the 
retention  of  data  generated  or  processed  in  connection  with  the  provision  of  publicly  available  electronic 
communications services or of public communications networks and amending Directive 2002/58/EC), OJ L 
http://eur-
105/54, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006L0024:EN:HTML.  The  Directive  harmonises 
national  laws  on  the  retention  of  data  e.g.  on  internet  access,  telephony  and  e-mail  to  ensure  the 
investigation,  detection  and  prosecution  of  "serious  crime".  See  the  report  from  the  Commission  to  the 
Council and the European Parliament on the Data Retention Directive (Directive 2006/24/EC), COM(2011) 
225 final, 18.04.2011; available at: http://www.statewatch.org/news/2011/apr/eu-com-data-retention-report-
225-11.pdf  

13.04.2006; 

available 

at: 

159    See :  van  Eecke  &  Truyens  for  DG  INFSO,  EU  Study  on  the  Legal  analysis  of  a  Single  Market  for  the 
for  a  new  age?,  November  2009,  Ch.10,  p.2,  available  at 

Information  Society:  New  rules 
http://ec.europa.eu/information_society/newsroom/cf/itemdetail.cfm?item_id=7022. 

160   Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions on unsolicited commercial communications or "spam", 
COM 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2004:0028:FIN:EN:PDF  

available 

(2004) 

final, 

28 

at: 

4, 

p. 

55

 
 
 
 
 
  
                                                 
Article 13 of the ePrivacy Directive complements the provisions of Articles 6 and 7 of the E-
Commerce  Directive.  Article  13  contains  an  "opt-in"  approach  to  unsolicited  commercial 
communications. Users must give their prior consent before communications for the purposes 
of direct marketing may be addressed to them. This opt-in system applies to e-mail as well as 
text  messages  and  other  electronic  messages  received  on  any  fixed  or  mobile  terminal. 
Exceptions  are  foreseen  in  the  context  of  already  established  customers  for  the  direct 
marketing  of  its  own  similar  products  or  services  by  the  same  provider.  This  opt-in  system 
applies only to users who are natural persons. 

The 2009 amendments of the ePrivacy Directive strengthen and clarify the legal framework to 
counter  spam.  The  ePrivacy  Directive,  which  now  explicitly  refers  to  the  E-Commerce 
Directive,  makes  illegal  under  Article  13  (4)  all  commercial  e-mails  advertising  websites 
without disclosing the identity of the sender on whose behalf the communication is made. It 
requires  the  disclosure  of  a  valid  address  to  exercise  the  right  to  request  that  such 
communications  cease.    Also,  Article  13  (6)  allows  any  legal  person  adversely  affected  by 
spam,  such  as  internet  service  providers,  to  protect  their  business  and  their  customers  by 
taking legal action against spammers. 

4.1.2.3  Cookies and the ePrivacy Directive 

Cookies are hidden information exchanged between an internet user and a web server, and are 
stored  in  a  file  on  the  user's  hard  disc.  They  are  designed  to  facilitate  a  browser-server 
interaction  in  order  to  collect  data.  Cookies  allow  the  creation  of  profiles  which  can  be 
beneficial for both users and online service providers. Based on a survey carried out in 2010 
by  ENISA,  almost  80%  of  online  service  providers  interviewed  are  collecting  data  from 
cookies.161  

Business  representatives  indicated  in  the  public  consultation  that  today's  internet  economy 
and  in  particular  the  transformation  of  the  Internet  from  web  1.0  to  web  2.0  have  been 
possible  thanks  to  cookies.  They  argued  that  cookies  do  not  store  information  such  as  IP 
addresses or personal information (names, addresses etc.).  

But other respondents to the public consultation were not convinced and warned against the 
negative impact of cookies. Information collected through the use of cookies is processed to 
build  up  user  profiles  which  is  not  only  sold  to  third  parties  and  applied  for  behavioural 
advertising  but  could  also  be  used  for  other  kinds  of  (commercial  and  non-commercial) 
applications, often without users being aware of it. 

How the data are collected and used raises questions about the compatibility of this practice 
with  the  ePrivacy  Directive.  A  significant  number  of  respondents  expressed  concerns  about 
the scope of the new rules on ePrivacy, and requested further guidance on their application in 
practice especially regarding the notion of "consent". 

Commission services have issued a guidance document on the implementation of Article 5 (3) 
on cookies.162  

161   See http://www.enisa.europa.eu 

162   DG INFSO/B2 

Communications  Committee  Working  Document,  COCOM10-34,  20.10.2010, 
available  at:  http://circa.europa.eu/Public/irc/infso/cocom1/library?l=/public_documents_2010/cocom10-

56

 
 
 
 
 
 
 
 
                                                 
Article  5  (3)  states  that  "the  storing  of  information,  or  the  gaining  of  access  to  information 
already stored, in the terminal equipment of a subscriber or user is only allowed on condition 
that  the  subscriber  or  user  concerned  has  given  his  or  her  consent,  having  been  provided 
with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, 
about the purposes of the processing" (bold added).  

Article 2 of the ePrivacy Directive provides that the definitions of Directive 95/46/EC  shall 
apply  to  the  ePrivacy  Directive.  Accordingly,  consent  has  the  same  meaning  as  the  data 
subject's  consent  defined  in  Article  2  (h)  of  that  Directive,  i.e.  "a  freely  given  specific  and 
informed indication of his wishes (…)". Recital 17 of the ePrivacy Directive emphasizes this 
interpretation of consent and explains that "consent may be given by any appropriate method 
enabling  a  freely  given  specific  and  informed  indication  of  the  user's  wishes,  including  by 
ticking a box when visiting an internet website". The Commission services understand this in 
their guidance document as follows: 

•  The user concerned must be informed163, i.e. the user must have information about the 
purpose  of  the  intended  operation(s)  when  deciding  on  whether  or  not  to  consent  to 
this operation. This condition is emphasized by the wording of the paragraph ("having 
been  provided  with  clear  and  comprehensible  information,  in  accordance  with 
Directive 94/45/EC164") and underlined by recital 24 ("The use of such devices should 
be allowed for legitimate purposes, with the knowledge of the user concerned."). 
In order to fulfil the condition of specific consent, consent must relate to a defined set 
of  operations  about  which  the  user  has  been  informed  at  the  time  of  giving  consent. 
Any changes in the purpose for which consent was given that occur afterwards cannot 
be assumed to be covered by that consent, such as processing of data for incompatible 
secondary  purposes.  This  would  be  unlawful.165  However,  where  a  sequence  of 
operations  of  storing  and  accessing  data  on  a  user's  terminal  equipment  are  part  of 
processing  for  the  same  purpose,  it  is  not  necessary  to  obtain  consent  for  each 
individual operation involving gaining access to or storing of information on a user's 
terminal,  if  the  initial  information  and  consent  covered  such  further  use.  This  is 
clarified by recital 25 which explains that "Information and the right to refuse may be 
offered  once  for  the  use  of  various  devices  to  be  installed  on  the  user's  terminal 
equipment during the same connection and also covering any further use that may be 
made of these devices during subsequent connections." 

34_guidance/_EN_1.0_&a=d. See also Opinion 15/2011 of the Article 29 Working Party on the definition of 
"consent", available at http://ec.europa.eu/justice/policies/privacy/workinggroup/wpdocs/2011_en.htm 

163   In accordance with Article 10 of Data Protection Directive (95/46/EC) information should cover at least the 
identity  of  the  company,  the  purposes of  the  intended  processing  and  any  further  information  in  so far  as 
such  further  information  is  necessary,  having  regard  to  the  specific  circumstances  in  which  the  data  are 
collected, to guarantee fair processing in respect of the individual. 

164   Article 10 of the Data Protection Directive lays down the minimum information that has to be provided to a 

data subject.  

165   Further  processing  of  personal  data  for  historical,  statistical  or  scientific  purposes  is  not  generally  to  be 
considered as incompatible with the purposes for which the data have previously been collected, provided 
suitable safeguards are in place (see recital 29 and Article 6 (1) (b) of the Data Protection Directive). 

57

 
 
 
 
 
                                                                                                                                                         
•  Consent  should  be  freely  given,  i.e.  the  user  must  have  an  actual  choice.  This  also 
implies  that  a  user,  having  freely  given  his  or  her  consent,  can  also  revoke  it  at  any 
time. Recital 25 however clarifies that freely-given consent implies that a user may not 
be  able  to  be  provided  with  a  specific  service  if  he  or  she  does  not  consent  to  the 
storing and/or accessing of information on his or her terminal equipment: "Access to 
specific  website  content  may  still  be  made  conditional  on  the  well-informed 
acceptance of cookies or similar device, if it is used for a legitimate purpose".  

The  second  sentence  of  Article  5  (3)  provides  for  a  possible  exception  to  the  principle  of 
information  and  consent  where  the  use  of  cookies  and  similar  devices  could  be  allowed 
without  the  need  for  transparency  and  consent.  Following  the  amendments  introduced  by 
Directive 2009/136/EC, the exception may apply in certain cases. Firstly, it may apply if the 
storage is technical and designed "for the sole purpose of carrying out the transmission of a 
communication over an electronic communications network", or secondly, if the processing is 
"strictly  necessary  in  order  for  the  provider  of  an  information  society  service  explicitly 
requested  by  the  subscriber  or  user  to  provide  the  service".  As  it  is  an  exception  to  the 
principle,  it  must  be  interpreted  restrictively,  as  illustrated  by  recital  66:  "Exceptions  to  the 
obligation  to  provide  information  and  offer  the  right  to  refuse  should  be  limited  to  those 
situations where the technical storage or access is strictly necessary for the legitimate purpose 
of  enabling  the  use  of  a  specific  service  explicitly  requested  by  the  subscriber  or  user". 
Nevertheless, recital 66 also points out that "(w)here it is technically possible and effective, in 
accordance  with  the  relevant  provisions  of  Directive  95/46/EC,  the  user's  consent  to 
processing  may  be  expressed  by  using  the  appropriate  settings  of  a  browser  or  other 
application". 

The transposition deadline for the amended ePrivacy Directive expired on 25 May 2011. By 
the  summer  of  2011,  the  Commission  had  only  received  a  limited  number  of  notified 
measures  of  Member  States  that  had  implemented  the  new  rules.  At  the  end  November  of 
2011, a majority of Member States had not yet adopted and/or notified the Commission the 
measures  ensuring  the  full  transposition  of  the  new  rules.166  Some  of  the  proposed  national 
laws  have  already  been  criticised  for  being  unworkable  in  practice.167  Commission  services 
will  closely  monitor  the  process  of  transposition  of  the  new  ePrivacy  Directive  in  those 
Member  States  that  have  not  yet  fulfilled  their  obligations,  and  if  requested  provide  further 
guidance.  

4.1.2.4   Self-regulation in behavioural advertising 

Many  companies  have  developed  guidelines  for  behavioural  advertising.  Companies  and 
industry  associations  increasingly  publish  their  internal  guidance  for  online/behavioural 
marketing  and  the  processing  of  data.  These  codes  supplement  already  legally  binding 
requirements  and  confirm  commitments  on  principles  such  as  informing  consumers  about 
control  of  their  data;  how  they  are  used  (selling  to  third  parties,  use  re-targeting  etc.),  and 
respecting the particular needs and vulnerabilities of young users.168  

166   Only AT, DK, EE, IE, FI, LT, LU, LV, MT, SE, SK and UK notified full transposition at that time. 

167   This is for instance the case in the Netherlands. 

168   Recently,  for  example,  the  advertising  associations  EASA  and  IAB  Europe  agreed  on  Good  Practice 
Principles  for  Online  Behavioural  Advertising,  available  at  http://www.iabeurope.eu/public-affairs/top-
stories/self-regulation-framework.aspx. Their approach is based on an icon that is placed on each targeted 

58

 
 
 
 
 
                                                 
The Commission supports self-regulatory efforts in order to ensure compliance with the EU 
data  protection  legal  requirements  and  to  provide  transparency  to  users,  and  it  will  present 
new initiatives in the area of behavioural advertising in the first quarter of 2012. The industry 
is well placed to design innovative technical solutions, including browser settings and other 
applications.  A  self-regulatory  solution  for  compliance  with  Article  5(3)  of  the  ePrivacy 
Directive would need to be based on the following elements:169 

•  effective  transparency,  i.e.  users  should  be  provided  with  a  clear  notice  of  any 

targeting activity that is taking place; 

•  consent, i.e. an appropriate form of affirmation on the part of the user that he or she 

accepts to be subject to targeting and for what purposes; 

•  a user-friendly solution, possibly based on browser (or another application) settings; 
•  effective  enforcement,  including  clear  and  simple  complaint  handling,  reliable  third-

party compliance auditing and effective sanctioning mechanisms. 

The Council of Europe has adopted a recommendation on profiling and data protection setting 
out  minimum  privacy  standards  to  be  implemented  through  national  legislation  and  self-
regulation.170 

4.1.2.5  Data Protection Directive 

The  Commission  is  preparing  a  major  reform  of  the  data  protection  rules  laid  down  in  the 
Data  Protection  Directive171  to  make  the  data  protection  framework  more  coherent  and 
provide more  legal certainty (adoption foreseen in the first quarter of 2012).  The objectives 
are  to  set  forth  a  comprehensive  and  consistent  personal  data  protection  legal  framework 
which addresses new challenges such as technological developments in the digital economy 
and  more  intense  globalisation,  while  eliminating  unnecessary  costs  for  operators,  reducing 
administrative  burdens,  and  ensuring  more  coherence  in  the  data  protection  acquis.  The 
reform also aims at clarifying and simplifying rules for international transfers of personal data 
and  strengthening  and  clarifying  the  powers  of  data  protection  authorities  to  ensure 
compliance with data protection rules. 

advertisement,  coupled  with  a  website  providing  the  user  with  information  about  how  to  switch  off 
behaviourally targeted display ads from the company that the user signed up to. The principles oblige the 
participating  companies  to  provide  clear  and  unambiguous  notice  to  users  that  it  collects  data  for  the 
purposes  of  online  behavioural  advertising.  They  also  contain  commitments  on  user  education  and  the 
creation of complaints mechanisms. 

169   See in particular http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/452  

170   Recommendation  CM/Rec(2010)13  of  the  Committee  of  Ministers  to  member  states  on  the  protection  of 
individuals  with  regard  to  automatic  processing  of  personal  data  in  the  context  of  profiling,  23.11.2010, 
available 
at: 
https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=CM/Rec(2010)13&Language=lanEnglish&Ver=original&BackC
olorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383 

171   See the Communication from the Commission to the European Parliament, the Council, the Economic and 
Social Committee and the Committee of the Regions, A comprehensive approach on data protection in the 
at: 
04.11.2010; 
COM(2010) 
European 
http://ec.europa.eu/justice/news/consulting_public/0006/com_2010_609_en.pdf  

available 

Union, 

609, 

59

 
 
 
 
 
 
 
                                                                                                                                                         
Individuals  sometimes  find  it  difficult  to  exercise  their  rights  as  laid  down  in  the  Data 
Protection Directive. For example, in practice it is not always easy to request deletion of data, 
or  to  get  access  to  personal  data.  This  is  particularly  an  issue  in  the  digital  environment. 
Several provisions of the Directive have given rise to divergent interpretations and have not 
been implemented and enforced in a uniform manner in the Member States, thereby creating 
legal uncertainty and unnecessary costs for business.  

4.1.3  Online gambling 

The online gambling market is the fastest growing segment of the overall gambling market, 
with  annual  revenues  in  excess  of  €  8.5bn  in  2010.  Some  markets  have  traditionally  been 
open to licensed and regulated operators, while in others national monopolies have tended to 
be  authorised  to  develop  online  activities.  While  certain  Member  States  with  monopoly 
regimes have gradually opted for opening their online gambling and betting market, others are 
banning online gambling.  

The  development  of  the  Internet  and  the  increased  supply  of  online  gambling  services  are 
posing  challenges  for  the  co-existence  of  differing  regulatory  models,  illustrated  by  the 
number  of  preliminary  rulings  in  this  area  as  well  as  by  the  development  of  significant  so-
called "grey" markets (i.e. operators licensed in at least one but not all Member States) and 
illegal  online  markets  across  the  Member  States.  The  enforcement  of  national  rules  is 
rendered  difficult  by  several  factors,  raising  the  possibility  of  the  need  for  enhanced 
administrative  co-operation  between  competent  national  authorities,  or  for  other  types  of 
action. A number of objectives, common to all Member States, notably consumer protection, 
the fight against fraud and money laundering, ensuring the integrity of sports (mainly the fight 
against match fixing), and efficient enforcement, could also benefit from policy action at EU 
level. 

On 24 March 2011, the Commission launched an extensive public consultation on all relevant 
public  policy  challenges  and  possible  Internal  Market  issues  resulting  from  the  rapid 
development of both licit and unauthorised online gambling offers directed at citizens located 
in the EU.172 With the consultation the Commission exhausted a number of questions related 
to the effects of, and the possible public policy responses to, this growth in online gambling 
activity.  The  Commission  sought  to  gain  a  full  picture  of  the  existing  situation,  to  facilitate 
the  exchange  of  best  practices  between  Member  States  and  to  determine  if  the  differing 
national  regulatory  models  for  gambling  can  continue  to  coexist  or  whether  specific  action 
may be needed in the EU for that purpose.  

On the basis of the conclusions drawn from the results of this consultation, the Commission 
will  adopt  an  action  plan  in  2012,  which  should  amongst  other  objectives  contribute  to 
enhancing  (administrative)  cooperation  and  protecting  consumers  and  citizens  more 
efficiently. 

4.1.4  Online pharmacies and other health issues 

The situation in the EU with respect to online pharmacies is highly fragmented. Most Member 
States  still  prohibit  the  online  (or  mail-order)  sale  of  prescription  medicines  and  some 

172   See the DG’s website: http://ec.europa.eu/internal_market/services/gambling_en.htm   

60

 
 
 
 
 
 
 
                                                 
Member  States  prohibit  the  online  sale  of  "over-the-counter"  (OTC)  medicines  or  medical 
devices.  The  latter  is  noteworthy  given  that  the  European  Court  of  Justice  ruled  already  in 
2003 in the so-called DocMorris judgment that the absolute prohibition for the online sale of 
OTC medicines is not compatible with the Treaty's provisions concerning the free movement 
of goods.173 In those Member States permitting online sales of medicines, specific regulations 
on safety standards differ considerably and sometimes do not even exist. All this has led to 
diversity  in  practice  with  well  established  legal  e-pharmacy  markets  in  countries  like 
Germany, the Netherlands and the UK, but an almost total absence of legal internet sales in 
some eastern European Member States.  

The  result  of  this  highly  fragmented  market  is  that  cross-border  transactions  between  legal 
online pharmacies and patients residing in other Member States are rare. The lack of uniform 
safety  standards  creates  uncertainties  for  consumers/patients,  who  encounter  difficulties  if 
they  wish  to  verify  the  legality  of  an  e-pharmacy.  This  does  not  always  stop  them  from 
buying medicines online, with the result that they, often unconsciously, buy from illegal sites, 
with all the attendant health risks. 

The  public  consultation  on  e-commerce  triggered  a  limited  number  of  responses  to  online 
pharmacies,  stressing  its  advantages  and  disadvantages.  There  is  an  increasing  demand  for 
buying  medicines  online  for  a  number  of  reasons. The  greatest  benefit  for  consumers  is  the 
convenience of buying online and the subsequent savings of time, travelling costs and effort. 
The Internet should not replace necessary face-to-face consultations with appropriate medical 
practitioners but internet services can provide quick and easy access to medicines in particular 
for chronically ill people, less mobile citizens, the elderly, working people or inhabitants of 
rural areas. Second, medicines sold online can also be cheaper. In the case of non-reimbursed 
OTC medicines it is obvious that patients benefit from such lower prices directly. Finally, the 
Internet  guarantees  anonymity  to  users,  allowing  people  to  access  advice  or  medicines  that 
they may otherwise be reluctant to approach their pharmacists for in front of other customers 
in a physical pharmacy environment.  

In the absence of developed legal markets, the Internet has, however, become dominated by 
illegal offers to which consumers (including the most vulnerable seeking "cheaper" solutions) 
are drawn despite their unsafe or falsified character. Other disadvantages mentioned were the 
lack of physical contacts, possibly illegal advertising, language difficulties, and the delivery 
time. 

In  2007,  the  Council  of  Europe  adopted  a  resolution  recommending  a  number  of  safety 
standards  which  governments  should  respect  so  that  mail-order  trade  in  medicines  can  take 
place safely.174 The resolution considers an identifiable legal framework as the best protection 
for  consumers.  It  covers  (a)  the  virtual  dimension  with  transparency  obligations  concerning 
names  of  responsible  persons,  addresses,  licensing  authorities  etc,  and  (b)  the  physical  side 
providing obligations such as delivering  medicines safely and effectively to the person who 
has  ordered  them  or  printing  pharmaceutical  advice  in  the  language  of  the  country  of 
destination, etc. 

173   Case  C-322/01,  Deutscher  Apothekerverband  [2003]  ECR  I-14887.  Recently  confirmed  in  the  decision  in 

the Ker-Optika judgment, Case C-108/09.  

174   Council  of  Europe  Parliamentary  Assembly  Recommendation  1794  (2007),  The  quality  of  medicines  in 
Europe; available at: http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/erec1794.htm#1  

61

 
 
 
 
 
 
                                                 
In  line  with  the  DocMorris  judgment  of  2003,  the  recently  adopted  Falsified  Medicines 
Directive175 lays down a number of conditions under which the Member States are obliged to 
allow  the  sale  of  OTC  medicines  online.  Without  prejudice  to  the  provisions  of  the  E-
Commerce  Directive,  the  Directive  provides,  for  example,  for  additional  information 
requirements  and  the  creation  of  an  obligatory  "trust  mark"  ("common  logo")  for  websites 
legally offering medicinal products on the Internet. A "reciprocal link" between the common 
logo  and  a  national  register  of  legally-operating  online  sellers176  will  allow  verification  of 
authenticity.  The  Commission  shall  adopt  an  implementing  act  establishing,  amongst  other 
things,  the  design  of  the  common  logo.  The  new  Directive  also  addresses  information 
campaigns in order to raise consumer awareness of the functioning of the common logo. 

However, the Falsified Medicines Directive does not harmonise the rules for the sale of the 
medicinal  products  at  a  distance  to  the  public.  Member  States  may  therefore  adopt  further 
requirements  under  which  medicines  are  sold  over  the  Internet,  within  the  limits  of  the  EU 
Treaty.  

Following  the  the  adoption  of  the  Falsified  Medicines  Directive,  the  Commission  is 
prioritising  the  implementation  act  on  a  "common  logo"  for  legally  operating  sellers.  In 
addition,  it  will  continue  to  analyse  the  risks  related  to  the  online  sales  of  medicines  in  the 
context  of  the  transposition  and  the  application  of  the  Falsified  Medicines  Directive  in  the 
Member States. 

Other  EU  initiatives  also  contribute  to  the  realization  of  a  safe  and  legally  secure  Internal 
Market  for  online  health  services.  For  instance,  the  recently  adopted  Directive  on  the 
application of patients' rights in cross-border healthcare177 establishes a Community framework 
for cross-border healthcare. Article 13 of the Directive provides for the mutual recognition of 
prescriptions  issued  in  another  Member  State.  Article  14  foresees  the  creation  of  an  eHealth 
network which should address topics where structured cooperation between Member States is 
needed.  

Furthermore,  the  Commission  Communication  on  the  benefits  of  telemedicine  for  patients, 
healthcare  systems  and  society,178  aims  at  enabling  the  wider  deployment  of  telemedicine 
services  through  building  confidence,  bringing  legal  clarity,  solving  technical  issues  and 
facilitating  market  development.  This  Communication  will  be  complemented  by  a  Staff 

175   Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 amending Directive 
2001/83/EC  on  the  Community  code  relating  to  medicinal  products  for  human  use,  as  regards  the 
prevention of the entry into the legal supply chain of falsified medicinal products, OJ L 174, 1.7.2011, p. 74, 
available at: http://ec.europa.eu/health/files/eudralex/vol-1/dir_2011_62/dir_2011_62_en.pdf  

176   Directive 2011/62/EU refers to a "natural or legal person authorised or entitled to supply medicinal products 

to the public also at a distance in accordance with the legislation of the Member State". 

177   Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of 
in  cross-border  healthcare,  OJ  L  88/45,  04.04.2011;  available  at:  http://eur-

patient's  rights 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:088:0045:0065:EN:PDF  

178   Commission  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and 
Social Committee and the Committee of the Regions on telemedicine for the benefit of patients, healthcare 
http://eur-
systems 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0689:FIN:EN:PDF  

4.11.2008, 

(2008)689 

available 

society, 

COM 

final, 

and 

at: 

62

 
 
 
 
 
 
 
                                                 
Working  Paper  on  the  applicability  of  the  existing  EU  legal  framework  to  telemedicine 
services  in  the  first  half  of  2012.  Finally,  the  Commission  will  adopt  by  the  end  of  2012  its 
second  eHealth  Action  Plan  (eHAP),  which  will  consolidate  the  actions  which  have  been 
addressed to date, take them a step further where possible and provide a longer-term vision for 
eHealth in Europe. 

4.2  Information 

Once trust is achieved, sellers and buyers willing to go online still need to be able to advertise 
their  offers,  and  to  be  able  to  obtain  information  on  the  offer  that  is  available.  Where 
necessary  in  this  context,  price  comparison  websites,  restrictions  on  advertising,  and  unfair 
commercial practices should be tackled.  

4.2.1  Price comparison websites  

As  outlined  in  the  Staff  Working  Document  "Bringing  e-commerce  benefits  to  consumers" 
accompanying the Communication on e-commerce, consumers are missing out from the full 
benefits  of  e-commerce,  that  is  lower  prices  and  a  wider  choice,  since  many  offers  are  not 
available across borders. In 2010, just 9% of consumers bought a good or a service from an 
online business based in another EU country.  

Even  in  cases  where  it  is  possible  to  buy  across  borders,  information  on  these  offers  is  not 
readily  available.  In  2010,  eight  in  ten  online  shoppers  used  a  price  comparison  website  to 
research  their  purchases,  yet  as  was  shown  in  a  recent  Mystery  Shopping  study  of  price 
comparison  websites,  only  a  low  proportion  of  price  comparison  websites  (17%)  give 
customers the option of offers available from other Member States. In addition, just 14% of 
tested  price  comparison  websites  are  available  in  more  than  one  language179.  As  a  result, 
consumers often do not find out about cross-border offers. 

The performance of the tested price comparison websites was sub-standard in many aspects 
when  it  came  to  the  provision  of  information.  Only  one  in  two  price  comparison  websites 
provided  the  full  details  of  their  business  address.  The  situation  with  online  retailers  was 
somewhat better, with 67% of tested retailers providing a full business address.  

In 60% of tested price comparison websites, it was not clear whether retailers had to pay to 
have their products listed and most price comparison websites did not display the correct final 
price.  Information  provision  on  added  costs  was  rather  poor.  Just  19%  of  price  comparison 
websites  showed  prices  including  VAT  and  other  taxes,  and  delivery  charges.  Another 
worrying finding was that in more than half of trials, the cheapest price was not the first price 
displayed. 

It is also disappointing that many online sellers apparently do not even know where to turn to 
find  out  more  information  about  selling  cross-border:  only  29%  of  retailers  knew  where  to 
look  for  information  or  advice  about  consumer  legislation  in  force  in  other  EU  countries. 
Moreover,  73%  of  distance  sellers  were  unaware  of  the  exact  length  of  the  "cooling-off" 

179   Data  from  the  mystery  shopping  exercise  taken  from  Civic  Consulting.  Consumer  market  study  on  the 
at: 

available 
e-commerce, 
functioning 
http://ec.europa.eu/consumers/consumer_research/market_studies/e_commerce_study_en.htm 

2011, 

of 

63

 
 
 
 
 
 
 
 
                                                 
period for distance sales in their own country180. A Mystery Shopping exercise tested whether 
retailers provide information on the rights of consumers in case they receive a faulty product. 
Disturbingly,  only  37%  of  cases  provided  information  on  the  right  of  consumers  to  have  a 
faulty good repaired or replaced or to obtain a refund within two years after purchasing the 
goods. A positive finding was that four out of five (82%) tested retailers provided information 
concerning the consumer right to return a good without giving a reason within a minimum of 
seven days after the purchase.181   

Commission services will work closely with product testing and other organisations providing 
information  on  product  quality  comparisons/price/best  value  for  money  in  order  to  make 
results available and comparable across the EU. 

4.2.2  Restrictions on advertising  

One of the main drivers of online services across Europe is advertising. Virtually all online 
businesses  reach  clients  through  advertising  or  other  forms  of  commercial  communications. 
Many small and emerging companies depend on online advertising to facilitate their market 
entry  and  build  competitive  and  successful  businesses.  Effective  online  advertising  helps  to 
maintain low barriers to market entry, particularly in a cross-border context.  

Different tools for approaching online customers exist. The classical way is for the traders or 
service providers to create their own website in the hope that clients will find their business 
and  make  a  direct  order  online  through  their  website.  Second,  online  businesses  such  as 
newspapers,  video  sharing  sites,  and  commercial  blogs  offer  content  and  services  to 
consumers for free, earning revenue by selling advertising space on their sites to businesses 
that intend to reach those customers. Third, online enterprises such as travel planning sites sell 
both advertising space and their (own) services directly to consumers.   

In  all  those  business  models,  the  use  of  search  engines  has  become  widespread.  Customers 
rely increasingly on search engines to find their preferred product or service. Search engines 
charge  advertisers  on  a  pay-per-click  basis.  The  trend  is  towards  direct-response  type 
advertising instead of display advertising.  

Publishers have focussed on the importance of advertising revenues which account for 50% of 
newspaper revenues in the printed environment and almost 100% in the digital area.  

Restrictions on advertising may therefore have a negative effect on the development of online 
services. Certain restrictions on advertising, such as on tobacco products, alcohol, gambling 
or financial services, are based on the principle of the protection of a general interest. These 
restrictions  are  often  based  on  EU  legislation  and  apply  both  in  offline  and  online 

180   European  Commission,  Flash  Eurobarometer  300:  Retailers'  attitudes  toward  cross-border  trade  and 
consumer protection. March 2011, available at: http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf. The 
"cooling-off" period is the period after the purchase during which a consumer has the legal right to return a 
product  purchased  on  the  internet,  by  phone  or  post  without  paying  a  penalty.  This  "cooling-off"  period 
ranges from 7 to 15 calendar days depending on the country where the product is sold. The recently adopted 
Consumer Rights Directive fully harmonizes the "cooling-off" period to 14 days (see Chapter 4.4.1). 

181  ECC-Net,  Online  Cross-border  Mystery  Shopping  –  State  of 
http://ec.europa.eu/consumers/ecc/docs/mystery_shopping_report_en.pdf 

the  e-Union,  October  2011 

64

 
 
 
 
 
 
 
 
                                                 
situations.182  But  the  public  consultation  and  Commission  research  make  clear  that  other 
advertising  restrictions  are  more  specific  and  may  be  more  difficult  to  justify  under  the 
fundamental  freedoms  of  the  TFEU.  Some  Member  States  still  ban  the  sale  of  certain 
products  online183  or  apply  different  conditions  for  online  and  offline  marketing.  National 
rules  restricting  the  periods  of  sales  for  "brick  and  mortar"  shops  may  also  be  applied  to 
online traders established in other Member States. Regulated professions still face restrictions 
when  developing  online  commercial  communications.  In  this  context,  Article  24  (1)  of  the 
Services Directive requires Member States to remove total bans in so far as such bans concern 
a  particular  form  of  advertising  such  as  advertising  over  the  Internet.184  It  has  also  been 
reported  that  contractual  prohibitions  (e.g.  on  data  portability)  complicate  multi-platform 
advertising campaigns. Finally, the application of data and privacy protection rules on cookies 
and behavioural targeting has sometimes been perceived as excessive by internet companies. 

The  Commission  services  will  continue  to  monitor  and  analyse  the  national  regulatory  and 
contractual  developments  in  the  Member  States  and  the  EU  with  a  view  to  assessing  their 
compatibility with the Internal Market freedoms and other EU acquis. 

4.2.3  Unfair commercial practices  

The  Unfair  Commercial  Practices  (UCD)  Directive185  lays  down  harmonised  rules  for  the 
fight  against  unfair  commercial  practices  and  contributes  to  a  high  level  of  consumer 
protection. It ensures that consumers are not misled or exposed to aggressive marketing and 
that  any  claim  made  by  traders  in  the  EU  is  clear,  accurate  and  substantiated,  enabling 
consumers  to  make  informed  and  meaningful  choices.  The  Directive  also  aims  to  ensure, 
promote and protect fair competition in the area of commercial practices. 

Based on full harmonisation, it has four key elements: 

•  A general clause: a far-reaching general clause defining practices which are unfair and 

therefore prohibited. 

•  Misleading practices (actions and omissions) and aggressive practices: the two main 

categories of unfair commercial practices − are defined in detail.  

182   For example, Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the 
coordination of certain provisions laid down by law, regulation or administrative action in Member States 
concerning  the  provision  of  audiovisual  media  services  (‘Audiovisual  Media  Services  Directive’),  OJ 
15.4.2010,  L  95/1,  imposes  advertising  bans  and  restrictions  for  tobacco  products,  medicines  on 
prescription,  and  alcohol  advertising.  The  restrictions  and  bans  are  applicable  to  linear  and  on-demand 
services.  All  audiovisual  commercial  communications  (TV  and  on-demand)  must  be  readily  recognizable; 
not use subliminal techniques; not use surreptitious techniques; respect human dignity; not include/promote 
discrimination (e.g. based on sex, nationality, religion); not encourage behavior harmful to health (see codes 
of conduct on fatty food), safety or the environment; and not promote tobacco or prescription medication. 
The Directive covers television, on-demand services and emerging advertising techniques. The question has 
been  raised  to  what  extent  the  commercial  communications  rules  of  the  Audiovisual  Media  Services 
Directive also apply to new services such as the online social networks. 

183   See recently for example the Ker-Optika judgment, Case C-108/09. 

184   See  Case  C-119/09, Société  fiduciare nationale d'expertise  comptable v  Ministre  du Budget, des  Comptes 
judgments  of  05.04.2011;  available  at:  http://eur-

publics  et  de 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0119:EN:HTML 

la  Fonction  publique, 

185   Unfair Commercial Practices Directive, OJ L 149/22, 11.06.2005. 

65

 
 
 
 
 
                                                 
•  Safeguards  for  vulnerable  consumers:  the  Directive  contains  provisions  that  aim  at 

preventing exploitation of vulnerable consumers. 

•  Black list: an extensive black list of practices which are banned in all circumstances. 

The UCP Directive applies to commercial practices both in offline and online situations. The 
Directive  is  thus  a  crucial  instrument  for  guaranteeing  that  any  commercial  information 
available on websites is fair and that it does not confuse consumers. In order to ensure that 
both  consumers  and  traders  are  subject  to  the  same  rules  across  the  EU,  it  is  necessary  for 
national  authorities  and  courts  to  contribute  to  the  uniform  implementation  and  consistent 
enforcement  of  the  Directive.  In  recent  years  the  Commission  has  undertaken  certain 
initiatives to promote the knowledge of the UCP and to achieve a uniform transposition in the 
Member States: 

• 

• 

• 

the web page www.isitfair.eu contains practical information for consumers on how to 
check if they have fallen victim to an unfair commercial practice, and how to get help; 
in  2009  the  Commission  published  online  the  Digital  Guide  for  Consumers  which 
clarifies the application of the Directive on online practices;  
joint  surveillance  actions  ("sweeps")  have  been  carried  out  on  the  basis  of  UCP 
provisions  (websites  selling  airlines  tickets,  online  mobile  phone  services,  websites 
selling consumer electronic goods); 

•  on 3 December 2009 the Commission published detailed guidelines aiming to provide 
guidance on those key concepts and provisions of the Directive which are perceived to 
be problematic. It includes practical examples showing how the Directive works. The 
guidelines must evolve in response to the input received from national enforcers, the 
emergence of new practices or additional questions and the development of European 
and national case law;  
to  support  the  Member  States  in  achieving  a  uniform  application  and  common 
understanding of the Directive, the Commission has developed a legal database which 
will  make  it  possible  to  compare  decisions  and  national  case  law  of  the  Member 
States.  The  database  is  a  comprehensive  and  user-friendly  tool  which  gathers  and 
gives  public  access  to  national  laws  transposing  the  Directive,  jurisprudence, 
administrative  decisions,  references  to  related  legal  literature  and  other  relevant 
materials. 

• 

In  spring  2012  the  Commission  will  publish  a  report  on  the  application  of  the  Unfair 
Commercial Practices Directive. The report will identify areas for possible future revision of 
the Directive and provide an overview of its application in the fields of financial services and 
immovable  property.  Among  the  many  issues  which  may  be  examined  in  the  report  are  the 
rules  on  sales  promotions,  misleading  environmental  claims,  price  information  and  price 
comparisons.  

Simultaneously,  in  the  context  of  the  fight  against  unfair  commercial  practices  the 
Commission  will  also  evaluate  the  application  of  the  Directive  on  Misleading  and 
Comparative  Advertising  which  covers  B2B  relationships.186  More  details  will  be  made 

186    Directive  2006/114/EC  of  the  European  Parliament  and  of  the  Council  of  12  December  2006  concerning 
misleading  and  comparative  advertising,  OL  375/21,  27.12.2006,  available  at:  http://eur-
lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=EN&numdoc=32006L01
14  

66

 
 
 
 
 
 
                                                 
available in the Consumer Action Plan 2014-2020 which the Commission will make public in 
2012. 

4.2.4  Code of EU Online Rights 

The Digital Agenda announced the issuing by the Commission of a Code of EU Online Rights 
which should summarize existing digital user rights in the EU in a clear and accessible way 
way to inspire trust and confidence among users of e-communications and online services.  

The  Code  will  build  on  the  prototype  of  the  eYou  Guide,  the  online  information  tool  for 
internet users and consumers explaining the digital rights and obligations provided for by EU 
law  in  the  form  of  frequently  asked  questions  and  answers.187  The  Code  is  expected  to  be 
completed in 2012. 

4.2.5  Business awareness  

There  is  also  a  serious  lack  of  knowledge  among  traders  concerning  e-commerce  and 
consumer  rights, in  particular  in  cross-border situations. For  example, only  29%  of  retailers 
know where to look for information or advice about consumer legislation in force in other EU 
countries, and 72% of distant sellers do not even know the exact length of the "cooling-off" 
period  for  distance  sales  in  their  own  country.188  As  a  result,  many  businesses  find  it  too 
daunting to begin selling online or to take the next step and start selling cross-border.  

The  Commission  will  contribute  to  a  more  proactive  policy  by  using  its  existing  networks 
such as the European Enterprise Network and/or the European Consumer Centres Network, to 
provide  information  to  (potential)  online  traders  about  their  obligations  when  selling  cross-
border and also to create more awareness about the opportunities offered by selling in other 
EU countries and taking advantage of the potential of the Internal Market.  

4.3  Access 

Both consumers and businesses face legal and practical obstacles when they seek to operate 
online. These barriers include discrimination on the basis of country of residence; difficulties 
in obtaining capital; problems registering domain names or getting internet access; territorial 
restrictions on intellectual property rights; and grey markets. 

4.3.1   Discrimination: Article 20 (2) of the Services Directive 

There is a growing tendency for businesses to use the Internet to foster the sales of their goods 
and  services  by  exploiting  the  global  availability  of  their  websites.  However,  most  online 
traders  still  serve  a  very  limited  number  of  Member  States.  Online  buyers  are  regularly 
confronted  with  refusals  of  online  web  shops  to deliver if they are not residing in the same 
Member  State,  undermining  the  consumers'  confidence  in  the  digital  Internal  Market.  The 
most frequent cases concern web shops that either refuse to sell items or services to residents 

187   http://ec.europa.eu/information_society/eyouguide/navigation/index_en.htm  

188  European  Commission,  Flash  Eurobarometer  300:  Retailers'  attitudes  toward  cross-border  trade  and 
consumer protection. March 2011, available at: http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf. 

67

 
 
 
 
 
 
 
 
                                                 
of certain Member States, or sell identical items or services at a (much) higher price due to the 
consumer's  country  of  residence.  It  is  not  unusual  that  websites  automatically  route  the 
consumer  to  another  website  which  corresponds  to  their  country  of  residence,  enabling  the 
web  shop  to  maintain  different  price  policies  based  on  national  borders.  Consumer 
transactions may also fail at the stage of revealing credit card details due to the address of the 
owner. Complaints received by the Commission and the European Consumer Centres indicate 
that  such  practices  exist  for  a  wide  range  of  services  such  as  the  sale  of  electronic  goods, 
textiles, bikes, DIY goods, music downloads, rental cars, mobile phone contracts etc.  

Article 20 (2) of the Services Directive189 prohibits discrimination on grounds of nationality 
or residence in B2C and B2B relationships. It obliges Member States to ensure that general 
conditions of access to a service which is available to the public at large by a service provider 
do  not  contain  discriminatory  provisions  based  on  nationality  or  the  place  of  residence  of 
recipients. This does not exclude that service providers offer different tariffs, prices and other 
conditions where those differences are directly justified by objective criteria.  

In accordance with Article 20(2) of the Services Directive, Member States have an obligation 
to  ensure  that  the  above-mentioned  non-discrimination  principle  is  implemented  in  their 
national  legal  orders.  Further  to  this  implementation,  it  is  for  the  competent  national 
authorities to ensure that general conditions of access to a service made available to the public 
by online traders falling under the scope of the Services Directive comply with the national 
provisions implementing Article 20(2) of the Services Directive. 

The  application  of  these  national  provisions  will  require  a  case-by-case  assessment  of  the 
possible "objective reasons" for the different treatment. Recital 95 of the Services Directive 
gives examples of such objective circumstances. Additional costs may be justified because of 
the  distance  involved  or  the  technical  characteristics  of  the  provision  of  a  service;  different 
market conditions such as a higher or lower demand influenced by seasonal factors; pricing 
by different competitors, or extra risks linked to having to comply with rules different to those 
of the Member State of establishment. For example, delivery costs of physically heavy items 
such  as  television  sets  or  differences  in  VAT  could  objectively  justify  higher  prices.  The 
provision  of  a  service  may  also  be  refused  because  of  the  lack  of  a  required  intellectual 
property right in a particular territory.  In  addition, online  service providers have invoked as 
objective justifications for different treatment the perceived insecurity of transactions and the 
higher  risk  of  fraud  and  non-payments  in  cross-border  transactions,  and  the  difficulty  of 
resolving  cross-border  disputes  which  is  aggravated  by  the  persistent  complexity  of  cross-
border legal arrangements.  

Member States had to implement the Services Directive into their national legal orders by 28 
December  2009.  According  to  the  information  held  by  the  Commission,  a  majority  of 
Member States have implemented Article 20 (2) of the Services Directive through a provision 
in the horizontal law transposing the Services Directive.  

The  Commission  has  received  numerous  complaints  and  queries  from  citizens  who  have 
encountered problems when trying to buy services in other Member States. However, to the 
Commission's knowledge there have been very few cases of administrative application of the 

189   Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in 
http://eur-
376/36, 

L 
the 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF  

27.12.2006; 

available 

internal 

market, 

OJ 

at: 

68

 
 
 
 
 
 
 
                                                 
national  provisions  implementing  Article  20  (2)  of  the  Services  Directive  and  as  yet  no 
instances of judicial application in any Member State190.  

is  currently  assessing 

The  Commission 
the 
implementation  of  Article  20  (2)  of  the  Services  Directive.  Based  on  the  outcome  of  this 
research, it will establish guidelines to assist national authorities on the proper application of 
the national provisions implementing Article 20 (2) Services Directive (adoption in 2012). 

the  completeness  and  correctness  of 

4.3.2  Access to capital for SMEs 

Small and Medium Sized Enterprises (SMEs) play an important role in fostering growth and 
innovation  and  this  holds  in  particular  for  the  online  services  market.  Despite  their 
importance, they encounter difficulties in raising finance for several reasons. 

First of all, risk aversion tends to make investors and banks shy away from financing firms in 
their  start-up  and  early  expansion  stages.  Second,  many  SMEs  lack  awareness  of  the 
advantages  and  disadvantages  of  different  forms  of  finance  and  knowledge  of  how    best  to 
present their investment projects. Third, SMEs tend to have a weak equity position, partially 
due to the late payment culture in Europe. 

SMEs providing online services face an additional hurdle in accessing finance. As a rule, they 
have  few  tangible  assets  and  therefore  have  difficulties  in  getting  access  to  traditional  bank 
finance.  Innovative  SMEs  therefore  often  seek  access  to  capital  markets  beyond  bank 
financing,  in  particular  through  venture  capital.  Venture  capital  markets  are,  however,  not 
sufficiently  developed  in  Europe  as  they  encounter  significant  difficulties  in  raising  capital 
abroad  and  in  operating  across  borders  because  of  a  multiplicity  of  national  regulatory 
regimes and tax barriers. 

On  7  December  2011,  the  Commission  adopted  an  action  plan  on  access  to  finance  for 
SMEs.191 The action plan includes measures to facilitate the cross-border provision of venture 
capital  services  in  view  of  the  existing  multitude  of  national  regulatory  regimes  and  tax 
barriers. 

4.3.3  Domain names 

For many online services, obtaining a national top level domain name (TLD) is a major asset 
for  reasons  of  trust  and  reputation.  Globally  operating  internet  companies  therefore  usually 
choose to have their country specific sites with a TLD of the country in question. Businesses 
that  register  under  a  local  domain  name  will  very  often  also  be  ranked  higher  when  their 
customers  are  using  search  tools.  However,  the  Commission  services  have  received 
complaints  from  companies  frustrated  in  their  attempts  to  obtain  TLDs  because  certain 
Member States require natural and legal persons to be established within their territory, and/or 
have  a  "real  and  substantive"  connection  with  the  country.  While  this  may  be  an  important 
element  in  building  trust  and  reputation  it  may  also  create  a  barrier  to  the  cross-border 

190 Case nr. 10/04928, http://www.forbrugerombudsmanden.dk/Sager-og-praksis/Lov-om-tjenesteydelser/Sager-
efter-lov-om-tjenesteydelser/Lov-om-tjenesteydelser-i-det-indre-marked 

191 See http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/879  

69

 
 
 
 
 
 
 
 
                                                 
provision  of  online  services,  especially  in  cases  where  SMEs  are  trying  to  penetrate  cross-
border markets and expand their activities beyond national borders. 

National  domain  names  as  such  are  not  regulated  at  EU  level.  However,  requiring  a  local 
presence for the registration of a TLD could be a restriction to the freedom to provide services 
(Art.  56  TFEU)  and  might  also  be  in  breach  of  the  E-Commerce  Directive  (Article  3  (2), 
freedom to provide information society services). The Commission services will monitor the 
establishment  requirements  for  obtaining  TLDs  and  their  compatibility  with  the  Internal 
Market freedoms and other applicable EU acquis. 

4.3.4  Net neutrality  

Net  neutrality  is  the  principle  according  to  which  the  Internet  should  be  neutral,  open  and 
easily  accessible.  This  principle  is  not  always  compatible  with  the  practice  of  "traffic 
management" generally used by internet providers. A recent Commission consultation on net 
neutrality and the open Internet192, shows a consensus of opinion on the necessity of having a 
certain degree of traffic management: on the one hand, techniques like packet differentiation 
and  IP  routing  guarantee  a  minimum  quality  to  end-users  for  services  that  require  a 
differentiated network speed (such as videoconferencing), while, on the other hand, a certain 
degree of filtering is necessary to block harmful traffic such as cyber attacks and viruses. 

Traffic management can, however, also be misused by internet providers to prevent access to 
information society services, in  particular when they are competing with the services of the 
internet  provider  (such  as  telephony  or  television  services).  This  can  be  done  either  by 
blocking certain services outright or by making it very unattractive to access them, usually by 
using a technique called "throttling" that degrades network quality.  

The Commission Communication on the open Internet and net neutrality in Europe193 reports 
several  instances  of  blocking  of  legal  services (in  particular  of  Voice-over-Internet-Protocol 
services by mobile internet providers), but stresses that more exhaustive evidence is needed 
before  policy  conclusions  can  be  drawn  at  the  European  level.  The  Communication 
furthermore  recalls  that  the  Commission  reserves  its  right  to  assess  under  Articles  101  and 
102  TFEU  any  behaviour  related  to  traffic  management  that  may  restrict  or  distort 
competition.  In  the  first  half  of  2012,  the  Commission  will  publish  evidence  from 
investigations by the Body of European Regulators for Electronic Communications (BEREC). 
On that basis it will decide whether, in addition to measures that should increase transparency 
and facilitate switching, specific guidance on net neutrality is necessary.194 In the meantime, 
more  stringent  measures  to  ensure  competition  and  access  to  certain  online  services  are  not 
excluded. 

192   See: 

http://ec.europa.eu/information_society/policy/ecomm/library/public_consult/net_neutrality/index_en.htm  

193   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  Economic  and  Social 
Committee and the Committee of Regions, The open internet and net neutrality in Europe, COM(2011)222 
final, 
at: 
http://ec.europa.eu/information_society/policy/ecomm/doc/library/communications_reports/netneutrality/co
mm-19042011.pdf 

19.4.2011; 

available 

194   In  The  Netherlands  a  draft  law  is  discussed  that  should  guarantee  net  neutrality,  Kamerstuk,  32549/17, 

available at: https://zoek.officielebekendmakingen.nl/dossier/32549/kst-32549-17 

70

 
 
 
 
 
 
                                                 
The  Commission  will  in  2012  publish  the  evidence  that  will  come  to  light  from  BEREC's 
work on net neutrality. On that basis, the Commission will assess the need for more stringent 
measures to achieve competition and the choice consumers deserve. 

4.3.5  Intellectual property rights  

The development of the Internet has meant the birth of a trade in goods and services that have 
a distinct characteristic – independence from any physical medium. Music, films and books 
can be downloaded or viewed remotely without the need to visit shops or have them delivered 
to  one's  home.  Equally,  cultural  and  sporting  events  can  be  viewed  on  the  Internet  without 
having to go to a theatre or sports venue.  

Historically,  music  was  the  first  digital  content  available  on  the  Internet.  Thanks  to  further 
technological development including the growth of broadband networks, videos were able to 
"travel" on the network. Today, with the availability of adequate computer support for reading 
text, books have become services which can be downloaded on to digital readers. Businesses 
have developed new business models to promote transactions in online digital goods.  

Although  this  new  form  of  trade  creates  huge  expectations  on  the  part  of  consumers,  the 
online  content-related  (legal)  services  are  normally  not  available  in  all  Member  States  and 
tend to concentrate in a limited number of Member States. These services also tend to target 
specific  territories  and  limit  the  possibility  for  consumers  to  use  them  across  borders.  It  is 
undisputed that Europe remains to a very great extent a patchwork of national online markets 
and that there are a number of regulatory and non-regulatory reasons for this.  

The  principle  of  territoriality  that  applies  to  copyright  as  well  as  related  licensing  practices 
that often necessitate obtaining  obtain separate licences for all the countries covered are two 
of  the  main  obstacles  to  cross-border  trade.  These  two  issues  were  identified  by  many 
respondents to the public consultation. Several respondents called for further harmonisation of 
intellectual property rules. Other than the difficulties linked to licences and legal uncertainty 
of the current intellectual property system, market players are also confronted with sometimes 
conflicting claims, from different claimants, over ownership of goods or rights for which they 
hold  a  licence.  In  addition,  complaints  have  been  made  about  the  practical  difficulties 
businesses  face  when  they  wish  to  provide  cross-border  digital  content  services  which  are 
copyright-protected,  resulting  in  their  needing  toenter  into  licence  agreements  outside  their 
home country. Copyright holders usually strongly defend the traditional territoriality system 
of rights and licences.  

The  fact  that  copyright  protection  is  based  on  territoriality  should  not  be  seen  as  leading 
automatically to territorial licensing. It is nevertheless the case that right holders and, equally 
importantly,  online  service  providers  adapt  works  according  to  the  linguistic  and  cultural 
tastes  of  each  country  in  an  attempt  to  maximise  economic  returns  e.g.  film  distributors' 
staggered  release  windows.195  In  the  absence  of  a  European  public  domain,  a  common 

195  Territorial licensing practices were also the subject of a recent case before the European Court of Justice. 
The  Premier  League  case  concerns  the  restriction  of  access  by  means  of  conditional  access  technology 
(decoder cards) to sports broadcasts which are transmitted via satellite in various Member States. Premier 
League  brought  actions  against  a  number  of  UK  pubs  using  non-UK  pay-TV  subscriptions  to  show  live 
Premier  League  matches.  The  Court  held  that  national  legislation  protecting  sporting  events  is  capable  of 
justifying a restriction to the free movement of services (Article 56 TFEU). However, where a premium is 

71

 
 
 
 
 
 
 
 
                                                 
language, and common cultural preferences (humour, taste, decency, etc) the production and 
consumption of cultural products still remains overwhelmingly national.196   

Intellectual  property  right  holders  also  raised  the  issue  of  counterfeiting  and  piracy  as  an 
obstacle  to  e-commerce.  Piracy  deprives  creators  from  a  fair  reward  whereas  counterfeiting 
distorts the Single Market because of the unfair competition between businesses. One of the 
crucial means of combating piracy is the development of legal offers by providers. In parallel, 
the  development  of  cross-border  trade  should  also  help  increase  the  income  of  authors  by 
attracting potential customers from all Member States. 

On 24 May 2011 the Commission published a Communication with the aim of boosting the 
Single  Market  for  Intellectual  Property  Rights.197  The  new  Intellectual  Property  Strategy 
announces a number of EU initiatives:  

1.  The  Commission  will  present  a  legislative  proposal  to  simplify  the  collective 
management  of  copyright  in  the  EU.  Collecting  societies  licence  the  rights  of 
creators and collect and distribute their royalties. The Commission's focus will be two-
fold.  The  first  initiative  will  be  the  establishment  of  common  rules  for  collecting 
societies  in  order  to  enhance  the  governance  and  transparency  of  all  collectively-
managed  revenue  streams.  Clearer  rules  on  the  governance  and  transparency  of 
collecting societies will create a level playing field amongst right holders, commercial 
users  and  collecting  societies.  Second,  the  creation  of  a  clear  and  well-functioning 
legal framework for the multi-territorial licensing of musical works for online services 
will  encourage  the  uptake  of  new  business  models  that  provide  online  services  to 
European consumers. 

2.  In order to promote the dissemination of Europe's intellectual and cultural heritage, the 
Commission  tabled  on  24  May  2011  a  legislative  proposal  to  facilitate  the 

paid by the television stations in order to ensure them absolute territorial exclusivity, this goes beyond what 
is  necessary  to  ensure  the  right-holders  appropriate  remuneration,  because  such  a  practice  may  result  in 
artificial price differences between the partitioned national markets. Such partitioning and such an artificial 
price  difference  are  irreconcilable  with  the  fundamental  aim  of  the  Treaty,  which  is  completion  of  the 
Internal Market. Provisions on freedom to provide services impose obligations on the Member States but do 
not prohibit market players, such as FAPL, from imposing territorial restrictions in commercial agreements. 
The  Court  confirmed  that  the  clauses  of  an  exclusive  licence  agreement  concluded  between  a  holder  of 
intellectual  property  rights  and  a  broadcaster  constitute  a  restriction  on  competition  prohibited  by  Article 
101 TFEU where they oblige the broadcaster not to supply decoding devices enabling access to that right-
holder’s  protected  subject-matter  with  a  view  to  their  use  outside  the  territory  covered  by  that  licence 
agreement  (See:  Case  C-430/08,  Football  Association  Premier  League  Ltd  v  QC  Leisure  and  C-429/08, 
Karen  Murphy  v  Media  Protection  Services  Limited,  judgment  of  4  October  2011,  available  at 
http://curia.europa.eu/juris/recherche.jsf?language=en).  

196 One of the reasons adduced to explain this shortage is the fact that certain (national) markets are far too na 
row  or  even  inexistent,  meaning  investments  are  not  made.  Cross-border  access  to  cultural  goods  and 
services, however, helps European citizens to better know and understand each other's cultures, to appreciate 
the richness of cultural diversity and to see for themselves what they have in common. 

197   Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  A  Single  Market  for  Intellectual  Property  Rights. 
Boosting creativity and innovation to provide economic growth, high quality jobs and first class products 
at: 
24.05.2011, 
and 
http://ec.europa.eu/internal_market/copyright/docs/ipr_strategy/COM_2011_287_en.pdf  

COM(2011) 

available 

services 

Europe, 

final, 

287 

in 

72

 
 
 
 
 
                                                                                                                                                         
digitisation and making available of "orphan works".198 Orphan works are works 
such  as  books,  newspapers  or  films  that  are  still  protected  by  copyright  but  whose 
copyright  holders  are  not  known  or  cannot  be  traced.  Therefore,  the  right  holders 
cannot be contacted to give their permission for libraries and archives to digitise their 
works  and  make  them  available  online.  The  lack  of  a  common  EU  framework  on 
orphan  works  is  a  particular  obstacle  to  the  development  of  European  large-scale 
digital  libraries.  As  part  of  its  efforts  towards  the  creation  of  digital  libraries,  the 
Commission brokered a Memorandum of Understanding with Key Principles between 
authors, publishers, libraries and collecting societies to enable online access to out-of-
commerce  books  through  licensing  models.  The  agreement  was  signed  on  20 
September 2011. Out-of-commerce books are books that are in-copyright but that are 
no longer in customary channels of commerce. They differ from orphan works in that 
their right holders (authors and publishers) are known.199 

3.  The proper functioning of the Internal Market requires the development of a durable 
approach  to  private  copying  levies.  Remuneration  for  private  copying  of  copyright-
protected  works  is  collected  in  the  form  of  levies  on  recording  media  or  recording 
equipment  (photocopiers,  printers,  Mp3  players,  CDs  and  DVDs  etc.).  However, 
different rules and tariffs apply across Member States. This impedes the smooth cross-
border flow of goods that are subject to levies. The Commission has appointed a high-
level  mediator,  M.  Antonio  VITORINO,  tasked  with  resolving  differences  amongst 
relevant stakeholders and finding workable solutions to resolve outstanding issues that 
should lay the ground for comprehensive legislative action at EU level by 2012. The 
issues  that  will  be  looked  at  specifically  are  the  methodology  used  to  impose  set 
tariffs,  the  equipment  which  should  be  subject  to  levies,  and  ways  to  improve  the 
cross-border functioning of disparate national levy systems.200 

4.  In  the  audiovisual  sector,  the  Commission  launched  a  public  consultation  on  the 
online distribution of audiovisual works on 13 July 2011 which was open until 18 
November  2011.201  On  the  basis  of  the  results  of  the  public  consultation,  the 
Commission will determine whether any follow-up action needs to be taken in order to 
overcome  Digital  Single  Market  barriers  and  stimulate  the  European  audiovisual 
sector  as  regards  issues  such  as  video-on-demand  (VoD)  services  and  cross-border 
broadcast services (2012). 

198   Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan 
at: 

works, 
http://ec.europa.eu/internal_market/copyright/docs/orphan-works/proposal_en.pdf  

COM(2011) 

24.05.2011, 

available 

final, 

289 

199  See  for  more  details  European  Commission,  Memorandum  of  Understanding:  Key  Principles  on  the 
Digitisation  and  Making  Available  of  Out-of-Commerce  Works,  20.09.2011,  available  at: 
http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm#mou.  

200   On  23  November  2011,  Mr.  António  Vitorino,  former  European  Commissioner  for  Justice  and  Home 
Affairs,  was  appointed  to  take  up  the  mission  of  mediator  to  lead  the  process  of  stakeholder  dialogue  on 
private copying levies. Mr. Vitorino's task will be to moderate stakeholder discussions with the objective of 
exploring  possible  approaches  to  harmonisation  of  both  the  methodology  used  to  impose  levies  and  the 
systems  of  administration  of  levies.  It  is  planned  that  the  discussions  will  commence  in  the  beginning  of 
2012 and will be completed before the summer of 2012. See statement by Commissioner Barnier available 
at: http://ec.europa.eu/commission_2010-2014/barnier/docs/speeches/20111123/statement_en.pdf.  

201   See http://ec.europa.eu/internal_market/consultations/2011/audiovisual_en.htm.  

73

 
 
 
 
                                                 
5.  As  part  of  its  long-term  strategy  on  copyright,  the  Commission  will  assess  the 
feasibility of creating a European Copyright Code. A future Code could envisage a 
comprehensive codification of the EU copyright Directives and provide an opportunity 
to  examine  the  feasibility  of  an  optional  "unitary"  copyright  title  to  provide  right 
holders with the flexibility to choose whether to license and enforce their copyrights 
nationally  or  on  a  multi-territory  basis.  Given  its  far-reaching  implications,  the 
creation of a European Copyright Code requires further study and analysis.202  

6.  Furthermore, the Commission will pursue its efforts exploring to what extent the sale 
of  counterfeit  goods  over  the  Internet  can  be  reduced  through  voluntary  measures, 
involving  the  stakeholders  most  concerned  by  this  phenomenon  (right  holders  and 
internet platforms). In this context, a Memorandum of Understanding was signed by 
major internet platforms and right holders on 4 May 2011.203 Over the coming twelve 
months, these stakeholders will review and measure progress under the auspices of the 
Commission  services.  The  Commission  is  also  working  on  a  review  of  the  IPR 
Enforcement  Directive  2004/48/EC,204  inter  alia  identifying  ways  to  create  a 
framework allowing more effective combating of IPR infringements  via the Internet.  

7.  Journalists are authors and their work is crucial in Europe's pluralistic and democratic 
society. Protecting author's rights for journalists and ensuring that they maintain a say 
over how their works are exploited is central to maintaining independent, high-quality 
and  professional  journalism.  Publishers  play  an  important  role  in  disseminating  the 
work  of  writers,  journalists,  researchers, scientists, photographers and other creators. 
The  Commission  believes  it  important  to  safeguard  the  rights  that  journalists  and 
publishers have over the use of their works on the Internet, in particular in view of the 
rise  of  news  aggregation  services.  Commission  services  will  continue  to  examine 
these issues in the light of new legal and technical developments.  

4.3.6  Grey markets 

In  its  application  report  on  the  implementation  of  Directive  98/84/EC  (on  the  protection  of 
conditional access services)205, the Commission noted that European citizens are restricted in 
their  cross-border  access  to  audiovisual  services  whether  this  be  on  demand,  Internet  or 
satellite. The inadequacy of rules governing the provision of digital cultural goods, including 
across  borders,  an  area  of  importance  given  increasing  mobility  of  European  citizens  in  the 

202   The  Commission  will  examine  these  issues  in  a  report  on  the  application  of  Directive  2001/29/EC  of  22 
May 2011 on the harmonization of certain aspects of copyright and related rights in the information society, 
OJ L 167, 22.6.2001, p.10. The report will be published in 2012.  

203 

  See: http://ec.europa.eu/internal_market/iprenforcement/stakeholders_dialogues_en.htm 

204   Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement 
http://eur-
L 

of 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:195:0016:0025:en:PDF  

rights,  OJ 

intellectual 

2.6.2004, 

available 

property 

195/16, 

at: 

205   Report from the Commission to the European Parliament, the Council, the Economic and Social Committee 
and the Committee of Regions, Second report on the implementation of Directive 98/84/EC of the European 
Parliament  and  of  the  Council  of  20  November  1998  on  the  legal  protection  of  services  based  on,  or 
at: 
consisting 
http://ec.europa.eu/dgs/internal_market/docs/evaluation/2008cad_eval_en.pdf  

access,  COM(2008) 

30.09.2008; 

conditional 

available 

final, 

593 

of, 

74

 
 
 
 
 
 
                                                 
EU,  has  contributed  to  the  emergence  of  "grey  markets".  "Grey  markets"  develop  when 
subscribers to pay-TV are prevented from viewing outside national territories due to a system 
of contracts with territorial limitations. Many citizens living abroad view their pay channels 
from their place of expatriation. These subscriptions are usually obtained through an address 
of convenience in the country of the service provider, often the country of origin of the expat. 
The grey market is well known but has never been quantified. 

In its judgment Premier League206 of 4 October 2011, the European Court of Justice ruled that 
the import, sale and use of pay-TV subscriptions from outside the national territory fall under 
the Internal Market freedoms. It held that the practice of holders of intellectual property rights 
to  forbid  broadcasters  from  supplying  cross-border  services  in  order  to  protect  exclusive 
licence agreements are anticompetitive and unjustified within the EU. 

In  2012,  the  Commission  services  will  publish  a  study  on  the  economic  potential  of  cross-
border pay-to-view audiovisual media services.  

4.3.7  Re-use of public information 

Public  information  can  be  defined  as  all  the  information  that  public  bodies  in  EU  produce, 
collect  or  pay  for.  Examples  are  geographical  information,  statistics,  weather  data,  public 
transport data, data from publicly funded research projects, and digitised books from libraries. 
This  information  has  an  enormously  –  and  currently  untapped  –  potential  for  re-use  in  new 
products  and  services  and  for  efficiency  gains  in  administrations.  Overall  economic  gains 
from opening up this resource could amount to € 40 billion a year in the EU.  

Directive  2003/98/EC  of  the  Parliament  and  of  the  Council  on  the  re-use  of  public  sector 
information  (the  PSI  Directive)207  was  adopted  on  17  November  2003.  The  PSI  Directive 
harmonised the basic conditions of re-use across the EU and removed major barriers to re-use 
in the Internal Market.  

Despite  a  minimum  harmonisation  in  2003  and  although  some  progress  has  been  achieved, 
significant  differences  in  national  rules  (e.g.  licensing  and  pricing  conditions)  and  practices 
still  exist.  This  results  in  fragmentation  in  the  internal  information  market  for  PSI  based 
products and services. Another key barrier is the lack of awareness of public organisations of 
the potential of open data. Moreover, there are practical and technical issues holding back the 
development of a true public data re-use market. In particular, lack of interoperability between 
the information resources from different organisations and countries, and the non-availability 
of  the  information  in  a  machine-readable  format  make  it  impossible  to  reap  maximum 
benefits  from  the  new  opportunities  that  the  data  offer.  In  addition,  more  support  than 
available now is needed for R&D and innovation on data analysis and visualisation tools. 

206    Joined  Cases  C-403/08  and  C-429/08,  Football  Association  Premier  League  Ltd  v  QC  Leisure  and  Karen 
judgment  of  4  October  2011,  available  at 

Murphy  v  Media  Protection  Services  Limited, 
http://curia.europa.eu/juris/recherche.jsf?language=en  

207   Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of 
at: 
L 

OJ 
public 
http://ec.europa.eu/information_society/policy/psi/docs/pdfs/directive/psi_directive_en.pdf  

information, 

31.12.2003, 

available 

345/90, 

sector 

75

 
 
 
 
 
 
 
 
                                                 
These  considerations  have  led  the  Commission  to  revise  and  strengthen  its  public  data 
strategy  by  inter  alia  targeting  both  the  legal  framework  for  re-use  and  available  support 
tools. 

The Commission's revised strategy has three complementary strands: 

•  Adapting the framework in favour of data re-use, including legal, soft law and policy 

measures; 

•  Mobilising financing instruments by prioritising open data in R&D&I and 

infrastructure programmes; 

•  Facilitating coordination and experience-sharing between Member States. 

On  12  December  2011,  the  Commission  adopted  the  strategy  in  a  Communication  to  the 
European Parliament and to the Council. The Communication is accompanied by a proposal 
for modifying the PSI Directive (the main element of the legal framework for re-use), notably 
its  scope  and  principles  on  charging  for  access  and  use,  and  the  revised  Commission's 
decision on the re-use of information.208 

4.3.8  Competition  

4.3.8.1  General 

Competition is of key importance in ensuring a well-functioning digital Single Market. It is 
fostered by the application of general EU competition rules,209 as well as by interoperability 
and  efficient  standards.  Commission  services  closely  monitor  the  information  and  internet 
sectors to ensure that market players comply with EU competition law.   

For  instance,  in  spring  2010  the  Commission  launched  two  investigations  into  business 
practices by Apple involving the iPhone. Apple had made warranty repair services available 
only in the country where the iPhone was bought, thereby potentially partitioning the Internal 
Market. Moreover Apple had restricted the terms and conditions of its licence agreement with 
independent developers of applications requiring the use of Apple's native programming tools 
and approved software languages to the detriment of third-party software. In September 2010, 
following a change of policy by Apple, the decision was taken to close both investigations.210 

Similarly,  on  20  November  2010  the  Commission  started  investigations  into  Google 
following  allegations  of  abuse  of  market  dominance  in  the  areas  of  online  search,  online 
advertising and online advertising intermediation.211  

208   See for details http://ec.europa.eu/information_society/policy/psi/index_en.htm  

209      Mainly  the  prohibition  of  cartels  (Article  101  TFEU),  the  prohibition  of  abuse  of  a  dominant  position 

(Article 102 TFEU) and the regulation of mergers and acquisitions (based on Regulation 139/2004) 

210   See  Press  Release,  Antitrust :  Statement  on  Apple’s  iPhone  policy  changes,  IP/10/1175,  25.09.2010, 
at : 

available 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1175&format=HTML&aged=0&language=
EN&guiLanguage=en  

211   See Press Release, Antitrust: Commission probes allegations of antitrust violations by Google, IP/10/1624, 
at: 

30.1..2010, 

available 

76

 
 
 
 
 
 
 
 
                                                 
On  6  December  2011  the  Commission  also  announced  that  it  had  opened  formal  antitrust 
proceedings  to  investigate  whether  international  publishers  have,  possibly  with  the  help  of 
Apple,  engaged  in  anti-competitive  practices  affecting  the  sale  of  e-books  in  the  European 
Economic Area, in breach of Article 101 TFEU.212 

In  the  field  of  mergers  and  acquisitions,  on  21  January  2010  the  Commission  agreed  to  the 
planned acquisition of Sun Microsystems by Oracle.213 The acquisition raised the issue of the 
competitive effect of open source software products. 

Interoperability  of  standards  is  also  crucial  for  guaranteeing  access  to  the  Internal  Market. 
Against  this  background,  on  14  December  2010  the  Commission  adopted  its  guidelines  on 
cooperation  agreements.214  These  provide  that  the  standard-setting  process  should  be 
transparent  and  accessible  to  all  interested  market  players.  Moreover,  IPR  right  holders  are 
encouraged to commit to license on fair, reasonable and non-discriminatory terms (FRAND 
commitment)  to  ensure  the  accessibility  of  standards.  This  should  considerably  drive  down 
the cost of innovation. 

Stakeholders in the responses to the public consultation on the future of electronic commerce 
in  the  Internal  Market  and  the  implementation  of  the  ECD  also  raised  the  issue  of  the 
provision  of  online  press  services  being  allegedly  hampered  by  conditions  set  by  certain 
"application  platforms".  For  instance,  a  major  application  store  would  require  from  online 
press providers that their applications include an option to conclude commercial transactions 
within  the  application  (instead  of  providing  a  link  to  a  website  where  the  commercial 
transaction is concluded), in which case the application platform would receive 30 % of the 
transaction value.   

4.3.8.2  Vertical distribution agreements 

Competition  rules  on  vertical  restraints  have  been  crucial  in  removing  the  unjustified 
restrictions  on  e-commerce  contained 
in  distribution  agreements  by  prohibiting 
anticompetitive restrictions to cross-border internet marketing and sales.215 However, certain 

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1624&format=HTML&aged=0&language=
EN&guiLanguage=en  

212   See  Press  Release,  Antitrust:  Commission  opens  formal  proceedings  to  investigate  sales  of  e-books, 

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1509  

213   See 

announcement 

of 

this 

decision 

on 

DG 

Competition’s 

web-page: 

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=2_M_5529  

214   European Commission, Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the 
  C11,  14.1.11,  available  at: 

European  Union 
http://europa.eu/legislation_summaries/competition/firms/l26062_en.htm  

to  horizontal  co-operation  agreements,  OJ 

215   For  instance,  the  Commission  has  on  several  occasions  (Yves  Saint  Laurent,  2001;  B&W  Loudspeakers, 
2002)  approved  selective  distribution  networks  on  the  condition  that  the  company  removed  clauses 
prohibiting authorised distributors from selling over the Internet. See also the recent judgement of the ECJ 
in a case on the question whether an absolute refusal of a cosmetic and personal care company to allow its 
French distributors to sell its products on the Internet is compatible with the (now) Article 101 TFEU and 
the Block Exemption Regulation of 1999: Case C-439/09, Pierre Fabre Dermo-Cosmétique SAS v Président 
de l'Autorité de la Concurrence and Ministere de l'Economie, de l'Industrie et de l'Emploi. In its judgment 
of  13  October  2011  (available  at:  http://curia.europa.eu/juris/recherche.jsf?language=en), 
the  ECJ 

77

 
 
 
 
 
 
 
                                                                                                                                                         
stakeholders  responding  to  the  public  consultations  expressed  their  concerns  about 
manufacturers imposing "brick and mortar" requirements on their distributors when engaging 
in online sales. This, it is argued, hinders the development of a free digital Internal Market. 

The new Commission Regulation on the application of Article 101 (3) TFEU to categories of 
vertical  agreements  and  concerted  practice,216  and  the  accompanying  new  Commission 
Guidelines  on  Vertical  Restraints217  entered  into  force  on  1  June  2010.  The  new  Block 
Exemption  Regulation  sets  out  the  principles  for  the  assessment  of  vertical  distribution 
agreements under Article 101 TFEU.  

In general, distribution agreements are prohibited if they contain "hardcore restrictions", such 
as  restraints  on  the  buyer's  ability  to  determine  a  sale  price  ("resale  price  maintenance")  or 
certain types of re-sale restrictions, which may restrict competition and create barriers to the 
Internal  Market  to  the  detriment  of  consumers.  Manufacturers  can,  however,  implement 
certain  types  of  distribution  systems  such  as  exclusive  distribution  or  selective  distribution. 
Within exclusive distribution systems, the manufacturer may protect an exclusive distributor 
against  other  distributors  making  active  sales  on  its  territory,  but  the  manufacturer  cannot 
restrict  its  distributors  from  responding  to  customer  demand  and  selling  its  products 
throughout  the  Internal  Market  (passive  sales):  any  such  restriction  would  be  a  hardcore 
restriction. Within selective distribution systems  manufacturers  can  choose their distributors 
on  the  basis  of  specified  criteria  and  prohibit  sales  to  unauthorised  distributors.  But 
distributors should then be free to actively sell to other authorised distributors throughout the 
Internal  Market  and  to  any  end  consumer.  Any  other  restriction  of  their  freedom  regarding 
where  and  to  whom  they  may  sell  in  the  area  where  the  selective  distribution  system  is 
applied would be a hardcore restriction. 

The same rules apply to offline and online sales. For, in the online world, suppliers can also 
set  up  an  exclusive  distribution  network  which  allows  them  to  restrict  active  sales  within 
exclusively defined territories or customer groups or to set up a selective distribution system 
and  require  quality  standards  for  the  use  of  an  internet  site  to  sell  their  products.  Since  the 
Internet  allows  distributors  to  reach  different  customers  and  different  territories,  certain 
restrictions on the use of the Internet by distributors are dealt with as hardcore restrictions. In 
principle, every distributor must be allowed to use the Internet to sell products. For example, 
any  obligation  on  distributors  to  automatically  reroute  customers  located  outside  their 
territory,  or  to  terminate  consumers'  transactions  over  the  Internet  if  their  credit  card  data 
reveal  an  address  that  is  not  within  the  distributor's  territory,  are  hardcore  restrictions. 
Similarly, any obligation that dissuades distributors from using the Internet, such as a limit to 
the  proportion  of  overall  sales  which  a  distributor  can  make  over  the  Internet,  or  the 
requirement that a distributor pays a higher purchase price for units sold online than the same 

considered  that  such  a  restriction  infringes  Article  101(1)  TFEU  as  it  has  an  anti-competitive  object,  and 
cannot benefit from the Vertical Restraints Block Exemption Regulation. 

216   Commission  Regulation  (EU)  No.  330/2010  of  20  April  2010  on  the  application  of  Article  101(3)  of  the 
Treaty  on  the  Functioning  of  the  European  Union  to  categories  of  vertical  agreements  and  concerted 
practices,  OJ  L  102/1,  23.04.2010  (the  "Block  Exemption  Regulation");  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:102:0001:0007:EN:PDF  

217   Information  from  European  Union  Institutions,  Bodies,  Offices  and  Agencies,  European  Commission 
http://eur-

Guidelines 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:130:0001:0046:EN:PDF  

on  Vertical  Restraints,  OJ  C 

19.05.2010; 

available 

130/1, 

at: 

78

 
 
 
 
 
                                                                                                                                                         
distributor  pays  for  units  sold  offline  ("dual  pricing"),  is  also  considered  to  be  a  hardcore 
restriction.218  

In  addition,  the  new  rules  specify  that  qualitative  and  quantitative  selective  distribution 
agreements  are  not  block  exempted  when  the  market  share  of  supplier  or  buyer  exceeds 
30%.219  It  should  also  be  recalled  that,  where  an  agreement  contains  one  or  more  hardcore 
restrictions, the agreement is not only excluded from the benefit of the block exemption, it is 
also presumed unlikely that the agreement will meet the conditions set out in Article 101 (3) 
TFEU which would constitute compliance with competition rules.  

The  Commission  services  will  closely  monitor  the  e-commerce  and  other  digital  sectors  to 
ensure that market players comply with EU competition law. 

4.4  Contracting 

4.4.1  Contract law 

The E-Commerce Directive contains basic provisions on online contracting. It contains pre-
contractual  information  requirements  for  business  and  consumer  contracts  and  ensures 
through  the  "equivalence  principle"  that  contracts  concluded  electronically  are  valid  (see 
Chapter 2.2.1.2). Respondents to the e-commerce consultation, however, identified the lack of 
a  unified  substantive  contract  law,  both  in  B2B  as  in  B2C  contractual  relations,  as  a  major 
obstacle for the creation of a digital Internal Market. 

The European legal framework on contract law presents a highly diverse picture characterised 
by differences in substantive contract law rules. In order to improve legal certainty, the EU 
put in place uniform conflict-of-law rules under the Rome I Regulation220. The EU has 
partially reduced the differences in substantive rules by harmonising certain areas of contract 
law. However, these rules are often either limited to specific areas of contract law (e.g. pre-
contractual information, right of withdrawal), or establish only minimum standards which 
Member States can build upon (e.g. unfair terms, sales guarantees).  

The EU acquis on B2B contracts is limited to a few areas of contract law, addressed by the E-
commerce and Late Payments Directives. A set of rules of a broader scope was introduced at 
international  level  by  the  1980  Vienna  Convention  on  the  international  sale  of  goods 
(CIGS)221 which contains rules for B2B contracts. However, it was not ratified by all Member 
States, it does not cover the full life cycle of a contract and there is no mechanism ensuring its 
uniform application. 

218   See for more details par. 51 - 53 of the Guidelines on Vertical Restraints, 2010. 

219   See par. 176 of the Guidelines on Vertical Restraints, 2010.  

220   Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 
applicable  to  contractual  obligations  (‘Rome  I’),  OJ  L  177/6,  04.07.2008;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008R0593:EN:NOT  

221   1980  -  United Nations  Convention  on  Contracts  for  the International  Sale  of  Goods  (CISG);  available  at: 

http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html  

79

 
 
 
 
 
 
 
 
                                                 
The EU acquis for consumer contracts contains a number of directives establishing minimum 
consumer  protection  requirements,  for  instance  for  unfair  contract  terms  and  sales  and 
guarantees.  Over the years, Member States have made use of their competence to introduce 
more  stringent  rules  to  protect  their  consumers,  making  EU  consumer  contracts  law  a 
patchwork  of  27  sets  of  differing  rules.  EU  countries  have  for  example  developed  a  mix  of 
different information obligations and rules on cooling-off periods for the rights of withdrawal. 
Similarly,  they  have  different  rights  with  respect  to  faulty  products:  while  in  some  EU 
countries  consumers  can  choose  between  the  remedies  of  repair,  replacement,  reduction  in 
price  or  termination  of  the  contract,  in  others  they  can  only  first  ask  for  repair  and 
replacement  and  only  if  these  remedies  are  not  available  ask  for  the  termination  of  the 
contract.  The  e-commerce  consultation  confirmed  that  many  online  traders  consider  the 
fragmented  national  consumer  laws  as  a  source  both  of  high  compliance  costs  and  of  legal 
uncertainty.  

One  major  piece  of  contract  law  legislation  has  been  adopted  in  2011,  the  new  Consumer 
Rights  Directive  (CRD).222  The  new  Directive  covers  the  scope  of  the  current  Doorstep 
Selling  and  Distance  Sales  Directives,  which  will  be  repealed  after  Member  States  have 
transposed  the  new  Directive.  Contrary  to  the  original  Commission  proposal,  which  had  a 
wider  scope,  the  text  agreed  between  the  co-legislators  leaves  (essentially)  unchanged  the 
Directives on Unfair Contract Terms and Consumer Sales and Guarantees. 

In contrast to the current Directives, which only impose a minimum level of harmonisation of 
consumer  protection  rules,  the  areas  covered  by  the  CRD  provide  for,  with  some  limited 
exceptions,  common  rules  and  a  convergent  level  of  consumer  protection  across  the  27 
Member  States.  For  distance  and  off-premises  contracts,  the  information  requirements  for 
traders, the consumer's right of withdrawal from the contract and the obligations for traders 
and consumers in case of withdrawal will be fully harmonised.  Both consumers and traders 
will  benefit  from  standard  forms  for  the  rights  of  withdrawal.  Additionally,  the  Directive 
entails  new  harmonised  rules  on  the  passing  of  risk  in  sales  contracts  and  the  default  time-
limit for the delivery of goods as well as a ban on hidden charges, on pre-ticked boxes which 
impose surcharges higher than the trader's actual costs for the use of a certain payment means 
(e.g.  credit  cards)  and  on  charges  for  telephone  hotlines  higher  than  the  standard  telephone 
rate for calls. As to  the  scope,  contracts on the provision of utilities (water, gas, electricity) 
and  contracts  concerning  digital  content  will  also  be  covered  by  the  new  rules,  but  certain 
areas such as healthcare services, passenger transport and gambling will be excluded.  

The new rules of the Consumer Rights Directive will have to be transposed into national laws 
by 13 December 2013. 

The new Directive, which has to a large extent retained its full harmonisation character, will 
increase  legal  certainty  for  consumers  and  business  and  hence  contribute  to  the  better 
functioning of online markets in the EU. The Directive will thus cut red tape that is holding 
back businesses from engaging in cross-border business.  

However,  the  Directive  will  not  remove  all  the  contractual  obstacles  for  cross-border  e-
commerce  transactions.  For  example,  the  fragmentation  of  national  laws  on  remedies 
(guarantees)  and  unfair  contract  terms  will  remain  unchanged.  The  Directive  also  applies 
without prejudice to national laws on the validity, termination or enforceability of a contract; 

222  Consumer Rights Directive, OJ L 304/64, 22.11.2011. 

80

 
 
 
 
 
                                                 
it  does  not  affect  the  transfer  of  ownership  of  goods;  nor  is  it  applicable  to  gambling  and 
healthcare services. Furthermore, it allows Member States to impose linguistic requirements 
on consumer contracts.  

One special issue to note is the application of the Directive to digital content (data produced 
and  supplied  in  digital  form  such  as  computer  programmes,  applications,  games  or  music). 
Contracts for the supply of digital content are within the scope of the Directive, but the right 
of withdrawal is limited to situations where the performance of the contract has not yet begun 
or  begun  without  the  consumer's  prior  consent  or,  if  the  digital  content  is  provided  on  a 
tangible medium such as a CD, where the consumer has not yet unsealed it.  

The  new  Consumer  Rights  Directive  improves  and  clarifies  the  information  rights  for 
consumers  when  purchasing  digital  content.  In  particular,  traders  will  have  to  inform 
(consumer)  buyers  of  digital  content  not  only  about  its  compatibility  with  hardware  and 
software, but also about the application of any technical protection measures or digital rights 
management, for example about a limitation on the right of the consumers to make copies of 
the content.  

The  Commission  services  will  closely  monitor  the  transposition  of  the  Consumer  Rights 
Directive.  They  will  also  look into  the  most  appropriate  ways  to  ensure  that  businesses  and 
consumers are made aware of the new consumer rights. 

The  European  Commission  will  announce  in  2012  a  new  European  Consumer  Agenda 
strategy.  One  of  the  cornerstones  will  be  the  impact  of  the  digital  revolution  on  consumer 
behaviour.223  

Even  with  the  adoption  of  the  new  Consumer  Rights  Directive,  substantial  differences 
between  the  national  contract  laws  in  the  EU  remain.  This  is  particularly  relevant  for  the 
contract law areas firstly where no harmonisation measures have been adopted at EU level at 
all (e.g. rules on the conclusion of a contract; defects in consent; obligations and remedies for 
service contracts; damages; restitution; prescription etc), and secondly for areas of minimum 
harmonisation that allow for significant discrepancies between the transposition measures of 
Member  States (e.g.  remedies  in  consumer  sales  contracts,  unfair  terms  in  consumer 
contracts). 

Recent Eurobarometer surveys224 and those carried out by the European Business Test Panel 
(EBTP)225  and  the  Enterprise  Europe  Network226 confirm  that  businesses  with  an  interest  in 

223   On  16  November  2011  the  Commission  hosted  a  seminar  to  discuss  consumer  problems  with  digital 
products,  such  as  e-mail,  social  networks,  music,  films,  e-books  or  e-learning  services.  Problems  include 
incomplete  or  incomprehensible  information,  interrupted  access  to  content  and  faulty  products.  Two 
independent studies carried out at the request of the European Commission were officially presented at the 
conference. 
http://ec.europa.eu/justice/newsroom/consumer-
See 
marketing/events/digital_conf_en.htm 

details: 

more 

for 

224   See Eurobarometer Flash 320, European contract law in business-to-business transactions, 2011, available 
at  http://ec.europa.eu/public_opinion/flash/fl_320_sum_en.pdf  and  Eurobarometer  Flash  321,  European 
at 
contract 
http://ec.europa.eu/public_opinion/flash/fl_321_sum_en.pdf  

transactions, 

consumer 

available 

2011, 

law 

in 

225   See:  European  Business  Test  Panel,  European  Contract  Law 

survey, 

available 

at: 

http://ec.europa.eu/yourvoice/ebtp/consultations/2010/european_contract_law/report_en.pdf  

81

 
 
 
 
 
 
 
 
                                                 
selling their products cross-border rank barriers related to differences of contract law among 
the  top  barriers  to  cross-border  trade.  The  contract  law-related  barriers  are  due  to  the  legal 
complexity  and  transaction  costs  associated  with  adaptation  to  and  compliance  with  the 
requirements  of  the  different  applicable  national  laws  governing  cross-border  contracts.  In 
addition, specific contract-law-related IT costs may be incurred by businesses selling online 
to  consumers  in  other  EU  countries,  as  they  have  to  adapt  their  website  to  the  legal 
requirements of every Member State they direct their activity to.  

For  companies  selling  to  consumers  these  costs  grow  proportionately  to  the  number  of 
countries they trade with and may be particularly dissuasive for SMEs and companies selling 
online.  While  an  online  shop  may  be  willing  to  target  consumers  in  neighbouring  countries 
and  beyond,  it  would  first  have  to  face  transaction  costs  for  ensuring  compliance  with 
multiple  foreign  laws.  The  transaction  costs  may  be  dissuasive,  particularly  for  micro  and 
small enterprises, as they constitute a greater share of their annual turnover. For instance, it 
could  cost  on  average  about  €  10,000  for  legal  costs  and  €  3,000  for  the  related  web-site 
adaptation  for  an  e-commerce  company  to  sell  to  consumers  in  one  other  Member  State.  It 
would cost about € 338,000 - more than a micro-retailer's annual turnover -227 to trade across 
the whole of the EU.228  

Differences in contract law therefore create obstacles to the digital Internal Market and hinder 
both businesses and consumers from engaging in cross-border online transactions. 

Since  2001  the  Commission  has  been  working  on  the  development  of  a  European  contract 
law.  In  July  2010,  it  adopted  a  "Green  Paper  on  policy  options  on  progress  towards  a 
European contract law for consumers and businesses". On 11 October 2011 the Commission 
proposed, as a follow-up to the Green Paper, an optional Common European Sales Law which 
would  apply  upon  an  agreement  by  the  contracting  parties.229  The  voluntary  nature  of  this 
contract  law  would  mean  that  Member  States'  contract  laws  will  not  be  replaced  and  will 
continue  to  be  used  in  domestic  contracts  and  where  parties  do  not  choose  the  Common 
European Sales Law. This initiative would facilitate trade by offering traders the possibility to 
use a single set of contract terms for all their cross-border contracts in the 27 EU countries. If 
traders  offer  their  products  on  the  basis  of  the  Common  European  Sales  law,  consumers 
would have the option of agreeing to be bound by a user-friendly Common European Sales 
law with a high level of protection. The Common European Sales Law would apply not only 
in business-to-consumer, but also in business-to-business contracts in which at least one party 
is an SME. 

Article 6 of the Rome I Regulation establishes specific rules for a uniform EU conflict-of-
laws regime which cover B2C contracts. These rules  aim  to protect consumers in  situations 
where the business pursues its commercial activities in or directs its activity to the country of 

226  The  results  of  the  SME  panel  survey  on  the  Impacts  of  European  contract  law  are  available  at: 

http://ec.europa.eu/justice/contract/files/report_sme_panel_survey_en.pdf  

227   See the Impact Assessment accompanying the Proposal for a Regulation of the European Parliament and of 
the  Council  on  a  Common  European  Sales  Law  (hereafter  ‘CESL  Proposal’),  COM(2011)  635  final, 
11.10.2011, p.16. 

228   See Impact Assessment of CESL Proposal, pp.13-14 

229   See Press Pack, available at: http://ec.europa.eu/justice/newsroom/news/20111011_en.htm.  

82

 
 
 
 
 
 
                                                                                                                                                         
habitual  residence  of  the  consumer.  If  the  parties  choose  a  law  other  than  the  law  of  the 
country of the habitual residence of the consumer, the contract cannot deprive the consumer 
of  the  protection  afforded  by  the  country  of  residence.  Consumers  are  therefore  always 
guaranteed  the  same  level  of  consumer  protection  as  in  their  home  country.  Article  6, 
however, does not apply to consumers who are not actively targeted by businesses and who 
approach sellers themselves in cross-border contexts.  

The responses of businesses showed that this may lead to unclear legal situations in particular 
with  e-commerce  transactions.  The  recent  Pammer/Alpenhof230  case  law  of  the  ECJ  on  the 
interpretation of "directed activity" in the Brussels I Regulation231 has provided a certain level 
of guidance on determining when a website contains activities directed to consumers in other 
Member States (see Chapter 4.7.4).  

The Common European Sales Law would contribute to the solution for the problems posed by 
the diversity of cross-border situations. Parties would be able to choose the same set of rules 
in each national law and remove the need to adapt their contract to the rules in country of the 
consumer.  However,  given  the  very  high  level  of  consumer  protection  in  the  Common 
European  Sales  Law  and  the  fact  that  the  consumer  must  be  informed  of  its  applicability 
before the conclusion of the contract, the consumer would have nothing to lose when agreeing 
to be bound by this instrument. 

4.4.2  Unfair business practices  

The retail market monitoring report "Towards more efficient and fairer retail services in the 
Internal  Market  for  2020"232  underlined  the  existence  of  unfair  commercial  practices 
throughout  the  retail  supply  chain.  The  formal  and  informal  consultations  for  the  above-
mentioned  report  and  the  preparation  of  this  Staff  Working  Paper  show  that  these  business 
practices can affect electronic commerce as much as their "brick and mortar" competitors and  
indeed be more prevalent in that sector. Abuses of market power, especially at the expense of 
SMEs, are likely to exist in the online as in the offline sector. Other practices may be specific 
to electronic commerce.Operators may have to face practices from manufacturers such as the 
improper  reclassification  of  the  distribution  of  their  products  in  selective  distribution 
networks in order to avoid competition from pure e-commerce players. 

As  mentioned  in  the  Single  Market  Act,  the  Commission  will  adopt  (in  2012)  a 
Communication on unfair B2B practices in the (retail) supply chain with the particular aim of 
pinpointing  where  there  are  problems.  In  addition,  it  will  list  the  various  existing  national 
regulatory  frameworks  and  evaluate  their  implementation,  involving  an  examination  of  any 

230   Joined cases C-585/08 and C-144/09, Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel 
http://eur-
judgment 

Alpenhof  GesmbH 
07.12.2010; 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0585:EN:NOT  

v  Oliver  Heller, 

available 

at: 

of 

231   Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the  recognition  and 
enforcement of judgments in civil and commercial matters, OJ L 12/1, 16.01.2001; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF  

232   Report from the Commission to the European Parliament, the Council, the Economic and Social Committee 
and  the  Committee  of  Regions,  Retail  market  monitoring  report,  Towards  more  efficient  and  fairer  retail 
final,  05.07.2010;  available  at: 
for  2020,  COM(2010)  355 
services 
http://ec.europa.eu/internal_market/retail/docs/monitoring_report_en.pdf  

internal  market 

the 

in 

83

 
 
 
 
 
 
                                                 
Single  Market  problems  posed  by  uncoordinated  proliferation.  It  will  also  propose  possible 
options to be submitted for consultation to interested parties. 

In addition, certain anti-competitive or unfair practices may exist in the area  of information 
society services beyond retailing, for example, in the way sites can be referenced by search 
engines or how technologies can be slowed down or blocked. The European Commission is 
carefully monitoring this issue, as outlined in the recent Communication on Internet network 
neutrality. In the first half of 2012, it will report on its analysis of the implementation of the 
Framework Directive "telecom" (2002/21/EC)233, as amended by Directive 2009/140/EC234 to 
ensure that new rules guarantee an open Internet (see also Chapter 4.3.4). 

4.4.3  E-signatures, e-identification and e-authentication  

The  legal  recognition  of  electronic  signatures  and  electronic  authentication  is  crucial  for 
facilitating  and  strengthening  confidence  in  electronic  transactions.  The  Directive  on 
Electronic  Signatures  (Directive  1999/93/EC235)  provides  the  European  framework  for  e-
signatures.    EU-legislation  on  the  mutual  recognition  and  acceptance  of  e-identification  and 
authentication across borders is still lacking.  

The  eSignature  Directive  has  been  evaluated  a  number  of  times  since  its  adoption.  The 
Commission's  first  implementation  report  of  15  March  2006236  concluded  that,  although  all 
Member States had implemented the Directive, the use of e-signatures had not increased. This 
was due to economic factors such as the insufficiently developed market and few incentives 
for  service  providers  to  develop  e-signatures,  which  could  be  used  throughout  different 
sectors.  Nevertheless,  the  Commission  decided  that  there  was  no  need  for  a  revision  of  the 
Directive as it was expected that the use of e-signatures, in particular in e-government, could 
trigger  future  market  growth.  Moreover,  the  Commission  announced  in  this  report  that  it 
would  analyse  the  need  for  complementary  measures,  continue  to  encourage  the  use  of  e-
signatures and prepare a report on standards for e-signatures.  

233   Directive  2002/21/EC  of  the  European  Parliament  and  the  Council  of  7  March  2002  on  a  common 
regulatory  framework  for  electronic  communications  networks  and  services,  OJ  L  108/33,  24.04.2002; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:108:0033:0050:EN:PDF  

234   Directive  2009/140/EC  of  the  European  Parliament  and  the  Council  of  25  November  2009  amending 
Directives  2002/21/EC  on  a  common  regulatory  framework  for  electronic  communications  networks  and 
services,  2002/19/EC  on  access  to,  and  interconnection  of,  electronic  communications  networks  and 
associated  facilities,  and  2002/20/EC  on  the  authorisation  of  electronic  communications  networks  and 
services, 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0037:0069:EN:PDF  

18.12.2009; 

available 

337/37, 

OJ 

at: 

L 

235   Directive 1999/93/EC of the European Parliament and the Council of 13 December 1999 on a Community 
at:  http://eur-

signatures,  OJ  L  013/12,  19.01.2000; 
framework 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0093:en:HTML  

electronic 

available 

for 

236   Report from the Commission to the European Parliament, the Council, Report on the operation of Directive 
1999/93/EC  on  a  Community  framework  for  electronic  signatures,  COM(2006)  120  final,  15.03.2006; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0120:FIN:EN:PDF  

84

 
 
 
 
 
 
                                                 
On 2 December 2008, the Commission adopted an action plan237 to enhance cross-border e-
signatures and e-identification in the field of e-government in all areas of the Internal Market. 
Although the main focus of this action plan was on e-government, the Commission clarified 
that  future  policies  would  also  yield  benefits  to  business-to-business  and  business-to-
consumer  transactions.  The  goal  of  this  action  plan  was  to  ease  access  by  citizens  and 
companies  to  cross-border  electronic  public  services  by  redressing  the  lack  of  legal, 
organisational  or  technical  interoperability  of  e-signatures  and  e-identification  systems 
between different Member States.  

Both  the  Digital  Agenda  and  Single  Market  Act238  announce  that  the  Commission  will 
propose  a  new  legislative  framework  to  ensure  confidence  in  electronic  transactions.  This 
pan-European  framework  will  propose  a  revision  of  the  eSignatures  Directive  in  order  to 
clarify concepts, simplify the use of e-signatures and remove interoperability barriers. It will 
also  cover  the  cross-border  functioning  of  certain  other  trusted  services  and  provide 
legislation for the mutual recognition of electronic identification and authentication services. 
The  tools  proposed  in  the  framework  should  be  general  and  open  to  all  sectors,  especially 
where  electronic  identification  is  concerned.  The  framework  will  be  technologically  neutral 
and open to all communication channels, including the Internet and mobile communications. 

As a first step a public consultation on e-identification, e-authentication and e-signatures was 
held in the first half of 2011.239 It confirmed that the existing framework on e-signatures could 
be  strengthened,  in  particular  by  improving  the  mutual  recognition,  interoperability  and 
security of these systems. A large majority of stakeholders confirmed the need for regulatory 
measures  regarding 
the  mutual  recognition  and  acceptance  of  e-identification  and 
authentication throughout the EU. 

In  2012,  the  Commission  will  propose  legislation  ensuring  the  mutual  recognition  of 
electronic identification and authentication across the EU and a revision of the Directive on 
Electronic Signatures. 

237   Communication from the Commission to the Council, the European Parliament, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  Action  Plan  on  e-signatures  and  e-identification  to 
facilitate  the  provision  of  cross-border  public  services  in  the  Single  Market,  COM(2008)  798  final, 
http://eur-
28.11.2008; 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0798:FIN:EN:PDF  

available 

at: 

238   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  Economic  and  Social 
Committee  and  the  Committee  of  the  Regions,  Single  Market  Act,  Twelve  levers  to  boost  growth  and 
strengthen  confidence,  "Working  together  to  create  new  growth",  COM(2011)  206  final,  13.04.2011; 
available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0206:FIN:EN:PDF  

239   See  Press  Release,  Digital  Agenda:  Commission  launches  public  consultation  on  eSignatures  and 
at: 

eIdentification, 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/198&format=HTML&aged=1&language=E
N&guiLanguage=fr  

18.02.2011, 

IP/11/198, 

available 

85

 
 
 
 
 
 
 
                                                 
4.5  Electronic payment and invoicing 

4.5.1  Electronic payment 

With  respect  to  the  development  of  e-commerce,  the  responses  to  the  consultation  that  this 
paper  draws  on  show  that  there  are  four  types  of  problems  which  relate  to  electronic  retail 
payments:  the  restricted  acceptance  of  different  payment  methods,  both  domestically  and  in 
cross-border  situations;  the  level  of  payment  related  charges,  both  for  merchants  and 
consumers; a lack of payment security and data protection, and finally uncertainties relating to 
liability in case of unauthorised payments or unsatisfactory deliveries. 

Even though a variety of payment means is available at the European level, their deployment 
and acceptance across Member States diverge. Credit cards play an important role in online 
payments today, but they are not available to all citizens. According to a study, in the EU-15 
countries, two adults in ten do not have access to transaction banking facilities and four in ten 
do not have access to credit facilities. In the new Member States (EU-10), one third of citizens 
has difficulty accessing those financial services.240 In particular, debit cards do not seem to be 
sufficiently accepted for online payments, according to consumers. But the issues relating to 
the  deployment  and  acceptance  of  cards  are  insufficient  explanation  for  the  limited 
development  of  e-commerce  across  Europe  which,  according  to  data  from  one  of  the  major 
credit cards players, has 50% more bank cards than the USA but 40% smaller volume of e-
commerce. 

The possibility for the consumer to use prepaid payment means, payment intermediaries, such 
as dedicated e-payment providers, or payment on delivery is important to the development of 
e-commerce in all parts of society. For micro-payments, mobile payments through billing by 
telecom operators seem to be the preferred solution today. 

The  excessive  cost  of  payments  has  been  noted  by  many  merchants  and  associations.  The 
criticism  focuses  on  credit  cards,  but  also  on  payment  intermediaries,  telecom  operators  for 
m-commerce, and payment on delivery. For micro-payments, the issue of cost seems to be a 
major obstacle  to the development of low  value information society services such as online 
newspapers, music, movies, video games, "premium rate service", directories, and low priced 
event tickets.  

Consumers  also  complain  about  the  high  cost  of  payments.  The  possibility  of  charging 
additional fees for card payments (surcharging), which was left to the arbitration of Member 
States  by  the  Payment  Services  Directive241,  affects  consumers  who,  for  example,  may  be 
subject to several surcharges for every plane ticket they purchase even if only one payment 
transaction  is  made.  The  new  Consumer  Rights  Directive  addresses  this  problem  by 
prohibiting  merchants  from  charging  consumers  fees  that  exceed  the  costs  borne  by  the 
merchant. 

240   Financial services provision and prevention of financial inclusion, May 2008, a study carried out on behalf 
of  the  Commission  by  Réseau  Financement  Alternatif  (Belgium),  the  University  of  Bristol  (UK),  the 
University of Milan (Italy) and the Warsaw School of Economics (Poland). 

241   Directive  2007/64/EC  of  the  European  Parliament  and  of  the  Council  of  13  November  2007  on  payment 
services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and 
repealing Directive 97/5/EC, OJ L 319/1, 05.12.2007 (hereafter ‘Payment Services Directive’), available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:319:0001:0036:EN:PDF  

86

 
 
 
 
 
 
 
                                                 
The  cost  of  payments  can  be  partly  correlated  to  the  risk  of  fraud,  which  seems  to  be  very 
significant  for  both  online  and  offline  payments,  and  is  apparently  more  relevant  for  cross-
border  payments  than  for  domestic  payments.  This  raises  the  question  of  the  security  of 
payments:  a  lack  of  trust  is  symptomatic,  and  both  merchants  and  consumers  experience 
failures  in  the  security  of  payments.  All  relevant  market  actors  seem  willing  to  address  this 
problem while realising that there is a trade-off between the level of security and convenience 
for  the  consumer.  It  is  important  that  the  perceived  lack  of  security  does  not  continue  to 
hamper e-commerce, especially at a cross-border level. The issue of privacy and protection of 
payment information was recurrently mentioned by payment users in the consultation, again 
often in the context of potential fraud.242 

Finally,  issues  of  liability  for  any  incident  related  to  payment  were  raised  in  the  public 
consultation.  The  Payment  Services  Directive243  (PSD)  in  its  Articles  60  et  sequ.  addresses 
the  liability  for  payments,  especially  in  cases  of  unauthorized  payment  transactions,  and 
billing  or  processing  errors.  The  PSD  obliges  the  payment  service  provider  to  refund  to  the 
payer immediately the amount of an unauthorised payment transaction and stipulates that the 
cost  is  borne  by  the  providers  of  payment  services.  By  contrast,  the  payer  shall  bear  the 
losses,  up  to  a  certain  limit  that  Member  States  can  reduce,  that  result  from  the 
misappropriation of a lost, stolen or unsafely kept payment instrument. However, the situation 
seems less clear for refunds in those cases where the consumer receives a product that was not 
ordered,  arrives  in  a  damaged  condition  or  never  arrives.  In  the  light  of  responses  to  the 
consultation on the future of electronic commerce, it seems that this is still an area of future 
improvement for merchants, who carry the sole responsibility for refunds and returns. 

The  responses  to  the  above-mentioned  public  consultation  reflect  to  a  large  extent  the 
problems  addressed  in  the  Green  Paper  "Towards  an  integrated  European  market  for  card, 
internet and mobile payments". The Green Paper aims to assess a number of specific factors 
which  seem  to  be  the  root  causes  for  many  of  the  problems  encountered  by  consumers  and 
merchants in the field of e-commerce today. Notably, the scope of the Green Paper is wider 
than  e-commerce,  as  for  instance  the  majority  of  card  payments  today  continue  to  be  made 
offline. 

The Paper is based on the premise that four drivers could significantly enhance the European 
payments market and therefore also improve the take-up of e-commerce throughout the EU: 

•  More competition 
•  More choice and transparency for consumers 
•  More innovation 
•  More payment security and customer trust 

Each  of  these  objectives  would  benefit  from  a  more  integrated  European  market  for  card, 
internet and mobile payments and the Green Paper provides the basis for a public consultation 
as  to  which  measures  could  best  contribute  to  improvements  in  the  above-mentioned  four 
areas. 

242   A  separate  issue  is  the  blocking  of  payments  by  financial  institutions  for  example  in  situations  of  alleged 

intellectual property rights infringements or online gambling.  

243  Payment Services Directive, OJ L 319/1, 05.12.2007. 

87

 
 
 
 
 
 
 
 
                                                 
As regards the level of competition in the payments market, the Paper examines factors which 
could  limit  market  access  and  market  entry  by  alternative  payment  service  providers,  and 
thereby lead to market fragmentation. The pricing of payment services is analysed from two 
angles, namely the relationship between the consumer and the merchant and the relationship 
between the merchant and the payment service provider. Possible remedies mentioned in the 
Green Paper address the transparency of the cost of payments, as well as steering mechanisms 
which could ensure that the most efficient payment instrument, both from a consumer and a 
merchant point of view, is chosen in a given purchasing transaction. A third area considered 
in the Paper is technical standardisation which could significantly improve the acceptance of 
payment cards or e- and m-payment schemes across borders. Closely related to this, the issue 
of  interoperability  between  payment  service  providers  is  addressed.  Finally,  the  Paper  deals 
with payment security and data privacy and the possibilities for improvements in this area.  

The last part of the Green Paper touches on a crucial issue, which underpins all of the issues 
mentioned  above,  namely  the  establishment  of  proper  governance  structures  that  could 
facilitate the implementation of remedial measures in the aforementioned areas. 

The consultation will lay the groundwork necessary for the definition in 2012 of a strategy to 
improve the efficiency of payments related to electronic commerce, including surcharges, the 
lack of competition, standardization, and micropayments. 

On 11 January 2012, the Commission has adopted a Green Paper on card payments, internet 
and mobile payments.244 

4.5.2  Electronic invoicing 

Invoicing  forms  another  part  of  the  e-commerce  process  chain  which  could  substantially 
benefit from dematerialisation or digitalisation. Due to the strong link between invoices and 
payments – generally every payment is preceded by an invoice – potential synergies between 
both  processes  are  strong  and  can  generate  substantial  economic  savings.  A  study 
commissioned  by  the  Commission  estimates  that  replacing  paper  invoices  by  electronic 
invoices could lead to annual savings of EUR 40 billion over a six-year period.245 

A  large  part  of  these  savings  relates  to  the  invoice  exchange  between  businesses,  but 
consumers, especially in e-commerce, also benefit from the convenience that e-invoices can 
provide. In particular, if linked with an online banking or other e-payment solution, invoices 
can  be  paid  electronically  with  a  simple  click  and  without  the  need  for  manual  data  input. 
Currently,  however,  e-invoicing  in  Europe  is  often  complicated,  especially  across  borders. 
Diverging  approaches  to  e-invoicing  have  led  to  a  certain  degree  of  fragmentation,  both  in 
terms of the regulatory and technical environment. 

244   See http://ec.europa.eu/internal_market/payments/index_en.htm  

245   Capgemini 

potential 
http://ec.europa.eu/internal_market/payments/docs/sepa/sepa-capgemini_study-final_report_en.pdf 

Consulting, 

benefits 

SEPA: 

stake, 

available 

at 

at: 

88

 
 
 
  
 
 
 
 
 
                                                 
In  its  Communication  "Reaping  the  benefits  of  electronic  invoicing  for  Europe",246  the 
European  Commission  identified  the  key  hurdles  which  prevent  the  uptake  of  e-invoicing, 
defined  priorities  for  their  resolution  and  proposed  a  set  of  concrete  future  actions  for  all 
stakeholders  involved.  The  proposed  measures  aim  at  making  e-invoicing  the  predominant 
method of invoicing by 2020 and fall into four key priority areas: 

1. 
2. 
3. 
4. 

Ensuring a consistent legal environment for e-invoicing 
Achieving mass market adoption by getting SMEs onboard 
Ensuring maximum use of e-invoicing 
Promoting a common e-invoicing standard 

Member  States  are  best  placed  to  advocate,  develop  and  facilitate  the  use  of  e-invoicing  at 
national level. The Commission therefore invited all Member States to set up national multi-
stakeholder e-invoicing fora and to entrust them with the task to develop a national strategy 
for  the  promotion  of  e-invoicing.  In  turn,  the  Commission  established  a  “European  Multi-
Stakeholder Forum on e-invoicing” to identify common hurdles and remedies for e-invoicing 
in  Europe,  to  exchange  best  practices  and  to  coordinate  actions  at  Member  State  level. 
Particular  attention  should  be  given  to  facilitating  cross-border  transactions,  especially  for 
SMEs.  The  forum  will  gather  representatives  from  the  different  national  fora  and  from 
European  associations  representing  e-invoicing  users,  including  consumers.  A  first  meeting 
took place in September 2011. Commission services will, together with the European multi-
stakeholder forum, take action to encourage the maximum use of e-invoices exchange. 

4.6  Delivery  

Many surveys and studies including the e-commerce public consultation identify delivery as 
one  of  the  main  obstacles  to  the  development  of  e-commerce,  especially  its  cross-border 
dimension.247 

4.6.1  Delivery services in an e-commerce environment 

With  the  exponential  growth  and  use  of  electronic  means  of  communication,  customers 
increasingly  need  to  send  or  receive  physical  goods  that  they  sell  or  buy  online.  The 
electronic-commerce value chain thus ends with the physical delivery of goods to consumers. 
This  service  is  mostly  still  provided  by  national  (public)  postal  operators  and  private 
alternative  postal  operators,  including  large  integrated  express  operators  and  more  locally 
focussed  courier  companies.  As  a  response  to  emerging  needs,  new  alternative  ways  of 
delivery are being developed such as parcel consolidators who arrange the direct transport of 
items from the online retailer to the postal operator of the country of destination.  

246   Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  Reaping  the  benefits  of  electronic  invoicing  for 
http://eur-
Europe, 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC0712:EN:NOT  

COM(2010) 

02.12.2010, 

available 

final, 

0509 

at: 

247  See  for  example:  Eurostat  Data  in  Focus  46/2009:  Internet  usage  in  2009  -  Households  and  Individuals, 
at: 
available 
http://epp.eurostat.ec.europa.eu/portal/page/portal/product_details/publication?p_product_code=KS-QA-09-
046 

89

 
 
  
 
 
 
 
                                                 
Delivery links the two sides of the e-commerce chain. On the one side ("sender aspect"), there 
are the online retailers who seek reliable and trustworthy delivery partners for the final leg of 
the  e-commerce  service  they  provide  to  their  end  users.  On  the  other  side  ("addressee 
aspect"),  there  are  the  end  users  purchasing  items  online  who  seek  reliable  retailers  selling 
goods which suit their needs and can be delivered efficiently.   

Enhancing the trust in delivery services to promote consumers' overall confidence in using the 
electronic-commerce services can contribute to its further growth. 

While in the past the delivery of a letter or a parcel largely relied on the public postal delivery 
network, this practice has now undergone significant change. This is especially the case when 
talking  about  parcel  delivery  and  express  delivery  services,  which  have  traditionally  been 
open  to  competition.248  The  European  parcel  and  express  market  is  today  a  highly 
consolidated  market,  after  a  decade  of  mergers  and  acquisitions.  National  postal  operators, 
new entrants (alternative private operators) and express operators (mostly integrators)249 have 
been actively participating in this market, which was estimated at € 42,4 billion in 2008, or 
0.34%  of  EU27  GDP.250  In  1998,  80%  of  this  market  was  covered  by  five  Member  States: 
Germany (31%), France (23%), UK (16%), Italy (6%) and Spain (4%). This share decreased 
to  77%  in  2008251.  Contrary  to  the  past,  boundaries  between  parcel  and  express  market 
segments  have  decreased  and  all  these  operators  are  today  competing  against  each  other  to 
offer their customers an improved product portfolio.  

Today,  national  postal  operators  hold  36%252  of  the  total  parcel  market  across  the  EU, 
showing  that  customers  (senders)  are  increasingly  using  alternative  delivery  providers.  The 
main reasons for this choice could be: (i) better prices, (ii) better range of services and (iii) 
better quality and/or reliability of delivery services provided by alternative operators. 

4.6.2  Delivery problems  

Delivery emerges from the various consultations and studies as one of the the major obstacles 
to the development of electronic commerce253.  

248   Green Paper on the development of the single market for postal services, COM(91) 476 final, 11.06.1992, 

available at http://ec.europa.eu/internal_market/post/index_en.htm  

249   International  express  operators  such  as  DHL,  FedEX,  TNT,  UPS  are  commonly  referred  to  "integrators" 

since they provide an end-to-end service, based on their integrated business model. 

250   ITA  Consulting/WIK  Consult,  The  evolution  of  the  European  Postal  market  since  1997,  August  2009, 
available  at:  http://ec.europa.eu/internal_market/post/doc/studies/2009-wik-evolution_en.pdf 
(hereafter 
ITA/WIK  2009).  The  annual  growth  of  the  parcel  and  express  market  between  1998  and  2008  was  6.1%, 
growing faster than the GDP (3.5%) over the same time period. 

251   Western Europe is by far the most mature market and has the biggest market turnover in Europe. Southern 
Europe has showed a strong growth rate between 1998 and 2008, whilst Eastern Europe region, the smallest 
in turnover, has had the highest growth. See above: The evolution of the European Postal market since 1997 

252   Copenhagen  Economics,  Main  developments  in  the  postal  sector  2008-2010,  29.11.2010,  pp.  85-91; 

available at: http://ec.europa.eu/internal_market/post/doc/studies/2010-main-developments_en.pdf 

253   Eurostat  Data  in  Focus  46/2009:  Internet  usage  in  2009  -  Households  and  Individuals,  available  at: 
http://epp.eurostat.ec.europa.eu/portal/page/portal/product_details/publication?p_product_code=KS-QA-09-
046 . 

90

 
 
 
    
 
 
                                                 
In  general,  the  e-commerce  consultation  highlighted  several  problems  in  postal  services 
delivery in some Member States and raises questions about (i) the level of competition in the 
sector (particularly regarding the delivery of goods) and (ii) the status of the transposition and 
correct implementation of the postal acquis. 

The  responses  to  the  consultation  also  indicated  that  the  problems  identified  in  delivery 
services  are  essentially  (i)  high  costs,  (mainly  for  cross-border  trade),  due  to  higher  cross-
border delivery prices in comparison to similar and/or equivalent domestic delivery services , 
(ii) the refusal to supply in  specific  geographical areas, (iii) the unreliability  of the delivery 
service,  which  can  be  reflected  either  in  lower  quality  of  service,  delays  in  the  delivery  of 
goods or indeed in the non-delivery of goods duly paid.  

These  delivery  problems  are  exacerbated  in  remote  areas  where,  apart  from  the  problem  of 
non-delivery, issues regarding higher shipping costs and longer delivery delays can be more 
problematic. 

In addition, the delivery deadline for goods and the question of who bears the risk of loss or 
damages  of  shipped  goods  are  two  of  the  main  difficulties  encountered  by  consumers  in 
online  B2C-transactions  and  represent  a  source  of  dispute.  The  Directive  on  Consumer 
Rights254  introduces  new  rules.  Article  18  states  that  in  principle,  unless  the  parties  have 
agreed  otherwise,  the  trader  shall  deliver  the  goods  by  transferring  physical  possession  or 
control of the goods to the consumer without undue delay, but not later than 30 days from the 
conclusion of the contract. Article 20 provides that the consumer will be protected against any 
risk of loss or damage of the goods occurring before he has acquired the physical possession 
of the dispatched goods.  

The  Consumer  Rights  Directive,  however,  does  not  harmonise  the  place  and  modalities  of 
delivery  which  are  essentially  subject  to  the  decision  of  the  online  buyer  when  purchasing 
online,  although  she/he  is  limited  by  the  range  of  options  that  online  retailer  provides.  The 
Directive  also  does  not  apply  to  delivery  clauses  where  it  is  up  to  the  consumer  to  take 
delivery  of  the  goods  or  to  ask  a  carrier  to  take  delivery.  The  Commission  Proposal  on  a 
Common European Sales Law255 contains uniform rules on the modalities for delivery, such 
as the time, method and place of delivery, carriage of goods and the effects of delivery on the 
passing of risk. These rules in the Common European Sales Law also apply to B2B contracts. 

4.6.3  Parcel and express delivery services under the Postal Services Directive 

The  Postal  Services  Directive256  addresses  certain  of  these  delivery  issues  indirectly  firstly 
through the requirement of universal service provision with regard to basic letter mail (up to 2 
kg), recommended and insured items and basic parcels up to 10 kg (except where a Member 
State decides for a maximum weight of 20kg) and secondly through the requirement that all 
postal service providers set up an internal complaints system.  

254   See Chapter 4.4.1 

255   Also see Chapter 4.4.1 

256   Directive 2008/6/EC of the European Parliament and the Council of 20 February 2008 amending Directive 
97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 
52/3, 27.2.2008, available at: http://ec.europa.eu/internal_market/post/doc/legislation/2008-06_en.pdf  

91

 
 
 
 
 
 
 
 
                                                 
Although  parcel  and  express  delivery  services  have  been  open  to  competition  for  some 
decades257,  the  Postal  Services  Directive  provides  for  a  number  of  regulatory  measures  to 
ensure  a  high  quality  of  (basic)  parcel  service  as  well  as  a  high  level  of  postal  users' 
protection. With regard to these regulatory measures, a distinction needs to be made between 
two  types  of  services:  (i)  "basic"  or  "standard" parcel  service  which  is  part  of  the  universal 
service obligation (USO), as defined in Article 3 (4) of the Postal Services Directive, and (ii) 
parcel  delivery  services  with  added  value,  which  are  not  directly  subject  to  USO,  but  are 
nonetheless subject to some other regulatory requirements (e.g. obligation to handle consumer 
complaints).  The  latter  services  are  traditionally  understood  as  comprising  elements  such  as 
(i) the collection at the premises of the sender, (ii) the handling of bulk parcels (parcels sent in 
larger  quantities),  (iii)  track  and  trace  services  and  (iv)  express  (faster)  delivery  and/or 
guaranteed delivery times. The Postal Services Directive foresees a number of requirements 
concerning the basic parcel service as part of the USO.  

Parcel delivery as part of the Universal Service Obligation (USO) 

Article  3  of  the  Postal  Services  Directive  obliges  Member  States  to  ensure  the  provision  of 
basic parcel services at affordable prices for all citizens on its territory at least five working 
days  per week. All  Member  States ensure that basic  parcel  services,  in  most  cases  meaning 
over-the-counter  parcel  services,258  are  guaranteed  as  part  of  the  universal  service 
obligation.259 

Article  3  (3)  of  the  Postal  Services  Directive  enables  Member  States  to  implement 
derogations  from  the  minimum  requirements  for  USO.  This  has  to  be  granted  by  the 
independent  national  regulatory  authority  and  only  if  the  existing  "circumstances  or 
geographical  conditions  deemed  exceptional"  allow  for  it.  Based  on  available  data  one  can 
observe that - with the exception of Greece, where 7 % of the population does not have five 
times  per  week  delivery  frequency  –  Member  States  do  not  provide  for  extensive 
derogations.260 

A  basic  high  level  parcel  delivery  of  a  specified  quality  standard  at  EU  level  is  thus 
guaranteed  on  the  basis  of  Article  3.  Parcel  services  which  are  part  of  the  USO  do  not, 
however,  in  most  cases  comprise  the  additional  added  value  elements  as  defined  above.261 
These added value services are not covered by the USO requirements of Article 3. 

257 

  See for example Chapter 4.3.3., ITA/WIK 2009. 

258   It is known that basic parcel services usually indicate services where customers hand in the parcel at the post 

office counter. 

259   See  Table  2.3.,  WIK  Consult,  The  Role  of  Regulators  in  a  More  Competitive  Postal  Market,  September 

2009, available at: http://ec.europa.eu/internal_market/post/doc/studies/2009-wik_regulators.pdf 

260

   See above reference: The Role of Regulators in a More Competitive Postal Market, p. 82  

261   Collection  at  the  premises  of  the  sender;  bulk  parcels  (parcels  sent  in  larger  quantities);  track  and  trace 
services  and  express  (faster)  delivery  and/or  time  certain  delivery.  E.g.  as  regards  the  delivery  to  home 
premises in some Member States parcels may not be delivered frequently to the addressee’s residence, but 
must be collected by the addressee from the nearest post office; additional services such as track and trace 
are often only provided by express and courier companies. 

92

 
 
 
 
 
 
 
 
                                                 
Postal users' protection measures 

Article 19 of the Postal Services Directive obliges Member States to ensure the existence of 
complaint procedures for all postal users, particularly in cases of loss, damage, theft or non-
compliance with quality standards. It also determines that Member States shall encourage the 
development  of  independent  out-of-court  schemes  for  dispute  resolution  (Article  19  (1)).  If 
postal service providers do not provide the service at the level agreed they have to adequately 
remedy  the  situation  (e.g.  provide  payment  of  indemnity)  based  on  the  requirements  laid 
down in the applicable national legislation. 

Additionally, where users' complaints to businesses providing postal services within the scope 
of  the  universal  service  have  not  been  satisfactorily  resolved,  postal  users  may  bring  these 
cases  before  the  competent  national  authority  (Article  19  (2)).  While  this  provision  is 
mandatory for the universal postal service and interchangeable services, many Member States 
go beyond this minimum and extend the complaint mechanism to services outside the USO.262  

Although  the  Postal  Services  Directive  entrusted  to  Member  States  the  task  of  organizing 
transparent  complaint  procedures,  it  does  not  cover  the  issue  of  liability  for  late  delivery  or 
non-delivery  as  such.  Nevertheless,  there  are  many  Member  States  that  have  introduced 
legislative  solutions  in  their  national  legislation  (e.g.  right  of  indemnity  in  case  of  late 
delivery; right of indemnity in case of a lost item). Furthermore, the issues of accountability 
for delivery and transfer of risk are only resolved to a certain extent at EU level (see Chapter 
4.4.1). 

The complaint mechanism procedure is therefore not uniform or harmonized, which results in 
different  practices  being  applied  in  different  Member  States,  as  well  as  variations  in  the 
possible level of protection. This can add ambiguity and difficulties in cross-border delivery 
firstly where a complaint triggers the need for cooperation between two service providers – a 
problem limited to delivery networks that are not integrated - and secondly where problems 
arise between two national regulatory authorities if a complaint is not satisfactory resolved.263 

Member  States  are  therefore  encouraged  to  ensure  a  high  level  of  user  protection,  and  to 
develop  and  facilitate  the  use  of  independent  out-of-court  schemes  for  the  resolution  of 
disputes  between  postal  services  providers  and  users  while  taking  into  account  the  cross-
border dimension.264 

262   See in this context Advocate General's Opinion, Case C-148/10, Express Line NV v Belgisch Instituut voor 
Postdiensten  en  Telecommunicatie,  judgment  of  26.05.2011;  available  at:  http://curia.europa.eu/jurisp/cgi-
bin/form.pl?lang=EN&Submit=Submit&numaff=C-148/10   

263   Another example of possible difficulties in cross-border complaint cases is that the sender has the legal right 
to complain, except in the UK and Ireland where the responsibility for the item belongs to the recipient from 
the moment it is dropped in the postal pipeline. In continental Europe as long as the item is not delivered it 
is  still  a  legal  right  of  the  sender.  So,  if  the  item  is  lost  the  sender  and  not  the  recipient  must  ask  for 
indemnity. In the cases of delay and damaged goods, as soon as the items arrive to the recipient, he can ask 
for financial compensation. 

264   See on ADR also Chapter 4.7.1  

93

 
 
 
 
 
 
 
 
                                                 
4.6.4  Market trends and enhanced application of the EU postal legislation 

In  order  to  achieve  a  fast  and  reliable  delivery  service  in  Europe  it  is  essential  that  parcel 
delivery operators, express delivery operators and competent national and EU authorities take 
an active role. 

The  increased  demand  for  more  flexible  and  user-friendly  delivery  solutions  has  been 
impacting  the  delivery  sector  significantly.  Postal  delivery  operators  have  been  improving 
their service offers to become more flexible and customer-focused. Features such as increased 
distribution coverage, guaranteed delivery times, improved operational performance, end-to-
end  logistics  services  or  track  and  trace  services  are  increasingly  offered  as  value-added 
delivery services.  The tracking of an item is a key feature for retailers and customers using 
electronic-commerce.  

Many  operators  are  introducing  flexible  delivery  systems,  such  as  local  stores  or  automatic 
parcel stations265, which allow users to collect their parcels even after the local post office has 
closed  or  outside  working  hours.  Moreover,  the  market  sees  a  higher  convergence  between 
express and parcel services, especially in terms of the products offered. Parcel operators have 
improved their transit times and can hence compete with the lower end of express operators' 
services,  whilst  express  operators  have  introduced  lower-cost  products  targeting  customers 
less sensitive to delivery time.  

Furthermore,  new  business  solutions  such  as  parcel  consolidators266  or  online  parcel 
brokers267  are  being  developed,  which  facilitate  the  whole  delivery  process  by  providing 
customers with added value in the form of pre-delivery services (e.g. presentation of available 
delivery  alternatives  and  finding  the  best  options  in  a  given  situation)  or  in  the  form  of 
passing on cost savings (e.g. consolidators’ volume discounts), which are reflected in a lower 
final delivery price for customers.  

In  relation  to  innovations,  new  technologies  have  allowed  operators  to  both  improve 
efficiency and reduce costs. Technological solutions such as "dynamic route planning", with 
the  help  of  GPS  technology,  and  RFID  significantly  contribute  to  the  optimization  of  the 
delivery  chain  processes  (e.g.  sorting;  delivery),  which  can  subsequently  be  reflected  in 
improved services, both in terms of the quality of service as well as pricing. 

With regard to the efficient application of existing regulatory tools, Commission services are 
working on a number of initiatives.  

265   Service  provided  by  some  delivery  service  operators,  where  parcels  can  be  collected  and  dispatched  by 
consumers 24 hours a day. These automatic stations or boxes are self-service and based on a code received 
via SMS or e-mail. Germany, Austria, Latvia, Estonia and Poland are examples of Member States where this 
service is offered. 

266   Parcel consolidators provide for parcel preparation and collection services and later on insert the collected 

parcels in postal delivery networks. 

267   In contrast to parcel consolidators, online parcel brokers (e.g. parcelbroker.co.uk) are not at all involved in 
the  logistic  process,  but  only  provide  a  sender  with  information  on  possible  delivery  options  in  a  given 
situation. 

94

 
 
 
 
 
 
 
 
 
                                                 
The  Commission  services  are  conducting  a  sectoral  study,  with  the  help  of  an  external 
consultant,  regarding  the  cross-border  provision  of  parcel  delivery  services,  with  a  specific 
focus on the alleged price differences between cross-border and domestic parcel services. This 
will  allow  Commission  services  to  better  measure  one  of  the  issues  mentioned  in  the 
consultation  (high  costs  of  delivery).  Based  on  the  results  of  this  study,  and  together  with 
other delivery issues identified above, Commission services will prepare the Green Paper on 
parcel delivery as the final leg of e-commerce services, with specific focus on its cross-border 
aspect. The Green Paper should provide for an informed overview of the issues identified, and 
possibly  go further, and should include all stakeholders involved (e.g. delivery operators; e-
retailers; customers; other stakeholders).  

With  regard  to  the  complaints  procedures  in  case  of  lost  items,  theft  and  delay,  it  becomes 
imperative  that  Article  19  of  the  Postal  Services  Directive  and  the  user's  possibility  to 
complain  to  the  postal  service  provider  is  implemented  efficiently  and  that    adequate 
protection is ensured at the national level. 

In  this  regard,  Commission  services  will,  as  envisaged  by  Article  22  of  the  Postal  Services 
Directive, further promote cooperation among national regulatory authorities both within the 
context  of  the  European  Regulators  Group  for  Postal  services  (ERGP)  and  in  relation  to 
possible individual cases. 

Furthermore,  as  announced  by  Commissioner  Barnier  in  his  intervention  at  the  European 
Parliament on 9 September 2010268, Commission services has organized the first Postal Users 
Forum for 12 December 2011.269  The forum encouraged users to reflect on their experience 
with  postal  delivery  services  and  identify  possible  shortcomings  that  would  call  for  further 
initiatives.  

In 2012, Commission services will prepare a report on the application of the USO derogations 
by Member States with a view to identifying their scope, with specific focus on basic parcel 
services, and their impact on the delivery of items that originated in e-commerce transactions.  

Commission  services  will  continue  not  only  to  monitor  the  developments  on  the  quality  of 
delivery services as well as consumer satisfaction, but will also encourage Member States to 
introduce further quality of service improvements, and promote best practices. 

In summary, the Commission services will:270 

•  prepare a Green Paper on cross-border delivery, with specific focus on e-commerce-

originated traffic (2012); 

•  continue  to  monitor  the  correct  transposition  and  application  of  the  Postal  Services 

Directive; 

268   See Minutes of the European Parliament, 09.09.2010, Response of Commissioner Barnier to Oral Question 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-

O-0114/2010, 
//EP//TEXT+PV+20100909+ITEM-003+DOC+XML+V0//EN&language=EN  

available 

at: 

269   See http://ec.europa.eu/internal_market/post/conference_en.htm#conference2011  

270   See 

in 

general 

for 

the 

EU 

developments 

in 

the 

postal 

area 

http://ec.europa.eu/internal_market/post/index_en.htm  

95

 
 
 
 
 
 
 
 
 
                                                 
•  promote  cooperation  among  national  regulatory  authorities,  in  particular  within  the 

context of the European Regulators Group for Postal services (ERGP);  

•  organize  annually  a  Postal  Users  Forum  (first  Forum  took  place  on  12  December 

2011); 

•  publish  a  sectoral  study  regarding  the  cross-border  provision  of  parcel  delivery 

services (January 2012); 

•  prepare a report on the application of the USO derogations by Member States (2012). 

4.7  Dispute resolution in an online environment 

While e-commerce offers a wide range of services, and many facilities, its development is still 
being  severely  hampered  because  the  Internet  continues  to  be  perceived  as  a  risk  area, 
generating  potential  disputes  which  cannot  be  easily  solved  partly  because  of  the  nature  of 
this  virtual  exchange  zone.  Responses  to  the  consultation  on  the  future  of  e-commerce 
testified to  the  fears felt  by  both  consumers and businesses that something could  go  wrong. 
These  fears  are  linked  to  the  general  lack  of  information  on  existing  quick  and  effective 
remedies that e-commerce users could resort to if necessary. As a result of specific problems 
in electronic commerce and the absence of knowledge of relevant remedies, the parties may 
end  up  not  exercising  their  rights.  In  this  regard,  the  concern  of  consumers  is  even  greater 
when it comes to cross-border e-commerce. Such fears, however, often tend to disappear after 
the first experience of using cross border e-commerce.271 

Most disputes related to electronic commerce are characterized by their low monetary value. 
EU  law  already  provides  for  special  rules  on  consumer  transactions  with  a  relatively  low 
value. This chapter deals both with out-of-court settlements and specific court procedures. 

4.7.1  Alternative Dispute Resolution and Online Dispute Resolution 

When  disputes  arise  from  cross-border  transactions,  consumers  as  well  as  enterprises  want 
easy,  fast  and  cheap  solutions.  Alternative  Dispute  Resolution  ("ADR  ")272  is  widely 
considered as an efficient, quick and low-cost alternative to classic court procedures both for 
online and offline disputes. 

The  public  consultations  both  on  the  future  of  e-commerce  and  on  ADR273  revealed  strong 
support for resolving disputes online. Consumer groups, business organisations and Member 

271  See  the  Fifth  Consumer  Conditions  Scoreboard,  Consumers  At  Home  in  the  Single  Market,  March  2011, 

IP/11/280, available at: http://ec.europa.eu/consumers/consumer_research/editions/cms5_en.htm  

272   ADR  can  be  defined  as  any  scheme  that  leads  to  the  resolution  of  a  dispute,  including  compensation, 
through the intervention of an entity. Traditionally this definition includes mediation (the neutral third party 
intends to solve the dispute with a mutually agreed settlement) and arbitration (the neutral third party takes 
a binding and enforceable decision on the dispute). 

273   The Consultation Paper and other relevant documents are available at the Consumer Affairs Consultations 
at: 

web-page 
http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/adr_consultation_18012011_en.htm 

SANCO, 

available 

DG 

of 

96

 
 
 
 
 
 
 
                                                 
States favour the development of alternative dispute resolution mechanisms which can boost 
confidence in e-commerce.274 

A recent study on the use of ADR in the EU275 showed that ADR can offer inexpensive and 
fast  resolution  of  disputes  and  that  ADR  has  gained  widespread  acceptance  amongst 
consumers and businesses in recent years. The vast majority of the more than 750 existing B-
2-C ADR procedures in the EU are free of charge for consumers or are available at moderate 
costs (below € 50).276 The majority of ADR cases are decided within a period of 90 days. The 
study  also  showed  that  ADR  schemes  are  highly  diverse  in  structure,  operation  and 
funding.277  

Online Dispute Resolution ("ODR") can be defined as a type of ADR which is performed 
entirely or substantially online. Compared to traditional ADR, the inherently online nature of 
ODR  provides  further  advantages  such  as  time  savings  (no  travelling),  cost  savings  and 
convenience (the entire procedure can be performed online, at the convenience of the parties 
and the neutral third party). The potential for ODR at the global level was recognised in 2010 
when UNCITRAL set up a working group on ODR for e-commerce transactions.278 

Most  of  the  existing  ADR  schemes  do  not  make  a  distinction  between  online  and  offline 
purchases. Very few ADR schemes handle the entire process online where consumers, traders 
and ADR schemes communicate during the whole procedure through a web-based system in 
order  to  resolve  disputes.  Examples  of  where  this  is  the  case  include  ECODIR,279  Risolvi-
online,280 and Belmed.281 About half of the existing ADR schemes, however, provide for an 
online complaint form which can be submitted directly online or sent by post or e-mail.282 

274  In addition, responses to the e-commerce consultation indicated the importance of private sector initiatives 
taken in order to settle disputes arising between their members and consumers (for example, call centres for 
telecommunications). Certain consumer protection associations have developed tools to assist consumers to 
quickly and effectively find solutions, outside the judicial system. 

275   Civic Consulting of the Consumer Policy Evaluation Consortium (CPEC), Study on the use of Alternative 
Dispute  Resolution  in  the  European  Union  (hereafter  ‘ADR  study’)  16  October  2009,  available  at: 
http://www.cc.cec/home/dgserv/sg/evaluation/pages/eims_en.htm  

276   ADR study, pp.8, 13. 

277   ADR study, Annex 1, pp. 164-324. 

278   http://www.uncitral.org/  

279   ECODIR  stands  for  "Electronic  Consumer  Dispute  Resolution"  and  is  a  pilot  project  concerned  with 
disputes  for  transactions  between  businesses  and  consumers  taking  place  over  the  Internet.  Its  partners, 
which  include  universities,  are  specialized  in  online  dispute  resolution.  ECODIR  is  free  of  charge  for 
consumers  and  involves  a  3-step  process  of  negotiation,  mediation  and  recommendation.  See  for  details 
http://www.ecodir.org. 

280   RisolviOnline is a service offered by the Milan Mediation Chamber that allows the resolution of commercial 
individual  consumers/users  and  by  enterprises. 

Disputes  and  can  be  used  be  used  both  by 
http://www.risolvionline.com/  

281   Belmed  is  an  online dispute  resolution  scheme  set  up  by  Belgium  to  resolve  disputes between  consumers 

and traders: http://economie.fgov.be/belmed.jsp  

282   ADR study pp.100, 143. 

97

 
 
 
 
 
                                                 
Most consumers who have used ADR recall it as an uncomplicated and transparent process, 
where  sufficient  support  and  advice  was  provided283.  The  resultant  simple  and  fast  process 
was  compared  very  favourably  with  the  perceived  long  and  slow  process  that  proceedings 
before a court would entail. 54% of businesses would prefer to solve disputes through ADR 
rather  than  in  court284  and  82%  who  have  already  used  ADR  would  do  so  again  in  the 
future.285 This evidence is further reinforced by data on the satisfaction levels of businesses 
that had used ADR; 76% found that it provided a successful settlement of the dispute. Like 
ADR, ODR is perceived positively. About 60% of businesses286 and 64% of consumers state 
that they would be willing to solve disputes with consumers through ODR.287  

In this regard, the European Commission has already taken a number of initiatives to facilitate 
the resolution of disputes out-of-court. In particular, it has adopted two Recommendations to 
promote  ADR  –  Recommendations  98/257/EC288  and  2001/310/EC.289  The 
two 
Recommendations  establish  a  number  of  minimum  guarantees,  such  as  independence, 
transparency and effectiveness, which ADR schemes should respect. In addition, several EU 
Directives like Article 17 of the E-commerce Directive encourage Member States to establish 
ADR  schemes.  In  some  other  sectors,  such  as  telecoms,  energy,  and  consumer  credit,  EU 
legislation obliges Member States to establish ADR schemes. 

But there is still room for improvement. The potential of ODR, and in particular cross-border 
ODR,  has  not  yet  been  fully  exploited.  Its  limited  success  can  partly  be  explained  by  the 
untapped potential of ADR in general. Despite the development of ADR and ODR in the EU 
over the last decade, there are still a number of shortcomings which hinder their effectiveness 
across Member States.  

First,  there  are  important  gaps  in  ADR  coverage.  This  means  that  the  existing  set  of  ADR 
schemes offering to resolve business-to-consumer disputes related to e-commerce transactions 
is  still  scattered  and  incomplete  within  the  European  Union.  In  addition,  while  half  of  the 
existing  ADR  schemes  offer  the  possibility  to  submit  complaints  online,  very  few  offer 

283   TNS  qual+,  Eurobarometer  Qualitative  Study,  Consumer  redress  in  the  European  Union:  Consumer 
at: 

choices, 
experiences, 
http://ec.europa.eu/consumers/redress_cons/docs/cons_redress_EU_qual_study_report_en.pdf  

perceptions 

available 

August 

2009, 

p.48, 

and 

284   The  Gallup  Organization  for  DG  Communication,  Flash  Eurobarometer  300,  Retailers’  attitudes  towards 
at: 

protection,  March 

available 

2011, 

trade 

79, 

p 

cross-border 
and 
http://ec.europa.eu/public_opinion/flash/fl_300_en.pdf  

consumer 

285   European  Business  Test  Panel 

(EBTP) 

survey,  Alternative  Dispute  Resolution,  2010-11, 

http://ec.europa.eu/yourvoice/ebtp/consultations/2010/adr/report_en.pdf  

286   EBTP statistics available at: http://ec.europa.eu/yourvoice/ebtp/consultations/2010/adr/statistics_en.pdf  

287   Preliminary results on a study on the development of e-commerce in the EU. 

288   Commission Recommendation 98/257/EC on the principles applicable to the bodies responsible for the out-
of-court  settlement  of  consumer  disputes,  OJ  L  115,  17.04.1998,  p.  31,  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:115:0031:0034:EN:PDF  

289   Commission  Recommendation  2001/310/EC  on  the  principles  for  out-of-court  bodies  involved  in  the 
resolution  of  consumer  ADR,  OJ  L  109,  19.04.2001,  p.  56,  available  at: 

consensual 
http://ec.europa.eu/consumers/redress/out_of_court/adr/acce_just12_en.pdf  

98

 
 
 
 
 
 
                                                 
consumers the possibility to conduct the entire procedure online. Handling the entire process 
online would allow savings in terms of time and ease of communication between the parties. 
In  2009,  more  than  half  of  complaints  (55.9%)  received  by  the  ECC-Net  (see  below)  were 
linked  to  e-commerce  transactions.  Out  of  the  50,000  cross  border  complaints  received  by 
European  Consumer  Centres  in  2009,  93%  could  not  be  referred  to  an  ADR  scheme  in 
another Member State. 

Second,  many  replies  to  both  public  consultations  showed  that  ADR/  ODR  systems  are  not 
well known. One of the most frequent observations was the lack of information and publicity 
surrounding ADR/ODR. Third, respondents indicated that the quality of existing ADR/ODR 
schemes can vary considerably. 

On  29  November  2011  the  Commission  adopted  proposals  for  two  legislative  measures  to 
improve out-of-court dispute resolution for all consumer disputes and to improve the online 
dispute resolution of cross-border disputes related to online transactions.290 

The  Commission  also  set  up  the  European  Consumer  Centres  Network  (ECC-Net)291 
which  is  an  EU-wide  network  co-sponsored  by  the  European  Commission  and  the  Member 
States. The aim of the network is to provide information to consumers on their rights and to 
assist them with cross-border disputes. The network is made up of 29 centres, one in each of 
the  27  EU  Member  States,  Iceland  and  Norway.  The  network  handles  over  70,000  cross-
border contacts per year. Internet purchases continue to be the main source of consumer cross-
border  complaints  making  up  56%  of  all  complaints  addressed  to  the  ECC-Net  in  2010 
(44,232 complaints).  

The  Commission  services  will  encourage  the  ECC-Net  to  take  a  more  proactive  and 
preventive approach towards key business sectors that have significant cross border exposure. 
A  further  alternative  to  traditional  settlements  of  dispute  in  court  is  provided  by  the 
introduction  of  compulsory  mediation  within  the  traditional  litigation  procedure.  The 
Mediation  Directive292  of  2008  applies  to  cross-border  disputes  in  civil  and  commercial 
matters. The principal objective of this legal instrument is to encourage recourse to mediation 
services in the Member States. To do this, the Directive gives every judge the right to invite 
the  parties  to  a  dispute  to  try  mediation  first  if  she/he  considers  it  appropriate  given  the 
circumstances  of  the  case.  It  also  provides  that  agreements  resulting  from  mediation  can  be 
rendered  enforceable  if  both  parties  so  request.  This  can  be  achieved,  for  example,  through 
court  approval  or  certification  by  a  public  notary.  The  transposition  period  for  the  Member 
States to adopt national measures providing for the implementation of the Directive expired 
on  21  May  2011.  The  Commission  services  will  carefully  monitor  the  transposition  of  the 
Mediation  Directive  in  the  Member  States  and  use  the  Commission's  powers  under  the 
Treaties as regards those Member States which have not yet taken transposition measures 

290   Proposed  Directive  on  consumer  ADR  and  Proposed  Regulation  on  consumer  ODR,  available  at: 

http://ec.europa.eu/consumers/redress_cons/adr_policy_work_en.htm  

291   For 

further 

information 

see 

the 

ECC-net 

web-page, 

available 

at: 

http://ec.europa.eu/consumers/ecc/index_en.htm 

292   Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of 
in  civil  and  commercial  matters,  OJ  L  136/3,  24.05.2008;  available  at:  http://eur-

mediation 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF  

99

 
 
 
 
 
 
                                                 
4.7.2  European Small Claims Procedure 

Due  to  the  large  backlog  of  cases  and  the  time  and  cost  that  traditional  means  of  resolving 
legal  disputes  entail,  the  use  of  courts  and  judicial  tribunals  to  resolve  online  commercial 
transactions has  not always offered a satisfactory  solution  for  e-commerce users. Moreover, 
online legal services are underdeveloped and in many cases non-existent. 

Simplified court procedures  or  "small claims procedures" exist in almost all Member States 
for national cases as a cost-efficient alternative to the traditional court procedures. In 2007, a 
Regulation was adopted setting up a European Small Claims Procedure293 as an alternative to 
domestic  claims  procedures  for  cross-border  cases.  It  is  an  optional  procedure  for  claims 
under  €  2,000  in  value,  covering  both  civil  and  commercial  cases  including  all  consumer 
transactions and applying equally to online disputes. The claimant must fill in a standard form 
(available  online)294  with  the  details  of  the  claim  and  submit  it  to  the  competent  court  in 
another  Member  State.  This  court  then  drafts  a  standard  answer  and  provides  the  defendant 
with the possibility to lodge a counterclaim. A judgment is given in thirty days and the court 
decision can be directly enforced, without the need to use the exequatur procedure. A further 
major advantage is that parties do not require compulsory legal assistance. 

The  success  of  this  procedure  essentially  depends  on  the  extent  to  which  consumers, 
consumer advisors like ECC-Net and lawyers are aware of the procedure. This is not always 
considerable. A public opinion survey conducted in 2010 shows that only 8% of respondents 
had heard about the procedure.295  

Its  success  also  depends  on  the  effective  application  of  the  procedure  by  national  courts.  A 
survey  conducted  by  the  ECC-Net  in  2010296  shows  that  53%  of  courts  and  judges  visited 
were  already  aware  of  the  European  Small  Claims  Procedure.  There  is  however  room  for 
improvement. The relevant forms were not made available on the premises or the websites of 
41% of the courts visited. Consumers found it difficult to fill in the forms on their own, while 
in  41%  of  cases,  assistance  to  fill  in  the  forms  and  start  the  procedure  was  not  available  to 
consumers. In 76% of examined cases, the European Small Claims Procedure was not free of 
charge  for  consumers.  Consumers  also  faced  language  problems  (no  assistance  is  foreseen 
and certified translators are usually too expensive). Finally, consumers perceived difficulties 
with determining the competent court, as well as with the enforcement of judgments.  

Commission  services  will  conduct  an  assessment  of  the  application  of  Regulation  (EC) 
861/2007  by  2013.  This  could  lead  to  a  future  revision  which  could  in  particular  include  a 

293   Regulation (EC) No. 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a 
European  Small  Claims  Procedure,  OJ  L  199/1,  31.07.2007; 
at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0001:0022:EN:PDF  (N.B.  This  Regulation 
does not apply to Denmark). 

available 

294   The 

available 
http://ec.europa.eu/justice_home/judicialatlascivil/html/sc_filling_en.htm.  

form 

from 

the 

is 

European 

Judicial 

Atlas: 

295   TNS Opinion & Social at the request of DG JUST, Special Eurobarometer 351: Civil justice, October 2010, 

available at: http://ec.europa.eu/public_opinion/archives/ebs/ebs_351_en.pdf  

296   Draft ECC-Net Joint Project on the European Small Claims Procedure. 

100

 
 
 
 
 
 
 
                                                 
proposal for a possible increase of the threshold for its use. In addition, electronic processing 
related to the procedure should be further developed. 

4.7.3  Collective redress 

Responses  to  the  consultation  indicated  that  e-commerce  users  have  different  views  on 
collective redress. While some are in favour of collective redress for the resolution of disputes 
arising  from  electronic  commerce,  others  are  strongly  opposed,  fearing  that  this  would  give 
rise to a "claim culture".  

Consideration of the need for a coherent approach to collective redress is underway at the EU 
level.  In  February  2011,  the  Commission  launched  a  consultation  to  identify  common  legal 
principles  on  collective  redress.297  Currently,  15  Member  States  have  judicial  mechanisms 
whereby  a  group  of  consumers  or  an  entity  representing  the  consumer  public  interest  can 
request compensation for harm caused by an illegal practice. These mechanisms are designed 
for  mass  claims  and  can  be  used  if  multiple  consumers  have  been  harmed  by  the  illegal 
practice of a trader. 

The  Commission  will  explore  in  2012  how  to  follow-up  on  the  results  of  the  public 
consultation298. 

4.7.4  International Private Law 

Dispute  resolution  concerning  online  transactions  is  complex,  particularly  because  online 
decisions  and  transactions  take  place  without  any  direct  human  interface.  Many  online 
transactions  have  a  relatively  low  value  which  implies  that  compliance  costs  are  relatively 
high. But dispute resolution becomes even more complicated in a cross-border situation, when 
internet  actors  are  resident  in  two  different  Member  States  or  even  outside  the  EU. 
Determining  the  competent  court  and  the  applicable  law  as  well  as  the  recognition  and 
enforcement  of  judgments  also  for  disputes  in  an  online  environment  is  regulated  under 
international private law rules relating to cross-border dispute resolution. 

The  Brussels  I  Regulation299  is  the  most  important  legal  instrument  for  determining  which 
court is competent to handle a dispute. The Rome I Regulation300 (for contractual obligations) 

297   Details 

of 

the 

consultation 

are 

available 

at: 

http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/collective_redress_consultation_en.htm   

298 An initiative on an EU framework on collective redress, which would follow up on the full range of previous 
Commission work on collective redress at the EU level is scheduled in the Commission Work Programme for 
2012 (Initiative 110 in the Annex to the Communication from the Commission to the European Parliament, the 
Council, the European Economic and Social Committee and the Committee of the Regions Commission work 
programme 2012. com(2011) 777 final vol. 2/2.-. 

299   Council Regulation (EC) No. 44/2001 of 22 December 2000 of the European Parliament and of the Council 
on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters,  OJ  L 
12/1, 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF 

16.01.2001; 

available 

at: 

300   Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 
applicable  to  contractual  obligations  (Rome  I),  OJ  L  177/6,  04.07.2008;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008R0593:EN:NOT  

101

 
 
 
 
 
 
 
                                                 
 
and the Rome II Regulation301 (for non-contractual relations) regulate the applicable law (see 
further Chapter 3.2.4 on contracting).  

The Brussels I Regulation provides that actions against a person domiciled in a Member State 
can,  as  a  general  rule,  be  brought  in  the  courts  of  that  State.  It  also  provides  that  cases 
resulting  from  a  contractual  relationship  may  be  decided  by  the  courts  of  the  place  of 
performance of the contractual obligation. In the case of consumer contracts, however, rules 
protecting the consumer apply. The consumer may bring proceedings against the trader either 
in  the  courts  of  the  Member  States  in  which  that  party  is  domiciled,  or  in  the  courts  of  the 
place  where  the  consumer  is  domiciled.  Proceedings  against  the  consumer  may  be  brought 
only in the courts of the Member State where the consumer is domiciled. In order for those 
protective  rules  to  apply,  the  Brussels  I  Regulation  requires  that  the  trader  "directs  its 
activities" to the Member State in which the consumer is domiciled (Article 15 (1) (c)). The 
protective  rules  are  justified  on  the  basis  of  the  weaker  negotiation  power  of  individual 
consumers  and  the  costs  related  to  transnational  litigation,  which  are  difficult  to  bear  for 
individual consumers.  

The  Brussels  I  Regulation,  however,  does  not  provide  a  definition  of  the  notion  "directed 
activity".  At  the  time  of  the  adoption  of  the  Regulation,  the  Council  and  the  Commission 
issued a declaration on the interpretation of the notion. Nevertheless, several respondents to 
the  public  consultation  expressed  their  concerns  about  the  lack  of  clarity  surrounding  the 
application of the Brussels I Regulation. In December 2010, however, the European Court of 
Justice issued certain guidance on the interpretation of Article 15 Brussels I with respect to 
services offered on the Internet.  

In the cases of Hotel Alpenhof and Peter Pammer302, the basic question at issue was whether 
the  fact  that  the  website  of  a  business,  on  the  basis  of  which  a  consumer  entered  into  a 
contract, can be viewed on the Internet is sufficient to justify the conclusion that an activity is 
being "directed" within the meaning of Article 15 (1) (c) of the Brussels I Regulation.  

• 

• 

In  the  Hotel  Alpenhof  case,  the  consumer,  a  German  resident,  reserved  a  number  of 
rooms,  for  a  period  of  a  week,  in  Hotel  Alpenhof,  in  Austria.  The  reservation  was 
made by email, the address being provided on the hotel’s website which the consumer 
had  viewed.  The  consumer  found  fault  with  the  hotel’s  services  and  left  without 
paying  his  bill.  The  hotel  then  brought  an  action  before  the  Austrian  courts  for 
payment of the bill.  

In the Pammer case, the consumer, a resident of Austria, wished to travel by freighter 
from  Trieste  (Italy)  to  the  Far  East.  He  booked  a  voyage  with  the  German  company 
Reederei  Karl  Schlüter  through  a  German  travel  agency  specialising  in  the  internet 
sale of voyages by freighter. The consumer refused to embark on the grounds that the 
conditions on the vessel did not, in his view, correspond to the description which he 

301   Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law 
applicable  to  non-contractual  obligations  (Rome  II),  OJ  L  199/40,  31.07.2007;  available  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0040:0049:EN:PDF  

302   Joined Cases C-585/08 and C-144/09, Peter Pammer v Reederei Karl Schlüter GmbH & Co KG (C-585/08), 
and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09), judgment of 07.12.2010; available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0585:EN:NOT  

102

 
 
 
 
 
 
 
                                                 
had  received  from  the  agency  and  he  sought  reimbursement  of  the  sum  that  he  had 
paid for the voyage. As Reederei Karl Schlüter reimbursed only a part of that sum, the 
consumer  brought  proceedings  before  the  Austrian  courts,  before  which  the  German 
company  raised  a  plea  that  the  court  lacked  jurisdiction  on  the  grounds  that  the 
company did not pursue any professional or commercial activity in Austria. 

The European Court of Justice ruled that mere use of a website by a trader in order to engage 
in trade does not in itself mean that its activity is "directed to" other Member States, which 
would  trigger  application  of  the  protective  rules  of  jurisdiction  in  the  regulation.  The  Court 
held that, in order for those rules to be applicable in relation to consumers from other Member 
States,  the  trader  must  have  manifested  its  intention  to  establish  commercial  relations  with 
such consumers.  

In this context, the Court considers what evidence demonstrates that the trader was envisaging 
doing  business  with  consumers  domiciled  in  other  Member  States.  Such  evidence  includes 
clear  expressions  of  the  trader’s  intention  to  solicit  the  custom  of  those  consumers,  for 
example when it offers its services or its goods in several Member States designated by name 
or  when  it  pays  a  search  engine  operator  for  an  internet  referencing  service  in  order  to 
facilitate access to its site by consumers domiciled in those various Member States.  

Nevertheless,  other  less  obvious  items  of  evidence,  if  combined  with  one  another,  are  also 
capable  of  demonstrating  the  existence  of  an  activity  "directed  to"  the  Member  State  of  the 
consumer’s domicile. These include: the international nature of the activity at issue, such as 
certain tourist activities; the inclusion of telephone numbers with an international code; use of 
a  top-level  domain  name  other  than  that  of  the  Member  State  in  which  the  trader  is 
established,  for  example  ‘.de’,  or  use  of  neutral  top-level  domain  names  such  as  ‘.com.’  or 
‘.eu’; the description of itineraries from one or more other Member States to the place where 
the service is provided; and an indication of an international clientele composed of customers 
domiciled in various Member States, in particular by the presentation of accounts written by 
such customers. Likewise, if the website permits consumers to use a language or a currency 
other than that generally used in the trader’s Member State, this can also constitute evidence 
demonstrating cross-border activity of the trader.  

On  the  other  hand,  the  mere  mentioning  on  a  website  of  the  trader’s  email  address  or 
geographical  address,  or  of  its  telephone  number  without  an  international  code,  does  not 
constitute evidence of this kind because  the information does not indicate whether the trader 
is directing its activity to one or more Member States.  

The Court concluded that, in view of these considerations, the Austrian court must determine 
whether it is apparent from the traders’ websites and overall activity that they were envisaging 
doing  business  with  Austrian  consumers  (Case  C-585/08)  or  German  consumers  (Case  C-
144/09) in the sense that they were minded to conclude contracts with them. 

4.8  Cross-cutting issues 

4.8.1  VAT 

E-commerce is also hampered by tax obstacles in relation to value-added tax. 

For  goods,  there  is  the  problem  of  excessive  administrative  burdens:  beyond  a  certain 

103

 
 
 
 
 
 
 
 
 
threshold, set by each Member State at EUR 35 000 or EUR 100 000, the seller must register 
in  the  Member  States  where  he  sells.  Knowledge  of  the  thresholds  and  fulfilling  the  VAT 
obligations (registration for VAT, completing VAT returns and payment of the VAT due) in 
each  Member  State  where  sales  exceed  the  threshold  is  clearly  a  deterrent  to  cross-border 
activities. 

The introduction of a One Stop Shop mechanism as proposed by the European Commission303 
would help to alleviate administrative burdens for businesses. 

For  electronic  services,  there  is  currently  a  problem  of  distortion  of  competition  within  the 
EU. When these services are provided by an EU supplier to final consumers in the EU, their 
place  of  taxation  is  the  Member  State  where  that  supplier  is  established.  Consequently, 
businesses  can  take  advantage  of  this  situation  by  establishing  in  those  Member  States 
applying a lower VAT rate. The situation is different as regards electronic services provided 
by non-EU suppliers, given that the current rules already provide for VAT to be collected and 
paid in the Member State where the customer is established. For these non-EU suppliers, there 
is a single point of electronic contact for VAT identification and declaration – the mini One 
Stop Shop mechanism (MOSS). 

Directive 2008/8/EC of 12 February 2008304 sets new rules regarding electronic services. As 
from 2015, electronic services provided by an EU supplier to a non-taxable person (e.g final 
consumer) will also be taxable at the place where the customer is established. If the customer 
is  established  outside  the  EU,  no  VAT  will  be  due  in  the  EU.  As  a  result,  after  2015,  any 
potential distortions of competition will disappear.  

The supplier himself will be responsible for collecting the VAT paid in the Member State of 
the customer. In order to avoid new administrative burdens, all suppliers of electronic services 
will have the possibility to make use of the MOSS as from 2015. 

The MOSS, which will be optional for businesses, should simplify administrative obligations 
for small e-commerce operators, as they will be able to fulfil all their obligations in their own 
Member State. This should facilitate the selling of electronic services throughout the EU. 

There  remains  the  question  of  VAT  rates.  First,  VAT  rates  are  subject  to  partial 
harmonization  within  the  EU305  and  the  Member  States  may  set  their  rates  within 
predetermined ranges. For example, the standard rate must be set at a minimum of 15% and 
currently  varies  between  15  and  25%  of  the  value  of  goods  or  services,  depending  on  the 
Member State of taxation. 

303   Proposal for a Council Directive amending Directive 77/388/EEC with a view to simplifying value added tax 
obligations 
final,  29.10.2004.  Bibliographic  notice  available  at:  http://eur-
lex.europa.eu/Notice.do?val=390797:cs&lang=en&list=390798:cs,390488:cs,390797:cs,&pos=3&page=1&
nbl=3&pgs=10&hwords=  

(COM(2004)  728 

304   Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of 
http://eur-
44/11, 

L 
supply 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:044:0011:0022:EN:PDF  

20.02.2008; 

available 

services, 

OJ 

at: 

of 

305   Council  Directive  77/388/EC  of  17  May  1977  on  the  harmonisation  of  the  laws  of  the  Member  States 
http://eur-

relating 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31977L0388:EN:HTML  

taxes,  OJ 

13.06.1977, 

available 

turnover 

145/1, 

at: 

to 

L 

104

 
 
 
 
 
 
 
 
                                                 
Finally,  VAT  rates  discriminate  between  physical  and  digital  cultural  goods.  Whilst  for 
certain cultural goods, Member States have the option to apply a reduced VAT rate (minimum 
5%),  the  sales  of  digital  assets  are  always  subject  to  the  standard  rates  (15  to  25%).  This 
discrimination is a source of misunderstanding for the consumers, an additional administrative 
burden  for  companies,  especially  SMEs,  and  can  constitute  a  barrier  to  market  for  digital 
goods. In its Green Paper on the future of VAT306, the Commission raised the question of the 
convergence  between  digital  and  physical  environments,  and  notably  of  the  impact  on 
business and market development of the current divergences in the Single Market. It indicated 
that  convergence  can  be  achieved  either  by  applying  the  standard  rate  to  physical  goods  as 
well  or  by  extending  to  the  digital  environment  the  reduced  rates  existing  for  goods  on 
physical means of support. 

On 6 December 2011, the Commission adopted a Communication drawing conclusions from 
this consultation on the future of VAT and identify appropriate priority areas for action at EU 
level.307 

4.8.2  Networks and infrastructure 

Multiple  networks  are  being  developed  at  national  and  European  level  to  manage  the  links 
between businesses, consumers and public authorities, as well as between public authorities of 
different  Member  States.  Respondents  to  the  e-commerce  communication  have  stressed  the 
importance  of  strengthening  these  networks  in  order  to  contribute  to  the  Digital  Single 
Market. Although this Staff Working Document does not cover networks and infrastructure, it 
is  obvious  that  a  clear  relationship  exists  between  these  networks  and  the  online  trade  in 
goods and services. For example: 

•  There  is  an  increasing  demand  for  access  to  information  on  companies  in  a  cross-
border context, either for commercial purposes or to facilitate access to justice, which 
requires  cross-border  cooperation  amongst  business  registers.  The  Commission 
proposed to amend Directives 89/666/EEC, 2005/56/EC and 2009/101/EC as regards 
the  interconnection  of  central,  commercial  and  companies’  registers.  An  initiative  is 
also  underway  to  interconnect  insolvency  registers  via  the  European  e-Justice  Portal 
by mid 2012. 

•  More generally, the e-Justice Portal was launched on 16 July 2010. The Portal intends 
to  promote  access  to  information  in  the  field  of  justice  (both  to  EU  and  national 
legislation  and  case  law);  to  dematerialise  cross-border  judicial  and  extra-judicial 
proceedings  (for  example,  e-mediation)  and  to  enhance  the  communication  between 
judicial authorities.308 

306   Commission Staff Working Document, Accompanying document to the Green Paper on the future of VAT, 
Towards a simpler, more robust and efficient VAT system, COM(2010) 695 final, 01.12.2010; available at: 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2010:1455:FIN:EN:PDF  

307   Commission  Communication  on  the  future  of  VAT,  Towards  a  simpler,  more  robust  and  efficient  VAT 
final,  

system 
http://ec.europa.eu/taxation_customs/resources/documents/taxation/vat/key_documents/communications/co
m_2011_851_en.pdf  

COM(2011) 

tailored 

marke," 

single 

851 

the 

to 

308   See  the  Council’s  Multi-Annual  European  e-Justice  Action  Plan  2009-2013,  2009/C  75/01,  31.3.2009, 
available  at:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:075:0001:0012:en:PDF. 

105

 
 
 
 
 
 
                                                 
•  The  new  fund  for  the  "Connecting  Europe  Facility"  proposed  by  the  European 
Commission for the  2014-2020 multi-annual  budget reserves € 9.2 billion for digital 
infrastructures.309 

•  The Commission is moving to support take-up of e-procurement.310 

4.8.3  Environmental dimension  

The  development  of  e-commerce  and  other  online  services  can  contribute  to  a  more 
sustainable  economy.  Though  research  is  still  rather  in  its  infancy,  available  empirical 
evidence shows that the digital economy has positive effects on the environment. 

For  example,  compared  to  a  traditional  CD  purchase  in  a  "brick  and  mortar"  shop,  the 
purchase of online music and online movie rental is much more environmentally friendly. A 
recent study concludes that energy use and carbon emission can be reduced by between 40% 
and 80%, depending on whether the customer burns the file to a CD or not.311 Research in the 
field of online and offline movie rental came to the same conclusions despite the fact that in 
the online movie rental business the DVDs were still delivered.312 

E-Commerce and other modern technologies can also help to communicate to consumers the 
environmental performance of the products they buy more clearly, efficiently and effectively. 
This  can  be  done  not  just  at  the  point  of  purchase  but  also  while  the  consumer  is  doing 
(online) research about the products he intends to buy. E-Commerce and other online services 
can for example allow consumers easy access to a summary of environmental information of 
the  products  they  are  considering  buying  using  electronic  tagging,  or  enable  them  to 
benchmark the products they intend to buy against the best in class on the market. 

The  European  Commission  supports  the  proposal,  made  at  the  Retail  Forum  established  in 
2009,  to  reduce  the  retail  environmental  footprint  and  spread  good  environmental  practices 
throughout the supply chain. E-commerce is seen as a way to reduce the environmental costs 

And  for  more  concrete  examples  see  the  revised  roadmap  of  the  Council  Working  Party  on  e-Law  (e-
Justice), doc 1033/11 of 20 May 2011. 

309   Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Court  of 
Justice,  the  Court  of  Auditors,  the  European  Investment  Bank,  the  European  Economic  and  Social 
Committee  and  to  the  Committee  of  the  Regions,  A  growth  package  for  integrated  European 
infrastructures,  COM(2011)  676,  19.10.2011,  available  at:  http://ec.europa.eu/commission_2010-
2014/president/news/speeches-statements/pdf/20111019_1_en.pdf  

310   See 

for 

details 

the 

Public 

Procurement 

web-page 

of 

DG 

MARKT: 

http://ec.europa.eu/internal_market/publicprocurement/index_en.htm.  

311   Weber/  Koomey/  Matthews,  The  energy  and  climate  change  impacts  of  different  music  delivery  methods, 
i,  available  at: 

Intel  Corporation,  2009,  p. 

to  Microsoft  Corporation  and 
Final  Report 
http://download.intel.com/pressroom/pdf/cdsvsdownloadsrelease.pdf  

312   Marcelo Velásquez, A comparative study of the environmental impact of the online and offline movie rental 
at: 

business, 
http://dalspace.library.dal.ca:8080/bitstream/handle/10222/12737/MEC%20THESIS%20MARCELO%20V
ELASQUEZ.pdf?sequence=1  

available 

2009, 

106

 
 
 
 
 
 
                                                                                                                                                         
of  transporting  products  to  consumers.  A  study  commissioned  by  FEVAD313,  in  France, 
showed that, in terms of journeys made by customers, the e-commerce model results in a total 
distance of 10.09 km saved per delivery. For standard-sized parcels, the e-commerce model 
makes  it  possible  to  divide  the  emissions  of  greenhouse  gases  by  a  factor  of  almost  4.  In 
absolute terms, the average saving made on CO2 emissions amounts to 2.670 kg eq. CO2 per 
delivery.  The  e-commerce  model  makes  it  possible  to  reduce  the  use  of  non-renewable 
resources used in deliveries by a factor of 4.5, and reduce by a factor of 2.81 the impact on 
human health. Moreover, a US study314 found that e-commerce electronic products consumed 
30% less energy than those originating in traditional commerce.  

The  current  lack  of  harmonisation  in  national  implementation  of  the  rules  on  waste  of 
electrical  and  electronic  equipment  (WEEE  Directive)  results  in  various  levels  of  fees  and 
thresholds for the registration and reporting of electrical and electronic equipment by online 
retailers,  which  can  be  prohibitive  for  cross-border  traders.  In  its  proposal  to  recast  the 
Directive  of  2009,315  the  Commission  took  major  steps  to  harmonise  implementation, 
clarifying  certain  provisions  of  the  Directive,  including  its  scope.  Article  16  proposes  to 
harmonise registration and reporting by producers in the EU by making the national registers 
for producers interoperable. This would allow producers to register in one Member State and 
conduct  their  activities  in  the  whole  EU  instead  of  registering  in  each  Member  State 
separately.  The  Commission's  proposal  would  significantly  contribute  to  alleviating  the 
practical problems identified under the current scheme. In the co-decision discussion on the 
WEEE Directive during its first reading, the Parliament has supported the approach proposed 
by  the  Commission,  while  the  Council  expressed  a  preference  for  a  national  approach.  The 
Commission  invites  the  Council  to  reconsider  this  approach,  especially  as  regards  cross-
border distance sales. 

4.8.4  International dimension316  

E-commerce and the Internet have an inherently global dimension, but rules on e-commerce 
are still very much fragmented both across Europe and worldwide. This may be problematic 
when  European  companies  operate  outside  Europe  or  when  non-EU  companies  operate  in 
Europe. For instance, some non-European countries impose general monitoring obligations on 
companies  or  require  companies  to  block  certain  content  in  a  way  that  would  not  be 
considered proportionate in Europe. On the other hand, companies that are not established in 
Europe are in principle not covered by the E-Commerce Directive.317 Particular problems can 

313   Estia  et  Médiamétrie//NetRatings  pour  la  FEVAD,  Etude  de  l’impact  environnemental  de  l’achat  sur 
at: 

traditionnel, 
internet 
http://www.fevad.com/uploads/files/Prez/fevad_estia_110609.pdf 

commerce 

available 

2009; 

dans 

June 

le 

et 

314   Weber  et.  al.,  Life  Cycle  Comparison  of  Traditional  Retail  and  E-commerce  Logistics  for  Electronic 
Products: A case study of buy.com,  Green Design Institute at Carnegie Mellon University, December 2008, 
available at: http://www.ce.cmu.edu/~greendesign/research/Buy_com_report_final_030209.pdf  

315   http://ec.europa.eu/environment/waste/weee/index_en.htm  

316   The  present  chapter  complements  the  international  aspects  of  the  Digital  Agenda  as  set  out  in  the 
Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions, A  Digital  Agenda  for  Europe,  COM  (2010)  245  of 
19.5.2010,  available  at:  http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-
communication-en.pdf  

317   See Recital 58, ECD. 

107

 
 
 
 
                                                 
also  arise  in  the  context  of  notice-and-takedown  procedures.  When  illegal  information  is 
accessible in Europe, but is hosted outside the EU, a court in a Member State cannot order the 
takedown of this information. Intermediaries in Europe can then block this content, but many 
consider this to be a sub-optimal solution which could hamper the freedom of expression.  

The Commission has been addressing international aspects of e-commerce both in bilateral318 
and multilateral319 contacts with its partners. Bilaterally, the Commission has been negotiating 
the  inclusion  of  certain  instruments  of  the  e-commerce  acquis,  such  as  the  liability 
exemptions regime of the ECD in Free Trade Agreements. Although the initial focus was on 
the  inclusion  of  the  liability  exemptions  in  the  specific  area  of  IPR  enforcement,  the 
Commission  now  aims  to  include  liability  exemptions  that  apply  horizontally  to  all  illegal 
information  and  activities.  Similarly  the  Commission  is  seeking  to  include  horizontal 
prohibitions  on  general  monitoring  obligations  in  its  FTA  negotiations.  This  reflects  the 
importance that European online companies attach to the horizontal application of the liability 
regime, as expressed in the responses to the public consultation on e-commerce. 

The Commission has also been discussing the E-Commerce Directive in a bilateral context: 

•  by  negotiating  cooperation  provisions  on  issues  such  as  the  prohibition  of  prior 
authorisation, the conclusion of contract by electronic means, unsolicited commercial 
communications and other provisions of the E-Commerce Directive; 

•  by  requiring  the  full  transposition  of  the  E-Commerce  Directive  in  Association 

Agreements concluded in the context of the European Neighbourhood Policy; 

•  by  negotiating  the  full  transposition  of  the  E-Commerce  Directive  with  (potential) 

candidate countries. 

The Commission has taken into account the international dimension of trade also in respect of 
other  policy  instruments.  For  instance,  the  Proposal  for  a  Common  European  Sales  Law 
provides that companies from third countries could also choose this instrument for contracts 
with  parties  located  in  the  EU.  This  would  be  an  incentive  from  companies  from  third 
countries  to  expand  their  e-commerce  in  the  EU,  as  they  would  be  able  to  trade  within  the 
Single Market based on the same rules.  

At a multilateral level, the Commission has been active in several bodies, notably in the G8 
and the OECD. The Commission has for instance taken an active role in the OECD Working 
Group on the role of intermediaries in advancing public interest objectives. The Commission 
has  also  contributed  significantly  to  the  discussions  within  the  context  of  the  WTO 
programme on e-commerce. One of the achievements of this work programme is notably the 
so-called  "e-commerce  moratorium"  (WTO  members  will  not  charge  import  duties  on 
electronic  transmissions),  therefore  the  development  of  electronic  transactions.  The  work 
programme has been ongoing since 1998 and covers all trade related aspects of e-commerce, 
such  as  the  classification  of  e-commerce  services  or  the  development  dimension  of  e-
commerce.  The  Commission  has  also  been  involved  in  the  discussions  within  the  Internet 
Governance Forum (IGF) on issues such as the sustainability and security of the Internet.  

Despite  the  usefulness  of  several  multilateral  dialogues  on  e-commerce,  the  Commission 
believes that e-commerce could benefit from intensifying multilateral dialogues.  

318   For example: Free Trade Agreements; Stabilization and Association Agreements. 

319   For example: WTO/GATS; European Neighbourhood Policy. 

108

 
 
 
 
 
 
 
                                                 
Commission  services  will  further  intensify  the  bilateral  and  multilateral  discussions  on  e-
commerce and other online services through global cooperation in particular in the context of 
the WTO/GATS, OECD and the Internet Governance Forum. 

109

 
 
 
ANNEX I:   TRANSPOSITION OF DIRECTIVE 2000/31/EC IN THE EUROPEAN 
ECONOMIC AREA 

Member 
States 

Transpositions Laws 

Belgium 

Transposition deadline: 17/01/2002  

1.  Loi du 11 mars 2003 sur certains aspects juridiques des services de la sociétè de 
l'information visés à l'article 77 de la Constitution. MB Ed. 2 du 17/03/2003 p. 
12960 (C - 2003/11126) 

Legal act: Mesures administratives; Official Journal: Moniteur Belge, Publication 
date: 17/03/2003, Entry into force: 11/03/2003; Reference: (SG(2003)A/02989)  

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=20 
03031131&table_name=loi  

2.  Loi sur certains aspects juridiques des services de la société de l'information – 

11 mars 2003; Moniteur belge du 17.3.2003 p. 12960 et 12963 

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=20 
03031132&table_name=loi  

Bulgaria 

Transposition deadline: 01/01/2007  

1.  Закон за задълженията и договорите 

Legal act: Закон; Official Journal: Държавен вестник, number: 36, Publication 
date: 02/05/2006, Entry into force: 01/07/2006; Reference: (MNE(2006)58154)  

2.  Закон за международния търговски арбитраж 

Legal act: Закон; Official Journal: Държавен вестник , number: 46, Publication 
date: 07/05/2002, Entry into force: 11/05/2002; Reference: (MNE(2006)58156)  

3.  Закон за медиацията 

Legal act: Закон; Official Journal: Държавен вестник, number: 86, Publication 
date: 24/10/2006, Entry into force: 28/10/2006; Reference: (MNE(2006)58152)  

110

 
 
 
 
 
 
 
 
 
4.  Закон за електронния документ и електронния подпис 

Legal act: Закон; Official Journal: Държавен вестник, number: 80, Publication 
date: 03/10/2006, Entry into force: 03/10/2006; Reference: (MNE(2006)58150)  

5.  Граждански процесуален кодекс 

Legal act: Кодекс; Official Journal: Държавен вестник, number: 64, Publication 
date: 08/08/2006, Entry into force: 09/11/2006; Reference: (MNE(2006)58151)  

6.  Закон за електронната търговия 

Legal act: Закон; Official Journal: Държавен вестник, number: 51, Publication 
date: 23/06/2006, Entry into force: 24/12/2006; Reference: (MNE(2006)58149)  

Czech 
Republic 

Transposition deadline: 01/05/2004  

1.  Zákon č. 88/2003 Sb., kterým se mění zákon č. 513/1991 Sb., obchodní zákoník, ve 

znění pozdějších předpisů, zákon č. 40/1964 Sb., občanský zákoník, ve znění 
pozdějších předpisů, zákon č. 99/1963 Sb., občanský soudní řád, ve znění 
pozdějších předpisů, zákon č. 591/1992 Sb., o cenných papírech, ve znění 
pozdějších předpisů, zákon č. 358/1992 Sb., o notářích a jejich činnosti (notářský 
řád), ve znění pozdějších předpisů, zákon č. 370/2000 Sb., kterým se mění zákon č. 
513/1991 Sb., obchodní zákoník, ve znění pozdějších předpisů, zákon č. 358/1992 
Sb., o notářích a jejich činnosti (notářský řád), ve znění pozdějších předpisů, 
zákon č. 15/1998 Sb., o Komisi pro cenné papíry a o změně a doplnění dalších 
zákonů, ve znění zákona č. 30/2000 Sb., zákon č. 200/1990 Sb., o přestupcích, ve 
znění pozdějších předpisů, zákon č. 99/1963 Sb., občanský soudní řád, ve znění 
pozdějších předpisů, a zákon č. 328/1991 Sb., o konkursu a vyrovnání, ve znění 
pozdějších předpisů, ve znění zákona č. 501/2001 Sb. a nálezu Ústavního soudu 
vyhlášeného pod č. 476/2002 Sb., zákon č. 219/2000 Sb., o majetku České 
republiky a jejím vystupování v právních vztazích, ve znění pozdějších předpisů, 
a zákon č. 455/1991 Sb., o živnostenském podnikání (živnostenský zákon), ve 
znění pozdějších předpisů 

Legal act: Zákon, number: 88/2003; Official Journal: Sbirka Zakonu CR, 
Publication date: 01/04/2003; Reference: (MNE(2003)56385)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2003/sb037-03.pdf  

2.  Zákon č. 151/2002 Sb., kterým se mění některé zákony v souvislosti s přijetím 

111

 
 
 
 
 
 
 
 
soudního řádu správního 

Legal act: Zákon, number: 151/2002; Official Journal: Sbirka Zakonu CR, 
Publication date: 17/04/2002; Reference: (MNE(2003)56295)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2002/sb061-02.pdf  

3.  Zákon č. 138/2002 Sb., kterým se mění zákon č. 40/1995 Sb., o regulaci reklamy a 

o změně a doplnění zákona č. 468/1991 Sb., o provozování rozhlasového a 
televizního vysílání, ve znění pozdějších předpisů, a zákon č. 79/1997 Sb., o 
léčivech a o změnách a doplnění některých souvisejících zákonů, ve znění 
pozdějších předpisů 

Legal act: Zákon, number: 138/2002; Official Journal: Sbirka Zakonu CR, 
Publication date: 15/04/2002; Reference: (MNE(2003)56308)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2002/sb057-02.pdf  

4.  Zákon č. 135/2002 Sb., kterým se mění zákon č. 40/1964 Sb., občanský zákoník, ve 

znění pozdějších předpisů 

Legal act: Zákon, number: 135/2002; Official Journal: Sbirka Zakonu CR, 
Publication date: 15/04/2002; Reference: (MNE(2003)56792)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2002/sb057-02.pdf  

5.  Zákon č. 317/2001 Sb., kterým se mění zákon č. 40/1964 Sb., občanský zákoník, ve 

znění pozdějších předpisů, a o změně dalších zákonů 

Legal act: Zákon, number: 317/2001; Official Journal: Sbirka Zakonu CR, 
Publication date: 07/09/2001; Reference: (MNE(2004)53429)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2001/sb122-01.pdf  

6.  Zákon č. 370/2000 Sb., kterým se mění zákon č. 513/1991 Sb., obchodní zákoník, 
ve znění pozdějších předpisů, zákon č. 358/1992 Sb., o notářích a jejich činnosti 
(notářský řád), ve znění pozdějších předpisů, zákon č. 15/1998 Sb., o Komisi pro 
cenné papíry a o změně a doplnění dalších zákonů, ve znění zákona č. 30/2000 Sb., 
zákon č. 200/1990 Sb., o přestupcích, ve znění pozdějších předpisů, zákon č. 
99/1963 Sb., občanský soudní řád, ve znění pozdějších předpisů, a zákon č. 
328/1991 Sb., o konkursu a vyrovnání, ve znění pozdějších předpisů 

Legal act: Zákon, number: 370/2000; Official Journal: Sbirka Zakonu CR, 
Publication date: 25/10/2000; Reference: (MNE(2003)56337)  

112

 
 
 
 
 
 
http://aplikace.mvcr.cz/archiv2008/sbirka/2000/sb100-00.pdf  

7.  Zákon č. 367/2000 Sb., kterým se mění zákon č. 40/1964 Sb., občanský zákoník, ve 

znění pozdějších předpisů, a některé další zákony 

Legal act: Zákon, number: 367/2000; Official Journal: Sbirka Zakonu CR, 
Publication date: 23/10/2000; Reference: (MNE(2003)56434)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2000/sb099-00.pdf  

8.  Zákon č. 227/2000 Sb., o elektronickém podpisu a o změně některých dalších 

zákonu 

Legal act: Zákon, number: 227/2000; Official Journal: Sbirka Zakonu CR, 
Publication date: 26/07/2000; Reference: (MNE(2003)56642)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2000/sb068-00.pdf  

9.  Zákon č. 356/1999 Sb., kterým se mění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve znění pozdějších předpisů, a některé další 
zákony 

Legal act: Zákon, number: 356/1999; Official Journal: Sbirka Zakonu CR, 
Publication date: 30/12/1999; Reference: (MNE(2003)56853)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1999/sb111-99.pdf 

10. Zákon č. 63/1999 Sb.,, kterým se mění zákon č. 202/1990 Sb., o loteriích a jiných 
podobných hrách, ve znění pozdějších předpisů, a o změně dalších zákonů 

Legal act: Zákon, number: 63/1999; Official Journal: Sbirka Zakonu CR, 
Publication date: 09/04/1999; Reference: (MNE(2004)53428)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1999/sb026-99.pdf  

11. Zákon č. 286/1995 Sb., kterým se mění a doplňuje zákon č. 455/1991 Sb., o 

živnostenském podnikání (živnostenský zákon), ve znění pozdějších předpisů, a 
zákon České národní rady č. 570/1991 Sb., o živnostenských úřadech 

Legal act: Zákon, number: 286/1995; Official Journal: Sbirka Zakonu CR, 

113

 
 
 
 
  
 
 
 
Publication date: 08/12/1995; Reference: (MNE(2003)56856)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1995/sb74-95.pdf  

12. Zákon č. 40/1995 Sb., o regulaci reklamy a o změně a doplnění zákona č. 468/1991 

Sb., o provozování rozhlasového a televizního vysílání, ve znění pozdějších 
předpisů 

Legal act: Zákon, number: 40/1995; Official Journal: Sbirka Zakonu CR, 
Publication date: 14/03/1995; Reference: (MNE(2003)56307)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1995/sb08-95.pdf  

13. Zákon č. 216/1994 Sb., o rozhodčím řízení a o výkonu rozhodčích nálezů, ve znění 

pozdějších předpisů 

Legal act: Zákon, number: 216/1994; Official Journal: Sbirka Zakonu CR, 
Publication date: 30/11/1994; Reference: (MNE(2003)56857)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1994/sb67-94.pdf  

14. Zákon č. 264/1992 Sb., kterým se mění a doplňuje občanský zákoník, zrušuje 
zákon o státním notářství a o řízení před státním notářstvím (notářský řád) a 
mění a doplňují některé další zákony 

Legal act: Zákon, number: 264/1992; Official Journal: Sbirka Zakonu CR, 
Publication date: 10/06/1992; Reference: (MNE(2004)53427)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1992/sb056-92.pdf  

15. Zákon č. 513/1991 Sb., obchodní zákoník, ve znění zákona č. 370/2000 Sb., zák. č. 

501/2001 Sb. a zák. č. 88/2003 Sb., ve znění pozdějších předpisů 

Legal act: Zákon, number: 513/1991; Official Journal: Sbirka Zakonu CR, 
Publication date: 18/12/1991; Reference: (MNE(2003)56306)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1991/sb098-91.pdf 

16. Zákon č. 509/1991 Sb., kterým se mění, doplňuje a upravuje občanský zákoník 

Legal act: Zákon, number: 509/1991; Official Journal: Sbirka Zakonu CR, 

114

 
 
 
 
 
 
 
  
Publication date: 18/12/1991; Reference: (MNE(2003)56311)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1991/sb097-91.pdf  

17. Zákon č. 455/1991 Sb., o živnostenském podnikání (živnostenský zákon), ve znění 

pozdějších předpisů 

Legal act: Zákon, number: 455/1991; Official Journal: Sbirka Zakonu CR, 
Publication date: 15/11/1991; Reference: (MNE(2003)56510)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1991/sb087-91.pdf  

18. Zákon č. 202/1990 Sb., o loteriích a jiných obdobných hrách, ve znění pozdějších 

předpisů 

Legal act: Zákon, number: 202/1990; Official Journal: Sbirka Zakonu CR, 
Publication date: 18/05/1990; Reference: (MNE(2003)56673)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1990/sb035-90.pdf  

19. Zákon č. 40/1964 Sb., občanský zákoník, ve znění pozdějších předpisů 

Legal act: Zákon, number: 40/1964; Official Journal: Sbirka Zakonu CR, 
Publication date: 05/03/1964; Reference: (MNE(2003)56425)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1964/sb19-64.pdf  

20. Zákon č. 99/1963 Sb., občanský soudní řád 

Legal act: Zákon, number: 99/1963; Official Journal: Sbirka Zakonu CR, 
Publication date: 04/12/1963; Reference: (MNE(2003)56292)  

http://aplikace.mvcr.cz/archiv2008/sbirka/1963/sb56-63.pdf  

21. Zákon č. 500/2004 Sb., správní řád, ve znění pozdějších předpisů 

Legal act: Zákon, number: 500/2004; Official Journal: Sbirka Zakonu CR, 
Publication date: 24/09/2004; Reference: (MNE(2004)53430)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2004/sb174-04.pdf  

115

 
 
 
 
 
 
 
 
22. Zákon č. 480/2004 Sb., o některých službách informační společnosti a o změně 

některých zákonů (zákon o některých službách informační společnosti), ve znění 
pozdějších předpisů 

Legal act: Zákon, number: 480/2004; Official Journal: Sbirka Zakonu CR, 
Publication date: 07/09/2004; Reference: (MNE(2004)53161)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2004/sb166-04.pdf  

23. Zákon č. 235/2004 Sb., o dani z přidané hodnoty, ve znění pozdějších předpisů 

Legal act: Zákon, number: 235/2004; Official Journal: Sbirka Zakonu CR, 
Publication date: 23/04/2004, Entry into force: 01/05/2004; Reference: 
(MNE(2004)58467)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2004/sb078-04.pdf  

24. Zákon č. 167/2004 Sb., kterým se mění zákon č. 455/1991 Sb., o živnostenském 

podnikání (živnostenský zákon), ve znění pozdějších předpisů, a některé 
související zákony 

Legal act: Zákon, number: 167/2004; Official Journal: Sbirka Zakonu CR, 
Publication date: 16/04/2004, Entry into force: 01/05/2004; Reference: 
(MNE(2004)59068)  

http://aplikace.mvcr.cz/archiv2008/sbirka/2004/sb057-04.pdf  

25. Zákon č. 18/2004 Sb., o uznávání odborné kvalifikace a jiné způsobilosti státních 
příslušníků členských států Evropské unie a o změně některých zákonů (zákon o 
uznávání odborné kvalifikace), ve znění pozdějších předpisů 

Legal act: Zákon, number: 18/2004 ; Official Journal: Sbirka Zakonu CR, 
Publication date: 23/01/2004; Reference: (MNE(2003)56823) 

http://aplikace.mvcr.cz/archiv2008/sbirka/2004/sb007-04.pdf  

26. Zákon č. 127/2005 Sb., o elektronických komunikacích a o změně některých 

souvisejících zákonů (zákon o elektronických komunikacích), ve znění pozdějších 
předpisů,  

116

 
 
 
 
 
 
 
 
Legal act: Zákon, number 127/2005; Official Journal: Sbirka Zakonu CR, 
Publication date: 31/03/2005; 

27. Zákon č. 130/2008 Sb., kterým se mění zákon č. 455/1991 Sb., o živnostenském 

podnikání (živnostenský zákon), ve znění pozdějších předpisů, a další související 
zákony 

Legal act: Zákon, number 130/2008; Official Journal: Sbirka Zakonu CR, 
Publication date: 17/04/2008; 

28. Zákon č. 155/2010 Sb., kterým se mění některé zákony ke zkvalitnění jejich 

aplikace a ke snížení administrativní zátěže podnikatelů;  

Legal act: Zákon, number 155/2010; Official Journal: Sbirka Zakonu CR, 
Publication date: 21/05/2010; 

29. Zákon č. 189/2008 Sb., kterým se mění zákon č. 18/2004., o uznávání odborné 

kvalifikace a jiné způsobilosti státních příslušníků členských států Evropské unie 
a o změně některých zákonů (zákon o uznávání odborné kvalifikace), ve znění 
pozdějších předpisů, a další související zákony 

Legal act: Zákon, number 189/2008; Official Journal: Sbirka Zakonu CR, 
Publication date: 02/06/2008; 

30. Zákon č. 214/2006 Sb., kterým se mění zákon č. 455/1991 Sb., o živnostenském 
podnikání (živnostenský zákon), ve znění pozdějších předpisů, a některé další 
zákony 

Legal act: Zákon, number 214/2006; Official Journal: Sbirka Zakonu CR, 
Publication date: 19/05/2006; 

31. Zákon č. 261/2007 Sb., o stabilizaci veřejných rozpočtů 

117

 
 
 
 
 
 
 
 
 
 
 
 
Legal act: Zákon, number 261/2007; Official Journal: Sbirka Zakonu CR, 
Publication date: 16/10/2007; 

32. Zákon č. 281/2009 Sb., kterým se mění některé zákony v souvislosti s přijetím 

daňového řádu 

Legal act: Zákon, number 281/2009; Official Journal: Sbirka Zakonu CR, 
Publication date: 03/09/2009; 

33. Zákon č. 302/2008 Sb., kterým se mění zákon č. 235/2004 Sb., o dani z přidané 

hodnoty, ve znění pozdějších předpisů 

Legal act: Zákon, number 302/2008; Official Journal: Sbirka Zakonu CR, 
Publication date:19/08/2008; 

34. Zákon č. 427/2010 Sb., kterým se mění zákon č. 326/1999 Sb., o pobytu cizinců na 

území České republiky a o změně některých zákonů, ve znění pozdějších 
předpisů, zákon č. 325/1999 Sb., o azylu a o změně zákona č. 283/1991 Sb., o 
Policii České republiky, ve znění pozdějších předpisů, (zákon o azylu), ve znění 
pozdějších předpisů, a další související zákony 

Legal act: Zákon, number 427/2010; Official Journal: Sbirka Zakonu CR, 
Publication date: 13/12/2010; 

35. Zákon č. 47/2011 Sb., kterým se mění zákon č. 235/2004 Sb., o dani z přidané 

hodnoty, ve znění pozdějších předpisů  

Legal act: Zákon, number 47/2011; Official Journal: Sbirka Zakonu CR, 
Publication date: 08/03/2011; 

36. Zákon č. 489/2009 Sb., kterým se mění zákon č. 235/2004 Sb., o dani z přidané 

hodnoty, ve znění pozdějších předpisů 

118

 
 
 
 
 
 
 
 
 
 
 
 
Legal act: Zákon, number 489/2009; Official Journal: Sbirka Zakonu CR, 
Publication date: 13/12/2009; 

37. Zákon č. 545/2005 Sb., kterým se mění zákon č. 586/1992 Sb., o daních z příjmů, 

ve znění pozdějších předpisů, a některé související zákony 

Legal act: Zákon, number 545/2005; Official Journal: Sbirka Zakonu CR, 
Publication date: 30/12/2005; 

38. Zákon č. 56/2006 Sb., kterým se mění zákon č. 256/2004 Sb., o podnikání na 
kapitálovém trhu, ve znění pozdějších předpisů, a další související zákony 

Legal act: Zákon, number 56/2006; Official Journal: Sbirka Zakonu CR, 
Publication date: 08/03/2006; 

39. Zákon č. 635/2004 Sb., kterým se mění některé zákony v souvislosti s přijetím 

zákona o správních poplatcích 

Legal act: Zákon, number 635/2004; Official Journal: Sbirka Zakonu CR, 
Publication date: 17/12/2004; 

40. Zákon č. 444/2005 Sb., kterým se mění zákon č. 531/1990 Sb., o územních 
finančních orgánech, ve znění pozdějších předpisů, a některé další zákony 

Legal act: Zákon, number 444/2005; Official Journal: Sbirka Zakonu CR, 
Publication date: 11/11/2005; 

41. Zákon č. 296/2007 Sb., kterým se mění zákon č. 182/2006 Sb., o úpadku a 

způsobech jeho řešení (insolvenční zákon), ve znění pozdějších předpisů, a některé 
zákony v souvislosti s jeho přijetím 

Legal act: Zákon, number 296/2007; Official Journal: Sbirka Zakonu CR, 

119

 
 
 
 
 
 
 
 
 
 
 
 
Publication date: 29/11/2007; 

42. Zákon č. 104/2008 Sb., o nabídkách převzetí a o změně některých dalších zákonů 

Legal act: Zákon, number 104/2008; Official Journal: Sbirka Zakonu CR, 
Publication date: 01/04/2008; 

Denmark 

Transposition deadline: 17/01/2002  

1.  Lov om tjenester i informationssamfundet, herunder visse aspekter af elektronisk 

handel ref: Lov nr 227 af 22/04/2002 

Legal act: Lov, number: 227; Official Journal: Administrative measures, Entry 
into force: 22/04/2002; Reference: (SG(2002)A/06093) 

http://www.retsinfo.dk/_GETDOC_/ACCN/A20020022730-REGL 

Germany 

Transposition deadline: 17/01/2002  

1.  "Umsetzung der Artikel 10 und 11 der RL: § 312 e Bürgerliches Gesetzbuch 
Umsetzung von Artikel 18 der RL: §§ 2 und 3 Unterlassungsklagengesetz" 

Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), Publication 
date: 29/11/2001, Page: 03138-03188; Reference: (MNE(2006)56697)  

http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC  

2.  Teledienstegesetz 

Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), Publication 
date: 28/02/2007; Reference: (MNE(2007)55072)  

http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC  

3.  Concordance table 

Legal act: Concordance table; Reference: (MNE(2007)55071)  

120

 
 
 
 
 
 
 
 
 
4.  Umsetzung von Art. 20 der Richtlinie: §§ 8 - 10, 16 Gesetz gegen den unlauteren 
Wettbewerb vom 3. Juli 2004 (BGBl. I S. 1414), geändert durch Artikel 165 des 
Gesetzes vom 19. April 2006 (BGBl. I S. 866) 

Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), Publication 
date: 07/06/2004; Reference: (MNE(2006)55202)  

http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC  

5.  Gesetz uber rechtliche Rahmenbedingungen für den Elektronischen 
Geschaftsverkehr (Elektronischer Geschäftsverkehr-Gesetz (EGG)) 
Bundesgesetzblatt, Jahrgang 2001, Teil I Nr. 70 vom 20/12/2001, Seite 3721 

Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), number: 
Teil I nr 70, Publication date: 20/12/2001, Page: 3721; Reference: 
(SG(2002)A/04406)  

http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC  

6.  Umsetzung von Art. 10 und 11 der RL: § 3 der BGB- Informationspflichten- 

Verordnung 

Legal act: Verordnung; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), 
Publication date: 08/08/2002; Reference: (MNE(2006)55241)  

http://www.bgbl.de/Xaver/text.xav?bk=Bundesanzeiger_BGBl&start=%2F%2F*
%5B%40attr_id%3D'bgbl101s3137.pdf'%5D&wc=1&skin=WC  

7.  Umsetzung von Art. 20 der Richtlinie: §§ 8 - 10, 16 Gesetz gegen den unlauteren 
Wettbewerb vom 3. Juli 2004 (BGBl. I S. 1414), geändert durch Artikel 165 des 
Gesetzes vom 19. April 2006 (BGBl. I S. 866) 

Legal act: Gesetz; Official Journal: Bundesgesetzblatt Teil 1 (BGB 1), Publication 
date: 07/06/2004; Reference: (MNE(2006)55203)  

8.  Landesgesetz zu dem Sechsten Rundfunkaenderungsstaatsvertrag und zur 

Änderung des Landesrundfunkgesetzes vom 4/07/2002 GVBl. Rheinland-Pfalz n° 
10 du 12/06/2002 p. 255 

Legal act: Gesetz; Official Journal: Verwaltungsmassnahmen  

121

 
 
 
 
 
 
 
http://www.urheberrecht.org/law/normen/rstv/RStV-06/text/  

Estonia 

Transposition deadline: 01/05/2004  

1.  KÄIBEMAKSUSEADUS 

Legal act: seadus, number: RT I 2004, 89, 603; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2004, 89, 603, Entry into force: 01/01/2005; 
Reference: (MNE(2005)54902)  

https://www.riigiteataja.ee/akt/976969  

2.  ÄRISEADUSTIK 

Legal act: seadus, number: RT I 1995, 26-28, 355; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 1995, 26-28, 355, Entry into force: 01/09/1995; 
Reference: (MNE(2003)54262)  

https://www.riigiteataja.ee/akt/834159  

3.  TSIVIILSEADUSTIKU ÜLDOSA SEADUS 

Legal act: seadus, number: RT I 2005, 39, 308; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2005, 39, 308, Entry into force: 01/01/2006; 
Reference: (MNE(2005)55585)  

https://www.riigiteataja.ee/akt/687028  

4.  VÕLAÕIGUSSEADUS1 

Legal act: seadus, number: RT I 2005, 39, 308; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2005, 39, 308, Entry into force: 01/01/2006; 
Reference: (MNE(2005)55584)  

https://www.riigiteataja.ee/akt/12876121  

5.  TSIVIILSEADUSTIKU ÜLDOSA SEADUS 

Legal act: seadus, number: RT I 2002, 35, 216 ; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2002, 35, 216 , Entry into force: 27/12/2003; 
Reference: (MNE(2005)54518)  

122

 
 
 
 
 
 
 
https://www.riigiteataja.ee/akt/95221  

6.  Infoühiskonna teenuse seadus 

Legal act: seadus, number: RTI 2004, 29, 191; Official Journal: Elektrooniline 
Riigi Teataja, number: RTI 2004, 29, 191, Entry into force: 01/05/2004; 
Reference: (MNE(2004)57749)  

https://www.riigiteataja.ee/akt/780289  

7.  Tarbijakaitseseadus 

Legal act: seadus, number: RTI, 15.03.2004, 13, 86; Official Journal: 
Elektrooniline Riigi Teataja, number: RTI, 15.03.2004, 13, 86, Entry into force: 
15/04/2004; Reference: (MNE(2003)55290)  

https://www.riigiteataja.ee/akt/757827  

8.  VÄLISRIIGIS OMANDATUD KUTSEKVALIFIKATSIOONI 

TUNNUSTAMISE SEADUS 

Legal act: seadus, number: RTI, 15.03.2000, 29, 168 ; Official Journal: 
Elektrooniline Riigi Teataja, number: RTI, 15.03.2000, 29, 168, Entry into force: 
13/03/2003; Reference: (MNE(2003)54572)  

https://www.riigiteataja.ee/akt/26294  

9.  Võlaõigusseadus 

Legal act: seadus, number: RT I 2004, 37, 255; Official Journal: Elektrooniline 
Riigi Teataja, number: RT I 2004, 37, 255, Entry into force: 01/05/2004; 
Reference: (MNE(2003)55345) 

https://www.riigiteataja.ee/akt/745265  

Ireland 

Transposition deadline: 17/01/2002  

1.  European Communities (Directive 2000/31/EC) Regulations 2003. SI n° 68/2003 of 

24/02/2003 

Reference: (SG(2003)A/02960) 

123

 
 
 
 
 
 
 
http://www.irishstatutebook.ie/2003/en/si/0068.html 

Greece 

Transposition deadline: 17/01/2002  

1.  Acte législatif 131 FEK A n° 116 du 16/05/2003 p. 1747 

Legal act: Administrative measures; Official Journal: Εφημερίς της Κυβερνήσεως 
(ΦΕΚ) (Τεύχος Α), Publication date: 16/05/2003, Page: 1747; Reference: 
(SG(2003)A/05684) 

http://www.et.gr/index.php?option=com_wrapper&view=wrapper&Itemid=104&
lang=en  

Spain 

Transposition deadline: 17/01/2002  

1.  Ley 34/2002 de 11de julio, de servicios de la sociedad de la informacion y de 

comercio electronico BOE n° 166 du 12/07/2002 p. 25388 

Legal act: Ley, number: 34/2002; Official Journal: Boletín Oficial del Estado 
(B.O.E), number: 166, Publication date: 12/07/2002, Entry into force: 11/07/2002; 
Reference: (SG(2002)A/07568)  

http://noticias.juridicas.com/base_datos/Admin/l34-2002.html 

France 

Transposition deadline: 17/01/2002  

1.  Loi n° 575 du 21/6/2004 pour la confiance dans l'économie numérique. 

Legal act: Loi, number: 575; Official Journal: Journal Officiel de la République 
Française (JORF), Publication date: 22/06/2004, Page: 00001-00022; Reference: 
(MNE(2004)50105)  

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT00000080116
4 
&dateTexte= 

2.  Ordonnance n° 2005-674 du 16/6/2005 relative à l'accomplissement de certaines 

formalités contractuelles par voie électronique. 

Legal act: Ordonnance, number: 2005/674; Official Journal: Journal Officiel de la 
République Française (JORF), Publication date: 17/06/2005, Page: 00001-00002; 
Reference: (MNE(2005)52425)  

http://admi.net/jo/20050617/JUSX0500112R.html  

124

 
 
 
 
 
 
3.  Décret n° 2005-137 du 16/2/2005 pris pour l'application de l'article L. 134-2 du 

code de la consommation. 

Legal act: Décret, number: 2005/137; Official Journal: Journal Officiel de la 
République Française (JORF), Publication date: 18/02/2005, Page: 00001-00001; 
Reference: (MNE(2005)50744)  

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT00000044845
1&dateTexte=  

Italy 

Transposition deadline: 17/01/2002  

1.  Decreto legislativo 09/04/2003 n. 70 - Attuazione delle direttiva 2000/31/CE 

relativa a taluni aspetti giuridici dei servizi della societa dell'informazione nel 
mercato interno, con particolare riferimento al commercio elettronico GURI Serie 
generale n° 87 du 14/04/2003 

Legal act: Administrative measures; Official Journal: Gazzetta Ufficiale della 
Repubblica Italiana, Publication date: 14/04/2003; Reference: (SG(2003)A/03980)  

http://www.senato.it/parlam/leggi/deleghe/03070dl.htm 

Cyprus 

Transposition deadline: 01/05/2004  

1.  Ο Περί Ορισμένων Πτυχών των Υπηρεσιών της Κοινωνίας της Πληροφορίας και 

Ειδικά του Ηλεκτρονικού Εμπορίου καθώς και για Συναφή Θέματα 
(Τροποποιητικός) Νόμος του 2007. 

Legal act: Νόμος, number: Ν. 97(Ι)/2007; Official Journal: Cyprus Gazette, 
number: 4135, Publication date: 18/07/2007, Page: 00851-00852, Entry into force: 
18/07/2007; Reference: (MNE(2007)55799)  

http://www.mof.gov.cy/mof/gpo/gpo.nsf/All/257AE9F14E771126C225731E001D76
8A/$file/4135%2018.7.2007%20Parartima%201o%20Meros%20I.pdf  

2.  Ο Περί Ορισμένων Πτυχών των Υπηρεσιών της Κοινωνίας της Πληροφορίας και 
Ειδικά του Ηλεκτρονικού Εμπορίου καθώς και για Συναφή Θέματα Νόμος του 
2004 

Legal act: Νόμος; Official Journal: Cyprus Gazette, Publication date: 30/04/2004; 
Reference: (MNE(2004)59504)  

Latvia 

Transposition deadline: 01/05/2004  

125

 
 
 
 
 
 
1.  Par Vispārējās atļaujas noteikumiem 

Legal act: SPRK padomes lēmums, number: 118; Official Journal: Latvijas 
Vēstnesis, number: 90, Publication date: 08/06/2005, Entry into force: 25/05/2005; 
Reference: (MNE(2006)51147)  

http://www.likumi.lv/doc.php?id=109879&from=off  

2.  Patērētāju tiesību aizsardzības likums 

Legal act: Likums; Official Journal: Latvijas Vēstnesis, number: 104/105, 
Publication date: 01/04/1999; Reference: (MNE(2003)50062)  

http://www.likumi.lv/doc.php?id=23309  

3.  Par reglamentētajām profesijām un profesionālās kvalifikācijas atzīšanu 

Legal act: Likums; Official Journal: Latvijas Vēstnesis, number: 105, Publication 
date: 06/07/2001, Entry into force: 20/07/2001; Reference: (MNE(2004)50177)  

http://www.likumi.lv/doc.php?id=26021  

4.  Latvijas Republikas Civillikums 

Legal act: Likums; Official Journal: LR Saeimas un Ministru Kabineta Ziņotājs, 
number: 4, Publication date: 30/01/1992; Reference: (MNE(2003)50827)  

http://www.vvc.gov.lv/export/sites/default/LV/publikacijas/civillikums.pdf  

5.  Informācijas sabiedrības pakalpojumu likums 

Legal act: Likums; Official Journal: Latvijas Vēstnesis, number: 183, Publication 
date: 17/11/2004, Entry into force: 01/12/2004; Reference: (MNE(2004)53163)  

http://www.likumi.lv/doc.php?id=96619  

6.  Grozījumi Patērētāju tiesību aizsardzības likumā 

Legal act: Likums; Official Journal: Latvijas Vēstnesis, number: 74, Publication 
date: 12/05/2004, Entry into force: 26/05/2004; Reference: (MNE(2004)51138) 

http://www.likumi.lv/doc.php?id=221390  

126

 
 
 
 
 
 
 
Lithuania: 

Transposition deadline: 01/05/2004  

1.  Lietuvos Respublikos informacinės visuomenės paslaugų įstatymas Nr. X-614 

Legal act: Įstatymas, number: X-614/2006; Official Journal: Valstybės žinios, 
number: 65, Publication date: 10/06/2006, Entry into force: 01/07/2006; 
Reference: (MNE(2006)54979)  

http://www.regitra.lt/uploads/documents/dokumentai/istat_lr_info_pasl.pdf  

2.  Lietuvos Respublikos informacinės visuomenės paslaugų įstatymo 4, 18, 19 

straipsnių pakeitimo ir papildymo įstatymas Legal act: Įstatymas, number: XI-
800; Official Journal: Valstybės žinios, number: 60, Publication date: 25/05/2010, 
Entry into force: 25/05/2010;  

http://tar.tic.lt/Default.aspx?id=2&item=results&aktoid=ACB1D81A-6BCF-
406E-9EB0-421FFF219A69 

3.  Administracinių teisės pažeidimų kodekso 15, 44(1), 189(7), 224, 247(10), 259(1), 
320 straipsnių pakeitimo ir Kodekso papildymo 44(3), 44(4), 44(5), 214(25), 
214(26) straipsniais įstatymas Legal act: Įstatymas, number: X-1019; Official 
Journal: Valstybės žinios, number: 12, Publication date: 30/01/2007, Entry into 
force: 30/01/2007;  

http://tar.tic.lt/Default.aspx?id=2&item=results&aktoid=9303239B-69D5-49E7-
A5B9-D1E5F5AF0A4A  

4.  Lietuvos Respublikos Vyriausybės 2007 m. rugpjūčio 2 2d. nutarimas Nr. 881 
“Dėl galimybės pasiekti neteisėtu būdu įgytą, sukurtą, pakeistą ar naudojamą 
informaciją panaikinimo tvarkos aprašo patvirtinimo” Legal act: Governmental 
decree, number: 881; Official Journal: Valstybės žinios, number: 94, Publication 
date: 01/09/2007, Entry into force: 02/09/2007;  

http://tar.tic.lt/Default.aspx?id=2&item=results&aktoid=014FC9F3-DB65-42E3-
A0B6-6D6FE55A9CE3  

127

 
 
 
 
 
 
 
 
 
 
Luxembourg:   Transposition deadline: 17/01/2002  

5.  Loi du 14 août 2000 relative au commerce éléctronique modifiant le code civil, le 

nouveau code de procédure civile, le code de commerce, le code pénal et 
transposant la directive 1999/93 relative à un cadre communautaire pour les 
signatures électroniques, la directive relative à certains aspects juridiques des 
services de la société de l'information, certaines dispositions de la directive 
97/7/CEE concernant la vente à distance des biens et des services autres que les 
services financiers 

Reference: (SG(2000)A/11994)  

http://www.legilux.public.lu/leg/a/archives/2000/0096/a096.pdf 

Hungary 

Transposition deadline: 01/05/2004  

1.  2008. évi XLVII.törvénya fogyasztókkal szembeni tisztességtelen 

kereskedelmigyakorlat tilalmáról 

Legal act: Törvény, number: 2008/XLVII.; Official Journal: Magyar Közlöny, 
number: 2008/95., Page: 05782-05813; Reference: (MNE(2008)54528)  

http://www.parlament.hu/irom38/05448/05448.pdf  

2.  2003. évi C. törvény az elektronikus hírközlésről 

Legal act: Törvény, number: 2003/C; Official Journal: Magyar Közlöny, number: 
2003/136, Publication date: 27/11/2003, Page: 10420-10483, Entry into force: 
01/01/2004; Reference: (MNE(2003)54694)  

http://www.parlament.hu/irom37/5680/5680.htm 

3.  2001. évi XXXV. törvény az elektronikus aláírásról 

Legal act: Törvény, number: XXXV/2001; Official Journal: Magyar Közlöny, 
number: 2001/65, Publication date: 12/06/2001, Page: 04137-04149; Reference: 
(MNE(2003)54716)  

http://www.mkogy.hu/irom36/3847/3847.htm 

4.  2001. évi CVIII. törvény az elektronikus kereskedelmi szolgáltatások, valamint az 

információs társadalommal összefüggő szolgáltatások egyes kérdéseiről 

128

 
 
 
 
 
 
 
Legal act: Törvény; Official Journal: Magyar Közlöny, number: 153, Publication 
date: 24/12/2001, Page: 11450; Reference: (MNE(2003)54725) 

http://www.navar-honlap.hu/alapveto-jogszabalyok/az-elektronikus-
kereskedelmi-szolgaltatasok-valamint-az-informacios-tarsadalommal-
osszefuggo.html  

Malta: 

Transposition deadline: 01/05/2004  

1.  Electronic Commerce Act 2001 (Chapter 426 of 2001) 

Legal act: Act; Official Journal: The Malta government gazette, number: 17,037, 
Publication date: 16/01/2001; Reference: (MNE(2003)57439)  

https://secure.gov.mt/e-procurement/pdfs/chapt426.pdf  

2.  LE{ISLAZZJONI SUSSIDJARJA 426.02REGOLAMENTI DWAR IL-
KOMUNIKAZZJONIJIETU TRANSAZZJONIJIET ELETTRONI~I 

Legal act: Regolament, number: LS42602; Official Journal: The Malta 
government gazette, Publication date: 24/10/2006, Page: 00001-00016; Reference: 
(MNE(2011)51813)  

Netherlands: 

Transposition deadline: 17/01/2002  

1.  Wet van 13 mei 2004 tot aanpassing van het Burgerlijk Wetboek, het Wetboek 
van Burgerlijke Rechtsvordering, het Wetboek van Strafrecht en de Wet op de 
economische delicten ter uitvoering van richtlijn nr. 2000/31/EG van het Europees 
Parlement en de Raad van de Europese Unie van 8 juni 2000 betreffende bepaalde 
juridische aspecten van de diensten van de informatiemaatschappij, met name de 
elektronische handel, in de interne markt (PbEG L 178) (Aanpassingswet richtlijn 
inzake elektronische handel) 

Legal act: Wet; Official Journal: Staatsblad (Bulletin des Lois et des Décrets 
royaux), number: 2004/210, Publication date: 25/05/2004, Page: 00001-00008; 
Reference: (MNE(2004)51461)  

http://cdn.ikregeer.nl/pdf/stb-2004-210.pdf  

2.  Besluit van 18 juni 2004, houdende vaststelling tijdstip van inwerkingtreding van 
de wet van 13 mei 2004 tot aanpassing van het Burgerlijk Wetboek, het Wetboek 
van Burgerlijke Rechtsvordering, het Wetboek van Strafrecht en de Wet op de 
economische delicten ter uitvoering van richtlijn nr. 2000/31/EG van het Europees 
Parlement en de Raad van de Europese Unie van 8 juni 2000 betreffende bepaalde 

129

 
 
 
 
 
 
juridische aspecten van de diensten van de informatiemaatschappij, met name de 
elektronische handel, in de interne markt (PbEG L 178) (Aanpassingswet richtlijn 
inzake elektronische handel) (Stb. 210) 

Legal act: Ministerieel besluit; Official Journal: Staatsblad (Bulletin des Lois et 
des Décrets royaux), number: 2004/285, Publication date: 29/06/2004, Page: 
00001-00002; Reference: (MNE(2004)51463) 

http://cdn.ikregeer.nl/pdf/stb-2004-285.pdf  

Austria 

Transposition deadline: 17/01/2002  

1.  Regelung bestimmter rechtlicher Aspekte des elektronischen Geschäfts- und 

Rechtsverkehrs und Änderung des Signaturgesetzes sowie der 
Zivilprozessordnung Bundesgesetzblatt n° 152, Jahrgang 2001, Teil I vom 
21/12/2001, Seite 1977 

Legal act: Bundesgesetz; Official Journal: Bundesgesetzblatt für die Republik 
Österreich (BGBl.), number: teil I nr, Publication date: 21/12/2001, Page: 1977; 
Reference: (SG(2002)A/02947) 

http://www.ris.bka.gv.at/Ergebnis.wxe?Abfrage=BgblPdf&Titel=&Bgblnummer=
15 
2%2f2001&SucheNachGesetzen=False&SucheNachKundmachungen=False&Suc
he 
NachVerordnungen=False&SucheNachSonstiges=False&SucheNachTeil1=True&
Su 
cheNachTeil2=False&SucheNachTeil3=False&SucheNachTeilAlt=False&VonDat
u 
m=01.05.1945&BisDatum=31.12.2003&ImRisSeit=Undefined&ResultPageSize=50
&Suchworte=&ReturnUrl=%2fSuchen.wxe%3fQueryID%3dBgblPdf 

Poland 

Transposition deadline: 01/05/2004  

1.  Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną 

Legal act: Ustawa; Official Journal: Dziennik Ustaw, number: 2002/144/1204, 
Publication date: 09/09/2002; Reference: (MNE(2003)53899)  

http://mediarun.pl/files/attach/2007/05/1178548615.pdf  

2.  Ustawa z 23 kwietnia 1964 Kodeks Cywilny 

Legal act: Ustawa; Official Journal: Dziennik Ustaw, number: 1964/16/93, 
Publication date: 18/05/1964; Reference: (MNE(2003)51767) 

130

 
 
 
 
 
http://isap.sejm.gov.pl/DetailsServlet?id=WDU19640160093  

Portugal 

Transposition deadline: 17/01/2002  

1.  Ministério da Economia e da InovaçãoProcede à primeira alteração ao Decreto-
Lei n.º 7/2004, de 7 de Janeiro, que transpõe para a ordem jurídica nacional a 
Directiva n.º 2000/31/CE, do Parlamento Europeu e do Conselho, de 8 de Junho, 
relativa a certos aspectos legais dos serviços da sociedade de informação, em 
especial do comércio electrónico, no mercado interno 

Legal act: Decreto-Lei, number: 62/2009; Official Journal: Diaro da Republica I, 
number: 48, Publication date: 10/03/2009, Page: 01602-01602; Reference: 
(MNE(2009)51108)  

http://www.cnpd.pt/bin/legis/nacional/DL62-2009-SPAM.pdf  

2.  Decreto-Lei n° 7/2004 de 7/1 Diário da republica I-A n° 5 de 7/1/2004 p. 70 

Legal act: Decreto-Lei, number: 7/2004; Official Journal: Diaro da Republica I, 
number: serie A nr 5, Publication date: 07/01/2004; Reference: 
(SG(2004)A/00736) 

http://www.cnpd.pt/bin/legis/nacional/DL7.2004.pdf  

Romania 

Transposition deadline: 01/01/2007  

1.  Lege pentru modificarea şi completarea Legii nr. 365/2002 privind comerţul 

electronic 

Legal act: Lege, number: 121; Official Journal: Monitorul Oficial al României, 
number: 403, Publication date: 10/05/2006, Page: 00005-00006, Entry into force: 
13/05/2006; Reference: (MNE(2006)58519)  

http://www.legi-internet.ro/legislatie-itc/comert-electronic/legea-comertului-
electronic/legea-nr-121-din-4-mai-2006-pentru-modificarea-i-completarea-legii-
nr-3652002-privind-comerul-electronic.html  

2.  Lege privind comerţul electronic 

Legal act: Lege, number: 365; Official Journal: Monitorul Oficial al României, 
number: 483, Publication date: 05/07/2002, Page: 00001-00008, Entry into force: 
05/07/2002; Reference: (MNE(2006)58517)  

http://www.legi-internet.ro/index.php?id=22  

131

 
 
 
 
 
 
3.  Lege privind unele măsuri pentru asigurarea tranparenţei în exercitarea 

demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi 
sancţionarea corupţiei 

Legal act: Lege, number: 161; Official Journal: Monitorul Oficial al României, 
number: 279, Publication date: 21/04/2003, Page: 00002-00060, Entry into force: 
21/04/2003; Reference: (MNE(2006)58518) 

http://legislatie.resurse-pentru-democratie.org/161_2003.php  

Slovenia 

Transposition deadline: 01/05/2004  

1.  Zakon o spremembah in dopolnitvah Zakona o varstvu potrošnikov (ZVPot-C) 

Legal act: Zakon; Official Journal: Uradni list RS, number: 126/2007, Publication 
date: 31/12/2007, Page: 18733-18738, Entry into force: 15/01/2008; Reference: 
(MNE(2009)54585)  

http://zakonodaja.gov.si/rpsi/r05/predpis_ZAKO5065.html  

2.  Zakon o elektronskem poslovanju na trgu (ZEPT) 

Legal act: Zakon; Official Journal: Uradni list RS, number: 61/2006, Publication 
date: 13/06/2006, Page: 06601-06605, Entry into force: 28/06/2006; Reference: 
(MNE(2010)52769)  

http://zakonodaja.gov.si/rpsi/r00/predpis_ZAKO4600.html  

3.  Zakon o varstvu potrošnikov - uradno prečiščeno besedilo 

Legal act: Zakon; Official Journal: Uradni list RS, number: 98/2004, Publication 
date: 09/09/2004, Page: 11845-11861, Entry into force: 08/05/2004; Reference: 
(MNE(2004)53658)  

http://www.uradni-list.si/1/objava.jsp?urlid=200498&stevilka=4288  

4.  Zakon o elektronskem poslovanju in elektronskem podpisu - uradno prečiščeno 

besedilo 

Legal act: Zakon; Official Journal: Uradni list RS, number: 98/2004, Publication 
date: 09/09/2004, Page: 11809-11817, Entry into force: 03/04/2004; Reference: 
(MNE(2005)54528)  

132

 
 
 
 
 
 
 
http://www.uradni-list.si/1/objava.jsp?urlid=200498&stevilka=4284  

5.  Zakon o spremembah in dopolnitvah Zakona o elektronskem poslovanju na trgu 

(ZEPT-A) 

Legal act: Zakon; Official Journal: Uradni list RS, number: 79/2009, Publication 
date: 09/10/2009, Page: 10622-10623, Entry into force: 24/10/2009; Reference: 
(MNE(2010)52770)  

http://www.uradni-list.si/1/objava.jsp?urlid=200979&stevilka=3438  

6.  Zakon o spremembah in dopolnitvah zakona o varstvu potrošnikov 

Legal act: Zakon; Official Journal: Uradni list RS, number: 110/2002, Publication 
date: 18/12/2002, Page: 13152-13164; Reference: (MNE(2003)53651)  

http://www.uradni-list.si/1/objava.jsp?urlid=2002110&stevilka=5391  

7.  Zakon o varstvu potrošnikov - uradno prečiščeno besedilo 

Legal act: Zakon; Official Journal: Uradni list RS, number: 14/2003, Publication 
date: 13/02/2003, Page: 1956-1971; Reference: (MNE(2003)53701)  

http://www.uradni-list.si/1/objava.jsp?urlid=200314&stevilka=566  

8.  Zakon o spremembah in dopolnitvah zakona o elektronskem poslovanju in 

elektronskem podpisu 

Legal act: Zakon; Official Journal: Uradni list RS, number: 25/2004, Publication 
date: 19/03/2004, Page: 2839-2842; Reference: (MNE(2003)53091)  

http://www.uradni-list.si/1/objava.jsp?urlid=200425&stevilka=1066  

9.  Zakon o varstvu potrošnikov 

Legal act: Zakon; Official Journal: Uradni list RS, number: 20/1998, Publication 
date: 13/03/1998, Page: 01293-01301; Reference: (MNE(2003)53422)  

http://www.uradni-list.si/1/objava.jsp?urlid=199820&stevilka=815  

133

 
 
 
 
 
 
 
 
10. Zakon o elektronskem poslovanju in elektronskem podpisu 

Legal act: Zakon; Official Journal: Uradni list RS, number: 57/2000, Publication 
date: 23/06/2000, Page: 7465-7472; Reference: (MNE(2003)53383)  

http://www.uradni-list.si/1/objava.jsp?urlid=200057&stevilka=2615  

Slovakia 

Transposition deadline: 01/05/2004  

1.  Zákon č. 160/2005 Z. z., ktorým sa mení a dopĺňa zákon č. 22/2004 Z. z. o 

elektronickom obchode a o zmene a doplnení zákona č. 128/2002 Z. z. o štátnej 
kontrole vnútorného trhu vo veciach ochrany spotrebiteľa a o zmene a doplnení 
niektorých zákonov v znení zákona č. 284/2002 Z. z. 

Legal act: zákon, number: 160/2005; Official Journal: Zbierka zákonov SR, 
number: 68, Publication date: 26/04/2005, Entry into force: 01/05/2005; 
Reference: (MNE(2005)55614)  

http://www.zbierka.sk/zz/predpisy/default.aspx?PredpisID=18606&FileName=05-
z160&Rocnik=2005  

2.  Zákon č. 22/2004 Z. z. o elektronickom obchode a o zmene a doplnení zákona č. 

128/2002 Z. z. o štátnej kontrole vnútorného trhu vo veciach ochrany spotrebiteľa 
a o zmene a doplnení niektorých zákonov v znení zákona č. 284/2002 Z. z. 

Legal act: zákon, number: 22/2004; Official Journal: Zbierka zákonov SR, 
number: 131, Publication date: 15/01/2004, Entry into force: 01/02/2004; 
Reference: (MNE(2004)58245) 

http://www.zbierka.sk/zz/predpisy/default.aspx?PredpisID=17650&FileName=04-
z022&Rocnik=2004  

Finland 

Transposition deadline: 17/01/2002  

1.  Laki sopimattomasta menettelystä elinkeinotoiminnassa annetun lain 
muuttamisesta Suomen Säädöskokoelma n° 461 du 11/06/2002 p. 3049 

Legal act: Laki  

http://www.finlex.fi/pdf/sk/02/vihko072.pdf  

2.  Laki yksityisyyden suojasta televiestinnässä ja teletoiminnan tietoturvasta 

annetun lain muuttamisesta Suomen Säädöskokoelma n°459 du 11/06/2002 p. 
3047 

134

 
 
 
 
 
 
Legal act: Laki  

http://www.finlex.fi/pdf/sk/02/vihko072.pdf  

This has been replaced by "Sähköisen viestinnän tietosuojalaki (516/2004)"  

http://www.finlex.fi/fi/laki/alkup/2004/20040516 

3.  Laki kuluttajansuojalain 2 luvun muuttamisesta Suomen Säädöskokoelma n° 460 

du 11/06/2002 p. 3048 

Legal act: Laki  

http://www.finlex.fi/pdf/sk/02/vihko072.pdf  

This has been replaced by "Laki kuluttajansuojalain 2 luvun muuttamisesta" 
(561/2008)  

http://www.finlex.fi/fi/laki/alkup/2008/20080561 

4.  Laki tietoyhteiskunnan palvelujen tarjoamisesta Suomen Säädöskokoelma n° 458 

du 11/06/2002 p. 3039 

Legal act: Laki; Reference: (SG(2002)A/06090) 

http://www.finlex.fi/pdf/sk/02/vihko072.pdf  

Sweden 

Transposition deadline: 17/01/2002  

1.  Lag om elektronisk handel och andra informationssamhällets tjänster SFS 

2002:562 du 14/06/2002 - SG(2002) A/6456 du 26/06/2002 

Legal act: Administrative measures; Official Journal: Svensk författningssamling 
(SFS), number: 562, Publication date: 14/06/2002; Reference: (SG(2002)A/06456) 

http://www.notisum.se/rnp/sls/sfs/20020562.PDF 

United 
Kingdom 

Transposition deadline: 17/01/2002  

135

 
 
 
 
 
 
 
 
 
1.  The Electronic Commerce (EC Directive) Regulations 2002 SI n° 2013 of 

21/08/2002 

Legal act: Administative measures; Official Journal: Her Majesty's Stationery 
Office (HMSO), Publication date: 21/08/2002; Reference: (SG(2002)A/08323) 

http://www.legislation.hmso.gov.uk/si/si2002/20022013.htm 

2.  For separate implementation in financial services sector:  

http://www.hm-treasury.gov.uk/Documents/Financial_Services/ 
Regulating_Financial_Services/fin_rsf_edirec.cfm? 

Other countries belonging to the European Economic Area: 

Island 

1.  Lög um rafræn viðskipti og aðra rafræna þjónustu 2002 nr. 30 16. apríl. 

Lagasafn. Uppfært til október 2002. Útgáfa 127B. Prenta í tveimur dálkum. 
(Act No 30/2002 on Electronic Commerce and other Electronic Service) 
http://www.althingi.is/lagas/127b/2002030.html 

Liechtenstein 

1.  Gesetz vom 16. April 2003 über den elektronischen Geschäftsverkehr (E-Commerce-

Gesetz; ECG)  
Liechtensteinisches Landesgesetzblatt 2003, Nr. 133 am 12. Juni 2003  
http://www.gesetze.li/Seite1.jsp?LGBl=2003133.xml&Searchstring=Gesetz+vom+16.
+April+2003+%FCber+den+elektronischen+&showLGBl=true  

Norway 

1.  Lov 2003-05-23 nr 35: Lov om visse sider av elektronisk handel og andre 

informasjonssamfunnstjenester (ehandelsloven) 
Publisert: I 2003 hefte 7. 
http://www.lovdata.no/all/hl-20030523-035.html  

136

 
 
 
 
 
 
 
 
 
ANNEX II:   NATIONAL LEGISLATION ON "NOTICE AND ACTION" PROCEDURES  

NB: This table does not pretend to be exhaustive and provides examples of notice and action procedures of which the Commission services have 
become aware. 

Finland 

France* 

Germany 

Hungary 

Lithuania 

UK 

Portugal 

Spain 

Sweden 

Characteri
stics 
1. Law 

M
S 

HADOPI Act 

Access 
Impediment 
Act (repealed) 

Act on 
provision of 
information of 
information 
society 
services  

ACT CVIII of 
2001 on 
certain aspects 
of e-
commerce 
services  

Law on 
information 
society 
services  

2. Scope 
infringements 

Copyright  

Copyright  

Child 
pornography 

Intellectual 
property rights 

Articles 14-18 
Decree-Law 
7/2004 

Royal Decree 
on the 
functioning 
and operating 
of the IPR 
Commission 

Act on 
Responsibility 
of Electronic 
Bulletin 
Boards 

Horizontal 

Copyright  

Horizontal  

Terrorism Act 
2006 /  

Digital 
Economy Act 
2010 

Terrorism 
related ./  

Copyright 

Constable /  

Copyright 
owner (CO) 

Anybody 
(interested 
party) 

Copyright 
owner (CO) 

Anybody  

Copyright or 
"information 
which may 
not be 
published or 
distributed" 
Anybody  

Federal Office 
of Criminal 
Investigation 

Intellectual 
property rights 
owner  

Right holders, 
officials of 
professional 
defence 
bodies, 
royalty 
collection and 
distribution 
organisations 
Mere conduit 
providers 

copy right 
owner (CO) 

3. Notice 
provider = who 
initiates the 
notice 
procedure? 

Hosting 
service 
providers 

4. Addressee 
notice = which 
service 
provider 
receives the 
notice from 
whom? 

Mere conduit 
providers  

All 
intermediaries 

Hosting 
service 
provider 

All 
intermediaries 
/ 

Mere conduit 
provider 

Hosting 
service 
provider or 
content 
aggregator 

All 
intermediaries 

Hosting 
service 
provider 

137

 
 
 
 
 
 
  
 
 
 
 
 
 
Characteri
M
stics 
S 
5. Obligation to 
notify content 
provider 

6. 
Requirements 
notice  

Finland 

France* 

Germany 

Hungary 

Lithuania 

UK 

Portugal 

Spain 

Sweden 

Yes 

Yes 

No 

Yes 

- Details of the 
notifying party 
- material in 
itemised form 
- location of 
material, 
- confirmation 
that material is 
illegally 
accessible  
- information that 
notifying party 
has in vain 
contacted content 
provider  
- confirmation 
that notifying 
party is copyright 
holder 

Black list must 
provide: domain 
names, internet 
protocol 
addresses and 
destination 
addresses of the 
website 

- subject-matter of 
injury and 
description of 
facts 
substantiating 
infringement 
- data necessary 
for identification 
of infringement 
- name, address or 
head office, 
telephone number 
and electronic 
mail address of 
rights holder 

Yes (if service 
provider has 
information to 
identify 
content 
provider) 
Information on: 
- noticeprovider 
- protected work 
- IPR holder 
- nature 
infringement 
- location 
infringing 
material 

No / Yes 

Yes 

No 

No 

The ISP must be 
notified of the 
decision of the 
Section and in 
case of non-
compliance of the 
judicial order 
which authorizes 
the decision  

- declaration that 
content is 
terrorism-related 
- order to secure 
that content is not 
available to the 
public or is 
modified 
- warning that 
failure to comply 
with notice within 
2 working days 
will result in 
content being 
regarded as 
having endorsed 
- explanation on 
liability 

/ 

- name & address 
of the CO 
- identification of 
relevant work 
- infringement 
statement 
- description of 
infringement, 
including file 
name 
- copyright 
statement 
-date and time 
- IP address, port 
number , website, 
protocol, or 
Unique 
infringement 

138

 
 
 
 
 
 
 
 
Characteri
stics 

M
S 

a) Should the 
notice contain 
a fully 
qualified URL? 
b) Should the 
notice 
exclusively be 
submitted 
through 
electronic 
means? 
6. Delay for 
reacting to 
notice / 
definition of 
"expeditiously
" 
7. Possibility 
counter notice? 

a) obligatory 
counter notice 
before 'take-
down'? 
b) Delay for 
giving counter 
notice 

c) Delay for 
reacting to 
counter notice 

Finland 

France* 

Germany 

Hungary 

Lithuania 

UK 

Portugal 

Spain 

Sweden 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

identifier (UII 
No 

No 

No 

No / Yes 

N o 

No 

No 

6 hours 

12 hours  

24 hours  

48 hours / 

48 hours 

10 days 

Yes 

No 

No 

No 

14 days 

No 

No 

No 

No 

Yes 

Yes 

No / Yes 

Yes 

No 

Possibility 
dispute 
settlement 
procedure. 

No 

No 

No 

Yes 

No 

5 days to 
comment 

No 

5 days  

8 days 

3 days 

No / 

Shall be set by 
the Appeal 
Body 
No / 

Will be 
specified by 
the Appeal 
Body 

3 day  

139

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
M
S 

Characteri
stics 
8. Liability 
exemption for 
taking down 
legal content if 
procedure was 
followed? 

Finland 

France* 

Germany 

Hungary 

Lithuania 

UK 

Portugal 

Spain 

Sweden 

No 

No 

Yes 

Yes 

No 

Yes; for 
content that is 
not manifestly 
illegal or for 
manifestly 
illegal content 
taken down 
expeditiously 

*The French Hadopi law is an example of a law that was specifically designed for the purpose of regulating notice and action. However, a general legal basis for notice and 
action procedures in France can be found in Article 6.5 of the law of 21 June 2004. Moreover, other laws contain provisions that are relevant for notice and action procedures 
in specific fields: 

- the law of 12 May 2010 contains in its Article 61 a basis for filtering of illegal gambling sites; 
- the law of 14 March 2011 contains in its Article 4 a basis for the filtering of child abuse content; 
- the decree of 20 June 2009 lays down the basis for a public website for reporting cybercrime (notably child abuse content, financial crime and racist content). 

140