REGULATION OF E- COMMERCE IN EU LAW Ioannis Iglezakis

REGULATION OF E- COMMERCEREGULATION OF E- COMMERCE IN EU IN EU LAWLAW

Ioannis Iglezakis

What is E-Commerce?What is E-Commerce?

E-commerce is about doing business electronically It is based on the electronically processing and

transmission of data, including text, sound and video

It encompasses activities such as: electronic trading of goods and services, on-line delivering of digital content, e- fund transfer, e- share trading, e- bills of lading, commercial auctions, direct consumer marketing

Drawbacks of e-commerceDrawbacks of e-commerce

It also represents risk to consumers: unfair practices and unfair dispute resolution, product safety and product quality

Problems in data protection and security of online transactions

Etc.

Legal instruments on EU-levelLegal instruments on EU-levelDirective 2000/31/EC on Electronic

CommerceDirectives on Electronic SignaturesE-Money Directive (2000/46)98/34/EC on technical standards and

regulationsE-Taxation Directives 2001/115/EC and

2002/38 Distance Selling (97/7) and other

consumer Directives

E-Commerce DirectiveE-Commerce Directive

Applies to Information Society Services, i.e., "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service"

Country of origin principleCountry of origin principle

Each Member State shall ensure that the 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 co-ordinated field"

Information requirementsInformation requirements

obligation of service providers to provide the following information:

name of the service provider, the geographical address at which his is established, details of the provider, VAT number, etc.

Commercial communicationsCommercial communications

Commercial communication which are part of or constitute an information society service shall be clearly identifiable as such,

the person on whose behalf the commercial communication is made shall be clearly identifiable as such, promotional offers (e.g. discounts, premiums and gifts),

promotional competitions or games, shall also be clearly identifiable as such.

SpammingSpamming

Unsolicited commercial communication (junk e-mail = Spam), whenever it is permitted, shall be clearly identifiable as soon as the recipient receives it.

Obligation to consult opt-out registers

Electronic contractsElectronic contracts

online contracts should have the same validity and legal force as contracts entered into by conventional means.

the service provider must give information prior to the order being placed by the consumer

Placing of the order

Liability of Online Intermediaries Liability of Online Intermediaries Service ProvidersService Providers

Mere conduitCachingHostingISP’s exemption from liability for the information transmitted, when their role is confined to the supply of access to a communication network, or to the transmission of information supplied by the consumer.

E-MoneyE-MoneyDirective 2000/46/ECDirective 2000/46/EC

‘electronic money’ shall mean monetary value as represented by a claim on the issuer which is:

(i) stored on an electronic device; (ii) issued on receipt of funds of an amount not

less in value than the monetary value issued; (iii) accepted as means of payment by

undertakings other than the issuer


‘electronic money institution’ shall mean an undertaking or any other legal person, other than a credit institution as defined in Article 1, point 1, first subparagraph (a) of Directive 2000/12/EC which issues means of payment in the form of electronic money

Member States shall prohibit persons or undertakings that are not credit institutions, as defined in Article 1 of Directive 2000/12/EC (an undertaking whose business is to receive deposits or other repayable funds from the public and to grant credits for its own account), from carrying on the business of issuing electronic money.


Electronic money institutions shall have an initial capital, as defined in Article 34(2), subparagraphs (1) and (2) of Directive 2000/12/EC, of not less than EUR 1 million.

Notwithstanding paragraphs 2 and 3, their own funds, as defined in Directive 2000/12/EC, shall not fall below that amount.


(Redeemability) A bearer of electronic money may, during the period of validity, ask the issuer to redeem it at par value in coins and bank notes or by a transfer to an account free of charges other than those strictly necessary to carry out that operation.

E-TaxationE-Taxation

COUNCIL DIRECTIVE 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax

COUNCIL DIRECTIVE COUNCIL DIRECTIVE 2001/115/EC2001/115/EC

Invoices issued pursuant to point (a) may be sent either on paper or, subject to an acceptance by the customer, by electronic means.

Invoices sent by electronic means shall be accepted by Member States provided that the authenticity of the origin and integrity of the contents are guaranteed:

i) By means of an advanced e-signature; or ii) by means of EDI

COUNCIL DIRECTIVE 2002/38/EC

electronically supplied services provided from third countries to persons established in the Community or from the Community to recipients established in third countries should be taxed at the place of the recipient of the services.


To facilitate compliance with fiscal obligations by operators providing electronically supplied services, who are neither established nor required to be identified for tax purposes within the Community, a special scheme is established. In applying this scheme any operator supplying such services by electronic means to non-taxable persons within the Community, may, if he is not otherwise identified for tax purposes within the Community, opt for identification in a single Member State.


The non-established operator wishing to benefit from the special scheme should comply with the requirements laid down therein, and with any relevant existing provision in the Member State where the services are consumed.

Where the non-established operator opts for the special scheme, any input value added tax that he has paid with respect to goods and services used by him for the purpose of his taxed activities falling under the special scheme, should be refunded by the Member State where the input value added tax was paid

Standards &Standards &Technical regulationsTechnical regulations

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 regulation


“standard”: a technical specification approved by a recognised standardisation body for repeated or continuous application, with which compliance is not compulsory and which is one of the following:

- international standard: a standard adopted by an international standardisation organisation and made available to the public,

- European standard: a standard adopted by a European standardisation body and made available to the public,

- national standard: a standard adopted by a national standardisation body and made available to the public.


“technical specification”: a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.


“service”: any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

“rule on services”: requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point 2, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.

Information proceduresInformation procedures

The Commission and the standardisation bodies referred to in Annexes I and II shall be informed of the new subjects for which the national bodies referred to in Annex II have decided, by including them in their standards programme, to prepare or amend a standard

The standardisation bodies referred to in Annexes I and II, and the Commission, shall be sent all draft standards on request

Information proceduresInformation procedures

Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.

Standstill periodStandstill period Member States shall postpone the adoption of a

draft technical regulation for three months from the date of receipt by the Commission of the communication referred to in Article 8(1).

Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 8(1) if, within the three months following that date, the Commission announces its finding that the draft technical regulation concerns a matter which is covered by a proposal for a directive, regulation or decision presented to the Council in accordance with Article 189 of the Treaty.

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REGULATION OF E- COMMERCE IN EU LAW Ioannis Iglezakis