Amended proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the Internal Market
29. 8. 2000 EN Official Journal of the European Communities C 248 E/69 Amended proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market (1) (2000/C 248 E/04) (Text with EEA relevance) COM(1999) 427 final - 98/0325(COD) (Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 17 August 1999) (1) OJ C 30, 5. 2. 1999, p. 4. INITIAL PROPOSAL AMENDED PROPOSAL THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Unchanged Having regard to the Treaty establishing the European Community, and in particular Articles 57(2), 66 and 100a thereof, Having regard to the Treaty establishing the European Community, and in particular Articles 47(2), 55 and 95 thereof, Having regard to the proposal from the Commission, Unchanged Having regard to the opinion of Committee (1), the Economic and Social Acting in accordance with the procedure referred to in Article 189b of the Treaty, Acting in accordance with the procedure referred to in Article 251 of the Treaty, (1) Whereas the European Union is seeking to forge ever closer links between the States and peoples of Europe, to ensure economic and social progress; whereas, in the internal accordance with Article 7a of market comprises an area without internal frontiers in which the free movement of goods, services and the freedom of establishment are ensured; whereas the devel- opment of Information Society services within the area to eliminating the frontiers without barriers which divide the European peoples; the Treaty, internal is vital (1) Whereas the European Union is seeking to forge ever closer links between the States and peoples of Europe, in to ensure economic and social progress; whereas, the accordance with Article 14(2) of internal market comprises an area without internal frontiers free movement of goods, services and the freedom of establishment are ensured; whereas the development of Information Society services within the area without internal frontiers is vital to elim- inating the barriers which divide the European peoples; in which the the Treaty, (2) Whereas the development of electronic commerce within the Information Society offers significant employment opportunities in the Community, particularly in small stimulate and medium-sized enterprises, economic growth and investment in innovation by European companies and will (2) Whereas the development of electronic commerce within the Information Society offers significant employment opportunities in the Community, particularly in small and medium-sized stimulate enterprises, economic growth and investment in innovation by European companies, and can also enhance the competi- tiveness of European industry, provided that everyone has access to the Internet; and will ___________ (1) OJ C 169, 16. 6. 1999. C 248 E/70 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (2a) Whereas Community law and the characteristics of the Community legal order are a vital asset to enable European citizens and operators to take full advantage, without consideration of borders, of the opportunities afforded by electronic commerce; whereas this Directive therefore has the purpose of ensuring a high level of Community legal integration in order to establish a real area without internal borders for Information Society services; (2b) Whereas the free movement of Information Society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; whereas, reason, Directives covering the supply of Information Society services must ensure that this activity may be engaged freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this for (2c) Whereas the definition of in Community law, information in the field of Information Society service already exists in the Directive 98/34/EC of the European Parliament and the Council of 22 June 1998 laying down a procedure for the provision of technical standards and regulations (1), as amended by Directive 98/48/EC of the European Parliament and the Council of 20 July 1998 (2). Whereas 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 consisting of, conditional access (3), has already refered to the definition provided by Directive 98/34; whereas this definition covers any service normally provided for or against remuneration, at a distance, via networks, by the processing equipment means of (including digital compression) and storage of data, and at the individual request of a recipient of a service; whereas those services referred to in the indicative list in annex V of Directive 98/34/EC, as amended by Directive 98/48/EC, which do not imply data processing and storage are not covered by this definition; electronic for ___________ (1) OJ L 204, 21. 7. 1998, p. 37. (2) OJ L 217, 5. 8. 1998, p. 18. (3) OJ L 320, 28. 11. 1998, p. 54. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/71 INITIAL PROPOSAL AMENDED PROPOSAL they are not (3) Whereas Information Society services span a wide range of economic activities which can, in particular, consist of selling goods on line; whereas solely restricted to services giving rise to on-line contracting but also, they represent an economic activity, extend to services which are not remunerated those offering by those who receive them, Society on-line services also include on line activities via telephony and telefax information; whereas in so far as Information such as include services consisting they are not (3) Whereas Information Society services span a wide range of economic activities which can, in particular, consist of selling goods on line; whereas solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; whereas Information Society services also transmitting information via a communication network, in providing in hosting to a communication network or access information provided by a recipient of the service; whereas television broadcasting within the meaning of the Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States television broadcasting concerning the pursuit of activities, and radio broadcasting are not Information Society services because they are not provided at indi- vidual request; whereas by contrast services which are transmitted point to point, such as video on demand or the sending of commercial communications by e-mail are Information Society services; in Unchanged (4) Whereas the development of Information Society services within the Community is restricted by a number of legal obstacles to the proper functioning of the internal market which hamper or make less attractive the exercise of the freedom of establishment and the freedom to provide services; whereas these obstacles arise from divergences in legislation and from the legal uncertainty as to which national rules apply to such services; whereas, in the absence of coordination and adjustment of legislation in the relevant areas, obstacles might be justified in the light of the case-law of the Court of Justice of the European Communities; whereas legal uncertainty exists with regard to the extent to which Member States may control services originating from another Member State; (4a) Whereas it important to ensure that electronic is commerce can fully benefit from the internal market and therefore that, as with Directive 89/552/EEC, a high level of Community integration should be achieved; ___________ (1) OJ L 298, 17. 10. 1989, p. 23. C 248 E/72 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (5) Whereas, in the light of Community objectives, of Articles 52 and 59 of the Treaty and of secondary Community law, these obstacles should be eliminated by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market; whereas, by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsi- diarity as set out in Article 3b of the Treaty; (5) Whereas, in the light of Community objectives, of the Treaty and of secondary Articles 43 and 49 of these obstacles should be eliminated Community law, by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent the internal necessary for the proper functioning of market; whereas, by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need in to respect Article 5 of the Treaty; the principle of subsidiarity as set out (5a) Whereas, in order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and uniform general certain legal aspects of electronic commerce in the internal market; framework to cover (6) Whereas, internal the proper frontiers as functioning of in accordance with the principle of propor- tionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the the internal objective of market; whereas, where action at Community level is necessary, and in order to guarantee an area which is far as electronic truly without commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular, consumer protection and the protection of public health; whereas according to Article 129 of the Treaty, the protection of public health is an essential component of other Community policies; whereas this Directive does not impact on the legal requirements applicable to the delivery of goods as such, nor those applicable to services which are not Information Society services; internal frontiers as (6) Whereas, in accordance with the principle of propor- the measures provided for in this Directive tionality, are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market; whereas, where action at Community level is necessary, and in order to guarantee an area which is far as electronic truly without commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, the protection of minors and human dignity, consumer protection and the protection of public health; whereas according to Article 152 of the Treaty, the protection of public health is an essential component of other Community policies; whereas this Directive does not impact on the legal requirements applicable to the delivery of goods as such, nor those applicable to services which are not Information Society services; in particular (6a) Whereas the rules relating to the protection of personal data, in particular Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on individuals with regard to the the protection of processing of personal data and the free movement of such data (1) and 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 telecommunications in sector (2) are fully applicable to Information Society services; whereas these Directives already establish the of framework Community privacy legal field the the of in ___________ (1) OJ L 281, 23. 11. 1995, p. 31. (2) OJ L 24, 30. 1. 1998, p. 1. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/73 INITIAL PROPOSAL AMENDED PROPOSAL personal data and therefore it is not necessary to cover this issue in this Directive in order to ensure the smooth functioning of the internal market, in particular the free movement of such data between Member States; whereas the implementation and application of this Directive compliance with the principles should be relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability regime for this Directive cannot prevent the anonymous use of open networks such as the Internet; intermediaries; whereas in full (7) Whereas this Directive does not aim to establish specific rules on private international law relating to conflicts of law or jurisdiction and is therefore without prejudice to the relevant international conventions; (7) Whereas this Directive does not aim to establish specific rules on private international law relating to conflicts of law or jurisdiction and is not a substitute for the relevant international conventions; (8) Whereas Society Information the source of should in order services the activity, be supervised at to ensure an effective protection of public interest objectives; whereas, to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community to effectively citizens; whereas, moreover, guarantee legal certainty for suppliers and recipients of services, such Information Society services should only be subject to the Member State in which the service the law of in order to improve provider is established; whereas, it is essential to mutual trust between Member States, the state clearly this Member State where the services originate; responsibility on the part of freedom to provide in order services and (9) Whereas the place at which a service provider is estab- lished should be determined in accordance with the case-law of the Court of Justice; whereas the place of establishment of a company providing services via an internet website is not the place at which the technology supporting its website is located or the place at which its website is accessible; whereas, where the same supplier has a number of establishments, the competent Member State will be the one in which the supplier has the centre of his activities; whereas in cases where it is particularly difficult to assess in which Member States the supplier is established, cooperative procedures should be established between the Member consultative States committee should be capable of being convened in urgent cases to examine such difficulties; and the Unchanged (9a) Whereas the definition of árecipient of a serviceí covers all types of usage of Information Society services, both by persons who provide information on open networks such as and by persons who seek information on the Internet for private or professional reasons; Internet the C 248 E/74 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL services (10) Whereas commercial communications are essential for the and for Information Society financing of developing a wide variety of new, charge-free services; whereas in the interests of consumer protection and fair trading, commercial communications, including discounts, promotional offers and promotional competitions, must meet a number of transparency requirements and that these requirements are without prejudice to Directive 97/7/EC of the European Parliament and of the Council on the protection of consumers in respect of distance contracts (1); whereas this Directive should not affect in existing Directives on commercial communications, particular Directive 98/43/EC of the European Parliament and of the Council (2) on tobacco advertising; (11) Whereas Article 10(2) of Directive 97/7/EC and Article 12(2) of European Parliament and Council Directive 97/66/EC of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (3) address the issue of consent by receivers to certain forms of unsol- icited commercial communication and are fully applicable to Information Society services; Unchanged (11) Whereas the sending unsolicited in particular, commercial of communications by e-mail may be undesirable for consumers and Information Society service providers and may disrupt the smooth functioning of interactive networks; whereas the question of consent by recipients of certain forms of unsolicited commercial communi- is not addressed by this Directive, but has cations in Directive already been addressed, in 97/7/EC and in Directive 97/66/EC; whereas, Member States which authorise unsolicited commercial communications by e-mail, the setting up of appropriate industry filtering initiatives should be encouraged and facilitated; whereas in addition it is necessary that in any event unsolicited commercial communications are clearly identifiable as such in order to improve trans- parency and to facilitate such industry initiatives; whereas unsolicited commercial communications by e-mail should not result in additional communication costs for the recipient; functioning of the Unchanged in particular, (12) Whereas, in order to remove barriers to the development of cross-border services within the Community which professional practitioners might offer on the internet, it is necessary that compliance be guaranteed at Community level with professional rules aiming, to protect consumers or public health; whereas codes of conduct at Community level would be the best means of determining the rules on professional ethics applicable to commercial communication; whereas the drawing-up or, where appropriate, such rules should in the first place be encouraged by, rather than laid down in, the regulated this Directive; whereas professional activities governed by this Directive should be understood in the light of the definition set out in Article 1d of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (4); the adaptation of ___________ (1) OJ L 144, 4. 6. 1997, p. 19. (2) OJ L 213, 30. 7. 1998, p. 9. (3) OJ L 24, 30. 1. 1998, p. 1. (4) OJ L 19, 24. 1. 1989, p. 16. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/75 INITIAL PROPOSAL AMENDED PROPOSAL the necessary stages and acts of (13) Whereas each Member State should amend its legislation containing requirements, and in particular requirements as to form, which are likely to curb the use of contracts by electronic means, subject to any Community measure in the field of taxation that could be adopted on electronic invoicing; whereas the examination of the legislation should be systematic and requiring such adjustment should cover all the contractual process, including the filing of the contract; whereas the result of this amendment should be to make and contracts effectively workable in law and in practice; whereas the legal effect of electronic signatures is dealt with by European Parliament and Council Directive 98/. /EC [on a common framework for electronic signatures] (1); whereas it is necessary to clarify at what point in time a contract entered into electronically is considered to be actually recipient’s agreement to enter into a contract may take the form of an online payment; whereas the acknowledgment of receipt by a service provider may take the form of the online provision of the service paid for; concluded; whereas electronically concluded genuinely service the element for protecting consumers (14) Whereas, amongst others, Council Directive 93/13/EEC (2) regarding unfair contract terms and Directive 97/7/EC, form a vital in contractual matters; whereas those Directives also apply in their entirety to Information Society services; whereas that same Community acquis also embraces Council Directive 84/450/EEC (3) on misleading advertising, as amended by European Parliament and Council Directive 97/55/EC (4), on consumer credit; as last amended by European Parliament and Council Directive 98/7/EC (6), Council Directive 90/314/EEC (7) on package travel, package holidays and package tours, and European Parliament and Council Directive 98/6/EC (8) on the indication of prices of products offered to consumers; whereas this Directive should be without prejudice to Directive 98/43/EC, adopted within the framework of the internal market, or to other Directives on the protection of public health, Council Directive 87/102/EEC (5) including the filing of (13) Whereas each Member State should amend its legislation containing requirements, and in particular requirements as to form, which are likely to curb the use of contracts by electronic means, subject to any Community measure in the field of taxation that could be adopted on elec- tronic invoicing; whereas the examination of the legis- lation requiring such adjustment should be systematic and should cover all the necessary stages and acts of the contractual process, the contract; whereas the result of this amendment should be to make contracts concluded electronically genuinely and effectively workable in law and in practice; whereas the legal effect of electronic signatures is dealt with by European Parliament and Council Directive 98/. /EC [on electronic signatures] (1); whereas it is necessary to clarify at what point in time a contract entered into electronically is considered to be the service recipient’s agreement to enter into a contract may take the form of an online payment; whereas the acknowledgment of receipt by a service provider may take the form of the service paid for; actually concluded; whereas the online provision of Community framework for a (14) Whereas, as that others, Society Council amongst amended advertising, services; whereas the European Parliament and of Directive 93/13/EEC (2), of 5 April 1993, on unfair terms in consumer contracts and Directive 97/7/EC, form a vital element for protecting consumers in contractual matters; whereas those Directives also apply in their entirety to Information same Community acquis also embraces Council Directive 84/450/EEC (3) of 10 September 1984 relating to the the laws, regulations and adminis- approximation of the Member States concerning trative provisions of by Directive misleading 97/55/EC (4) of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include advertising, Council Directive 87/102/EEC (5) of 22 December 1986 for the approxi- mation of regulations and administrative provisions of the Member States concerning consumer credit; as last amended by Directive 98/7/EC (6) of the European Parliament and of the Council of 16 February 1998 amending Directive 87/102/EEC for the approxi- mation of regulations and administrative provisions of the Member States concerning consumer credit, Council Directive 90/314/EEC (7) on package travel, package holidays and Directive 98/6/EC (8) of the European Parliament and of and package comparative the laws, the laws, tours, ___________ (1) COM(1998) 297 final, 13. 5. 1998. (2) OJ L 95, 21. 4. 1993, p. 29. (3) OJ L 250, 19. 9. 1984, p. 17. (4) OJ L 290, 23. 10. 1997, p. 18. (5) OJ L 42, 12. 2. 1987, p. 48. (6) OJ L 101, 1. 4. 1998, p. 17. (7) OJ L 158, 23. 6. 1990, p. 59. (8) OJ L 80, 18. 3. 1998, p. 27. ___________ (1) COM(1998) 297 final, 13. 5. 1998. (2) OJ L 95, 21. 4. 1993, p. 29. (3) OJ L 250, 19. 9. 1984, p. 17. (4) OJ L 290, 23. 10. 1997, p. 18. (5) OJ L 42, 12. 2. 1987, p. 48. (6) OJ L 101, 1. 4. 1998, p. 17. (7) OJ L 158, 23. 6. 1990, p. 59. (8) OJ L 80, 18. 3. 1998, p. 27. C 248 E/76 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL the European Parliament and of the Council of 16 February 1998 on consumer protection in connection with the indication of the prices of products offered to consumers; whereas this Directive should be without prejudice to Directive 98/43/EC (1) of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member states relating to the advertising and spon- sorship of adopted within the framework of the internal market, or to other Directives on the protection of public health, especially Council Directive 92/28/EEC (2) of 31 March 1992 on the adver- tising of medicinal products for human use; tobacco products, (15) Whereas the confidentiality of electronic messages is guaranteed by Article 5 of Directive 97/66/EC; whereas in accordance with that Directive Member States must prohibit any kind of interception or surveillance of such electronic messages by others than the senders and receivers (15) Whereas the confidentiality of electronic messages is guaranteed by Article 5 of Directive 97/66/EC; whereas in accordance with that Directive Member States must prohibit any kind of interception or surveillance of such electronic messages by others than the senders and receivers and abstain from prohibiting or restricting the use of cryptographic methods or tools for protecting confidentiality the or information transmitted or stored; authenticity ensuring of (16) Whereas both existing and emerging disparities services in Member States’ legislation and case-law concerning civil and criminal liability of service providers acting as inter- mediaries prevent the smooth functioning of the internal in particular by impairing the development of market, cross-border distortions of and producing competition; whereas service providers have a duty to certain circumstances, with a view to act, under preventing or the ceasing illegal activities; whereas provisions of this Directive should constitute the appro- priate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; whereas be developed on the basis of voluntary agreements between all parties; whereas it is in the interest of all parties involved in the provision of Information Society services to adopt and implement such procedures; whereas 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 such mechanisms could (16) Whereas both existing and emerging disparities services in Member States’ legislation and case-law concerning civil and criminal liability of service providers acting as inter- mediaries prevent the smooth functioning of the Internal in particular by impairing the development of Market, cross-border and producing distortions of competition; whereas service providers have a duty to certain circumstances, with a view to act, under preventing or halting illegal activities; whereas the provisions of this Directive should constitute the appro- priate basis for the development of rapid and reliable procedures for removing and disabling access to illegal could information; whereas be developed on the basis of agreements between all parties concerned and should be encouraged by Member States; whereas it is in the interest of all parties involved in the provision of Information Society such procedures; services this Directive relating to whereas the development and liability should not preclude effective operation, by the different interested parties, technical systems of protection and identification of and of technical surveillance instruments made possible by digital technology within the limits laid down by Directives 95/46/EC and 97/66/EC; to adopt and implement the provisions of such mechanisms voluntary ___________ (1) OJ L 213, 30. 7. 1998, p. 9. (2) OJ L 113, 30. 4. 1992, p. 13. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/77 INITIAL PROPOSAL AMENDED PROPOSAL (16a) Whereas it is important that the Directive. /. /EC of the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the Information Society (1) and this Directive come into force within a similar time scale with a view to establishing a clear framework of rules intermediaries for relevant copyright at infringements Community level; to the issue of related liability of rights and (16b) Whereas this Directive strikes a balance between the different stake and establishes principles upon which industry agreements and standards can be based; interests at (16c) Whereas the effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; whereas damage which may arise in connection with Information Society services is characterised both by its rapidity and by its geographical extent; whereas in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; whereas Member States should examine the need to provide access to judicial procedures by appro- priate electronic means; Unchanged (17) Whereas each Member State should be required, where necessary, to amend any legislation which is liable to hamper the use of schemes for the out-of-court settlement of disputes through electronic channels; whereas the result of this amendment must be to make the functioning of such schemes genuinely and effectively possible in law and in practice, even across borders; whereas the bodies responsible for such out-of-court settlement of consumer disputes must comply with certain essential principles, as set out in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for such settlement of consumer disputes (1); (17a) Whereas in the context of this Directive, notwithstanding the rule on the control at source of Information Society services, it would appear legitimate under certain circum- stances for Member States to take measures to restrict the free movement of Information Society services; whereas, however, such measures must be taken in accordance with Community law and must be necessary to achieve ___________ (1) OJ L 115, 17. 4. 1998, p. 31. ___________ (1) COM(1999) 250 final, 21. 5. 1999. C 248 E/78 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL one of the following public interest objectives pursued: public policy, in particular the protection of minors, or the fight against any incitement to hatred on grounds of race, sex, religion or nationality; the protection of public health or public security; and consumer protection; whereas such measures must be strictly proportionate is to their objective and must not go beyond what necessary to achieve it; Unchanged this Directive, on the grounds that (18) Whereas it is necessary to exclude certain activities from the the scope of freedom to provide services in these fields cannot, at this stage, be guaranteed under the Treaty or existing secondary legislation; whereas excluding these activities does not preclude any instruments which might prove the internal necessary for market; whereas taxation, particularly value-added tax imposed on a large number of the services covered by this Directive, must be excluded from the scope of this Directive; whereas, in this respect, the Commission also intends to extend the application of the principle of taxation at source to the provision of services within the internal market, thus giving its approach a general coherence; functioning of the proper (19) Whereas as regards the derogation contained in this Directive regarding contractual obligations concerning contracts concluded by consumers, those obligations should be interpreted as including information on the essential contract, including consumer rights, which have a determining influence on the decision to contract; elements of content of the the (20) Whereas in view of it this Directive should not apply to services supplied by service providers established in a third the global dimension of country; whereas, is, however, appropriate to electronic commerce, ensure that the Community rules are consistent with inter- national rules; whereas this Directive is without prejudice to the results of discussions within international organi- sations issues; (WTO, OECD, UNCITRAL) on legal whereas this Directive should also be without prejudice to the discussions within the Global Business Dialogue which were launched on the basis of the Commission Communication of 4 February 1998 on Globalisation and the Information Society - The need for strengthened international coordinationí (1); it (20) Whereas this Directive should not apply to services supplied by service providers established in a third in view of the global dimension of country; whereas, is, however, appropriate to electronic commerce, ensure that the Community rules are consistent with international rules; whereas this Directive is without prejudice to the results of discussions within inter- national organisations (amongst others WTO, OECD, this Directive UNCITRAL) on legal should also be without prejudice to the discussions within the Global Business Dialogue which were launched on the basis of the Commission Communi- cation of 4 February 1998 on Globalisation and the Information Society - The need for strengthened inter- national coordinationí (1); issues; whereas (20a) Whereas, despite electronic global nature of the communications, coordination of national regulatory measures at European Union level is necessary in order to avoid fragmentation of the internal market, and for the establishment of an appropriate European regulatory such coordination should also framework; whereas contribute to the establishment of a common and strong negotiating position in international fora; ___________ (1) COM(1998) 50 final. ___________ (1) COM(1998) 50 final. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/79 INITIAL PROPOSAL AMENDED PROPOSAL (20b) Whereas, in order to allow the unhampered development of electronic commerce, the legal framework must be clear and simple, predictable and consistent with the rules applicable at it does not adversely affect the competitiveness of European industry or impede innovation in that sector; level so that international (20c) Whereas, in the if the market is actually to operate by elec- tronic means the European Union and the major non-European areas need to consult each other with a view to making laws and procedures compatible; context of globalisation, (20d) Whereas cooperation with third countries should be strengthened in the area of electronic commerce, in particular with applicant countries and the European Union’s main trading partners; (21) Whereas the Member States need to ensure, that, when Community acts are transposed into national legislation, Community law is duly applied with the same effec- tiveness and thoroughness as national law; Unchanged societal cultural, and cultural (22) Whereas the adoption of this Directive will not prevent the Member States from taking into account the various social, implications which are inherent in the advent of the Information Society nor policy hinder measures, which the Member States might adopt, in taking into account conformity with Community law, their linguistic diversity, national and regional specificities and their cultural heritage; whereas, in any case, the devel- the Information Society must ensure that opment of to the cultural Community citizens can have access European heritage provided in the digital environment; audiovisual, notably and (23) Whereas the Council, stressed that field; whereas the protection of in its Resolution of 3 November the Information 1998 on the consumer aspects of consumers Society, deserved special attention in this the Commission will examine the degree to which existing consumer protection rules provide insufficient protection in the context of the Information Society and will identify, where necessary, the deficiencies of this legislation and those issues which could require additional measures; whereas, the Commission should make specific additional proposals to resolve such deficiencies that will thereby have been identified; if need be, (22a) Whereas electronic communication offers the Member States an excellent means of providing public services in the cultural, educational and linguistic fields; (23) Whereas the Council, in its Resolution of 19 January the Information 1999 on the consumer aspects of Society (1), stressed that the protection of consumers deserved special attention in this field; whereas the Commission will examine the degree to which existing consumer protection rules provide insufficient protection in the context of the Information Society and will identify, where necessary, the deficiencies of this legis- lation and those issues which could require additional measures; whereas, if need be, the Commission should make specific additional proposals to resolve such defi- ciencies that will thereby have been identified; ___________ (1) OJ C 23, 28. 1. 1999, p. 1. C 248 E/80 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (24) Whereas this Directive should be without prejudice to Council Regulation (EEC) No 2299/89 of 24 July 1989 for computerized reservation on a code of conduct systems (1), (EEC) No 3089/93 (2). by Regulation amended as Unchanged (25) Whereas Commission Regulation (EC) No 2027/97 (3) and the Warsaw Convention of 12 October 1929 place various obligations upon air carriers regarding the provision of information to their passengers, including information about the liability of the carrier; whereas this Directive is without prejudice those to the instruments, requirements of (25) Whereas Council Regulation (EC) No 2027/97 (3) on air carrier liability in the event of accidents and the Warsaw Convention of 12 October 1929 place various obli- gations upon air carriers regarding the provision of information to their passengers, including information about the liability of the carrier; whereas this Directive those is without prejudice to the requirements of instruments, HAVE ADOPTED THIS DIRECTIVE: Unchanged CHAPTER I GENERAL PROVISIONS Article 1 Objective and scope This Directive seeks to ensure the proper functioning of free movement of internal market, particularly the 1. the Information Society services between the Member States. This Directive approximates, to the extent necessary for 2. in paragraph 1, the objective set out the achievement of national provisions on Information Society services relating the establishment of to the internal market arrangements, service providers, electronic contracts, intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States. communications, the liability of commercial 3. This Directive complements Community law applicable to Information Society services without prejudice to the existing level of protection for public health and consumer interests, as established by Community acts, including those adopted for the functioning of the internal market. ___________ (1) OJ L 220, 29. 7. 1989, p. 1. (2) OJ L 278, 11. 11. 1993, p. 1. (3) OJ L 285, 17. 10. 1997, p. 1. ___________ (3) OJ L 285, 17. 10. 1997, p. 1. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/81 INITIAL PROPOSAL AMENDED PROPOSAL Article 2 Definitions For the purpose of this Directive, the following terms shall bear the following meanings: (a) Information Society servicesí: Information Society services within the meaning of Article 1(2) of Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regu- lations as amended by Directive 98/48/EC of 20 July 1998 (1); (a) Information Society service normally servicesí: provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services; any For the purpose of this definition: - áat a distanceí means that the service is provided without the parties being simultaneously present; - áby electronic meansí means that a service is sent its destination by means of initially and received at electronic equipment the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; for - áat the individual request of a recipient of servicesí means a service provided through the transmission of data on individual request. (b) áservice providerí: any natural or legal person providing an Unchanged Information Society service; (c) áestablished service providerí: a service provider who effectively pursues an economic activity using a fixed estab- lishment for an indeterminate duration. The presence and use of the technical means and technologies required to provide the service do not constitute an establishment of the provider; (d) árecipient of the serviceí: any natural or legal person who, for professional ends or otherwise, uses an Information Society service, in particular for the purposes of seeking information or making it accessible; (e) ácommercial communicationsí: any form of communication designed to promote, directly or the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exer- cising a liberal profession. The following do not as such constitute commercial communications: indirectly, ___________ (1) OJ L 204, 21. 7. 1998, p. 37, as amended by Directive 98/48/EC of 20. 7. 1998, OJ L 217, 5. 8. 1998, p. 18. C 248 E/82 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL - information allowing direct access to the activity of the in particular a company, organisation or person, domain name or an electronic-mail address, - communications image of the compiled in an independent manner, without financial consideration. services or relating to the goods, company, organisation or person in particular (f) áconsumerí: any natural person who is acting for purposes which are outside his or her trade, business or profession. (f) fieldí: ácoordinated to Information Society service providers and Information Society services. requirements applicable the (g) ácoordinated fieldí: to Information Society service providers and Information Society services. requirements applicable the Article 3 Internal market Unchanged Each Member State shall ensure that 1. 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 this Directive’s coordinated field. 2. Member States may not, for reasons falling within this Directive’s coordinated field, restrict the freedom to provide Information Society services from another Member State. 3. Paragraph 1 shall cover the provisions set out in Articles 9, 10 and 11 only in so far as the law of the Member State applies by virtue of its rules of private international law. CHAPTER II PRINCIPLES S E C T I O N 1 E S T A B L I S H M E N T A N D I N F O R M A T I O N R E Q U I R E M E N T S Article 4 Principle excluding prior authorisation lay down in their legislation that 1. Member States shall access to the activity of Information Society service provider may not be made subject to prior authorisation or any other requirement the effect of which is to make such access dependent on a decision, measure or particular act by an authority. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/83 INITIAL PROPOSAL AMENDED PROPOSAL 2. Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at Information Society services, or which are covered by Directive 97/13/EC of the European Parliament and of the Council (1). Article 5 General information to be provided 1. Member States shall Information Society services shall render easily accessible, a direct and permanent manner competent authorities, the following information: lay down in their legislation that in recipients and to their 1. Without prejudice to the obligations deriving from Directive 97/7/EC, Member States shall lay down in their legis- lation that Information Society services shall render easily accessible, in a direct and permanent manner to their recipients and competent authorities, the following information: (a) the name of the service provider; Unchanged (b) the address at which the service provider is established; (c) the particulars of the service provider, including his elec- tronic-mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner; (d) where the service provider is registered in a trade register, the trade register in which the service provider is entered and his registration number in that register; (e) where the activity is subject to an authorisation scheme, the activities covered by the authorisation granted to the service provider and the particulars of the authority providing such authorisation; (f) as concerns the regulated professions: - any professional body or similar institution with which the service provider is registered; - the professional title granted in the Member State of establishment, the applicable professional rules in the Member State of establishment and the Member States in which the Information Society services are regularly provided; (g) where the service provider undertakes an activity that is the VAT number under which he is subject registered with his fiscal administration. to VAT, 2. Member States shall prices of accurately and unequivocally lay down in their legislation that Information Society services are to be indicated 2. Member States shall lay down in their legislation that where Information Society services refer to prices, and other these are to be indicated essential accurately and unequivocally and must include all additional costs. terms and conditions, ___________ (1) OJ L 117, 7. 5. 1997, p. 15. C 248 E/84 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL S E C T I O N 2 Unchanged C O M M E R C I A L C O M M U N I C A T I O N S Article 6 Information to be provided Member States legislation that commercial communication shall comply with the following conditions: lay down in their shall Without prejudice to the obligations deriving from Directive 97/7/EC, Member States shall lay down in their legislation that commercial communication shall comply with the following conditions: (a) the commercial communication shall be clearly identifiable Unchanged as such; (b) the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable; (c) promotional offers, such as discounts, premiums and gifts, where authorised, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented accurately and unequivocally; (c) promotional offers, such as discounts, premiums and gifts, where authorised by the Member State in which the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented accurately and unequivocally; (d) promotional competitions or games, where authorised, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented accurately and unequivocally. (d) promotional competitions or games, where authorised by the Member State in which the service provider is estab- lished, such, and the conditions for participation shall be easily accessible and be presented accurately and unequivocally. shall be clearly identifiable as Article 7 Unsolicited commercial communication Member States shall lay down in their legislation that unsol- icited commercial communication by electronic mail must be clearly and unequivocally identifiable as such as soon as it is received by the recipient. 1. Member States shall lay down in their legislation that unsolicited commercial communication by electronic mail must be clearly and unequivocally identifiable as such as soon as it is received by the recipient. providers 2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service commercial communications by e-mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register them- selves. undertaking unsolicited 29. 8. 2000 EN Official Journal of the European Communities C 248 E/85 INITIAL PROPOSAL AMENDED PROPOSAL Article 8 Regulated professions Unchanged 1. Member States shall lay down in their legislation relating to commercial communication by regulated professions that Information Society services is authorised the provision of provided that regarding the inde- pendence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession are met. the professional rules 2. Member States and the Commission shall encourage professional associations and bodies to establish codes of conduct at Community level in order to determine the types of information that can be given for the purposes of providing the Information Society service in conformity with the rules referred to in paragraph 1. 3. Where necessary in order to ensure the proper func- tioning of the internal market, and in the light of the codes of conduct applicable at Community level, the Commission may stipulate, in accordance with the procedure laid down in Article 23, the information referred to in paragraph 2. S E C T I O N 3 E L E C T R O N I C C O N T R A C T S Article 9 Treatment of electronic contracts 1. Member States shall ensure that their legislation allows contracts to be concluded electronically. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither prevent the effective use of elec- tronic contracts nor result in such contracts being deprived of legal effect and validity on account of their having been made electronically. 2. Member States may lay down that paragraph 1 shall not apply to the following contracts: (a) contracts requiring the involvement of a notary; (b) contracts which, in order to be valid, are required to be registered with a public authority; (c) contracts governed by family law; (d) contracts governed by the law of succession. C 248 E/86 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL in The list of categories of contract provided for 3. paragraph 2 may be amended by the Commission in accordance with the procedure laid down in Article 23. Deleted 4. Member States to the Commission a complete list of the categories of contracts covered by the derogations provided for in paragraph 2. submit shall 3. Member States to the Commission a complete list of the categories of contracts covered by the derogations provided for in paragraph 2. submit shall Article 10 Unchanged Information to be provided lay down in their legislation that, 1. Member States shall the except when otherwise agreed by professional persons, manner of the formation of a contract by electronic means shall be clearly and unequivocally, and prior to the conclusion of the contract. The information to be provided shall include, in particular: explained by the service provider (a) the different stages to follow to conclude the contract; (b) whether or not the concluded contract will be filed and whether it will be accessible; (c) the expedients for correcting handling errors. 2. Member States shall provide in their legislation that the different steps to be followed for concluding a contract elec- tronically shall be set out in such a way as to ensure that parties can give their full and informed consent. lay down in their legislation that, 3. Member States shall the except when otherwise agreed by professional parties, service providers to indicate any codes of conduct which they subscribe and information on how those codes can be consulted electronically. shall Article 11 Moment at which the contract is concluded 1. Member States shall lay down in their legislation that, save where otherwise agreed by professional persons, in cases is where a recipient, required to give his consent through technological means, such as clicking on an icon, in accepting a service provider’s offer, in accepting a service provider’s offer, 1. Member States shall lay down in their legislation that, save where otherwise agreed by professional persons, in cases is where a recipient, required to give his consent through technological means, such as clicking on an icon, the contract is concluded when the recipient of the service has received from the service provider, electronically, an acknowledgement of receipt of the recipient’s acceptance 29. 8. 2000 EN Official Journal of the European Communities C 248 E/87 INITIAL PROPOSAL AMENDED PROPOSAL following principles apply: The following principles apply: (a) acknowledgement of receipt is deemed to be received when the recipient of the service is able to access it; (b) the service provider is obliged to immediately send the acknowledgement of receipt. (a) the contract is concluded when the recipient of the service: Deleted - has received from the service provider, electronically, an recipient’s receipt the of of acknowledgement acceptance, and - has confirmed receipt of the acknowledgement of receipt; (b) acknowledgment of receipt is deemed to be received and confirmation is deemed to have been given when the parties to whom they are addressed are able to access them; (c) acknowledgement of receipt by the service provider and the service recipient shall be sent as confirmation of quickly as possible. lay down in their legislation that, 2. Member States shall save where otherwise agreed by professional persons, the service provider shall make available to the recipient of the service appropriate means allowing him to identify and correct handling errors lay down in their legislation that, 2. Member States shall save where otherwise agreed by professional persons, the service provider shall make available to the recipient of the service appropriate means that are effective and accessible allowing him to identify and correct handling errors and acci- dental the contract. Contract conditions provided to the consumer must be made available in a way that allows him to store and to reproduce them. transactions before the conclusion of terms and general S E C T I O N 4 S E C T I O N 4 L I A B I L I T Y O F I N T E R M E D I A R I E S L I A B I L I T Y O F I N T E R M E D I A R Y S E R V I C E P R O V I D E R S Article 12 Mere conduct Unchanged 1. Where an Information Society service is provided that consists of the transmission in a communication network of information provided by the recipient of the service, or the provision of access to a communication network, Member States shall provide in their legislation that the provider of such a service shall not be liable, otherwise than under a prohibitory injunction, for the information transmitted, on condition that the provider: (a) does not initiate the transmission; C 248 E/88 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of 2. transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the trans- mission in the communication network, and provided that the information is not than is reasonably necessary for the transmission. stored for any period longer Article 13 Caching transmission in a Where an Information Society service is provided that consists in the communication network of information provided by a recipient of the service, Member States shall provide in their legislation that the provider shall not be liable, otherwise than under a prohibitory injunction, for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more the information’s onward transmission to other efficient recipients of the service upon their request, on condition that: (a) the provider does not modify the information; (b) the provider complies with conditions on access to the information; (c) the provider complies with rules regarding the updating of the information, specified in a manner consistent with industrial standards; (d) the provider does not interfere with the technology, consistent with industrial standards, used to obtain data on the use of the information; and (e) the provider acts expeditiously to remove or to bar access to the information upon obtaining actual knowledge of one of the following: - the information at the initial source of the transmission has been removed from the network; - access to it has been barred; - a competent authority has ordered such removal or barring. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/89 INITIAL PROPOSAL AMENDED PROPOSAL Article 14 Hosting 1. Where an Information Society service is provided that consists in the storage of information provided by a recipient of the service, Member States shall provide in their legislation that the provider shall not be liable, otherwise than under a prohibitory injunction, the for request of a recipient of the service, on condition that: the information stored at (a) the provider does not have actual knowledge that the is facts or circumstances from which illegal activity is illegal and, as regards claims for damages, not aware of activity is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. Article 15 No obligation to monitor 1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circum- stances indicating illegal activity. 1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12 to 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Paragraph 1 shall not affect any targeted, temporary 2. judicial authorities surveillance activities required by national in accordance with national legislation to safeguard national security, defence, public security and for the prevention, inves- tigation, detection and prosecution of criminal offences. Unchanged CHAPTER III IMPLEMENTATION Article 16 Codes of conduct 1. Member States and the Commission shall encourage: C 248 E/90 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (a) the drawing-up of codes of conduct at Community level, by trade associations or organisations designed to contribute to the proper implementation of Articles 5 to 15; and professional (a) the drawing-up of codes of conduct at Community level, by trade, professional and consumer associations or organi- sations designed to contribute to the proper implemen- tation of Articles 5 to 15; (b) the transmission of draft codes of conduct at national or Community level to the Commission so that the latter may examine their compatibility with Community law; Unchanged (c) the accessibility of these codes of conduct in the Community languages by electronic means; (d) the communication to the Member States and the Commission, by professional associations or organisations, of their assessment of the application of their codes of conduct and their impact upon practices, habits or customs relating to electronic commerce. (d) the communication to the Member States and the Commission, by professional and consumer associations or organisations, of their assessment of the application of their codes of conduct and their impact upon practices, habits or customs relating to electronic commerce. (e) the drawing up of codes of conduct protection of minors and human dignity regarding the Unchanged as In so far 2. consumer they may be associations shall be involved in the drafting and implemen- tation of codes of conduct drawn up according to point (a) of paragraph 1. concerned, Article 17 Out-of-court dispute settlement shall ensure between in the event of 1. Member States disagreement service provider and its recipient, their legislation allows the effective use of out-of-court schemes for dispute settlement, including appropriate electronic means. that, Information Society an settlement of 2. Member States shall ensure that bodies responsible for apply, the out-of-court inde- whilst abiding by Community law, pendence techniques, of procedural efficacy, legality of the decision, and freedom of the parties and of representation. the principles of adversarial consumer disputes transparency, and 3. Member States shall encourage bodies responsible for out-of-court dispute settlement to inform the Commission of the decisions they take regarding Information Society services and to transmit any other information on the practices, usages or customs relating to electronic commerce. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/91 INITIAL PROPOSAL AMENDED PROPOSAL Article 18 Court actions 1. Member States shall ensure that effective court actions can be brought against Information Society services’ activities, by allowing the rapid adoption of interim measures designed to remedy any alleged infringement and to prevent any further impairment of the interests involved. Acts in breach of the national provisions incorporating 2. Articles 5 to 15 of this Directive which affect consumers’ interests shall constitute infringements within the meaning of Article 1(2) of Directive 98/27/EC of the European Parliament and Council (1). Article 19 Cooperation between authorities 1. Member States shall ensure that their competent auth- orities have the appropriate powers of supervision and inves- tigation necessary to implement this Directive effectively and supply those authorities with the that requisite information. service providers 2. Member States shall ensure that their national authorities cooperate with the authorities of other Member States; they shall, to that end, appoint a contact person, whose coordinates they shall communicate to the other Member States and to the Commission. 3. Member States shall, as quickly as possible, provide the assistance and information requested by authorities of other Member States or by the Commission, including by appropriate electronic means. 4. Member States shall establish, within their administration, contact points which shall be accessible electronically and from which recipients and service providers may: (a) obtain information on their contractual rights and obli- gations; (b) obtain the particulars of authorities, associations or organi- services may obtain sations information about their rights or with whom they may file complaints; and from which recipients of (c) receive assistance in the event of disputes. ___________ (1) OJ L 166, 11. 6. 1998, p. 51. C 248 E/92 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL 5. Member States shall ensure that their competent auth- inform the Commission of any administrative or orities judicial decisions taken in their territory regarding disputes relating to Information Society services and practices, usages and customs relating to electronic commerce. 6. The rules governing cooperation between national auth- orities as referred to in paragraphs 2 to 5 shall be laid down by the Commission in accordance with the procedure set out in Article 23. 7. Member States may ask the Commission to convene urgently the committee referred to in Article 23 in order to examine difficulties over the application of Article 3(1). Article 20 Electronic media The Commission may take measures, in accordance with the procedure provided for in Article 23, to ensure the proper functioning of electronic media between Member States, as referred to in Articles 17(1) and 19(3) and (4). Article 21 Sanctions Member States shall determine the sanctions applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. The sanctions they provide for shall be effective, proportionate and dissuasive. Member States shall notify these measures to the Commission no later than the date specified in Article 25 and shall inform it of all subsequent amendments to those measures without delay. CHAPTER IV EXCLUSIONS FROM SCOPE AND DEROGATIONS Article 22 Exclusions and derogations 1. This Directive shall not apply to: (a) taxation; 29. 8. 2000 EN Official Journal of the European Communities C 248 E/93 INITIAL PROPOSAL AMENDED PROPOSAL (b) the field covered by Directives 95/46/EC of the European Parliament and of the Council (1); (b) the field 97/66/EC (2) of Council; covered by Directives 95/46/EC (1); the European Parliament and of and the (c) the activities of Information Society services referred to in Annex I. This list of activities may be amended by the Commission in accordance with the procedure laid down by Article 23. Unchanged Article 3 shall not apply to the fields referred to in 2. Annex II. By way of derogation from Article 3(2), and without 3. competent authorities of prejudice to court action, Member States may take restricting the freedom to provide an Information Society service as are consistent with Community law and with the following provisions: the such measures (a) the measures shall be: (i) necessary for one of the following reasons: - public policy, in particular minors, or the fight against any incitement hatred on grounds of nationality, the protection of to religion or race, sex, - the protection of public health, - public security, - consumer protection; (ii) taken against an Information Society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives, (iii) proportionate to those objectives; (b) prior to taking the measures in question, the Member State has: - asked the Member State referred to in Article 3(1) to take such take measures and the latter did not measures, or the latter were inadequate; - notified the Commission and the Member State in its service provider established of which the intention to take such measures is ___________ (1) OJ L 281, 23. 11. 1995, p. 31. ___________ (1) OJ L 281, 23. 11. 1995, p. 31. (2) OJ L 24, 30. 1. 1998, p. 1. C 248 E/94 EN Official Journal of the European Communities 29. 8. 2000 INITIAL PROPOSAL AMENDED PROPOSAL (c) Member States may lay down in their legislation that, in the case of urgency, the conditions stipulated in point (b) do not apply. Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State in which the service provider is established, indicating the reasons for which the Member State considers that there is urgency. (d) the Commission may decide on the compatibility of the a measures with Community law. Where the Member States shall refrain from negative decision, taking any proposed measures or shall be required to urgently put an end to the measures in question. adopts it CHAPTER V ADVISORY COMMITTEE AND FINAL PROVISIONS Article 23 Committee The Commission shall be assisted by a committee of an the advisory nature composed of the representatives of the Member States and chaired by the representative of Commission. a draft of the Commission shall submit to the The representative of taken. The committee committee shall deliver its opinion on the draft, within a time-limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote. the measures to be The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes. The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which its opinion has been taken into account. Article 24 Re-examination Not later than three years after the adoption of this Directive, and thereafter every two years, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, accompanied, where necessary, by proposals for adapting it to developments in the field of Information Society services. Not later than three years after the adoption of this 1. Directive, and thereafter every two years, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, containing statistical results and accompanied, where necessary, by proposals for adapting it to developments in the field of digital technologies and Information Society services. 29. 8. 2000 EN Official Journal of the European Communities C 248 E/95 INITIAL PROPOSAL AMENDED PROPOSAL The report shall examine the need for adaptation in the 2. light of technical and economic developments and emerging jurisprudence in the Member States. It should in particular analyse the need for proposals concerning the liability of providers of hyperlinks and location tool services, notification liability following the requirements and the attribution of taking down of content; Article 25 Implementation Unchanged Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within one year of its entry into force. They shall forthwith inform the Commission thereof. these provisions, When Member States adopt these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by Member States. Article 26 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Article 27 Addressees This Directive is addressed to the Member States. C 248 E/96 EN Official Journal of the European Communities 29. 8. 2000 ACTIVITIES EXCLUDED FROM THE SCOPE OF APPLICATION OF THE DIRECTIVE ANNEX I Information Society services’ activities, as referred to in Article 22(1), which are not covered by this Directive: - the activities of notaries; - the representation of a client and defence of his interests before the courts; - gambling activities, excluding those carried out for commercial communication purposes. ANNEX II DEROGATIONS FROM ARTICLE 3 As referred to in Article 22(2) in which Article 3 does not apply: - copyright, neighbouring rights, rights referred to in Directive 87/54/EEC (1) and Directive 96/9/EC (2) as well as industrial property rights; - the emission of electronic money by institutions in respect of which Member States have applied one of the derogations provided for in Article 7(1) of Directive. /. /EC (3); - Article 44 paragraph 2 of Directive 85/611/EEC (4); - Article 30 and Title IV of Directive 92/49/EEC (5), Title IV of Directive 92/96/EEC (6), Articles 7 and 8 of Directive 88/357/EEC (7) and Article 4 of Directive 90/619/EEC (8); - contractual obligations concerning consumer contracts; - unsolicited commercial communications by electronic mail, or by an equivalent individual communication. (1) Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products; OJ L 24, 27. 1. 1987, p. 36. (2) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases; OJ L 77, 27. 3. 1996, p. 20. (3) European Parliament and Council Directive. /. /EC of. (on the taking up and the prudential supervision of the business of electronic money instituions). (4) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertaking for collective investment in transferable securities (UCITS), OJ L 375, 31. 12. 1985, p. 3, as last amended by Directive 95/26/EC of the European Parliament and of the Council (OJ L 168, 18. 7. 1995, p. 7). (5) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) OJ L 228, 11. 8. 1992, p. 1, as amended by Directive 95/26/EC. (6) Council Directive 92/56/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life insurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), OJ L 360, 9. 12. 1992, p. 1, as amended by Directive 95/26/EC. (7) Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC, OJ L 172, 4. 7. 1988, p. 1, as last amended by Directive 92/49/EEC. (8) Council Directive of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life freedom to provide services and amending Directive assurance laying down provisions to facilitate the effective exercise of 79/267/EEC, OJ L 330, 29. 11. 1990, p. 50, as amended by Directive 92/96/EEC