ELECTRONIC COMMERCE DIRECTIVE
Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce” )
Official Journal n ° L 178 of 17/07/2000 p. 0001 – 0016
Directive 2000/31 / EC of the European Parliament and of the Council
of 8 June 2000
on certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce”)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 47 (2), Article 55 and Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the Opinion of the Economic and Social Committee (2),
acting in accordance with the procedure referred to in Article 251 of the Treaty (3),
(1) The European Union aims to establish ever closer links between the States and peoples of Europe and to ensure economic and social progress. In accordance with Article 14 (2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and the freedom of establishment are guaranteed. The development of information society services in the area without internal borders is an essential means of eliminating the barriers which divide the peoples of Europe.
(2) The development of electronic commerce in the information society offers important opportunities for employment in the Community, in particular in small and medium-sized enterprises. It will facilitate the economic growth of European companies as well as their investments in innovation, and it can also strengthen the competitiveness of European companies, as long as everyone can access the Internet.
(3) Community law and the characteristics of the Community legal order constitute an essential asset so that European citizens and operators can fully benefit, regardless of frontiers, of the possibilities offered by electronic commerce. The purpose of this Directive is therefore to ensure a high level of Community legal integration in order to establish a real area without internal frontiers for information society services.
(4) It is important to ensure that electronic commerce can benefit in its entirety from the internal market and therefore in the same way as for Council Directive 89/552 / EEC of 3 October 1989 aimed at the coordination of certain provisions laws, regulations and administrative procedures of the Member States relating to the pursuit of television broadcasting activities (4), a high level of community integration is obtained.
(5) The development of information society services in the Community is limited by a number of legal obstacles to the proper functioning of the internal market which are such as to make the exercise of the freedom of establishment less attractive. and the freedom to provide services. These obstacles lie in the divergence of laws as well as in the legal uncertainty of the national regimes applicable to these services. In the absence of coordination and adjustment of legislation in the areas concerned, obstacles may be justified with regard to the case law of the Court of Justice of the European Communities. Legal uncertainty exists as to the extent of control that Member States may exercise over services originating from another Member State.
(6) With regard to Community objectives, Articles 43 and 49 of the Treaty and secondary Community law, these obstacles should be removed by coordinating certain national laws and by clarifying certain legal concepts at Community level, in the measure necessary for the proper functioning of the internal market. This Directive, by dealing only with certain specific issues which raise problems for the internal market, is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty.
(7) In order to ensure legal certainty and consumer confidence, this Directive should establish a clear general framework to cover certain legal aspects of electronic commerce in the internal market.
(8) The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonize the field of criminal law as such.
(9) In many cases, the free movement of information society services may specifically reflect, in Community law, a more general principle, namely freedom of expression, enshrined in Article 10, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all member states. For this reason, the directives covering the provision of information society services must ensure that this activity can be exercised freely under the aforementioned article, subject only to the restrictions provided for in paragraph 2 of the same article and in Article 46 (1) of the Treaty. This Directive does not
(10) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum required to achieve the objective of the proper functioning of the internal market. Where it is necessary to intervene at Community level, and in order to guarantee an area which is genuinely without internal borders for electronic commerce, the directive must ensure a high level of protection of the objectives of general interest, in particular the protection of consumers. minors, human dignity, consumers and public health. In accordance with Article 152 of the Treaty, the protection of public health is an essential component of other Community policies.
(11) This Directive is without prejudice to the existing level of protection, in particular as regards the protection of public health and the interests of consumers, established by Community instruments. Among others, Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers (5) and Directive 97/7 / EC of the European Parliament and of the Council of 20 May 1997 on consumer protection in distance contracts (6) constitute a fundamental element for consumer protection in contractual matters. These directives are also applicable, in their entirety, to information society services. This same acquis communautaire, which is fully applicable to information society services, the future directive of the European Parliament and of the Council on the distance selling of financial services to consumers and Council Directive 92/28 / EEC of 31 March 1992 on the advertising of medicinal products (17). This Directive should be without prejudice to Directive 98/43 / EC of the European Parliament and 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 sponsorship of products of the tobacco (18) adopted within the framework of the internal market or directives relating to the protection of public health. This directive supplements the information requirements established by the aforementioned directives and in particular Directive 97/7 / EC.
(12) It is necessary to exclude from the scope of this Directive certain activities given that the freedom to provide services in these areas cannot at this stage be guaranteed under the Treaty or Community law. existing derivative. This exclusion must be without prejudice to any instruments which may prove necessary for the proper functioning of the internal market. Taxation, in particular value added tax on a large number of the services covered by this Directive, should be excluded from the scope of this Directive.
(13) This Directive is not intended to lay down rules on fiscal obligations nor to prejudge the development of
(14) The protection of individuals with regard to the processing of personal data is governed only by Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals regarding the processing of personal data and on the free movement of such data (19) and by Directive 97/66 / EC of the European Parliament and of the Council of 15 December 1997 on the processing of personal data and the protection of privacy in the telecommunications sector (20), which are fully applicable to information society services. These directives already establish a Community legal framework in the field of personal data and, consequently, do not is not necessary to address this issue in this Directive in order to ensure the proper functioning of the internal market, and in particular the free movement of personal data between Member States. The implementation and application of this Directive should be in accordance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communications and the liability of intermediaries. This Directive cannot prevent the anonymous use of open networks such as the Internet. application of this Directive should comply with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communications and the liability of intermediaries. This Directive cannot prevent the anonymous use of open networks such as the Internet. application of this Directive should comply with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communications and the liability of intermediaries. This Directive cannot prevent the anonymous use of open networks such as the Internet.
(15) The secrecy of communications is guaranteed by Article 5 of Directive 97/66 / EC. In accordance with this Directive, Member States must prohibit any kind of unlawful interception or the surveillance of such communications by others than senders and receivers, except where such activities are legally permitted.
(16) The exclusion of gambling activities from the scope of this Directive covers only games of chance, lotteries and betting transactions, which involve monetary stakes. It does not cover contests or promotional games the purpose of which is to encourage the sale of goods or services and for which payments, if made, are only used to acquire the goods or services being promoted.
(17) The definition of information society services already exists in Community law. It appears in Directive 98/34 / EC of the European Parliament and of the Council of 22 June 1998 providing for an information procedure in the field of technical standards and regulations and rules relating to information society services (21) and in Directive 98/84 / EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of conditional access services and conditional access services (22). This definition covers any service provided, normally for remuneration, remotely by means of electronic data processing equipment (including digital compression) and storage, at the individual request of a recipient of services.
(18) Information society services encompass a wide range of economic activities that take place online. These activities may consist, in particular, of selling goods online. Activities such as the delivery of goods as such or the provision of offline services are not covered. Information society services are not limited exclusively to services giving rise to the conclusion of online contracts, but, insofar as they represent an economic activity, they extend to services which are not remunerated. by those who receive it, such as services that provide online information or commercial communications, or those that provide tools for searching, accessing and retrieving data. Information society services also include services which consist of transmitting information through a communication network, providing access to a communication network or hosting information provided by a recipient of services. Television services within the meaning of Directive 89/552 / EEC and broadcasting are not information society services as they are not provided on individual request. In contrast, point-to-point services, such as video-on-demand services or the provision of commercial communications by electronic mail, constitute information society services. The use of electronic mail or other equivalent individual means of communication by natural persons acting for purposes outside their commercial or professional activities, including their use for the conclusion of contracts between such persons, is not a service of the information society. The contractual relationship between an employee and his employer is not an information society service. Activities which, by their nature, cannot be carried out remotely or electronically, such as the statutory audit of a company’s accounts or medical consultation requiring a physical examination of the patient, are not services of the company some information. including their use for the conclusion of contracts between these persons, is not an information society service. The contractual relationship between an employee and his employer is not an information society service. Activities which, by their nature, cannot be carried out remotely or electronically, such as the statutory audit of a company’s accounts or medical consultation requiring a physical examination of the patient, are not services of the company some information. including their use for the conclusion of contracts between these persons, is not an information society service. The contractual relationship between an employee and his employer is not an information society service. Activities which, by their nature, cannot be carried out remotely or electronically, such as the statutory audit of a company’s accounts or medical consultation requiring a physical examination of the patient, are not services of the company some information.
(19) The place of establishment of a provider should be determined in accordance with the case law of the Court of Justice, according to which the concept of establishment implies the actual pursuit of an economic activity by means of a stable establishment and For an undetermined time. This requirement is also fulfilled when a company is incorporated for a given period. The place of establishment of a company providing services through an Internet site is not the place where the technological installation supporting the site is located nor the place where its site is accessible, but the place where it carries out its economic activity. In the event that a provider has several places of establishment, it is important to determine from which place of establishment the service concerned is provided. In cases where it is difficult to determine, among several places of establishment, the one from which a given service is provided, the place of establishment is the one in which the provider has the center of its activities for that specific service.
(20) The definition of “recipient of a service” covers all types of use of information society services, both by persons providing information on open networks such as the Internet and by those who seek information on the Internet for private or professional reasons.
(21) The scope of the coordinated field is without prejudice to future Community harmonization concerning information society services and future legislation adopted at national level in accordance with Community law. The coordinated area only covers requirements for online activities, such as online information, online advertising, online shopping, online contracts, and does not cover legal requirements of Member States relating to goods such as safety standards, labeling obligations or product liability, nor Member States’ requirements for the delivery or transport of goods, including the distribution of medicinal products. The coordinated domain does not cover the
(22) The control of information society services must be carried out at the source of the activity in order to ensure effective protection of the objectives of general interest. For this, it is necessary to ensure that the competent authority ensures this protection not only for the citizens of its own country, but also for all the citizens of the Community. In order to improve mutual trust between the Member States, it is essential to clearly specify this responsibility of the Member State of origin of the services. In addition, in order to effectively ensure the freedom to provide services and legal certainty for providers and their recipients, these information society services must in principle be subject to the legal regime of the
(23) The purpose of this Directive is not to establish additional rules of private international law relating to conflict of laws or to deal with the jurisdiction of courts. The provisions of the applicable law designated by the rules of private international law must not restrict the freedom to provide information society services as provided for in this Directive.
(24) Within the framework of this Directive and notwithstanding the principle of source control of information society services, it appears legitimate, under the conditions provided for in this Directive, for Member States to take measures to limit the free movement of information society services.
(25) National courts, including civil courts, ruling on private law disputes may derogate from the freedom to provide information society services, in accordance with the conditions defined in this Directive.
(26) Member States may, in accordance with the conditions set out in this Directive, apply their national rules of criminal law and procedure to initiate all investigative and other measures necessary to detect and prosecute criminal offenses, without that there is a need to notify these measures to the Commission.
(27) This Directive, in conjunction with the future Directive of the European Parliament and of the Council on the distance selling of financial services to consumers, contributes to the creation of a legal framework for the online provision of financial services. This Directive is without prejudice to future initiatives in the field of financial services, in particular as regards the harmonization of rules of conduct in this field. The possibility for Member States, established by this Directive, to restrict, in certain circumstances, the freedom to provide information society services for the purposes of consumer protection also covers measures in the field of financial services, in particular measures to protect investors.
(28) The obligation on Member States not to subject access to the activity of an information society service provider to prior authorization does not concern the postal services covered by Directive 97 / 67 / EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market for Community postal services and the improvement of the quality of service (23), consisting in the physical delivery of a message printed by e-mail and does not affect voluntary accreditation schemes, in particular for providers of electronic signature and certification services.
(29) Commercial communications are essential for the financing of information society services and the development of a wide variety of new free services. In the interest of consumer protection and fairness of transactions, commercial communications, including discounts, offers, contests and promotional games, must comply with a number of transparency obligations. These obligations are without prejudice to Directive 97/7 / EC. This Directive should not affect existing Directives on commercial communications, in particular Directive 98/43 / EC.
(30) Sending unsolicited commercial communications by electronic mail may be inconvenient for consumers and providers of information society services and may disrupt the proper functioning of interactive networks. The issue of recipient consent for certain forms of unsolicited commercial communication is not addressed in this Directive, but has already been addressed, in particular, in Directive 97/7 / EC and in Directive 97/66 / EC . In Member States which allow unsolicited commercial communications by electronic mail, the establishment of appropriate filtering devices by businesses should be encouraged and facilitated. It is also necessary, in any event, that unsolicited commercial communications be clearly identifiable as such in order to improve transparency and facilitate the operation of such systems put in place by companies. Sending unsolicited commercial communications by e-mail does not incur additional costs for the recipient.
(31) Member States which allow unsolicited commercial communications to be sent by e-mail by providers established in their territory without the prior consent of the recipient, should ensure that providers regularly consult the opt-out registers “where natural persons who do not wish to receive this type of commercial communications can register, and respect the wishes of these persons.
(32) In order to remove the obstacles to the development of cross-border services in the Community that members of regulated professions could offer on the Internet, compliance with the professional rules laid down to protect in particular the consumer or public health must be guaranteed. community level. Codes of conduct at Community level are the best instrument for determining the ethical rules applicable to commercial communication. Their development or, where appropriate, their adaptation, should be encouraged, without prejudice to the autonomy of professional bodies and associations.
(33) This Directive complements Community and national law relating to regulated professions by maintaining a coherent set of rules applicable in this field.
(34) Each Member State should adjust its legislation which contains requirements, in particular as to form, which may hamper the use of electronic contracts. The examination of the legislation requiring this adjustment should be carried out systematically and cover all the stages and acts necessary for the contractual process, including the archiving of the contract. The result of this adjustment should be to make contracts concluded electronically feasible. The legal effect of electronic signatures is the subject of Directive 1999/93 / EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (24), the acknowledgment of receipt by a service provider may consist of the online provision of a paid service.
(35) This Directive does not affect the possibility for Member States to maintain or establish for contracts general or specific legal requirements which can be satisfied by electronic means, in particular electronic signature security requirements .
(36) Member States may maintain restrictions on the use of electronic contracts with regard to contracts for which the law requires the intervention of courts, public authorities or professions exercising public authority. This possibility also covers contracts requiring the intervention of courts, public authorities or professions exercising public authority in order to produce effects with regard to third parties, as well as contracts requiring legal certification or attestation by a third party. notary.
(37) The obligation on Member States to remove obstacles to the use of electronic contracts relates only to obstacles resulting from legal requirements and not to practical obstacles resulting from the inability to use the electronic contracts. electronic means in some cases.
(38) The obligation on Member States to remove obstacles to the use of electronic contracts is implemented in compliance with the legal requirements for contracts enshrined in Community law.
(39) The exceptions to the provisions relating to contracts concluded exclusively by electronic mail or by means of equivalent individual communications provided for in this Directive, as regards the information to be provided and the placing of an order, cannot have as a consequence consequence of allowing circumvention of these provisions by information society service providers.
(40) The existing and emerging divergences between the laws and case-law of the Member States in the area of the liability of service providers acting as intermediaries prevent the proper functioning of the internal market, in particular by hampering the development of cross-border services and by producing distortions of competition. Service providers have, in some cases, a duty to act to prevent or stop illegal activities. This Directive must constitute the adequate basis for the development of rapid and reliable mechanisms to remove unlawful information and make access to it impossible. Such mechanisms should be developed on the basis of voluntary agreements negotiated between all parties concerned and encouraged by Member States. It is in the interest of all parties involved in the provision of information society services to adopt and apply such mechanisms. The provisions of this Directive on liability must not stand in the way of the development and effective implementation, by the various parties concerned, of technical protection and identification systems as well as of technical monitoring instruments made possible by digital techniques, in compliance with the limits established by directives 95/46 / CE and 97/66 / CE. interest of all parties involved in the provision of information society services to adopt and apply such mechanisms. The provisions of this Directive on liability must not stand in the way of the development and effective implementation, by the various parties concerned, of technical protection and identification systems as well as of technical monitoring instruments made possible by digital techniques, in compliance with the limits established by directives 95/46 / CE and 97/66 / CE. interest of all parties involved in the provision of information society services to adopt and apply such mechanisms. The provisions of this Directive on liability must not stand in the way of the development and effective implementation, by the various parties concerned, of technical protection and identification systems as well as of technical monitoring instruments made possible by digital techniques, in compliance with the limits established by directives 95/46 / CE and 97/66 / CE.
(41) This Directive strikes a balance between the different interests involved and establishes principles which can serve as a basis for standards and agreements adopted by undertakings.
(42) The liability derogations provided for in this Directive only cover cases where the activity of the service provider in the context of the information society is limited to the technical process of operating and providing the information. access to a communication network on which information provided by third parties is transmitted or stored temporarily, for the sole purpose of improving the efficiency of transmission. This activity is of a purely technical, automatic and passive nature, which implies that the information society service provider has no knowledge or control of the information transmitted or stored.
(43) A service provider may benefit from exemptions for “simple transport” and for the form of storage known as “caching” when he is not involved in any way in the information transmitted. This supposes, among other things, that it does not modify the information it transmits. This requirement does not cover manipulations of a technical nature which take place during the transmission, as these do not alter the integrity of the information contained in the transmission.
(44) A service provider who deliberately collaborates with one of the recipients of his service in order to engage in illegal activities goes beyond the activities of “mere transport” or “caching” and, therefore,
(45) The limitations of liability of intermediary service providers provided for in this Directive are without prejudice to the possibility of different types of injunctions. Such injunctions may take the form of, inter alia, decisions of courts or administrative authorities requiring that any violation be ceased or any violation prevented, including by removing the unlawful information or rendering the access to the latter impossible.
(46) In order to benefit from a limitation of liability, the provider of an information society service consisting in the storage of information must, as soon as he actually becomes aware or is aware of the illegal nature of the activities, act promptly to remove the information concerned or make it impossible to access it. Their withdrawal or their access should be made impossible in accordance with the principle of freedom of expression and the procedures established for this purpose at national level. This Directive shall not affect the possibility for Member States to define specific requirements which must be met promptly before withdrawing information or making access to it impossible.
(47) The prohibition on Member States imposing a monitoring obligation on service providers only applies to obligations of a general nature. It does not concern the supervisory obligations applicable to a specific case and, in particular, it does not preclude decisions by national authorities taken in accordance with national law.
(48) This Directive in no way affects the possibility for Member States to require service providers who store information provided by recipients of their services to act with the precautions that can reasonably be expected. expected from them and which are defined in national legislation, in order to detect and prevent certain types of illegal activity.
(49) Member States and the Commission should encourage the development of codes of conduct. This does not affect the voluntary nature of these codes and the possibility for interested parties to decide freely whether or not to adhere to these codes.
(50) It is important that the proposal for a Directive on the harmonization of certain aspects of copyright and related rights in the information society and this Directive enter into force at the same time in order to establish a framework clear regulations regarding the liability of intermediaries in the event of infringement of copyright and related rights at Community level.
(51) It should be up to each Member State, where appropriate, to amend any legislation which may hamper the use of electronic out-of-court dispute resolution mechanisms. The result of this modification must be to make it really and effectively possible, in law and in practice, for such mechanisms to function, including in cross-border situations.
(52) The effective exercise of the freedoms of the internal market requires guaranteeing victims effective access to the settlement of disputes. The damage that can occur in the context of information society services is characterized both by its speed and its geographic extent. Because of this specificity and the need to ensure that national authorities do not call into question the trust they must place in each other, this Directive calls on Member States to ensure that appropriate judicial remedies are available. available. Member States should assess the need to provide access to court proceedings by appropriate electronic means.
(53) Directive 98/27 / EC, applicable to information society services, provides for a mechanism for injunctions aimed at protecting the collective interests of consumers. This mechanism will contribute to the free movement of information society services by ensuring a high level of consumer protection.
(54) The sanctions provided for under this Directive are without prejudice to any other sanction or remedy provided for by national law. Member States are not required to provide for criminal penalties for infringement of national provisions adopted pursuant to this Directive.
(55) This Directive is without prejudice to the law applicable to contractual obligations relating to contracts concluded by consumers. Consequently, this Directive cannot have the effect of depriving consumers of the protection afforded to them by the mandatory rules relating to contractual obligations provided for by the law of the Member State in which they have their habitual residence.
(56) As regards the derogation provided for in this Directive for contractual obligations in contracts concluded by consumers, these should be interpreted as including information on the essential elements of the content of the contract, including the rights of the consumer. consumer, having a decisive influence on the decision to contract.
(57) In accordance with settled case-law of the Court of Justice, a Member State retains the right to take measures against a service provider established in another Member State, but whose activity is wholly or mainly oriented towards the territory of the first Member State, when the choice of that establishment was made with a view to avoiding the rules which would be applicable to that provider if he had established himself in the territory of the first Member State.
(58) This Directive should not apply to services provided by providers established in a third country. In view of the global dimension of the electronic service, however, it is necessary to ensure the consistency of Community rules with international rules. This directive is without prejudice to the results of the discussions in progress on legal aspects in international organizations (among others, WTO, OECD, Cnudci).
(59) Despite the global nature of electronic communications, coordination at European Union level of national regulatory measures is necessary in order to avoid fragmentation of the internal market and to establish an appropriate European regulatory framework. This coordination should also contribute to the establishment of a common and strong negotiating position in international forums.
(60) To allow the unhindered development of electronic commerce, the legal framework must be clear and simple, predictable and consistent with the rules applicable at international level, so that it does not undermine the competitiveness of European industry and that it does not hinder innovation in this sector.
(61) If the market is to really operate by electronic means in a globalized context, the European Union and large non-European groups need to work together to make their laws and procedures compatible.
(62) Cooperation with third countries should be strengthened in the field of electronic commerce, in particular with candidate countries, developing countries and other trading partners of the European Union.
(63) The adoption of this Directive should not prevent Member States from taking into account the various social, societal and cultural implications inherent in the advent of the information society. In particular, it should not undermine the measures intended to achieve social, cultural and democratic objectives that the Member States could adopt, in accordance with Community law, taking into account their linguistic diversity, national and regional specificities as well as their cultural heritage, and to ensure and maintain public access to the widest possible range of information society services. The development of the information society must in any event ensure the
(64) Electronic communication is an excellent means for Member States to provide a public service in the cultural, educational and linguistic fields.
(65) The Council, in its resolution of 19 January 1999 on the consumerist dimension of the information society (25), stressed that consumer protection deserved particular attention in the context of it. The Commission will study the extent to which existing consumer protection rules provide insufficient protection with regard to the information society and will identify, where appropriate, gaps in this legislation and areas where additional measures could be taken. prove necessary. If necessary, the Commission should make additional specific proposals aimed at filling the gaps it has thus identified,
HAS ADOPTED THIS DIRECTIVE:
Codes of conduct
1. Member States and the Commission shall encourage: (
a) the drawing up, by associations or organizations of businesses, professionals or consumers, of codes of conduct at Community level, intended to contribute to the correct application Articles 5 to 15;
b) the voluntary transmission to the Commission of draft codes of conduct at national or Community level;
(c) electronic accessibility of codes of conduct in Community languages;
(d) the communication to the Member States and to the Commission, by business, professional or consumer associations or organizations, of their assessments of the application of their codes of conduct and of their impact on practices, practices or customs relating to electronic commerce;
e) the establishment of codes of conduct with regard to the protection of minors and human dignity.
2. Member States and the Commission shall encourage associations or organizations representing consumers to participate in the development and application of codes of conduct affecting their interests and drawn up in accordance with paragraph 1 (a). . Where appropriate, associations representing people with visual impairments and, in general, people with disabilities should be consulted in order to take account of their specific needs.
Alternative dispute resolution
1. Member States shall ensure that, in the event of a disagreement between an information society service provider and the recipient of the service, their legislation does not preclude the use of out-of-court settlement mechanisms for settlement. disputes, available in national law, including by appropriate electronic means.
2. Member States shall encourage out-of-court settlement bodies, in particular with regard to consumer disputes, to operate in such a way as to provide appropriate procedural guarantees for the parties concerned.
3. Member States shall encourage out-of-court dispute resolution bodies to communicate to the Commission the important decisions they take in the field of information society services as well as any other information on practices, customs or customs. relating to electronic commerce.
remedies 1. Member States shall ensure that the judicial remedies available in national law relating to the activities of information society services allow the rapid adoption of measures, including by summary procedure, aimed at to put an end to any alleged violation and to prevent any further harm to the interests concerned.
2. The Annex to Directive 98/27 / EC is supplemented by the following text:
“11. Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 relating to certain aspects of information society services, and in particular electronic commerce, in the internal market (‘Directive on electronic commerce ‘) (OJ L 178, 17.7.2000, p. 1). ”
1. Member States shall have sufficient control and investigation resources necessary for the effective implementation of this Directive and shall ensure that service providers provide them with the required information.
2. Member States shall cooperate with other Member States; to this end, they shall designate one or more contact points, the details of which they shall communicate to the other Member States and to the Commission.
3. Member States shall provide as soon as possible and in accordance with national law the assistance and information requested by the other Member States or by the Commission, including by appropriate electronic means.
4. Member States shall establish contact points which are at least electronically accessible to which recipients of services and service providers can contact in order to: (
a) obtain general information on their rights and obligations in contractual matters as well as on complaints and redress procedures available in the event of disputes, including practical aspects related to the use of these procedures;
b) obtain the contact details of the authorities, associations or organizations from which they can obtain further information or practical assistance.
5. Member States shall encourage the communication to the Commission of important administrative and judicial decisions taken in their territory with regard to disputes relating to information society services as well as to practices, customs or customs relating to electronic commerce. . The Commission shall communicate these decisions to the other Member States.
Member States shall determine the system of penalties applicable to infringements of the national provisions adopted pursuant to this Directive and take all measures necessary to ensure their implementation. The penalties provided for must be effective, proportionate and dissuasive.
1. Before 17 July 2003 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 appropriate, by proposals aimed at adapt it to legal, technical and economic developments in the field of information society services, in particular as regards crime prevention, the protection of minors, the protection of consumers and the proper functioning of the indoor market.
2. This report, examining the need to adapt this Directive, analyzes in particular the need to present proposals relating to the liability of providers of hypertext links and search engine services, notification procedures and withdrawal (notice and take down) and the attribution of responsibility after the withdrawal of the content. The report also analyzes the need to lay down additional conditions for the exemption from liability, provided for in Articles 12 and 13, in view of the development of techniques, and the possibility of applying the principles of the internal market to the shipment by unsolicited commercial communications email.
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 17 January 2002. They shall forthwith inform the Commission thereof.
2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Luxembourg, 8 June 2000.
For the European Parliament
For the Council
G. d’Oliveira Martins
(1) OJ C 30, 5.2.1999, p. 4.
(2) OJ C 169, 16.6.1999, p. 36.
(3) Opinion of the European Parliament of 6 May 1999 (OJ C 279, 1.10.1999, p. 389), Council common position of 28 February 2000 (OJ C 128, 8.5.2000, p. 32) and decision of the European Parliament of 4 May 2000 (not yet published in the Official Journal).
(4) OJ L 298, 17.10.1989, p. 23. Directive amended by Directive 97/36 / EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).
(5) OJ L 95, 21.4.1993, p. 29.
(6) OJ L 144, 4.6.1997, p. 19.
(7) OJ L 250, 19.9.1984, p. 17. Directive amended by Directive 97/55 / EC of the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18).
(8) OJ L 42, 12.2.1987, p. 48. Directive as last amended by Directive 98/7 / EC of the European Parliament and of the Council (OJ L 101, 1.4.1998, p. 17).
(9) OJ L 141, 11.6.1993, p. 27. Directive as last amended by Directive 97/9 / EC of the European Parliament and of the Council (OJ L 84, 26.3.1997, p. 22).
(10) OJ L 158, 23.6.1990, p. 59.
(11) OJ L 80, 18.3.1998, p. 27.
(12) OJ L 228, 11.8.1992, p. 24.
(13) OJ L 280, 29.10.1994, p. 83.
(14) OJ L 166, 11.6.1998, p. 51. Directive amended by Directive 1999/44 / EC (OJ L 171, 7.7.1999, p. 12).
(15) OJ L 210, 7.8.1985, p. 29. Directive amended by Directive 1999/34 / EC (OJ L 141, 4.6.1999, p. 20).
(16) OJ L 171, 7.7.1999, p. 12.
(17) OJ L 113, 30.4.1992, p. 13.
(18) OJ L 213, 30.7.1998, p. 9.
(19) OJ L 281, 28.11.1995, p. 31.
(20) OJ L 24, 30.1.1998, p. 1.
(21) OJ L 204, 21.7.1998, p. 37. Directive amended by Directive 98/48 / EC (OJ L 217, 5.8.1998, p. 18).
(22) OJ L 320, 28.11.1998, p. 54.
(23) OJ L 15, 21.1.1998, p. 14.
(24) OJ L 13, 19.1.2000, p. 12.
(25) OJ C 23, 28.1.1999, p. 1.
(26) OJ L 19, 24.1.1989, p. 16.
(27) OJ L 209, 24.7.1992, p. 25. Directive as last amended by Directive 97/38 / EC (OJ L 184, 12.7.1997, p. 31).
(28) OJ L 117, 7.5.1997, p. 15.
(29) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive 1999/85 / EC (OJ L 277, 28.10.1999, p. 34).
EXEMPTIONS FROM ARTICLE 3
As provided for in Article 3, paragraph 3, paragraphs 1 and 2 of Article 3 do not apply in the following cases:
– copyright, neighboring rights, rights covered by Directive 87/54 / EEC (1) and by Directive 96/9 / EC (2) as well as industrial property rights,
– the issuance of electronic money by institutions for which the Member States have applied one of the derogations provided for in Article 8 (1) of Directive 2000/46 / EC (3),
– Article 44 (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),
– the freedom of the parties to choose the law applicable to their contract,
– contractual obligations concerning contracts concluded by consumers,
– the formal validity of contracts creating or transferring rights in real estate, when these contracts are subject to imperative formal requirements according to the law of the Member State in which the real estate is located,
– the authorization of unsolicited commercial communications by electronic mail.
(1) OJ L 24, 27.1.1987, p. 36.
(2) OJ L 77, 27.3.1996, p. 20.
(3) Not yet published in the Official Journal.
(4) OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 95/26 / EC (OJ L 168, 18.7.1995, p. 7).
(5) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 95/26 / EC.
(6) OJ L 360, 9.12.1992, p. 1. Directive as last amended by Directive 95/26 / EC.
(7) OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 92/49 / EEC.
(8) OJ L 330, 29.11.1990, p. 50. Directive as last amended by Directive 92/96 / EEC.