Electronic commerce amounts to less than 2 per cent of total retail service sales in the European Union. Because of this, the European Commission launched a public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC), aimed at identifying obstacles to the development of e-commerce and evaluating the impact of the E-commerce Directive. Taking into account the responses received, the Commission intends to issue a Communication on E-commerce in the first half of 2011.
The aim of the E-commerce Directive was to assist in establishing providers of information society services (any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) and the cross-border provision of online services in the internal market. The Commission aims to study the reasons for limited take-up of electronic commerce, seeking views on
- The level of development of information society services.
- Issues concerning derogations from the internal market clause.
- Contractual restrictions on cross-border online sales.
- Cross-border online commercial communications, in particular for the regulated professions. The development of online press services.
- The interpretation of the provisions concerning the liability of intermediary information society service providers.
- The development of online pharmacy services.
- The resolution of online disputes.
THE DEROGATION PROVISION
The country of origin principle provides that each Member State must ensure that the information society services provided by a service provider established on its territory complies with the national provisions applicable in the Member State in question, even if the services are provided in another Member State. Under Article 3(4) Member States may, under certain conditions, derogate from this principle to protect interests—such as public policy, health and safety—or consumers. The Commission seeks views on whether derogation has led to discrimination or restricted the supply of professional services and whether the exemption covering contractual obligations relating to contracts concluded by consumers is still useful, in light of the Community and national law protecting consumers that now exists. The Commission also asks whether the purchase and sale of copyright-protected works subject to territorial rights and the territorial distribution of goods protected by industrial property rights, encourages or impedes cross-border trade in information society services.
ONLINE PRESS SERVICES
The Commission asks whether regulation of advertising contracts requires an adaptation in the virtual world and whether it is necessary to ensure more transparency on the origin of the contents presented by news aggregators.
The Commission also aims to assess the inconsistencies in interpretation and application of the provisions on intermediary liability in Articles 12 to 14. In particular, the consultation seeks feedback on the efficacy of notice-and-take-down, and the application of the liability regimes to hyperlinks and search engines, as well as to Web 2.0 and cloud computing.
After the Communication, the Commission will assess possible changes to the Directive. These may include dropping the business-to-consumer contractual obligations exception to the country of origin principle and clarification of the circumstances in which search engines will be entitled to safe harbour protection. There is also likely to be debate over the need to prescribe a notice-and-take-down procedure.