Internal Market Information system pilot project for the E-commerce Directive notifications Training Brussels, 14th October 2013 European Commission Directorate General for Internal Market and Services Online and postal services unit 26/01/20
E-commerce Directive setting the scene 26/01/20 Objectives Directive on e-commerce 2000/31/ EC of 8 June 2000 (ECD) Remove obstacles to cross-border online services in the EU internal market (free movement of services)
Provide legal certainty to business and citizens Offer a flexible, technically neutral and balanced legal framework Enhancing competitiveness of European service providers 26/01/20 Free movement of information society services Obligation of "home" Member State = Member State of
establishment to ensure compliance with national rules falling within coordinated field Coordinated field: requirements concerning the taking up of the information society service activity requirements concerning the behaviour of information society service provider 26/01/20
Prohibition of restriction on free movement "Member States may not for reasons falling within coordinated field restrict the freedom to provide information society services" 26/01/20 Derogations to the free movement principle
Fields referred to in Annex of the E-commerce Directive (e.g. copyright; emissions of electronic money) Derogations in case of a given information society service activity if specific conditions met: Substantive conditions and Procedural conditions. 26/01/20
Derogations substantive conditions 26/01/20 Necessity of the measure(s) (Article 3(4)(a)(i) ECD) Exhaustive list of reasons: Public policy (e.g. prevention of criminal offences); Protection of public health;
Public security, including national security and defence; The protection of consumers, including investors. 26/01/20 Proportionate measure against a given information society service (Articles 3(4)(a) (ii) and 3(4)(a)(iii) ECD) Measures to be taken against a given information society service when:
The objectives in Article 3(4)(a)(i) would not be safeguarded; The service in question presents a serious and grave risk to these objectives. Measures have to be proportionate. 26/01/20 Derogations procedural requirements
26/01/20 Request to take measure (Article 3(4)(b) ECD first indent) "Host" Member State (= Member State where the service is provided to) has to request "home" Member State (=Member State of establishment) to take measure (MANDATORY requirement)
26/01/20 Notification of intention to take measure (Article 3(4)(b) ECD second indent) Only after the first step is actually taken (request to take measures) Notification to the Commission and "home" Member State Exception: urgent procedure (Article 3(5) ECD) Condition: notification has to be done in a shortest time
frame 26/01/20 Examination of the Commission (Article 3(6) ECD) Examination of the measures with the EU law In a shortest possible time When incompatibility identified request to "host" Member State: To refrain from taking the measure(s)
To put an end to the measure(s) in question 26/01/20 E-commerce Directive requirements in the IMI environment 26/01/20 Request to take measure
26/01/20 Request to take measures (I) In view of efficient procedure, especially where quick enforcement measures essential following data would be essential: identification of the service provider and the service (e.g. name; e-mail address; URL) national legal reference (=requesting Member State)
with text of the provision (comparability) 26/01/20 Request to take measure (II) Justification of the request = explanations of reasons (e.g. protection of consumers) Grounds for sending the request (e.g. complaint by a consumer/service recipient)? Indication of a time table to implement the request, if
applicable (free text) Encouraged to attach supporting documents (e.g. investigation report; decision to service provider) 26/01/20 Reply to the request (I) Preferably as soon as possible and within a timeframe requested Clear indication of the follow-up to the request whether:
Requested measures will be fully taken; Requested measures will be taken only partially; Requested measures will not be taken at all. 26/01/20 Reply to the request (II) Provide grounds for partial measure or no measure at all reference to existing national law and requirements under it; information that show that service provider complies with
these; if applicable, why the measure proposed is not deemed proportionate. 26/01/20 Notification of intended/taken measures 26/01/20
Notification Identification of the measures to be taken or have been taken (special attention if facts from the request to notification changed) Explanation of the grounds why the reply of the "home" Member State was not satisfactory and measures have to be taken Justification of urgency of procedure (if Article 3(5) ECD applied)
26/01/20 Assessment of the Commission (I) In order to produce complete assessment of the measure following information essential: Identified "problem" that needs enforcement intervention; Clear explanation of grounds for taking the measure and why "home" Member State rules not sufficient (includes also non-compliance); Explanation of the proportionality of the measure.
26/01/20 Assessment of the Commission (II) The maximum period envisaged by the system three (3) months not a legally binding deadline (no basis in ECD) Normally this assessment is much shorter (average 2 3 weeks), but longer period allows commenting or
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