Lecture on

1
Lecture on EU eCommerce Law

• Prof. Manuel David Masseno
• - Beja Polytechnic, Portugal -
• Isik University 06/09/2007
• LEGIS Intensive Programme

2
The Regulatory Framework

• The Constitutional Foundations
• According to the EC Treaty, the Economic
  Constitution of is based on the principle of an
  open market economy with free competition (Art.
  4.1 and 2, Art. 98)
• The Community shall have as its task, by
  establishing a common market and an economic and
  monetary union and by implementing common
  policies or activities referred to in Articles 3
  and 4, to promote throughout the Community a
  harmonious, balanced and sustainable development
  of economic activities, a high level of
  employment and of social protection, equality
  between men and women, sustainable and
  non-inflationary growth, a high degree of
  competitiveness and convergence of economic
  performance, a high level of protection and
  improvement of the quality of the environment,
  the raising of the standard of living and quality
  of life, and economic and social cohesion and
  solidarity among Member States. (Art. 2)

3
The Regulatory Framework

• an internal market characterised by the
  abolition, as between Member States, of obstacles
  to the free movement of goods, persons, services
  and capital (Art. 3.1 c), plus
• Art. 23 Free Movement of Goods
• Art. 43 Right of Establishment
• Art. 49 Freedom to Provide Services
• Combined with a strong Consumer Protection (Art.
  153)
• 1. In order to promote the interests of
  consumers and to ensure a high level of consumer
  protection, the Community shall contribute to
  protecting the health, safety and economic
  interests of consumers, as well as to promoting
  their right to information, education and to
  organise themselves in order to safeguard their
  interests.
• 2. Consumer protection requirements shall be
  taken into account in defining and implementing
  other Community policies and activities.

4
The Regulatory Framework

• The Charter of Fundamental Rights of the European
  Union (Stated at Nice the 7th December 2000)
• Art. 16 (Freedom to conduct a business) The
  freedom to conduct a business in accordance with
  Community law and national laws and practices is
  recognised.
• Art. 17.1 (Right to property) Everyone has the
  right to own, use, dispose of and bequeath his or
  her lawfully acquired possessions.
• But also, Art. 38 (Consumer protection) Union
  policies shall ensure a high level of consumer
  protection.
• Art. 6.1 of the EU Treaty The Union is founded
  on the principles of liberty, democracy, respect
  for human rights and fundamental freedoms, and
  the rule of law, principles which are common to
  the Member States.

5
The Regulatory Framework

• Markets as legal creations
• The Internal Market as an area without
  internal frontiers in which the free movement of
  goods, persons, services and capital is ensured
  in accordance with the provisions of this Treaty
  EC Treaty (Art. 14.2)
• The reasons for the EC initiatives regarding
  eCommerce
• An European Initiative in Electronic Commerce -
  Communication to the European Parliament, the
  Council, the Economic and Social Committee and
  the Committee of the Regions, the 18th April 1997
  COM(97) 157 final
• Council Resolution of 19 January 1999 on the
  Consumer Dimension of the Information Society
• Also the Report from the Commission to the
  European Parliament, the Council and the European
  Economic and Social Committee - First Report on
  the application of Directive 2000/31/EC of the
  European Parliament and of the Council of 8 June
  2000 on certain legal aspects of information
  society services, in particular electronic
  commerce, in the Internal Market (Directive on
  electronic commerce), 21/11/2003 COM/2003/0702
  final

6
The Regulatory Framework

• A dangerousalternative mutual recognition
  and competition among national Legal Orders
• The Cassis de Dijon ruling (Case C-120/78,
  Rewe-Zentral AG v. Bundesmonopolverwaltung für
  Branntwein, 1979)
• there is therefore no valid reason why,
  provided that they have been lawfully produced
  and marketed in one of the Member States,
  alcoholic beverages should not be introduced into
  any other Member State.
• Obstacles to movement within the Community
  resulting from disparities between the national
  laws relating to the marketing of the products in
  question must be accepted in so far as those
  provisions may be recognized as being necessary
  in order to satisfy mandatory requirements
  relating in particular to the effectiveness of
  fiscal supervision, the protection of public
  health, the fairness of commercial transactions
  and the defense of the consumer.

7
The Regulatory Framework

• The Sources of Law
• Directive 2000/31/EC of the European Parliament
  and of the Council of 8 June 2000 on certain
  legal aspects of information society services, in
  particular electronic commerce, in the Internal
  Market ('Directive on electronic commerce')
• Directive 97/7/EC of the European Parliament and
  of the Council of 20 May 1997 on the protection
  of consumers in respect of distance contracts
• Council Directive 93/13/EEC of 5 April 1993 on
  unfair terms in consumer contracts
• Directive 2005/29/EC of the European Parliament
  and of the Council of 11 May 2005 concerning
  unfair business-to-consumer commercial practices
  in the internal market

8
The Regulatory Framework

• Directive 1999/93/EC of the European Parliament
  and of the Council of 13 December 1999 on a
  Community framework for electronic signatures
• Directive 95/46/EC of the European Parliament and
  of the Council of 24 October 1995 on the
  protection of individuals with regard to the
  processing of personal data and on the free
  movement of such data
• Directive 2002/58/EC of the European Parliament
  and of the Council of 12 July 2002 concerning the
  processing of personal data and the protection of
  privacy in the electronic communications sector
  (Directive on privacy and electronic
  communications)
• And, Directive 2002/65/EC of the European
  Parliament and of the Council of 23 September
  2002 concerning the distance marketing of
  consumer financial services

9
The Regulatory Framework

• Several of these Directives assign a relevant
  role to the Self-Regulation of Operators, by the
  way of Codes of Conduct
• Directive on electronic commerce, Art. 16
• Directive on data protection, Art. 27
• Unfair Commercial Practices Directive, Art. 10
• Recommendation of the European Commission of 7
  April 1992, concerning distance selling
• The Eurochambres Code
• The European Advertising Standards Alliance

10
The Regulatory Framework

• The Direct Regulation of the Market.
• In every Market, we find regulation on
• Market Operators Professional and Consumers
• Tradable Goods
• Conflicts Resolution

11
The Regulatory Framework

• The Professionals the so called Services
  providers ( any natural or legal person
  providing an information society service, Art. 2
  b) of the Directive on electronic commerce)
• free movement of information society
  services between the Member States (Art. 1.3 and
  Art. 3.2)
• Principle excluding prior authorisation to
  the taking up and pursuit of the activity of an
  information society service provider (Art.
  4.1)
• Home country control (Art. 3.1)
• Only to EU Operators (Art. 3.2)

12
The Regulatory Framework

• The Consumers ( any natural person who is
  acting for purposes which are outside his or her
  trade, business or profession, Art. 2 e)
• An high level of protection, however in so
  far as this does not restrict the freedom to
  provide information society services. (Art. 1.3)
• Linked to the Home country control principle
  (Art. 3.1) and mutual recognition Art. (3.2.),
  since this is a minimum level of protection
  Directive (Art. 34.5 and 6)
• Exceptions present at Art. 3.3 and 4, in the
  latter case following the ECJ Cassis de Dijon
  Doctrine
• Each Member State shall ensure that the
  information society services provided by a
  service provider established on its territory
  comply with the national provisions applicable in
  the Member State in question which fall within
  the coordinated field. (Art. 31.)
• coordinated field requirements laid down in
  Member States' legal systems applicable to
  information society service providers or
  information society services, regardless of
  whether they are of a general nature or
  specifically designed for them. (Art. 2 h)

13
The Regulatory Framework

• Art. 3.4 Member States may take measures to
  derogate from paragraph 2 in respect of a given
  information society service if the following
  conditions are fulfilled
• (a) the measures shall be
• (i) necessary for one of the following reasons
• - public policy, in particular the prevention,
  investigation, detection and prosecution of
  criminal offences, including the protection of
  minors and the fight against any incitement to
  hatred on grounds of race, sex, religion or
  nationality, and violations of human dignity
  concerning individual persons,
• - the protection of public health,
• - public security, including the safeguarding of
  national security and defence,
• - the protection of consumers, including
  investors

14
The Regulatory Framework

• (ii) taken against a given 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) before taking the measures in question and
  without prejudice to court proceedings, including
  preliminary proceedings and acts carried out in
  the framework of a criminal investigation, the
  Member State has
• - asked the Member State referred to in
  paragraph 1 to take measures and the latter did
  not take such measures, or they were inadequate,
• - notified the Commission and the Member State
  referred to in paragraph 1 of its intention to
  take such measures.

15
The Regulatory Framework

• Art. 3.5 Member States may, in the case of
  urgency, derogate from the conditions stipulated
  in paragraph 4(b). Where this is the case, the
  measures shall be notified in the shortest
  possible time to the Commission and to the Member
  State referred to in paragraph 1, indicating the
  reasons for which the Member State considers that
  there is urgency.
• Art. 3.6. Without prejudice to the Member
  State's possibility of proceeding with the
  measures in question, the Commission shall
  examine the compatibility of the notified
  measures with Community law in the shortest
  possible time where it comes to the conclusion
  that the measure is incompatible with Community
  law, the Commission shall ask the Member State in
  question to refrain from taking any proposed
  measures or urgently to put an end to the
  measures in question.

16
The Regulatory Framework

• The Goods, or the information society services
  (Art. 2 a) that receives the definition present
  at Art. 1.2 of Directive 98/34/EC laying down a
  procedure for the provision of information in the
  field of technical standards and regulations as
  amended by Art. 1.2 a) of Directive 98/48/EC of
  the European Parliament and of the Council of 20
  July 1998 any service normally provided for
  remuneration, at a distance, by electronic means
  and at the individual request of a recipient of
  services
• As a general rule, all are included (Art. 1.1)
• Some are excluded for Public Policy reasons (Art.
  1.5)
• Legal professional services
• Gambling, including lotteries and betting
  transactions, but excluding promotional
  competitions or games (Art. 6 d)

17
The Regulatory Framework

• Others may be excluded by Member-States (Art.
  9.2)
• (a) contracts that create or transfer rights in
  real estate, except for rental rights
• (b) contracts requiring by law the involvement
  of courts, public authorities or professions
  exercising public authority
• (c) contracts of suretyship granted and on
  collateral securities furnished by persons acting
  for purposes outside their trade, business or
  profession
• (d) contracts governed by family law or by the
  law of succession.
• This exclusion has to be justified every 5 years
  to the EC Commission (Art. 9.3)

18
The Regulatory Framework

• Conflicts Resolution
• Guaranteed access to Out-of-court dispute
  settlement, including appropriate electronic
  means. (Art. 17)
• Rapid adoption of measures in Courts (Art. 18.1)
• Member States shall ensure that court actions
  available under national law concerning
  information society services' activities allow
  for the rapid adoption of measures, including
  interim measures, designed to terminate any
  alleged infringement and to prevent any further
  impairment of the interests involved

19
The Regulatory Framework

• Indirect Regulation
• Conceiving Markets as decentralized Information
  Systems that do not achieve spontaneously an
  Optimum Allocation of the Resources
• Regarding the Principle of Transparency since
  information has to be certain, complete, true and
  costless
• As well as the Principles of Informational
  Symmetry, Proportionality, Subsidiarity,
  Liability, Effectiveness and Instrumentality

20
The Regulatory Framework

• Principle of Symmetry all parts of a transaction
  should have the same information
• Principle of Proportionality the information
  provided should be proportionate with the actual
  trust and credit
• Principle of Subsidiarity State should regulate
  Markets in order to overcame information gaps
• Principle of Liability the liability standards
  should be linked to the levels of transparency
• Principle of Effectiveness since the
  transparency standards have to be dully enforced
• Principle of Instrumentality transparency is
  only an instrument to achieve a greater
  protection of the weaker player, among others
  (Directive 2005/29/EC of the European Parliament
  and of the Council of 11 May 2005 concerning
  unfair business-to-consumer commercial practices
  in the internal market)

21
The Regulatory Framework

• As stated by Art. 4.2 of Directive 97/7/EC The
  information referred to in paragraph 1, the
  commercial purpose of which must be made clear,
  shall be provided in a clear and comprehensible
  manner in any way appropriate to the means of
  distance communication used, with due regard, in
  particular, to the principles of good faith in
  commercial transactions, and the principles
  governing the protection of those who are unable,
  pursuant to the legislation of the Member States,
  to give their consent, such as minors.

22
The Regulatory Framework

• Even more clearly than in National Laws, EC
  Market Regulation is closely linked to the
  liberty of contract
• European Contract Law is a result of the
  harmonization intents to put in action the EC
  Treaty Freedoms, is accordance with the high
  level of protection guaranteed to consumers

23
Commercial Communication and Spamming

• Commercial Communication in a Broad Sense
• The Principle of Transparency in action
• The Provider has to render accessible
• His identity, including his address (Art. 4.1 a)
  of Directive 97/7/EC and Art. 5.1 b) and c)
• Authorisations and registrations involved (Art.
  5. 1 d) and e) in special for regulated
  professions (Art. 5.1. e)
• The contractual terms and conditions (Art. 10.3)
• The price and associated costs and charges (Art.
  4.1 c) and d) of Directive 97/7/EC and Art. 5.2)

24
Commercial Communication and Spamming

• Technical aspects involved, including the
  technical means for identifying and correcting
  input errors prior to the placing of the order
  (Art. 10.1)
• Procedural arrangements, e.g. for payment,
  delivery or performance (Art. 4.1 e) of Directive
  97/7/EC)
• Relevant Self-Regulation Schemes (Art. 10.2)
• Procedural rights available to the recipient,
  e.g. the right to withdraw from the contract
  (Art. 4.1 f) of Directive 97/7/EC)

25
Commercial Communication and Spamming

• Form
• Art. 5.1 of Directive 97/7/EC ... in writing
  or on another durable medium available and
  accessible to him.
• Art. 2 f) of Directive 2002/65/EC of the
  European Parliament and of the Council of 23
  September 2002 concerning the distance marketing
  of consumer financial services durable medium
  means any instrument which enables the consumer
  to store information addressed personally to him
  in a way accessible for future reference for a
  period of time adequate for the purposes of the
  information and which allows the unchanged
  reproduction of the information stored
• Art. 5.1 just says that it has to be ...
  easily, directly and permanently accessible to
  the recipients.
• However, ... the service provider has to
  acknowledge the receipt of the recipient's order
  without undue delay and by electronic means.
  (Art. 11.1)

26
Commercial Communication and Spamming

• Timing
• Information should be provided In good time
  prior to the conclusion of any distance contract
  (Art. 4.1 of Directive 97/7/EC)
• The consumer must receive written
  confirmation or confirmation in another durable
  medium available and accessible to him of the
  information referred to in Article 4 (1) (a) to
  (f), in good time during the performance of the
  contract, and at the latest at the time of
  delivery where goods not for delivery to third
  parties are concerned, unless the information has
  already been given to the consumer prior to
  conclusion of the contract in writing or on
  another durable medium available and accessible
  to him. (Art. 5.1)
• According to Art.5 the relevant information has
  to be permanently available, in any case
  prior to the order being placed by the recipient
  of the service. (Art. 10.1)

27
Commercial Communication and Spamming

• Commercial Communication in a Narrow Sense
  advertising and promotions
• In addition to other information requirements
  established by Community law, Member States shall
  ensure that commercial communications which are
  part of, or constitute, an information society
  service comply at least with the following
  conditions
• (a) the commercial communication shall be
  clearly identifiable 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 permitted in the Member
  State where 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
  clearly and unambiguously
• (d) promotional competitions or games, where
  permitted in the Member State where the service
  provider is established, shall be clearly
  identifiable as such, and the conditions for
  participation shall be easily accessible and be
  presented clearly and unambiguously. (Art. 6)

28
Commercial Communication and Spamming

• Spamming
• Whats Spam?
• Unsolicited Bulk E-mail vs. Unsolicited
  Commercial E-mail
• Commercial Speech as ... a special sort of speech
• Why Direct Marketing relies on Spam?

29
Commercial Communication and Spamming

• The Constitucional Framework the Charter of
  Fundamental Rights of the EU
• Personal Liberties
• Art. 7 (Respect for private and family life)
• Art. 8 (Protection Respect for private and family
  life)
• Art. 11(Freedom of expression and information)
• Economic Liberties
• Art. 16 (Freedom to conduct a business)
• Art. 38 (Protection of consumers)

30
Commercial Communication and Spamming

• Enhance the relevance of Article 52.1 (Scope of
  guaranteed rights)
• Any limitation on the exercise of the rights
  and freedoms recognised by this Charter must be
  provided for by law and respect the essence of
  those rights and freedoms. Subject to the
  principle of proportionality, limitations may be
  made only if they are necessary and genuinely
  meet objectives of general interest recognised by
  the Union or the need to protect the rights and
  freedoms of others.

31
Commercial Communication and Spamming

• The Technical Approach
• Mark and Block!
• Personal filters vs. industry filtering
  initiatives
• But...
• The confidentiality of communications (Art. 5
  Directive 2002/58/EC)
• The non monitoring by the providers (Art. 15.1
  Directive 2000/31/EC)
• The US Communications Decency Act 1996...

32
Commercial Communication and Spamming

• The Legal Approch
• Opting-out
• Directive 95/46/EC on personal data (Art. 14)
• Directive 97/66/EC on personal data and privacy
  in the telecommunications (Art. 12)
• Directive 97/7/EC on the protection of
  consumers in respect of distance contracts (Art.
  10)
• Directive 2000/31/EC on electronic commerce
  (Art. 7.2)
• The Spam Can Act of 2003

33
Commercial Communication and Spamming

• Opting-in
• Directive 2002/58/EC on privacy and electronic
  communications (Art. 13)
• 1. The use of automated calling systems without
  human intervention (automatic calling machines),
  facsimile machines (fax) or electronic mail for
  the purposes of direct marketing may only be
  allowed in respect of subscribers who have given
  their prior consent.
• 2. Notwithstanding paragraph 1, where a natural
  or legal person obtains from its customers their
  electronic contact details for electronic mail,
  in the context of the sale of a product or a
  service, in accordance with Directive 95/46/EC,
  the same natural or legal person may use these
  electronic contact details for direct marketing
  of its own similar products or services provided
  that customers clearly and distinctly are given
  the opportunity to object, free of charge and in
  an easy manner, to such use of electronic contact
  details when they are collected and on the
  occasion of each message in case the customer has
  not initially refused such use.

34
Commercial Communication and Spamming

• 3. Member States shall take appropriate measures
  to ensure that, free of charge, unsolicited
  communications for purposes of direct marketing,
  in cases other than those referred to in
  paragraphs 1 and 2, are not allowed either
  without the consent of the subscribers concerned
  or in respect of subscribers who do not wish to
  receive these communications, the choice between
  these options to be determined by national
  legislation.
• 4. In any event, the practice of sending
  electronic mail for purposes of direct marketing
  disguising or concealing the identity of the
  sender on whose behalf the communication is made,
  or without a valid address to which the recipient
  may send a request that such communications
  cease, shall be prohibited.
• 5. Paragraphs 1 and 3 shall apply to subscribers
  who are natural persons. Member States shall also
  ensure, in the framework of Community law and
  applicable national legislation, that the
  legitimate interests of subscribers other than
  natural persons with regard to unsolicited
  communications are sufficiently protected.

35
Commercial Communication and Spamming

• Pros and cons
• The respect (for the) essence (of) rights and
  the principle of proportionality (Art. 52.1 of
  the Chater)
• The Competitiveness of European Industry vs. the
  USA

36
Commercial Communication and Spamming

• A sort of alternative the Poisoned Tree Approach
• Goin up river right to the source e-mails data
  bases and consumer profiles
• Enforcing the criteria for making data processing
  legitimate (Art. 7 Directive 95/46/EC)
• Enforce a real control of the tranfer of data to
  third countries.

37
Electronic Contracting

• General Ideas
• Regards Both Consumer Contracts and Non Consumers
  Contracts
• This Directive is not aimed to the harmonization
  of general principles of the national legal
  orders in relation to contracts
• Within the scope of both EC Directive 97/7 of the
  European Parliament and of the Council of 20 May
  1997 on the protection of consumers in respect of
  distance contracts and also Council Directive
  93/13/EEC of 5 April 1993 on unfair terms in
  consumer contracts
• EC Directive 97/7 Directive doesnt care about
  the techniques involved Art. 2. (1) distance
  contract means any contract concerning goods or
  services concluded between a supplier and a
  consumer under an organized distance sales or
  service-provision scheme run by the supplier,
  who, for the purpose of the contract, makes
  exclusive use of one or more means of distance
  communication up to and including the moment at
  which the contract is concluded

38
Electronic Contracting

• This Directive complements Community law
  applicable to information society services
  without prejudice to the level of protection for,
  in particular, public health and consumer
  interests, as established by Community acts and
  national legislation implementing them in so far
  as this does not restrict the freedom to provide
  information society services (Art. 1.3) and
  Without prejudice to Directive 97/7/EC (Art
  7.2 )
• As well as Whereas 11 This Directive is
  without prejudice to the level of protection for,
  in particular, public health and consumer
  interests, as established by Community acts
  amongst others, Council Directive 93/13/EEC of 5
  April 1993 on unfair terms in consumer contracts
  (5) and Directive 97/7/EC of the European
  Parliament and of the Council of 20 May 1997 on
  the protection of consumers in respect of
  distance contracts (6) form a vital element for
  protecting consumers in contractual matters
  those Directives also apply in their entirety to
  information society services that same Community
  acquis, which is fully applicable to information
  society services

39
Electronic Contracting

• Whereas 29 in the interests of consumer
  protection and fair trading, commercial
  communications, including discounts, promotional
  offers and promotional competitions or games,
  must meet a number of transparency requirements
  these requirements are without prejudice to
  Directive 97/7/EC and
• Whereas 30 the question of consent by
  recipient of certain forms of unsolicited
  commercial communications is not addressed by
  this Directive, but has already been addressed,
  in particular, by Directive 97/7/EC , even if
  this no longer relevant

40
Electronic Contracting

• In fact, it Aims to remove the obstacles to
  electronic contracting, according to Art. 9.1.
  Member States shall ensure that their legal
  system allows contracts to be concluded by
  electronic means. Member States shall in
  particular ensure that the legal requirements
  applicable to the contractual process neither
  create obstacles for the use of electronic
  contracts nor result in such contracts being
  deprived of legal effectiveness and validity on
  account of their having been made by electronic
  means, meaning all the Legal Order of each
  Member-State, but not technical, cultural or
  economic barriers

41
Electronic Contracting

• Just remember the few exceptions (Art. 9.2)
• (a) contracts that create or transfer rights in
  real estate, except for rental rights
• (b) contracts requiring by law the involvement
  of courts, public authorities or professions
  exercising public authority
• (c) contracts of suretyship granted and on
  collateral securities furnished by persons acting
  for purposes outside their trade, business or
  profession
• (d) contracts governed by family law or by the
  law of succession.

42
Electronic Contracting

• Contractual procedure
• Pre-contractual information obligations,
  connected with the identification of the
  providers (Art.5) and commercial communications
  (Art. 6) in order to obtain contractual
  transparency
• Art. 10.1 In addition to other information
  requirements established by Community law, Member
  States shall ensure that at least the
  following information is given by the service
  provider clearly, comprehensibly and
  unambiguously and prior to the order being placed
  by the recipient of the service
• (a) the different technical steps to follow to
  conclude the contract
• (b) whether or not the concluded contract will
  be filed by the service provider and whether it
  will be accessible

43
Electronic Contracting

• (c) the technical means for identifying and
  correcting input errors prior to the placing of
  the order
• (d) the languages offered for the conclusion of
  the contract.
• Art. 10. 2 the service provider indicates
  any relevant codes of conduct to which he
  subscribes and information on how those codes can
  be consulted electronically, introducing higher
  standards concerning Objective Good Faith.

44
Electronic Contracting

• According to Art. 10.3, these information
  must be made available in a way that allows him
  the recipient to store and reproduce them, in
  order to have a proof of the contract and its
  terms
• Exception e-mail contracting or using another
  individualized communication device, v.g. chat
• What happens if its not provided?
• Will the contract be biding?
• A possible answer the period for exercise of the
  right of withdrawal will be longer, Art. 6.1 of
  Directive 97/7/EC If the supplier has failed to
  fulfill the obligations laid down in Article 5
  Written confirmation of information, the period
  shall be three months. The period shall begin
• - in the case of goods, from the day of receipt
  by the consumer,
• - in the case of services, from the day of
  conclusion of the contract.

45
Electronic Contracting

• Is there a statutory form for electronic
  contracts?
• Art. 10.3 dont to be written, but has to be
  recordable Contract terms and general conditions
  provided to the recipient must be made available
  in a way that allows him to store and reproduce
  them
• Even if Art. 5.1 of Directive 97/7/EC, states
  that The consumer must receive written
  confirmation or confirmation in another durable
  medium available and accessible to him
• An additional point of reference can be found in
  Art.2 f), of the Directive 2002/65/EC of the
  European Parliament and of the Council of 23
  September 2002 concerning the distance marketing
  of consumer financial services, "durable medium"
  means any instrument which enables the consumer
  to store information addressed personally to him
  in a way accessible for future reference for a
  period of time adequate for the purposes of the
  information and which allows the unchanged
  reproduction of the information stored

46
Electronic Contracting

• Also in relation to Art. 11.1 the service
  provider has to acknowledge the receipt of the
  recipient's order without undue delay and by
  electronic means.

47
Electronic Contracting

• Contractual Procedures
• Mass vs. individualized contracting
• Prior information
• The data stated in Art. 10
• The one referred by Art. 4.1 of Directive
  97/7/EC, namely
• (a) the identity of the supplier and, in the
  case of contracts requiring payment in advance,
  his address
• (b) the main characteristics of the goods or
  services
• (c) the price of the goods or services including
  all taxes
• (d) delivery costs, where appropriate
• (e) the arrangements for payment, delivery or
  performance

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Electronic Contracting

• (f) the existence of a right of withdrawal,
  except in the cases referred to in Article 6 (3)
• (g) the cost of using the means of distance
  communication, where it is calculated other than
  at the basic rate
• (h) the period for which the offer or the price
  remains valid
• (i) where appropriate, the minimum duration of
  the contract in the case of contracts for the
  supply of products or services to be performed
  permanently or recurrently.
• General Information, Art. 5
• Concerning the arrival of the order and the
  acknowledgement of receipt, Art. 11.1 states
  that they are deemed to be received when the
  parties to whom they are addressed are able to
  access them. Even implicitly determined
• It doesn't applies to individualized contracts
  (Art. 11.3)!

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Electronic Contracting

• When is the contract celebrated?
• Controversial issue.
• It up to National transposing Laws to address
  this question
• However, according to Art. 11.1 it seems that the
  Directive points to the so called Reception
  Theory
• Both public offer and invitation to deal can be
  considered
• When do we have each
• In general, the requirements of an offer are
  present, since mosts of them are required by the
  Directive itself, as seen