1. ULYS Avocat – Advocaten – Law firm ON LINE CONTRACTS Introduction to the European regulatory framework by THIBAULT VERBIEST WWW.ULYS.NET thibault.verbiest@ulys.net Brussels 29 October 2002 Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law Attorney at the Brussel and Paris Bars — Founding Partner

2. ULYS Avocat – Advocaten – Law firm Validité Directive 2000/31/EC on electronic commerce Directive 97/7/EC on Distance Contracts Directive 2001/29/EC on copyright in the information society General Framework: E-com Directive Copyright on the InternetOn-line contracts: B2C: Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

3. ULYS Avocat – Advocaten – Law firm E-com Directive : objective & scope Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law Validité Objective “To contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States” Validité Scope  applies to B2C and B2B  when it concerns an Information Society Service (ISS) Information Society Service (ISS) Delivered at a distance questions concerning cartel law (e.g. B2B Market Place) certain information society services such as the activities of notaries or equivalent professions, attorneys and e-gaming

4. ULYS Avocat – Advocaten – Law firm E-com Directive – Applicable Law Validité Principle : Article 3 “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”. Internal Market Clause and Mutual Recognition If an undertaker is compliant with the regulation in one Member State, other Member states have to recognize the activities as legitimate and MAY NOT restrict the provision of them. Derogations: general and case-by-case basis Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

5. ULYS Avocat – Advocaten – Law firm General Derogations : art 3§3 Validité The Annexe Contractual obligations concerning consumer contracts Parties determine the applicable law Investment funds (UCITS): Directive 85/611/EEC Electronic money: Directive 2000/46/EP Insurances services: Directives 92/49/EEC, Directive 92/96/EEC Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

6. ULYS Avocat – Advocaten – Law firm Derogations on a case-by-case basis: art.3 § 4-6 Validité Internal Market Clause and Mutual Recognition  Member state can restrict the freedom to provide ISS  Substantial Conditions: Measures must be necessary to fulfill specific objectives: public policy, protection of consumers (including investors), public health Directed against a given ISS which prejudices these objectives or which presents a serious and grave risk of prejudice Measures must be proportionate to those objectives The burden of proof is on the country of destination  Formal Conditions Home country did not adopt adequate measures when asked upon Prior notification to the Commission and the Home Country (exc. Urgency) Commission plans to issue a Guidance: Member States know in advance to what extent they can impose restrictions on financial service providers Member States have a backdoor to restrict the provision of information society services, but have to follow the procedure Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

7. ULYS Avocat – Advocaten – Law firm On-line contracts: B2C: Consumer Protection Validité A B2C contract Contract executed at a distance Directive 977 EC On Distance contracts Scope “'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” (art 2) Directive is applicable if internet activity concerns Goods or services Supplier (person acting in a commercial or professional capacity) and Consumer (acting outside trade, business or profession) without the simultaneous physical presence of the parties Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

8. ULYS Avocat – Advocaten – Law firm On-line contracts : B2C: Consumer Protection Distance SellingE-com Directive ProtectedconsumerConsumer & professional Informations on supplier Identity Address: only if prior payment Identity Address Email Registration N°. VAT Competent Authority Presentation Clear & comprehensible Indifferent of the media Direct, clear & permanent access Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

9. ULYS Avocat – Advocaten – Law firm On-line contracts: B2C: Consumer Protection Information on Product/Service Characteristics Delivery costs Right of withdrawla Terms of the offer Minimal term payment Price informationPrice, Tax included Price + delivery costs + taxes MomentBefore execution of contract OfferSteps to follow Access & Filing Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law

10. ULYS Avocat – Advocaten – Law firm Copyright on the Internet Validité Interest : Adequate copyright protection will foster investment in creativity and innovation. In Network environment, concepts of copyright needed to be reconsidered, adapted and supplemented Directive 2001/29/EC on copyright in the information society. Legal protection, e.g. exclusive right of online reproduction and distribution Technological protection measures and circumvention Law of : New Technologies Intellectual Property Computer Communication Advertising Media and Entertainment Commercial Law