EU: E-commerce proposals adopted

The EC has adopted proposals for the development of e-commerce in Europe. They include provisions for harmonised rules on the definition of the place of establishment of operators, the conclusion of contracts by electronic means, the responsibility of on-line service providers, dispute settlement and the role of national authorities. Industry has given a mixed reaction to the draft proposal, and controversy surrounds the two areas in which the Commission appears to have contradicted the single market basis of existing Community law, in respect of consumer contracts and commercial e-mail. Consumer protection has been added as one possible exception to the freedom to provide services (the original draft only covered protection of minors, health and security). Also, the exceptions to the internal market clause now include “contractual obligations in consumer contracts”. This could mean that any offer from a web site would have to comply with different national legislation concerning contractual obligations. One of the draft proposal’s recitals states that pre-contractual obligations are often part of contractual obligations, and this introduces some confusion as to whether this provision will affect commercial communication as well as the contract offer.