Directive 2000/31/EC of the European Parliament and of
of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on electronic
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Articles 47(2), 55 and 95 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
Acting in accordance with the procedure laid down in Article 251 of the
(1) The European Union is seeking to forge ever closer links between the States
and peoples of Europe, to ensure economic and social progress; in accordance
with Article 14(2) of the Treaty, the internal market comprises an area without
internal frontiers in which the free movements of goods, services and the
freedom of establishment are ensured; the development of information society
services within the area without internal frontiers is vital to eliminating the
barriers which divide the European peoples.
(2) The development of electronic commerce within the information society offers
significant employment opportunities in the Community, particularly in small and
medium-sized enterprises, and will stimulate economic growth and investment in
innovation by European companies, and can also enhance the competitiveness of
European industry, provided that everyone has access to the Internet.
(3) Community law and the characteristics of the Community legal order are a
vital asset to enable European citizens and operators to take full advantage,
without consideration of borders, of the opportunities afforded by electronic
commerce; this Directive therefore has the purpose of ensuring a high level of
Community legal integration in order to establish a real area without internal
borders for information society services.
(4) It is important to ensure that electronic commerce could fully benefit from
the internal market and therefore that, as with Council Directive 89/552/EEC of
3 October 1989 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of
television broadcasting activities(4), a high level of Community integration is
(5) The development of information society services within the Community is
hampered by a number of legal obstacles to the proper functioning of the
internal market which make less attractive the exercise of the freedom of
establishment and the freedom to provide services; these obstacles arise from
divergences in legislation and from the legal uncertainty as to which national
rules apply to such services; in the absence of coordination and adjustment of
legislation in the relevant areas, obstacles might be justified in the light of
the case-law of the Court of Justice of the European Communities; legal
uncertainty exists with regard to the extent to which Member States may control
services originating from another Member State.
(6) In the light of Community objectives, of Articles 43 and 49 of the Treaty
and of secondary Community law, these obstacles should be eliminated by
coordinating certain national laws and by clarifying certain legal concepts at
Community level to the extent necessary for the proper functioning of the
internal market; by dealing only with certain specific matters which give rise
to problems for the internal market, this Directive is fully consistent with the
need to respect the principle of subsidiarity as set out in Article 5 of the
(7) In order to ensure legal certainty and consumer confidence, this Directive
must lay down a clear and general framework to cover certain legal aspects of
electronic commerce in the internal market.
(8) The objective of this Directive is to create a legal framework to ensure the
free movement of information society services between Member States and not to
harmonise the field of criminal law as such.
(9) The free movement of information society services can in many cases be a
specific reflection in Community law of a more general principle, namely freedom
of expression as enshrined in Article 10(1) of the Convention for the Protection
of Human Rights and Fundamental Freedoms, which has been ratified by all the
Member States; for this reason, directives covering the supply of information
society services must ensure that this activity may be engaged in freely in the
light of that Article, subject only to the restrictions laid down in paragraph 2
of that Article and in Article 46(1) of the Treaty; this Directive is not
intended to affect national fundamental rules and principles relating to freedom
(10) In accordance with the principle of proportionality, the measures provided
for in this Directive are strictly limited to the minimum needed to achieve the
objective of the proper functioning of the internal market; where action at
Community level is necessary, and in order to guarantee an area which is truly
without internal frontiers as far as electronic commerce is concerned, the
Directive must ensure a high level of protection of objectives of general
interest, in particular the protection of minors and human dignity, consumer
protection and the protection of public health; according to Article 152 of the
Treaty, the protection of public health is an essential component of other
(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, also embraces in particular Council
Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative
advertising(7), Council Directive 87/102/EEC of 22 December 1986 for the
approximation of the laws, regulations and administrative provisions of the
Member States concerning consumer credit(8), Council Directive 93/22/EEC of 10
May 1993 on investment services in the securities field(9), Council Directive
90/314/EEC of 13 June 1990 on package travel, package holidays and package
tours(10), Directive 98/6/EC of the European Parliament and of the Council of 16
February 1998 on consumer production in the indication of prices of products
offered to consumers(11), Council Directive 92/59/EEC of 29 June 1992 on general
product safety(12), Directive 94/47/EC of the European Parliament and of the
Council of 26 October 1994 on the protection of purchasers in respect of certain
aspects on contracts relating to the purchase of the right to use immovable
properties on a timeshare basis(13), Directive 98/27/EC of the European
Parliament and of the Council of 19 May 1998 on injunctions for the protection
of consumers' interests(14), Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative provisions concerning
liability for defective products(15), Directive 1999/44/EC of the European
Parliament and of the Council of 25 May 1999 on certain aspects of the sale of
consumer goods and associated guarantees(16), the future Directive of the
European Parliament and of the Council concerning the distance marketing of
consumer financial services and Council Directive 92/28/EEC of 31 March 1992 on
the advertising of medicinal products(17); this Directive should be without
prejudice to Directive 98/43/EC of the European Parliament and of the Council of
6 July 1998 on the approximation of the laws, regulations and administrative
provisions of the Member States relating to the advertising and sponsorship of
tobacco products(18) adopted within the framework of the internal market, or to
directives on the protection of public health; this Directive complements
information requirements established by the abovementioned Directives and in
particular Directive 97/7/EC.
(12) It is necessary to exclude certain activities from the scope of this
Directive, on the grounds that the freedom to provide services in these fields
cannot, at this stage, be guaranteed under the Treaty or existing secondary
legislation; excluding these activities does not preclude any instruments which
might prove necessary for the proper functioning of the internal market;
taxation, particularly value added tax imposed on a large number of the services
covered by this Directive, must be excluded form the scope of this Directive.
(13) This Directive does not aim to establish rules on fiscal obligations nor
does it pre-empt the drawing up of Community instruments concerning fiscal
aspects of electronic commerce.
(14) The protection of individuals with regard to the processing of personal
data is solely governed by 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(19) and
Directive 97/66/EC of the European Parliament and of the Council of 15 December
1997 concerning the processing of personal data and the protection of privacy in
the telecommunications sector(20) which are fully applicable to information
society services; these Directives already establish a Community legal framework
in the field of personal data and therefore it is not necessary to cover this
issue in this Directive in order to ensure the smooth functioning of the
internal market, in particular the free movement of personal data between Member
States; the implementation and application of this Directive should be made in
full compliance with the principles relating to the protection of personal data,
in particular as regards unsolicited commercial communication and the liability
of intermediaries; this Directive cannot prevent the anonymous use of open
networks such as the Internet.
(15) The confidentiality of communications is guaranteed by Article 5 Directive
97/66/EC; in accordance with that Directive, Member States must prohibit any
kind of interception or surveillance of such communications by others than the
senders and receivers, except when legally authorised.
(16) The exclusion of gambling activities from the scope of application of this
Directive covers only games of chance, lotteries and betting transactions, which
involve wagering a stake with monetary value; this does not cover promotional
competitions or games where the purpose is to encourage the sale of goods or
services and where payments, if they arise, serve only to acquire the promoted
goods or services.
(17) The definition of information society services already exists in Community
law in Directive 98/34/EC of the European Parliament and of the Council of 22
June 1998 laying down a procedure for the provision of information in the field
of technical standards and regulations and of rules on information society
services(21) and in Directive 98/84/EC of the European Parliament and of the
Council of 20 November 1998 on the legal protection of services based on, or
consisting of, conditional access(22); this definition covers any service
normally provided for remuneration, at a distance, by means of electronic
equipment for the processing (including digital compression) and storage of
data, and at the individual request of a recipient of a service; those services
referred to in the indicative list in Annex V to Directive 98/34/EC which do not
imply data processing and storage are not covered by this definition.
(18) Information society services span a wide range of economic activities which
take place on-line; these activities can, in particular, consist of selling
goods on-line; activities such as the delivery of goods as such or the provision
of services off-line are not covered; information society services are not
solely restricted to services giving rise to on-line contracting but also, in so
far as they represent an economic activity, extend to services which are not
remunerated by those who receive them, such as those offering on-line
information or commercial communications, or those providing tools allowing for
search, access and retrieval of data; information society services also include
services consisting of the transmission of information via a communication
network, in providing access to a communication network or in hosting
information provided by a recipient of the service; television broadcasting
within the meaning of Directive EEC/89/552 and radio broadcasting are not
information society services because they are not provided at individual
request; by contrast, services which are transmitted point to point, such as
video-on-demand or the provision of commercial communications by electronic mail
are information society services; the use of electronic mail or equivalent
individual communications for instance by natural persons acting outside their
trade, business or profession including their use for the conclusion of
contracts between such persons is not an information society service; the
contractual relationship between an employee and his employer is not an
information society service; activities which by their very nature cannot be
carried out at a distance and by electronic means, such as the statutory
auditing of company accounts or medical advice requiring the physical
examination of a patient are not information society services.
(19) The place at which a service provider is established should be determined
in conformity with the case-law of the Court of Justice according to which the
concept of establishment involves the actual pursuit of an economic activity
through a fixed establishment for an indefinite period; this requirement is also
fulfilled where a company is constituted for a given period; the place of
establishment of a company providing services via an Internet website is not the
place at which the technology supporting its website is located or the place at
which its website is accessible but the place where it pursues its economic
activity; in cases where a provider has several places of establishment it is
important to determine from which place of establishment the service concerned
is provided; in cases where it is difficult to determine from which of several
places of establishment a given service is provided, this is the place where the
provider has the centre of his activities relating to this particular service.
(20) The definition of "recipient of a service" covers all types of
usage of information society services, both by persons who provide information
on open networks such as the Internet and by persons who seek information on the
Internet for private or professional reasons.
(21) The scope of the coordinated field is without prejudice to future Community
harmonisation relating to information society services and to future legislation
adopted at national level in accordance with Community law; the coordinated
field covers only requirements relating to on-line activities such as on-line
information, on-line advertising, on-line shopping, on-line contracting and does
not concern Member States' legal requirements relating to goods such as safety
standards, labelling obligations, or liability for goods, or Member States'
requirements relating to the delivery or the transport of goods, including the
distribution of medicinal products; the coordinated field does not cover the
exercise of rights of pre-emption by public authorities concerning certain goods
such as works of art.
(22) Information society services should be supervised at the source of the
activity, in order to ensure an effective protection of public interest
objectives; to that end, it is necessary to ensure that the competent authority
provides such protection not only for the citizens of its own country but for
all Community citizens; in order to improve mutual trust between Member States,
it is essential to state clearly this responsibility on the part of the Member
State where the services originate; moreover, in order to effectively guarantee
freedom to provide services and legal certainty for suppliers and recipients of
services, such information society services should in principle be subject to
the law of the Member State in which the service provider is established.
(23) This Directive neither aims to establish additional rules on private
international law relating to conflicts of law nor does it deal with the
jurisdiction of Courts; provisions of the applicable law designated by rules of
private international law must not restrict the freedom to provide information
society services as established in this Directive.
(24) In the context of this Directive, notwithstanding the rule on the control
at source of information society services, it is legitimate under the conditions
established in this Directive for Member States to take measures to restrict the
free movement of information society services.
(25) National courts, including civil courts, dealing with private law disputes
can take measures to derogate from the freedom to provide information society
services in conformity with conditions established in this Directive.
(26) Member States, in conformity with conditions established in this Directive,
may apply their national rules on criminal law and criminal proceedings with a
view to taking all investigative and other measures necessary for the detection
and prosecution of criminal offences, without there being a need to notify such
measures to the Commission.
(27) This Directive, together with the future Directive of the European
Parliament and of the Council concerning the distance marketing of consumer
financial services, contributes to the creating of a legal framework for the
on-line provision of financial services; this Directive does not pre-empt future
initiatives in the area of financial services in particular with regard to the
harmonisation of rules of conduct in this field; the possibility for Member
States, established in this Directive, under certain circumstances of
restricting the freedom to provide information society services in order to
protect consumers also covers measures in the area of financial services in
particular measures aiming at protecting investors.
(28) The Member States' obligation not to subject access to the activity of an
information society service provider to prior authorisation does not concern
postal services covered by Directive 97/67/EC of the European Parliament and of
the Council of 15 December 1997 on common rules for the development of the
internal market of Community postal services and the improvement of quality of
service(23) consisting of the physical delivery of a printed electronic mail
message and does not affect voluntary accreditation systems, in particular for
providers of electronic signature certification service.
(29) Commercial communications are essential for the financing of information
society services and for developing a wide variety of new, charge-free services;
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; this Directive should
not affect existing Directives on commercial communications, in particular
(30) The sending of unsolicited commercial communications by electronic mail may
be undesirable for consumers and information society service providers and may
disrupt the smooth functioning of interactive networks; 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 and by Directive 97/66/EC; in Member States which authorise
unsolicited commercial communications by electronic mail, the setting up of
appropriate industry filtering initiatives should be encouraged and facilitated;
in addition it is necessary that in any event unsolicited commercial communities
are clearly identifiable as such in order to improve transparency and to
facilitate the functioning of such industry initiatives; unsolicited commercial
communications by electronic mail should not result in additional communication
costs for the recipient.
(31) Member States which allow the sending of unsolicited commercial
communications by electronic mail without prior consent of the recipient by
service providers established in their territory have to ensure that the service
providers consult regularly and respect the opt-out registers in which natural
persons not wishing to receive such commercial communications can register
(32) In order to remove barriers to the development of cross-border services
within the Community which members of the regulated professions might offer on
the Internet, it is necessary that compliance be guaranteed at Community level
with professional rules aiming, in particular, to protect consumers or public
health; codes of conduct at Community level would be the best means of
determining the rules on professional ethics applicable to commercial
communication; the drawing-up or, where appropriate, the adaptation of such
rules should be encouraged without prejudice to the autonomy of professional
bodies and associations.
(33) This Directive complements Community law and national law relating to
regulated professions maintaining a coherent set of applicable rules in this
(34) Each Member State is to amend its legislation containing requirements, and
in particular requirements as to form, which are likely to curb the use of
contracts by electronic means; the examination of the legislation requiring such
adjustment should be systematic and should cover all the necessary stages and
acts of the contractual process, including the filing of the contract; the
result of this amendment should be to make contracts concluded electronically
workable; the legal effect of electronic signatures is dealt with by Directive
1999/93/EC of the European Parliament and of the Council of 13 December 1999 on
a Community framework for electronic signatures(24); the acknowledgement of
receipt by a service provider may take the form of the on-line provision of the
service paid for.
(35) This Directive does not affect Member States' possibility of maintaining or
establishing general or specific legal requirements for contracts which can be
fulfilled by electronic means, in particular requirements concerning secure
(36) Member States may maintain restrictions for the use of electronic contracts
with regard to contracts requiring by law the involvement of courts, public
authorities, or professions exercising public authority; this possibility also
covers contracts which require the involvement of courts, public authorities, or
professions exercising public authority in order to have an effect with regard
to third parties as well as contracts requiring by law certification or
attestation by a notary.
(37) Member States' obligation to remove obstacles to the use of electronic
contracts concerns only obstacles resulting from legal requirements and not
practical obstacles resulting from the impossibility of using electronic means
in certain cases.
(38) Member States' obligation to remove obstacles to the use of electronic
contracts is to be implemented in conformity with legal requirements for
contracts enshrined in Community law.
(39) The exceptions to the provisions concerning the contracts concluded
exclusively by electronic mail or by equivalent individual communications
provided for by this Directive, in relation to information to be provided and
the placing of orders, should not enable, as a result, the by-passing of those
provisions by providers of information society services.
(40) Both existing and emerging disparities in Member States' legislation and
case-law concerning liability of service providers acting as intermediaries
prevent the smooth functioning of the internal market, in particular by
impairing the development of cross-border services and producing distortions of
competition; service providers have a duty to act, under certain circumstances,
with a view to preventing or stopping illegal activities; this Directive should
constitute the appropriate basis for the development of rapid and reliable
procedures for removing and disabling access to illegal information; such
mechanisms could be developed on the basis of voluntary agreements between all
parties concerned and should be encouraged by Member States; it is in the
interest of all parties involved in the provision of information society
services to adopt and implement such procedures; the provisions of this
Directive relating to liability should not preclude the development and
effective operation, by the different interested parties, of technical systems
of protection and identification and of technical surveillance instruments made
possible by digital technology within the limits laid down by Directives
95/46/EC and 97/66/EC.
(41) This Directive strikes a balance between the different interests at stake
and establishes principles upon which industry agreements and standards can be
(42) The exemptions from liability established in this Directive cover only
cases where the activity of the information society service provider is limited
to the technical process of operating and giving access to a communication
network over which information made available by third parties is transmitted or
temporarily stored, for the sole purpose of making the transmission more
efficient; this activity is of a mere technical, automatic and passive nature,
which implies that the information society service provider has neither
knowledge of nor control over the information which is transmitted or stored.
(43) A service provider can benefit from the exemptions for "mere
conduit" and for "caching" when he is in no way involved with the
information transmitted; this requires among other things that he does not
modify the information that he transmits; this requirement does not cover
manipulations of a technical nature which take place in the course of the
transmission as they do not alter the integrity of the information contained in
(44) A service provider who deliberately collaborates with one of the recipients
of his service in order to undertake illegal acts goes beyond the activities of
"mere conduit" or "caching" and as a result cannot benefit
from the liability exemptions established for these activities.
(45) The limitations of the liability of intermediary service providers
established in this Directive do not affect the possibility of injunctions of
different kinds; such injunctions can in particular consist of orders by courts
or administrative authorities requiring the termination or prevention of any
infringement, including the removal of illegal information or the disabling of
access to it.
(46) In order to benefit from a limitation of liability, the provider of an
information society service, consisting of the storage of information, upon
obtaining actual knowledge or awareness of illegal activities has to act
expeditiously to remove or to disable access to the information concerned; the
removal or disabling of access has to be undertaken in the observance of the
principle of freedom of expression and of procedures established for this
purpose at national level; this Directive does not affect Member States'
possibility of establishing specific requirements which must be fulfilled
expeditiously prior to the removal or disabling of information.
(47) Member States are prevented from imposing a monitoring obligation on
service providers only with respect to obligations of a general nature; this
does not concern monitoring obligations in a specific case and, in particular,
does not affect orders by national authorities in accordance with national
(48) This Directive does not affect the possibility for Member States of
requiring service providers, who host information provided by recipients of
their service, to apply duties of care, which can reasonably be expected from
them and which are specified by national law, in order to detect and prevent
certain types of illegal activities.
(49) Member States and the Commission are to encourage the drawing-up of codes
of conduct; this is not to impair the voluntary nature of such codes and the
possibility for interested parties of deciding freely whether to adhere to such
(50) It is important that the proposed directive on the harmonisation of certain
aspects of copyright and related rights in the information society and this
Directive come into force within a similar time scale with a view to
establishing a clear framework of rules relevant to the issue of liability of
intermediaries for copyright and relating rights infringements at Community
(51) Each Member State should be required, where necessary, to amend any
legislation which is liable to hamper the use of schemes for the out-of-court
settlement of disputes through electronic channels; the result of this amendment
must be to make the functioning of such schemes genuinely and effectively
possible in law and in practice, even across borders.
(52) The effective exercise of the freedoms of the internal market makes it
necessary to guarantee victims effective access to means of settling disputes;
damage which may arise in connection with information society services is
characterised both by its rapidity and by its geographical extent; in view of
this specific character and the need to ensure that national authorities do not
endanger the mutual confidence which they should have in one another, this
Directive requests Member States to ensure that appropriate court actions are
available; Member States should examine the need to provide access to judicial
procedures by appropriate electronic means.
(53) Directive 98/27/EC, which is applicable to information society services,
provides a mechanism relating to actions for an injunction aimed at the
protection of the collective interests of consumers; this mechanism will
contribute to the free movement of information society services by ensuring a
high level of consumer protection.
(54) The sanctions provided for under this Directive are without prejudice to
any other sanction or remedy provided under national law; Member States are not
obliged to provide criminal sanctions for infringement of national provisions
adopted pursuant to this Directive.
(55) This Directive does not affect the law applicable to contractual
obligations relating to consumer contracts; accordingly, this Directive cannot
have the result of depriving the consumer of the protection afforded to him by
the mandatory rules relating to contractual obligations of the law of the Member
State in which he has his habitual residence.
(56) As regards the derogation contained in this Directive regarding contractual
obligations concerning contracts concluded by consumers, those obligations
should be interpreted as including information on the essential elements of the
content of the contract, including consumer rights, which have a determining
influence on the decision to contract.
(57) The Court of Justice has consistently held that a Member State retains the
right to take measures against a service provider that is established in another
Member State but directs all or most of his activity to the territory of the
first Member State if the choice of establishment was made with a view to
evading the legislation that would have applied to the provider had he been
established on the territory of the first Member State.
(58) This Directive should not apply to services supplied by service providers
established in a third country; in view of the global dimension of electronic
commerce, it is, however, appropriate to ensure that the Community rules are
consistent with international rules; this Directive is without prejudice to the
results of discussions within international organisations (amongst others WTO,
OECD, Uncitral) on legal issues.
(59) Despite the global nature of electronic communications, coordination of
national regulatory measures at European Union level is necessary in order to
avoid fragmentation of the internal market, and for the establishment of an
appropriate European regulatory framework; such coordination should also
contribute to the establishment of a common and strong negotiating position in
(60) In order to allow the unhampered development of electronic commerce, the
legal framework must be clear and simple, predictable and consistent with the
rules applicable at international level so that it does not adversely affect the
competitiveness of European industry or impede innovation in that sector.
(61) If the market is actually to operate by electronic means in the context of
globalisation, the European Union and the major non-European areas need to
consult each other with a view to making laws and procedures compatible.
(62) Cooperation with third countries should be strengthened in the area of
electronic commerce, in particular with applicant countries, the developing
countries and the European Union's other trading partners.
(63) The adoption of this Directive will not prevent the Member States from
taking into account the various social, societal and cultural implications which
are inherent in the advent of the information society; in particular it should
not hinder measures which Member States might adopt in conformity with Community
law to achieve social, cultural and democratic goals taking into account their
linguistic diversity, national and regional specificities as well as their
cultural heritage, and to ensure and maintain public access to the widest
possible range of information society services; in any case, the development of
the information society is to ensure that Community citizens can have access to
the cultural European heritage provided in the digital environment.
(64) Electronic communication offers the Member States an excellent means of
providing public services in the cultural, educational and linguistic fields.
(65) The Council, in its resolution of 19 January 1999 on the consumer dimension
of the information society(25), stressed that the protection of consumers
deserved special attention in this field; the Commission will examine the degree
to which existing consumer protection rules provide insufficient protection in
the context of the information society and will identify, where necessary, the
deficiencies of this legislation and those issues which could require additional
measures; if need be, the Commission should make specific additional proposals
to resolve such deficiencies that will thereby have been identified,
HAVE ADOPTED THIS DIRECTIVE:
Objective and scope
1. This Directive seeks to contribute to the proper functioning of the internal
market by ensuring the free movement of information society services between the
2. This Directive approximates, to the extent necessary for the achievement of
the objective set out in paragraph 1, certain national provisions on information
society services relating to the internal market, the establishment of service
providers, commercial communications, electronic contracts, the liability of
intermediaries, codes of conduct, out-of-court dispute settlements, court
actions and cooperation between Member States.
3. 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.
4. This Directive does not establish additional rules on private international
law nor does it deal with the jurisdiction of Courts.
5. This Directive shall not apply to:
(a) the field of taxation;
(b) questions relating to information society services covered by Directives
95/46/EC and 97/66/EC;
(c) questions relating to agreements or practices governed by cartel law;
(d) the following activities of information society services:
- the activities of notaries or equivalent professions to the extent that they
involve a direct and specific connection with the exercise of public authority,
- the representation of a client and defence of his interests before the courts,
- gambling activities which involve wagering a stake with monetary value in
games of chance, including lotteries and betting transactions.
6. This Directive does not affect measures taken at Community or national level,
in the respect of Community law, in order to promote cultural and linguistic
diversity and to ensure the defence of pluralism.
For the purpose of this Directive, the following terms shall bear the following
(a) "information society services": services within the meaning of
Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;
(b) "service provider": any natural or legal person providing an
information society service;
(c) "established service provider": a service provider who effectively
pursues an economic activity using a fixed establishment for an indefinite
period. The presence and use of the technical means and technologies required to
provide the service do not, in themselves, constitute an establishment of the
(d) "recipient of the service": any natural or legal person who, for
professional ends or otherwise, uses an information society service, in
particular for the purposes of seeking information or making it accessible;
(e) "consumer": any natural person who is acting for purposes which
are outside his or her trade, business or profession;
(f) "commercial communication": any form of communication designed to
promote, directly or indirectly, the goods, services or image of a company,
organisation or person pursuing a commercial, industrial or craft activity or
exercising a regulated profession. The following do not in themselves constitute
- information allowing direct access to the activity of the company,
organisation or person, in particular a domain name or an electronic-mail
- communications relating to the goods, services or image of the company,
organisation or person compiled in an independent manner, particularly when this
is without financial consideration;
(g) "regulated profession": any profession within the meaning of
either Article 1(d) of Council Directive 89/48/EEC of 21 December 1988 on a
general system for the recognition of higher-education diplomas awarded on
completion of professional education and training of at least three-years'
duration(26) or of Article 1(f) of Council Directive 92/51/EEC of 18 June 1992
on a second general system for the recognition of professional education and
training to supplement Directive 89/48/EEC(27);
(h) "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.
(i) The coordinated field concerns requirements with which the service provider
has to comply in respect of:
- the taking up of the activity of an information society service, such as
requirements concerning qualifications, authorisation or notification,
- the pursuit of the activity of an information society service, such as
requirements concerning the behaviour of the service provider, requirements
regarding the quality or content of the service including those applicable to
advertising and contracts, or requirements concerning the liability of the
(ii) The coordinated field does not cover requirements such as:
- requirements applicable to goods as such,
- requirements applicable to the delivery of goods,
- requirements applicable to services not provided by electronic means.
1. 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
2. Member States may not, for reasons falling within the coordinated field,
restrict the freedom to provide information society services from another Member
3. Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.
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;
(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.
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.
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.
Section 1: Establishment and information requirements
Principle excluding prior authorisation
1. Member States shall ensure that the taking up and pursuit of the activity of
an information society service provider may not be made subject to prior
authorisation or any other requirement having equivalent effect.
2. Paragraph 1 shall be without prejudice to authorisation schemes which are not
specifically and exclusively targeted at information society services, or which
are covered by Directive 97/13/EC of the European Parliament and of the Council
of 10 April 1997 on a common framework for general authorisations and individual
licences in the field of telecommunications services(28).
General information to be provided
1. In addition to other information requirements established by Community law,
Member States shall ensure that the service provider shall render easily,
directly and permanently accessible to the recipients of the service and
competent authorities, at least the following information:
(a) the name of the service provider;
(b) the geographic address at which the service provider is established;
(c) the details of the service provider, including his electronic mail address,
which allow him to be contacted rapidly and communicated with in a direct and
(d) where the service provider is registered in a trade or similar public
register, the trade register in which the service provider is entered and his
registration number, or equivalent means of identification in that register;
(e) where the activity is subject to an authorisation scheme, the particulars of
the relevant supervisory authority;
(f) as concerns the regulated professions:
- any professional body or similar institution with which the service provider
- the professional title and the Member State where it has been granted,
- a reference to the applicable professional rules in the Member State of
establishment and the means to access them;
(g) where the service provider undertakes an activity that is subject to VAT,
the identification number referred to in Article 22(1) of the sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes - Common system of value added tax:
uniform basis of assessment(29).
2. In addition to other information requirements established by Community law,
Member States shall at least ensure that, where information society services
refer to prices, these are to be indicated clearly and unambiguously and, in
particular, must indicate whether they are inclusive of tax and delivery costs.
Section 2: Commercial communications
Information to be provided
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
(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.
Unsolicited commercial communication
1. In addition to other requirements established by Community law, Member States
which permit unsolicited commercial communication by electronic mail shall
ensure that such commercial communication by a service provider established in
their territory shall be identifiable clearly and unambiguously as such as soon
as it is received by the recipient.
2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States
shall take measures to ensure that service providers undertaking unsolicited
commercial communications by electronic mail consult regularly and respect the
opt-out registers in which natural persons not wishing to receive such
commercial communications can register themselves.
1. Member States shall ensure that the use of commercial communications which
are part of, or constitute, an information society service provided by a member
of a regulated profession is permitted subject to compliance with the
professional rules regarding, in particular, the independence, dignity and
honour of the profession, professional secrecy and fairness towards clients and
other members of the profession.
2. Without prejudice to the autonomy of professional bodies and associations,
Member States and the Commission shall encourage professional associations and
bodies to establish codes of conduct at Community level in order to determine
the types of information that can be given for the purposes of commercial
communication in conformity with the rules referred to in paragraph 1
3. When drawing up proposals for Community initiatives which may become
necessary to ensure the proper functioning of the Internal Market with regard to
the information referred to in paragraph 2, the Commission shall take due
account of codes of conduct applicable at Community level and shall act in close
cooperation with the relevant professional associations and bodies.
4. This Directive shall apply in addition to Community Directives concerning
access to, and the exercise of, activities of the regulated professions.
Section 3: Contracts concluded by electronic means
Treatment of contracts
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.
2. Member States may lay down that paragraph 1 shall not apply to all or certain
contracts falling into one of the following categories:
(a) contracts that create or transfer rights in real estate, except for rental
(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.
3. Member States shall indicate to the Commission the categories referred to in
paragraph 2 to which they do not apply paragraph 1. Member States shall submit
to the Commission every five years a report on the application of paragraph 2
explaining the reasons why they consider it necessary to maintain the category
referred to in paragraph 2(b) to which they do not apply paragraph 1.
Information to be provided
1. In addition to other information requirements established by Community law,
Member States shall ensure, except when otherwise agreed by parties who are not
consumers, 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;
(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.
2. Member States shall ensure that, except when otherwise agreed by parties who
are not consumers, the service provider indicates any relevant codes of conduct
to which he subscribes and information on how those codes can be consulted
3. Contract terms and general conditions provided to the recipient must be made
available in a way that allows him to store and reproduce them.
4. Paragraphs 1 and 2 shall not apply to contracts concluded exclusively by
exchange of electronic mail or by equivalent individual communications.
Placing of the order
1. Member States shall ensure, except when otherwise agreed by parties who are
not consumers, that in cases where the recipient of the service places his order
through technological means, the following principles apply:
- the service provider has to acknowledge the receipt of the recipient's order
without undue delay and by electronic means,
- the order and the acknowledgement of receipt are deemed to be received when
the parties to whom they are addressed are able to access them.
2. Member States shall ensure that, except when otherwise agreed by parties who
are not consumers, the service provider makes available to the recipient of the
service appropriate, effective and accessible technical means allowing him to
identify and correct input errors, prior to the placing of the order.
3. Paragraph 1, first indent, and paragraph 2 shall not apply to contracts
concluded exclusively by exchange of electronic mail or by equivalent individual
Section 4: Liability of intermediary service providers
1. Where an information society service is provided that consists of the
transmission in a communication network of information provided by a recipient
of the service, or the provision of access to a communication network, Member
States shall ensure that the service provider is not liable for the information
transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph
1 include the automatic, intermediate and transient storage of the information
transmitted in so far as this takes place for the sole purpose of carrying out
the transmission in the communication network, and provided that the information
is not stored for any period longer than is reasonably necessary for the
3. This Article shall not affect the possibility for a court or administrative
authority, in accordance with Member States' legal systems, of requiring the
service provider to terminate or prevent an infringement.
1. Where an information society service is provided that consists of the
transmission in a communication network of information provided by a recipient
of the service, Member States shall ensure that the service provider is not
liable for the automatic, intermediate and temporary storage of that
information, performed for the sole purpose of making more efficient the
information's onward transmission to other recipients of the service upon their
request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information,
specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely
recognised and used by industry, to obtain data on the use of the information;
(e) the provider acts expeditiously to remove or to disable access to the
information it has stored upon obtaining actual knowledge of the fact that the
information at the initial source of the transmission has been removed from the
network, or access to it has been disabled, or that a court or an administrative
authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for a court or administrative
authority, in accordance with Member States' legal systems, of requiring the
service provider to terminate or prevent an infringement.
1. Where an information society service is provided that consists of the storage
of information provided by a recipient of the service, Member States shall
ensure that the service provider is not liable for the information stored at the
request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or
information and, as regards claims for damages, is not aware of facts or
circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously
to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under
the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative
authority, in accordance with Member States' legal systems, of requiring the
service provider to terminate or prevent an infringement, nor does it affect the
possibility for Member States of establishing procedures governing the removal
or disabling of access to information.
No general obligation to monitor
1. Member States shall not impose a general obligation on providers, when
providing the services covered by Articles 12, 13 and 14, to monitor the
information which they transmit or store, nor a general obligation actively to
seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service
providers promptly to inform the competent public authorities of alleged illegal
activities undertaken or information provided by recipients of their service or
obligations to communicate to the competent authorities, at their request,
information enabling the identification of recipients of their service with whom
they have storage agreements.
Codes of conduct
1. Member States and the Commission shall encourage:
(a) the drawing up of codes of conduct at Community level, by trade,
professional and consumer associations or organisations, designed to contribute
to the proper implementation of Articles 5 to 15;
(b) the voluntary transmission of draft codes of conduct at national or
Community level to the Commission;
(c) the accessibility of these codes of conduct in the Community languages by
(d) the communication to the Member States and the Commission, by trade,
professional and consumer associations or organisations, of their assessment of
the application of their codes of conduct and their impact upon practices,
habits or customs relating to electronic commerce;
(e) the drawing up of codes of conduct regarding the protection of minors and
2. Member States and the Commission shall encourage the involvement of
associations or organisations representing consumers in the drafting and
implementation of codes of conduct affecting their interests and drawn up in
accordance with paragraph 1(a). Where appropriate, to take account of their
specific needs, associations representing the visually impaired and disabled
should be consulted.
Out-of-court dispute settlement
1. Member States shall ensure that, in the event of disagreement between an
information society service provider and the recipient of the service, their
legislation does not hamper the use of out-of-court schemes, available under
national law, for dispute settlement, including appropriate electronic means.
2. Member States shall encourage bodies responsible for the out-of-court
settlement of, in particular, consumer disputes to operate in a way which
provides adequate procedural guarantees for the parties concerned.
3. Member States shall encourage bodies responsible for out-of-court dispute
settlement to inform the Commission of the significant decisions they take
regarding information society services and to transmit any other information on
the practices, usages or customs relating to electronic commerce.
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.
2. The Annex to Directive 98/27/EC shall be supplemented as follows:
"11. Directive 2000/31/EC of the European Parliament and of the Council of
8 June 2000 on certain legal aspects on information society services, in
particular electronic commerce, in the internal market (Directive on electronic
commerce) (OJ L 178, 17.7.2000, p. 1)."
1. Member States shall have adequate means of supervision and investigation
necessary to implement this Directive effectively and shall ensure that service
providers supply them with the requisite information.
2. Member States shall cooperate with other Member States; they shall, to that
end, appoint one or several contact points, whose details they shall communicate
to the other Member States and to the Commission.
3. Member States shall, as quickly as possible, and in conformity with national
law, provide the assistance and information requested by other Member States or
by the Commission, including by appropriate electronic means.
4. Member States shall establish contact points which shall be accessible at
least by electronic means and from which recipients and service providers may:
(a) obtain general information on contractual rights and obligations as well as
on the complaint and redress mechanisms available in the event of disputes,
including practical aspects involved in the use of such mechanisms;
(b) obtain the details of authorities, associations or organisations from which
they may obtain further information or practical assistance.
5. Member States shall encourage the communication to the Commission of any
significant administrative or judicial decisions taken in their territory
regarding disputes relating to information society services and practices,
usages and customs relating to electronic commerce. The Commission shall
communicate these decisions to the other Member States.
Member States shall determine the sanctions applicable to infringements of
national provisions adopted pursuant to this Directive and shall take all
measures necessary to ensure that they are enforced. The sanctions they provide
for shall be effective, proportionate and dissuasive.
1. Before 17 July 2003, and thereafter every two years, the Commission shall
submit to the European Parliament, the Council and the Economic and Social
Committee a report on the application of this Directive, accompanied, where
necessary, by proposals for adapting it to legal, technical and economic
developments in the field of information society services, in particular with
respect to crime prevention, the protection of minors, consumer protection and
to the proper functioning of the internal market.
2. In examining the need for an adaptation of this Directive, the report shall
in particular analyse the need for proposals concerning the liability of
providers of hyperlinks and location tool services, "notice and take
down" procedures and the attribution of liability following the taking down
of content. The report shall also analyse the need for additional conditions for
the exemption from liability, provided for in Articles 12 and 13, in the light
of technical developments, and the possibility of applying the internal market
principles to unsolicited commercial communications by electronic mail.
1. Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive before 17 January 2002. They
shall forthwith inform the Commission thereof.
2. When Member States adopt the measures referred to in paragraph 1, these shall
contain a reference to this Directive or shall be accompanied by such reference
at the time of their official publication. The methods of making such reference
shall be laid down by Member States.
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Luxemburg, 8 June 2000.
For the European Parliament
For the Council
G. d'Oliveira Martins
(1) OJ C 30, 5.2.1999, p. 4.
(2) OJ C 169, 16.6.1999, p. 36.
(3) Opinion of the European Parliament of 6 May 1999 (OJ C 279, 1.10.1999, p.
389), Council common position of 28 February 2000 (OJ C 128, 8.5.2000, p. 32)
and Decision of the European Parliament of 4 May 2000 (not yet published in the
(4) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of
the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).
(5) OJ L 95, 21.4.1993, p. 29.
(6) OJ L 144, 4.6.1999, p. 19.
(7) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive 97/55/EC of
the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18).
(8) OJ L 42, 12.2.1987, p. 48. Directive as last amended by Directive 98/7/EC of
the European Parliament and of the Council (OJ L 101, 1.4.1998, p. 17).
(9) OJ L 141, 11.6.1993, p. 27. Directive as last amended by Directive 97/9/EC
of the European Parliament and of the Council (OJ L 84, 26.3.1997, p. 22).
(10) OJ L 158, 23.6.1990, p. 59.
(11) OJ L 80, 18.3.1998, p. 27.
(12) OJ L 228, 11.8.1992, p. 24.
(13) OJ L 280, 29.10.1994, p. 83.
(14) OJ L 166, 11.6.1998, p. 51. Directive as amended by Directive 1999/44/EC
(OJ L 171, 7.7.1999, p. 12).
(15) OJ L 210, 7.8.1985, p. 29. Directive as amended by Directive 1999/34/EC (OJ
L 141, 4.6.1999, p. 20).
(16) OJ L 171, 7.7.1999, p. 12.
(17) OJ L 113, 30.4.1992, p. 13.
(18) OJ L 213, 30.7.1998, p. 9.
(19) OJ L 281, 23.11.1995, p. 31.
(20) OJ L 24, 30.1.1998, p. 1.
(21) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ
L 217, 5.8.1998, p. 18).
(22) OJ L 320, 28.11.1998, p. 54.
(23) OJ L 15, 21.1.1998, p. 14.
(24) OJ L 13, 19.1.2000, p. 12.
(25) OJ C 23, 28.1.1999, p. 1.
(26) OJ L 19, 24.1.1989, p. 16.
(27) OJ L 209, 24.7.1992, p. 25. Directive as last amended by Commission
Directive 97/38/EC (OJ L 184, 12.7.1997, p. 31).
(28) OJ L 117, 7.5.1997, p. 15.
(29) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive
1999/85/EC (OJ L 277, 28.10.1999, p. 34).
DEROGATIONS FROM ARTICLE 3
As provided for in Article 3(3), Article 3(1) and (2) do not apply to:
- copyright, neighbouring rights, rights referred to in Directive 87/54/EEC(1)
and Directive 96/9/EC(2) as well as industrial property rights,
- the emission of electronic money by institutions in respect of which Member
States have applied one of the derogations provided for in Article 8(1) of
- Article 44(2) of Directive 85/611/EEC(4),
- Article 30 and Title IV of Directive 92/49/EEC(5), Title IV of Directive
92/96/EEC(6), Articles 7 and 8 of Directive 88/357/EEC(7) and Article 4 of
- the freedom of the parties to choose the law applicable to their contract,
- contractual obligations concerning consumer contacts,
- formal validity of contracts creating or transferring rights in real estate
where such contracts are subject to mandatory formal requirements of the law of
the Member State where the real estate is situated,
- the permissibility of unsolicited commercial communications by electronic
(1) OJ L 24, 27.1.1987, p. 36.
(2) OJ L 77, 27.3.1996, p. 20.
(3) Not yet published in the Official Journal.
(4) OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 95/26/EC
(OJ L 168, 18.7.1995, p. 7).
(5) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 95/26/EC.
(6) OJ L 360, 9.12.1992, p. 2. Directive as last amended by Directive 95/26/EC.
(7) OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 92/49/EC.
(8) OJ L 330, 29.11.1990, p. 50. Directive as last amended by Directive