The E-Commerce Directive (2000/31/EC)

Goal:

  • To encourage an internal EU mark for the free movement of trade and services.
  • To create a uniform set of rules for e-commerce within the EU information society services and harmonize consumer rights and business obligations.

Structure:

  • 65 Recitals* and 24 Articles
  • Layout and core principles
    • Chapter I – Objective and scope (Articles 1-3)
      • Definition of information society services: “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services“. Article 1(2) of Directive 98/48/EC.
      • Article 3(1) on internal markets states that online service providers are required to comply with national law in the territory (country) where they are established as opposed to whether the service is provided or accessed (“Country of Origin” Principle).
    • Chapter II – Principles (Articles 4-15)
      • Rules regulating internet service providers and activities including online transactions, contracts, unsolicited commercial communications, liabilities and obligations of providers.
      • Rules on exemptions and liabilities for intermediaries that provide hosting, caching, ‘mere conduit’ services.
    • Chapter III – Implementation (Articles 16-20)
      • Rules on codes of conduction, dispute resolution, judicial remedies and member state cooperation.
    • Chapter IV – Final provisions (Articles 21-24)

Notable CJEU Cases:

  • Uber Spain case (C‑434/15): In Asociación Profesional Élite Taxi v. Uber Systems Spain SL, the CJEU had to determine whether services provided by Uber in Spain can be classified as transportation services, information society services, or a combination of both. This classification was necessary to determine Uber Spain’s obligations as a provider of ride sharing app service. The CJEU looked at the definition of ‘information society services’ within the E-Commerce Directive (2000/31), and held that the Uber is an “intermediation service”. The Court said that, “intermediation service must thus be regarded as forming an integral part of an overall service whose main component is a transport service and, accordingly, must be classified not as ‘an information society service’ within the meaning of Article 1(2) of Directive 98/34, to which Article 2(a) of Directive 2000/31 refers“. Id. at 40 [Emphasis added].
  • Airbnb Ireland UC case (C-390/18): The Airbnb Ireland case was referred to the CJEU by France. The issue here was whether Airbnb, as operational in France, would be classified as a real estate company (accommodation service) requiring a real estate license pursuant to French laws, or an information society that would then fall within the ambit of the EU E-Commerce Directive (2000/31/EC). As an information society service, Airbnb would benefit from E-Commerce Directive’s Chapter II exemptions on liabilities as a mere conduit. The CJEU held that Airbnb’s electronic platform that connected renters with hosts, though offering a range of optional, additional services to both hosts and guests such as rental estimations, facilitation of payments, reviews and rating tools, was not an accommodation service. It constituted an ‘information society service’ within the meaning of Directive 2000/31.

*What is a Recital? “Recitals set out the reasons for the contents of the enacting terms (i.e. the articles) of an act.” – EU Publication Office