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Doc. 8982
22 February 2001
Draft Convention on information and legal co-operation concerning "Information Society Services"
Request for an opinion from the Committee of Ministers
Letter from the Chairman of the Ministers' Deputies to the President of the Parliamentary Assembly, dated 9 February 2001
Mr President,
Following its 74th meeting, from 4 to 8 December 2000, the European Committee on Legal Co-operation (CDCJ) transmitted a draft Convention on information and legal co-operation concerning "Information Society Services" and a draft additional Protocol to the European Agreement on the transmission of applications for legal aid1 to the Committee of Ministers, with a view to consulting the Parliamentary Assembly.
At their 740th meeting (7 February 2001, item 10.3) the Deputies decided to transmit the two drafts to the Parliamentary Assembly, and agreed to resume consideration of these texts in order to adopt them, in the light of the opinion of the Parliamentary Assembly, at their 752nd meeting (16 May 2001).
Considering the time-table fixed for the adoption of these texts, I should be grateful if you could let me have your opinion before 2 May 2001, if possible.
…Si
Signed:
Georgs Andrejevs
Convention on information and legal co-operation concerning
“Information Society Services”
Preamble
The Parties to this Convention, signatories hereto,
- Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
- Noting the continued development of information and communication technology and the numerous national initiatives and their impact at a European and international level;
- Recognising the cross-border nature of interactive services that are diffused on-line by new means of electronic communication and their growing importance in facilitating the economic, social and cultural progress of the Council of Europe member States;
- Recalling the system established by relevant European Community legislation for the exchange of the texts of draft domestic regulations concerning “Information Society Services”;
- Noting the need for all Council of Europe member States to be kept regularly informed of legislative developments on “Information Society Services” at a Pan-European level and, where necessary, to have the possibility to discuss and exchange information and ideas regarding these developments;
- Agreeing on the desirability to provide a legal framework to enable member States of the Council of Europe to exchange, where practicable by electronic means, texts of draft domestic regulations aimed specifically at “Information Society Services”;
Have agreed as follows:
Article 1 – Object and scope of application
In accordance with the provisions of this Convention, the Parties shall exchange texts, where practicable by electronic means, of draft domestic regulations aimed specifically at “Information Society Services” and shall co-operate in the functioning of the information and legal co-operation system set up under the Convention.
This Convention shall not apply:
a. to domestic regulations which are exempted from prior notification by virtue of European Community legislation, or
b. where a notification has to be made to comply with other international agreements.
This Convention shall not apply :
a. to radio broadcasting services;
b. to television programme services covered by the European Convention on Transfrontier Television, opened for signature in Strasbourg on 5 May 1989 (ETS No. 132), as amended by the Protocol of 1 October 1998 (ETS No. 171);
c. to domestic regulations relating to matters which are covered by European Community legislation or international agreements in the fields of telecommunications services and financial services.
Article 2 – Definitions
For the purposes of this Convention
a. “Information Society Services” means any service, normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services;b.
b. "domestic regulations" means legal texts concerning the compliance with requirements of a general nature relating to the taking-up and pursuit of service activities within the meaning of paragraph a of this article, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the Information Society Services.
Article 3 – Receiving and transmitting authorities
Each Party shall designate an authority that is in charge of transmitting and receiving, where practicable by electronic means, draft domestic regulations aimed specifically at “Information Society Services” as well as any other documents pertaining to the functioning of the present Convention.
Article 4 – Procedure
1. Each Party shall transmit, where practicable by electronic means, to the Secretary General of the Council of Europe the texts of draft domestic regulations, which are aimed specifically at “Information Society Services” and which are at a stage of preparation in which it is still possible for them to be substantially amended, as well as a short summary of these texts in English or French. The Parties shall communicate the draft again under the above conditions if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
2. Upon receipt of the texts of the draft domestic regulations and summaries under paragraph 1 above or paragraph 6 below, the Secretary General of the Council of Europe shall transmit them, where practicable by electronic means, to the authority of each Party.
3. Upon receipt of the texts and summaries under paragraph 2 above, each Party may transmit, where practicable by electronic means, observations on the texts of the draft domestic regulations in English or French to the Secretary General of the Council of Europe and to the Party concerned.
4. A Party receiving the observations under paragraph 3 above shall endeavour to take them into account as far as possible when preparing new domestic regulations.
5. Paragraphs 1 to 4 above shall not apply:
a. in cases where, for urgent reasons, occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and public policy, notably the protection of minors, a Party is obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultations being possible;
b. in cases where for urgent reasons occasioned by serious circumstances relating to the protection of the security and the integrity of the financial system, notably the protection of depositors, investors and insured persons, a Party is obliged to enact and to implement rules on financial services immediately;
in the cases mentioned in sub-paragraphs a and b, the Party shall give reasons to the Secretary General of the Council of Europe for the urgency of the measures in question;
c. to domestic regulations enacted by or for regulated markets or by or for other markets or bodies carrying out clearing or settlement functions for those markets.
6. Each Party which finalises any domestic regulations aimed specifically at “Information Society Services” shall transmit the definitive text to the Secretary General of the Council of Europe without delays and where practicable by electronic means.
7. Upon receipt of the texts of the adopted domestic regulations under paragraph 6 above the Secretary General of the Council of Europe shall make them available where practicable by electronic means and shall keep this information in a single database within the Council of Europe.
Article 5 - Declarations
The authorities referred to in Article 3 shall be designated by means of a declaration addressed to the Secretary General of the Council of Europe when the State concerned or the European Community becomes a Party to the present Convention in accordance with the provisions of Articles 8 and 9. Any change shall likewise be declared to the Secretary General of the Council of Europe.
Article 6 - Relationship to other instruments and agreements
1. This Convention shall not affect any international instrument which is binding on the Parties and which contains provisions on matters governed by this Convention.
2. If the European Community becomes a Party to this Convention, it shall fulfil the obligation to notify the texts transmitted to it by its member States in pursuance of the provisions of paragraph 1 of Article 4.
Article 7 - Amendments to Article 1 of the Convention concerning excluded matters
1. Any amendment to the Article 1, paragraph 3 of this Convention proposed by a Party shall be communicated to the Secretary General of the Council of Europe who shall forward the communication to the European Committee on Legal Co-operation (CDCJ).
2. The proposed amendment shall be examined by the CDCJ, which, after having consulted the European Community and any other Party which is not a member of the Council of Europe, may adopt it by a two-third majority of the votes cast. The text adopted shall be forwarded to the Parties.
3. On the first day of the month following the expiration of a period of four months after its adoption by the CDCJ, unless more than one-third of the Parties have notified objections, any amendment shall enter into force for those Parties which have not notified objection.
Article 8 - Signature and entry into force
1. This Convention shall be open for signature by the member States of the Council of Europe, the non-member States which have participated in its elaboration and the European Community. Such States and the European Community may express their consent to be bound by:
a. signature without reservation as to ratification, acceptance or approval, or
b. signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
2. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
3. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five signatories, of which at least one is not a member State of the European Economic Area, have expressed their consent to be bound by the Convention in accordance with the provisions of paragraph 1.
4. In respect of any signatory which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of their consent to be bound by the Convention in accordance with the provisions of paragraph 2.
5. A Party which has notified an objection in pursuance of the provisions of paragraph 3 of Article 7 may subsequently withdraw it in whole or in part. Such withdrawal shall be made by means of a notification addressed to the Secretary General of the Council of Europe and shall become effective as from the date of its receipt.
Article 9 – Accession to the Convention
1. After the entry into force of the present Convention, the Committee of Ministers of the Council of Europe, after consulting the Parties to the Convention, may invite any State non-member of the Council which has not participated in its elaboration to accede to this Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Parties entitled to sit on the Committee.
2. In respect of any State acceding to it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 10 – Reservations
No reservation may be made in respect of any provision of this Convention.
Article 11 – Territorial application
1. Any State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
2. Any Party may, at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory or territories specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
3. Any declaration made in pursuance of the preceding paragraph may, in respect of any territory mentioned in such declaration, be withdrawn by means of a notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of the Council of Europe of the notification.
Article 12 – Denunciation
1. Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
Article 13 – Notification
The Secretary General of the Council of Europe shall notify the member States of the Council and any other signatories and Parties to this Convention of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any declaration made in pursuance of the provisions of Article 5;
d. any notification received in pursuance of the provisions of Article 7;
e. any date of entry into force of this Convention, in accordance with Articles 8, 9 and 11;
f. any notification received in pursuance of the provisions of paragraph 5 of Article 8;
g. any declaration received in pursuance of the provisions of paragraphs 2 and 3 of Article 11;
h. any notification received in pursuance of the provision of paragraph 1 of Article 12;
i. any other act, notification or communication relating to this Convention.
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at Strasbourg, the………, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention, to the European Community, as well as to any State invited to accede to it.
Explanatory report
Article 1 – Object and scope of application
In accordance with Article 1 the aim of this Convention is to set up a legal information and co-operation system in the area of new communication services following the example of Directive 98/48/EC. These new services, called “Information Society Services” are in fact activities of an interactive nature provided on-line2 which have an economic value.
These services are developing rapidly and raise a considerable number of cross-border legal issues in areas such as electronic signatures, the conclusion of on-line contracts, the fight against crime, the legal liability of operators, the protection of consumers and minors, etc. Moreover, they may have a direct impact on the protection of human rights and fundamental freedoms, such as the freedom of expression (Article 10 of the European Convention on Human Rights – hereinafter referred to as “the ECHR”) and the right to respect for private life (Article 8 of the ECHR).
3. This Convention, which has been drafted in the spirit of and in correspondence with the scope of the Directive EC/98/34 (as modified by Directive EC/98/48), will enable the Council of Europe, its member States and the European Commission to co-operate in the rapidly evolving field of “Information Society Services”. It is clear that European Community legislation and international law need to evolve in this context as far as possible together and to this end, the two legal instruments need to have similar legal scope. As directives are binding legal instruments within the European Community legal order as far as the objectives are concerned, a convention-type binding international legal instrument appears to be the most appropriate Council of Europe instrument from an international law point of view.
4. The object and aim of the exclusions provided in paragraphs 2 and 3 of Article 1 are to ensure the correspondence of the scope of application of the present Convention with that of Directive EC/98/34 (as modified by Directive EC/98/48), as set out by its Articles 1 and 10, in order to prevent any problem of co-ordination between these two complementary instruments.
5. In particular, paragraph 2 excludes from the scope of application of this Convention domestic regulations by means of which a Party complies with a binding act of European Community legislation or makes use of the other possibilities set out in Article 10 of the Directive 98/34/EC or complies with an obligation of notification under another international agreement.
6. Paragraph 3 specifies the following fields as being completely excluded from the scope of application of the present Convention:
a. radio broadcasting services;
b. television programme services covered by the European Convention on Transfrontier Television;
c. matters within the field of telecommunications services and financial services which are already covered by European Community legislation or international agreements.
Article 2 – Definitions
7. The definition of “Information Society Services” contained in paragraph 1 of Article 2 is the same as the definition of such services in the Directive on Regulatory Transparency 98/48/EC as between the 15 member States of the European Community.
8. For the purposes of this definition:
- “at a distance” means that the service is provided without the parties being simultaneously and physically present,-“
- “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,-“
- “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. Unsolicited services, meaning services provided without being individually requested, are therefore not covered.9.
9. These three basic criteria should be cumulatively met for a service to be considered as an “Information Society Service”.
10. Moreover, “Information Society Services” falling within the scope of the Convention are normally provided for remuneration. This conforms with the case-law of the European Court of Justice when interpreting Article 50 (formerly Article 60) of the Treaty establishing the European Community.
11. The definition excludes all services which are not offered at a distance nor via electronic means nor supplied on individual demand, such as services provided in the physical presence of the provider and the recipient, services that do not use electronic processing/inventory systems or services which are transmitted on a point to multipoint basis.
12. The only draft domestic regulations which must be transmitted are those specifically aimed at the conditions relating to the taking-up and pursuit of Information Society Services activities : they can concern the service provider of such activities, the services as such or their recipients.
Article 3 – Receiving and transmitting authorities
13. Under the terms of Article 3, each Party must designate a transmitting authority and a receiving authority. As far as member States of the European Community and European Economic Area are concerned, such authorities already exist and are operational in the field of “Information Society Services” under Directive 98/48/EC and could, therefore, be given the same function in the context of this Convention.
Article 4 – Procedure
14. Pursuant to the initial notification procedure contained in Article 4, paragraph 1, each Party shall transmit the text and a short summary which could be one or two pages long of any draft domestic regulation aimed specifically at “Information Society Services” to the Secretary General of the Council of Europe when the draft is at a stage of preparation whereby it is, in any event, still possible to change the substance of the draft - otherwise the preliminary notification would be without practical effect.
15. In accordance with Article 4, paragraph 1, a Party is required to follow this procedure if substantial revisions are made to the draft domestic regulation which have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
16. It is important that each Party transmit these texts and summaries, where practicable by electronic means, to ensure that the system of exchange of draft domestic regulations is carried out quickly and easily.
17. The transmission of a short summary of the text of any draft domestic provision in English or French will enable the recipient authorities to decide whether they wish to examine the original text in detail. The Party transmitting the text and a short summary of any draft domestic regulation, may also indicate that it will accept observations from any other Party in different languages and indicate which are these languages.
18. Under paragraph 3 of Article 4, when Parties receive such texts and summaries they may, if they wish, send written comments to the Party concerned. Such comments must be in English or in French. If Parties decide to submit comments, it is in their interest to do so as soon as possible because, unlike EC Directive 98/34, there is no “standstill” period during which the legislative process is frozen.
19. Notwithstanding the absence of a standstill period, the Parties for the purposes of this Convention are invited, when preparing and finalising new domestic regulations, to take account as far as possible of any observations by the other Parties.
20. Paragraph 5 of Article 4 allows Parties to legislate without complying with the procedure described in paragraphs 1 to 3, if rules need to be implemented urgently. Like Directive 98/34/EC, the text of the Convention provides a. a general urgency clause and b. a specific clause relating to urgent matters in the field of financial services.
21. Article 4 paragraph 6 requires each Party to transmit the definitive text of a domestic regulation to the Secretary General of the Council of Europe once it has been finalised. They should do so as soon as possible and where practicable by electronic means. This requirement applies to all regulations adopted by Parties to this Convention, including those which were not previously notified to the Secretary General due to urgency. The purpose is to enable a database of legislation on “Information Society Services” to be maintained.
22. In Article 4 paragraph 7 the Convention requires the collation of the finally adopted texts of the domestic regulations so that they may be stocked in a single database within the Council of Europe and made available, where practicable, by electronic means, in particular by accessing a Council of Europe Internet website.
Articles 5-13 – Final clauses
23. In the light of Article 6 paragraph 1, the member States of the European Community and of the Economic European Area do not apply the present instrument in their mutual relations concerning matters governed by this Convention.
24. In accordance with Article 6 paragraph 2, where the European Community is a Party to the Convention, it will fulfil the obligation to proceed to the notification of the texts transmitted to it by its member States, in pursuance of the provisions of paragraph 1 of Article 4. This is to simplify the application of this Convention for those States which are bound by this Convention and other instruments.
25. As a consequence, from the entry into force of the Convention onward, the drafts already initiated by the 15 member States of the European Community are to be submitted to the Secretary General through the European Commission and not by the member State concerned. This practice allows each national point of contact currently operating within the framework of Directive 98/48/EC to continue to make one single notification (through the European Commission, who then transmits the draft to the Secretary General of the Council of Europe) in accordance with the Directive. Nevertheless the national receiving authorities of these Parties will receive texts sent by the Council of Europe originating from the Parties other than the member States of the European Community and of the Economic European Area and may make observations under paragraph 3 of Article 4. This means in practice that member States of the European Community will not be obliged to set up additional central authorities to deal with the provisions of this Convention, but may make use of the existing authorities under the European Community Directive.
26. The Convention will come into force after three signatories have expressed their consent to be bound. Council of Europe member States, the non-member States which have participated in its elaboration (Armenia, Azerbaijan, Bosnia and Herzegovina, Holy See, Canada, Japan, United States of America, Mexico) and the European Community may be signatories.
27. In accordance with Article 7 (Amendments to Article 1 of the Convention concerning excluded matters), the Parties may whenever necessary propose to change the matters to be excluded from the scope of application of this Convention, in order in particular to keep the correspondence between the scope of application of the present Convention with Directive EC/98/34 (as modified by Directive EC/98/48). The text of Article 7 is inspired by a similar provision contained in the Convention on Civil Liability for damage resulting from activities dangerous to the environment (ETS No. 150).
28. Paragraph 1 of Article 7 makes it clear that only Parties to the Convention may propose amendments to paragraph 3 of Article 1 concerning excluded matters.
29. Paragraph 2 of Article 7 provides that, as soon as a proposed amendment has been received, the European Committee on legal Co-operation (CDCJ) may adopt it by a two-third majority of the votes cast, after having consulted the European Community and any Party which is not a member State of the Council of Europe.
30. Paragraph 3 of Article 7 deals with the entry into force of the proposed amendment. This paragraph makes it clear that, if one-third of the Parties have notified an objection to the proposed amendment, the latter will not come into force. Moreover, this paragraph provides that, if there is no objection by one-third of the Parties, the proposed amendment shall enter into force for those Parties which have not notified any objection. This means that the amendment will not apply to those Parties which have notified an objection and that, in conformity with the principle of reciprocity provided by the 1969 Vienna Convention on the Law of Treaties, the Parties which have accepted the amendment will not apply it in respect of those Parties which have notified an objection.
31. In addition in accordance with Article 9, the Committee of Ministers may, on its own initiative or upon request, and after consulting the Parties which are not represented in the Committee of Ministers, invite any non-member State, which has not participated in the elaboration of the Convention, to accede to the present Convention.
2 « Information Society Services » cover a wide range of on-line activities amongst which : on-line information services (newspapers, magazines, libraries, electronic databases, research engines etc.); electronic commerce; on-line agencies (of advertising, marketing, tele-shopping, tourism, real estate, etc.); professional services provided by electronic means (by consultants, translators, designers, computer experts, etc.); on-line validation services (certification of electronic signatures, authentication, recording, dating, etc.); on-line services to consumers (interactive teleshopping, information on products and assets, purchase tests, research and evaluation of promotional offers); on-line tourist services (information; flight, train, hotel, car, show reservations; virtual visits to museums, monuments and sites); on-line entertainment services; new telecommunications services on demand (videoconference, Internet access, electronic mail, discussion forums), etc.