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E-commerce Framework

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									E-commerce Framework


    An opportunity for Albania
                            6 October 2008
                             Project Team:
 Prof. Dr Katrin Metcalf, Mr. Genc Cifligu LLM, Mr. Alfons Lentze LLM




               EU funded Project Support to NAIS.
                                                                        1
                      Implemented by ECO
   Project Objective E-Commerce
• Review and exam draft-laws that NAIS and
  other government institutions have prepared
  on EU standards
• Support NAIS with the Legal Framework
  E-Commerce
• Support NAIS consultations with stakeholders
• Assessment of possible impact (amendments
  to existing legislation)
                 EU funded Project Support to NAIS.
                                                      2
                       Implemented by ECO
             E-Commerce Challenge
• E-Commerce is a challenge not only for
  Albania but for all countries in Europe
• Joint forces of Government Institutions,
  Business and Consumers
• Establishment of platforms and associations
• Communication and Education

• Question: is a platform also a challenge?

                           EU funded Project Support to NAIS.
                                                                3
                                 Implemented by ECO
           EU revenues E-commerce
•   E-Commerce Revenues in Europe, 2000-2004 (in billions)
•   2000 $34.30 / 2001 $68.89 / 2002 $169.81 / 2003 $415.97 / 2004 $979.83

•   B2B E-Commerce Revenues in Europe, 2000-2004 (in billions)
•   2000 $26.24 / 2001 $52.42 / 2002 $132.74 / 2003 $334.14 / 2004 $797.29

•   B2C E-Commerce Revenues in Europe, 2000-2004 (in billions)
•   2000 $8.06 / 2001 $16.48 / 2002 $37.07 / 2003 $81.83 / 2004 $182.54
                                                                   Source: www.emarketer.com




                              EU funded Project Support to NAIS.
                                                                                               4
                                    Implemented by ECO
              European E-Commerce
European e-commerce continues to grow as a result of several important
trends:

•    Continued growth in the internet user population, which contributes to
•   the expansion in the number of potential internet buyers
•    Consumers now have several years of experience with e-commerce,
•   encouraging veteran internet users who are comfortable navigating the
•   internet to shop and purchase online
•    Consolidation in the dot-com sector, resulting in a smaller number of
•   dominant retailers and portals, limiting competition but enabling
•   higher quality sites, more effective marketing, and increasingly better
•   customer service
•    Easier cross-border trading, which is likely to facilitate e-commerce
•   purchases for consumers, particularly those in the Euro-zone

                            EU funded Project Support to NAIS.
                                                                              5
                                  Implemented by ECO
    E-commerce Legal Framework and
         European Commission
The work of the European Commission in the context of this legal
 framework consists of ensuring:
• that information society services benefit from Internal Market
    principles of free movement of services and freedom of
    establishment in an enlarged European Union.
• monitoring and follow-up of Directive 2000/31/EC, including regular
    reports on its application.
• that both the existing and the new Member States correctly
    implement and apply the legal framework for electronic commerce
    as provided by Directive 2000/31/EC.
• appropriate follow-up to complaints concerning information society
    services.
• general monitoring of legal, technical and economic developments
    of electronic commerce and the internet.

                        EU funded Project Support to NAIS.
                                                                    6
                              Implemented by ECO
                   E-commerce directive
                                 Directive 2000/31/EC


•   Introduction of the Directive
•   Sets up an Internal Market framework for electronic commerce, which provides
    legal certainty for business and consumers alike. It establishes harmonized rules on
    issues such as the transparency and information requirements for online service
    providers, commercial communications, electronic contracts and limitations of
    liability of intermediary service providers.

•   The proper functioning of the Internal Market in electronic commerce is ensured
    by the Internal Market clause, which means that information society services are,
    in principle, subject to the law of the Member State in which the service provider
    is established. In turn, the Member State in which the information society service
    is received cannot restrict incoming services.

•   In addition, the Directive enhances administrative cooperation between the
    Member States and the role of self-regulation.




                               EU funded Project Support to NAIS.
                                                                                         7
                                     Implemented by ECO
                  Albanian Legal Framework 1
                        (not limitative)
•   Constitutional law
•   Constitution for the Republic of Albania (1998)
    Litigation and court procedure All legislation and procedures    •    Banking law (or any related law to baning)
    Electoral law                                                    •    Banking Law
•   Administrative / Public Law                                           Law no 7764 / 1993 on Foreign investments
    Law no 8485/ 1999 Code of administrative procedures                   Law no 8080 / 1996 on Securities Modified by the law No.8168 and
    Law no 9154/ 2003 on Archives                                         the law No.8745
    Criminal Law                                                          Law no 8269 / 1997 "On Bank of Albania"
•   Civil Law                                                             Law no 8269 / 1997 "On Bank of Albania"
•   Civil code of the Republic of Albania plus procedure                  Law no 8365 / 1998 "On banks in the Republic of Albania"
    Commercial Law                                                        Law no 8365 / 1998 "On banks in the Republic of Albania"
•   Law no 9135 / 2003, on consumer protection                            Law no 8379 / 1998 Organic Budget Law
    Company law all legislation                                           Law no 8384 / 1998 "On adding a transitory provision in the Law No.
                                                                          8269, dated 23.12.1997 “On the Bank of Albania”"
•   Labor Law
•   Health law
•   Mining Law
    Tax law (to comment on)




•   Question: Who is responsible for the maintenance
    overview of the Albanian legal framework on E-
    Commerce?


                                                    EU funded Project Support to NAIS.
                                                                                                                                            8
                                                          Implemented by ECO
             Albanian Legal Framework 2
                   (not limitative)
•   Communications and Media Law
•   Law on E-Signature,
    Law no 8410 / 1998 Law on Public and Private Radio-Television
    Law no 8503 / 1999 On the right to information over the official documents
    Law no 9887 / 2008 on the Protection of Personal data
    Law no 9918 / 2008 on electronic communications
    Law no 9154 / 2003 on Archives
    Law on Sponsorship
    Law on public and private radio-television in the republic of albania

•   Transport and Maritime Laws
    Environmental Laws
•   Intellectual Property Laws
    Law on Industrial property
    Law on copyright
    Energy laws
•   Construction law

•   Agriculture Law
•   Apart from the legislation, into account should be as well jurisprudence (court judgments etc)




                                    EU funded Project Support to NAIS.
                                                                                                     9
                                          Implemented by ECO
    Albanian Legal Framework 3
• No proper implementation of standards of E-
  commerce without full knowledge of structure
  of Albanian legal framework.
• Need for continuous verification of different
  pieces of legislation and court judgments
• Need for platform government, business and
  consumers in order to monitor


                 EU funded Project Support to NAIS.
                                                      10
                       Implemented by ECO
E-Commerce standards in relation with
     Albanian legal framework 1
•   The Structure of the Directive                           The Directive contains the following rules:
•   The aim of the Directive is to create a general •        a) general information to be provided (article
    framework with minimum harmonization,                    5): in addition to other information
•   able to fit the legal systems of all Member              requirements established by sectoral
    States. This contributes to the creation of the          Community law, providers should give basic
    Single Market, along the lines drawn by the              information (name, geographical and electronic
    Single Act and article 95 (ex 100A) of the               address, registration number if present, etc.);
    Treaty. In fact, article 1 of the Directive      •       b) commercial communications (articles 6-8):
    underlines the objective to contribute to the            the commercial communication and the
    proper functioning of the Internal Market,       •       sender shall be clearly identifiable as such; the
    harmonising to the extent necessary for that             same applies for promotional
    purpose.                                         •       competitions and games. For unsolicited
•   The same article 1 defines the scope, excluding          commercial communication, apart from the
    matters like taxation, privacy, agreements or •          necessary identification, Member States shall
•   practices governed by cartel law, the activities         take measures to ensure the respect of
    of notaries, the representation before courts, •         the will of clients who do not wish to receive
    gambling activities.                                     such commercial communication.
•   Article 3, according to the objective of article 1 •
    and to the modalities set out in article 95 of
    the Treaty, introduces the Internal Market
    principle



                                       EU funded Project Support to NAIS.
                                                                                                            11
                                             Implemented by ECO
E-Commerce standards in relation with
   the Albanian legal framework 2
•   Member of regulated professions shall respect                   on access, and acts promptly to remove or disable
    professional rules;                                             access to the information, should the need arises.
•   c) contracts concluded by electronic means (articles 9-         There is no liability for the provider when the service
    11): Member States shall allow the conclusion of                consists in the storage of information, provided that
    contracts by electronic means, adapting, if necessary,          he does not have knowledge of illegal activities or
    their legislation. Waivers are possible for specific types      information, or, obtaining such awareness, acts
    of contract (i.e., contracts that create or transfer rights     promptly to remove or disable access to the
    in real estate). The provider shall give all the relevant       information;
    information prior to the conclusion of the contract.        •   e) codes of conduct (article 16): Member States and
    The placing of orders shall take place without undue            the Commission shall encourage the drawing up of
    delay and giving acknowledgement of receipt to the              codes of conduct by professional and consumers
    ounterpart. The order is deemed to be received when             associations;
    the addressee is able to access it                          •   f) out-of-court dispute settlement (article 17):
•   d) liability of intermediary service providers (articles        Member States shall encourage the creation of out-of-
    12-15): there is no liability for the provider when the         court dispute settlement schemes;
    service is a mere transmission or access to a               •   g) court actions (article 18): Member States shall make
    communication network, to the extent that he cannot             available under national law court actions which allow
    select or modify the content of the transmission, or            the rapid adoption of measures, including interim
    select the receiver of the transmission. There is no            measures, designed to terminate any alleged
    liability for the provider when the service is an               infringement and to prevent any further impairment
    automatic, intermediate and temporary storage of                of the interests involved.
    data (caching) to the extent that the providers does
    not modify the information, complies with conditions
                                             EU funded Project Support to NAIS.
                                                                                                                        12
                                                   Implemented by ECO
    No E-commerce without E-Business 1
•   A functioning legal mechanism on E-Commerce (E-Commerce legal framework)
    may only be achieved through a full understanding of the European Regulatory
    Framework on E-business as a whole as the directive on E-Commerce is more
    specific.
•   E-business means all business processes (internal and external transactions)
    throughout an organisation supported by ICT,
•   E-Commerce means all business processes where at least one phase of a
    transaction between supplier and customer is conducted or supported by ICT.
    Therefore E-Business is much more than E-Commerce – buying and selling on-line.
•   With suppliers, distributors and other partners, increasing efficiencies even
    further.
•   With public authorities, reducing red tape in both public and private sectors.
•   With customers, allowing them to respond more directly to market trends and sell
    worldwide.
•   E-Business therefore allows new forms of partnership, and improves both the way
    companies work and the products and services they offer.



                              EU funded Project Support to NAIS.
                                                                                   13
                                    Implemented by ECO
 No E-Commerce without E-Business 2
• For Albania the challenge to establish a full functioning E-business
  environment will result in readiness to join the European opportunities on
  E-Business as a whole, as E-Business allows many companies - particularly
  SMEs - to benefit from the ‘Single Market’ in Europe.
• Most enterprises in Albania are SMEs !!!

• National legal systems of member states but also partner countries like
  Albania therefore have to take these opportunities into account, with a
  European approach required on issues as diverse as taxation, copyright,
  consumer protection and privacy. The European Partnership Plan with
  Albania and the EU (EP) has as a key priority the enhancement of the
  overall administrative capacity of Albania through the utilisation of
  Information and Communication Technologies for the modernisation of
  the Albanian public administration, and strengthening its key institutions.
  The EP outlines as a short term priority that the GoA should ‘ensure that
  electronic communication legislation takes account of EC directives and is
  enforced’.                      Question: Are SMEs organised in Albania?

                            EU funded Project Support to NAIS.
                                                                            14
                                  Implemented by ECO
                     Types of E-commerce
•   Types of E-commerce                                  •            E-advertising, e-shops (selling), e-
•   Information                                               procurement (buying), e-intermediary (e.g.
•   Only the information phase is supported by ICT            platforms for e-markets, e-auctions, buyer-
    (advertising, product information/catalogues,             aggregation), information brokers (e.g. best price,
    online sponsoring, banners, etc.)                         route-planning,      search engines)
•                                                       •
•   Information + agreement                             •     Involved parties:
•   Electronic contract negotiation/conclusion,         •             Business B, Consumer C
    performance of the contract in the physical         •             B2B Business to Business
    environment,, sending contract goods per online •                 B2C Business to Consumer
    order, online payment                               •             C2C Consumer to Consumer (e.g. ebay)
•                                                       •             C2B (e.g. portal for ads of job seekers)
•   Information + agreement + performance               •
•   Electronic contract conclusion and performance •          Further relations E-Government:
    (digitised goods: music, software, database access, •     Government (A), Business B, Citizen/Consumer C
    etc.)
•   Mobile: wireless electronic commerce, mobile        •             A2B (e.g. public procurement),
    terminal                                            •             B2A (e.g. tax handling),
•                                                       •             A2C (e.g. unemployment/social benefits),
•   Models and Parties of E-Business and E-             •             C2A (e.g. tax handling)
    commerce
•   Common business models:


                                        EU funded Project Support to NAIS.
                                                                                                                 15
                                              Implemented by ECO
        Related E-Commerce Acquis 1
•   Legislation:                                            •    Financial services (2002/65/EC); immovable property
•                                                                rights, except for rental; contracts concluded by
•   Directive on e-commerce 2000/31/EC                           automatic vending machines, at an auction or with
                                                                 telecommunications operators through the use of
•            Related legislation to E-commerce                   public payphones
•   Directive on Unfair Terms in Consumer Contracts         •    Articles 4, 5, 6 and 7/1 do not apply to contracts for
    1993/13/EEC                                                  the supply of foodstuffs, beverages or other goods
•   Unfair Commercial Practices Directive 2005/29/EC             intended for everyday consumption; for the provision
•   Directive on Distant Marketing of Financial Services         of accommodation, transport, catering or leisure
    2002/65/EC                                                   services, where the supplier undertakes to provide
•                                                                these services on a specific date or within a specific
                                                                 period
•   Directive on Distant Selling 1997/7/EC                  •    Consumer may not waive the rights conferred on him
•   Electronic Signatures Directive 1999/93/EC                   by the transposition of this Directive into national law
•   Privacy Directive 1995/46/EC and Privacy and                 (Art. 12)
    Electronic Communications Directive 2002/58/EC          •    Information/confirmation obligations, right of
•                                                                withdrawal
•   Directive on Distant Selling                           •
    Directive on the protection of consumers in respect of
    distance contracts 1997/7/EC
•   Object: improvement/unification of the consumers’
    legal status
•   Scope: distance contracts between consumers and
    suppliers
•   Exemptions (Art. 3):


                                           EU funded Project Support to NAIS.
                                                                                                                       16
                                                 Implemented by ECO
          Related E-Commerce Acquis 2
•   Directive on Distant Marketing of Financial Services:                         obligations, to the detriment of the consumer (indicative list in
•   Scope:                                                                        the Annex)
•   Directive on the distance marketing of consumer financial                •    Not individually negotiated: consumer was not able to influence
    services 2002/65/EC: Consumer contracts for financial services                the term concerned (e.g. pre-formulated standard contract)
    contracted at a distance (telephone, fax, Internet, etc.), by any        •    Unfair terms shall not be binding on the consumer; contract shall
    means which do not require simultaneous physical presence of                  continue if it is capable of continuing in existence without the
    the parties                                                                   unfair terms
•   Financial services: any service of a banking, credit, insurance,         •
    personal pension, investment or payment nature                           •    Unfair Commercial Practices Directive
•   Supplements Distant Selling Directive 1997/7/EC and grants               •    Directive concerning unfair B2C commercial practices in the
    consumers similar rights
                                                                                  internal market 2005/29/EC
•   Specific information obligations; right to withdraw (14 calendar
    days from the day of the conclusion of the distance contract, or         •    Object: Prohibition of unfair commercial practices, especially
    from the day on which the consumer receives the contractual              •    Misleading practices: misleading actions, false information,
    terms and conditions and the mandatory information, if that is                misleading omissions regarding information about product,
    later)                                                                        service, price, trader, etc.
•   COM 2003/259 final on the application to financial services of           •    Aggressive practices: harassment, coercion and undue influence
    the Art. 3/4 to 6 of the E-commerce Directive                            •    Annex I: (31) commercial practices which are in all circumstances
•                                                                                 considered unfair
•   Unfair terms in consumer Contracts Directive 1993/13/EEC        •             Member States will be able to continue to apply more restrictive
    Object: Prevention from unfair terms in consumers contracts                   national provisions for a period of 6 years, provided that these
•   Scope: all kinds of consumers contracts;                                      measures are
•   Consumer: any natural person who is acting for purposes which •               Essential to ensure the consumers’ adequate protection and
    are outside his trade, business or profession                   •             Proportionate to the attainment of this objective
•   Seller/supplier: any natural or legal person who is acting for
    purposes relating to his trade, business or profession, whether
    publicly owned or privately owned
•   Unfair terms: contractual term which has not been individually
    negotiated and, contrary to the requirement of good faith,
    causes a significant imbalance in the parties' rights and


                                                            EU funded Project Support to NAIS.
                                                                                                                                                17
                                                                  Implemented by ECO
            Main Principles E-Commerce
•   Country of Origin Principle                                                    communication is made has to be clearly identifiable
•   Each Member State shall ensure that the information society services •         Promotional offers/competitions/games have to be clearly identifiable
    provided by a service provider established on its territory comply with        as such; conditions: easily accessible, clearly/unambiguously presented
    the national provisions applicable in the Member State in question       •     Unsolicited commercial communication (Art. 8):
    which fall within the coordinated field (Art. 3/1)                       •     Has to be clearly and unambiguously identifiable as such
•   Member States may not, for reasons falling within the coordinated
    field, restrict the freedom to provide information society services from •     Senders must regularly consult/respect opt-out registers
    another Member State (Art. 3/2)                                          •
•   Coordinated field (Art. 2/h): requirements laid down in Member States'         Electronic Contracting
    legal systems applicable to information society service providers or     •     Member States have to ensure that their legal system allows contracts
    information society services, regardless of whether they are of a              to be concluded by electronic means (Art. 9/1)
    general nature or specifically designed for them                         •     Legal requirements regarding contracts may not create obstacles for
•                                                                                  the use of electronic contracts; no discrimination of electronic
•   Country of Establishment                                                       contracts (legal effectiveness, validity)
•   Established service provider: a service provider who effectively pursues •
    an economic activity using a fixed establishment for an indefinite       •     Principles for placing the order (Art. 11):
    period; the presence and use of the technical means and technologies •         Effective and accessible technical means must be available to allow the
    do not, in themselves, constitute an establishment of the provider.            recipient to identify and correct input errors, prior to the placing of the
•                                                                                  order
•   Commercial Communications                                                  •
•   (Art. 2/f): any form of communication designed to promote, directly or         Liability of Intermediary Service Providers
    indirectly, the goods, services or image of a company, organisation or •       The provider of a service consisting of mere conduit of information is
    person pursuing a commercial, industrial or craft activity or exercising a     not liable for the information transmitted, provided that it (Art. 12):
    regulated profession; the following do not in themselves constitute        •   -Does not initiate the transmission
    commercial communications:                                                 •   -Does not select the receiver of the transmission
•   Information allowing direct access to the activity of the                  •   -Does not select or modify the transmitted information
    company/organisation/person, in particular domain name, e-mail             •
•   Communications relating to the goods, services, etc. compiled in an
    independent manner, particularly when without financial consideration
•   Additional information duties for commercial communications (Art. 7):
•   Commercial communication has to be clearly identifiable as such
•   The natural or legal person on whose behalf the commercial



                                                        EU funded Project Support to NAIS.
                                                                                                                                                           18
                                                              Implemented by ECO
No conclusions Just a starting point for
       more research...Enjoy.
•   Reference material                                              certain electronically supplied services
•                                                               •    Commission's Online Tax and Customs Service Databases
•   Books:                                                      •   The ICT Industries and eBusiness site provides analyses of
•   Snijders, H., Weatherill, S. (2003): E-Commerce -Law:           European eBusiness and covers policy development in
    National and Transnational Topics and Perspectives, Kluwer,     fields such as:
    The Hague et al.                                            •   the legal framework for e-business: the eCommerce
•   Prins, J.E.J. et al. (Eds.) (2002): Trust in Electronic         Directive (2000) and subsequent developments; Business-
    Commerce, Kluwer Law International, The Hague/NL                to-Business electronic marketplaces; Measurements and
•                                                                   analyses of eBusiness, including the eBusiness readiness
                                                                    index; Consumer policy and e-commerce: part of wider EU
•   EU Links:                                                       consumer policy to improve consumer confidence in the
•   http://europa.eu.int/information_society/                       internal market;
•   http://europa.eu.int/comm/internal_market/en/ecommerc •         Online Financial Services:
    e                                                           •   Distance Marketing of Financial Services:
•   the eGovernment theme link                                  •   Privacy Enhancing Technologies page covers projects in
•   i2010: the Single European Information Space                    various Commission programmes aimed at minimising risks
•   eBusiness strategy for a secure European Information            such as identity theft, discriminatory profiling, continuous
    Society                                                         surveillance and fraud.
•   EU's .eu domain;                                            •
•   eBusiness in Europe's Internal Market:                      •   Other links:
•   The eCommerce Directive (2000) is Europe's basic legal      •   WTO work programme on global electronic commerce,
    framework for electronic commerce in the Internal Market;       http://www.wto.org/
    See also COM(2003)702 final ‘Report from the                •   UNCITRAL Model Laws http://www.uncitral.org/
    Commission on the application of the E-Commerce             •   OECD Guidelines for Consumer Protection in the Context of
    directive                                                       Electronic Commerce 1999, http://www.oecd.org/
•   VAT Invoicing Rules                                         •
•   VAT rules on radio and television broadcasting services and


                                              EU funded Project Support to NAIS.
                                                                                                                             19
                                                    Implemented by ECO
Platform E-Commerce/E-Business
           for Albania

                                              BUSINESS

   GOVERNMENT




     CONSUMERS
                                       EUROPEAN UNION




                EU funded Project Support to NAIS.
                                                         20
                      Implemented by ECO
EU funded Project Support to NAIS.
                                     21
      Implemented by ECO

								
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