Internet & Recht

Das Symposium von Budapest

Summary of the discussions of the Working Group C

Report submitted by Alina Radoi, legal adviser 
in the Ministry of Justice of Romania -

First of all, let me thank, on behalf of myself and my colleagues for the very competent and complete presentations that Dr. Brenn and Dr. Schmidbauer gave us on different aspects related to the new and interesting field of e-commerce.

Now, continuing the report submitted by our colleague from Poland, in the second part of yesterday's session we dealt with the topic of consumer protection in using electronic sale structures.
The speaker for this session, Dr. Schmidbauer - judge at the Salzburg Regional Court, presented the EC Regulations on consumer protection, related to e-commerce.

Also, he referred to this matter from the point of view of the Austrian legislation and national case law.
With respect to these references, there were highlighted the objectives of the Regulations on consumer protection, as well as the most sensitive aspects of this field.

In practice, one of the main challenges lies in the difficult implementation of consumer's rights. Such an example is the difficulty for the individual consumer to bring before courts cases against a business from another country. This is why the role of the consumers' protection organizations will have to increase.

Also, we were presented with the main provisions from the European Directives, highlighting that these Directives contain only minimal criteria to be accomplished, each state having the possibility to complete them, by adopting their own legislation in this respect.

It was mentioned, as well, that, as far as Tele-sales are concerned, there are recent provisions dated from September 23rd, 2002 (directive concerning the distance marketing of consumer financial services). The transpose of its provisions in the domestic legislation is stipulated for 2004.
It was envisaged, also, that the EU protection of the consumers will increase its importance, due to the economic policy aiming at strengthening of the internal market in the light of the further process of law approximation and the enlargement of the EU.

Following Dr. Schmidbauer's presentation, the participant countries have discussed about the approximation stage of their domestic regulations in this area.

Using the alphabetical order, I will start with Bosnia-Herzegovina.
In this country, there are three authorities responsible for consumer protection issues: Ministry of External Commerce, Competion Council, Council for the Protection of Consumers.
Regarding the legislative aspects of this field, Bosnia-Herzegovina has adopted special rules on consumer protection, like the liability for general use products, and distance contracts. The law on e-commerce in this country is to be adopted.

In the Czech Republic, the responsible body in the area of consumer protection is the Ministry for Industry and Trade. This ministry deals with legislative aspects among which is the harmonization of domestic legislation with the EC Directives and, also, is supervising the organizations for consumers' protection.
The consumer protection regulations are placed in the Civil Code, but it is envisaged to be regulated in a special law.

In Estonia, the legislation on consumers' protection consists of two acts:
- liability law, which is a part of the Civil Code that was adopted in July 2002;
- the Consumers' Protection Act
A draft of a new consumers' protection act will be soon submitted to the Parliament, and will guarantee the compliance with EC Directives.
Concerning the e-commerce, this will be regulated through a separate law.

Now, about Hungary, generally, its legislation complies with EC Directives. The issues that arise are mainly from the point of view of their implementation.
Among the most important Hungarian laws in the area of consumers' protection are: Law on manufacturers' liability and Contract law regulated by the Civil Code.
In Hungary, the organization for consumers' protection is under the authority of the Ministry of Economy.

In Latvia, the law on consumers' protection dates from the early 90's. The competent authority is under the subordination of the Ministry of the Economy.
The law on electronic signature was passed on October 31, 2002 and will come into force in January 2003.
Also, a draft of concept paper on e-commerce is on its early stage. From the working group that is drafting this concept paper will result, probably, amendments on the consumers' protection legislation.

The consumer protection legislation in Poland consists of:
- Law from March 3, 2002 on protection of certain consumers' rights and liability for damages caused by a dangerous product. This is a separate act, outside of the Civil Code, but includes amendments to the Civil Code with respect to the unfair contractual terms.
- Another law is from 2001 on protection of purchasers with respect to the use of immovable property on time - sharing basis.
- The law from 2002 on group interests of consumers introduces collateral consumers' claims (the so-called "injunctions"). 
- The Law from June 2002 on consumer sale, which implements the EC 99/44 Directive, is also a part of Poland's legislation.
- In Poland, the governmental body for consumers' protection is the Office for Protection of Competition and Consumers.
Because of the problems connected with the progress and dynamics of European Law in this area, Poland chose to implement EC Directives outside the Civil Code, leaving only the principle matters in this code.
Such a way has, nevertheless, its disadvantages for consumers, who are ordinary people and who do not have access all the time to the relevant acts in this matter.

In Slovakia, the Ministry of the Economy is the competent body in consumers' protection area, having legislative initiative in this field.
The organization of consumers' protection in Slovakia is under the authority of the Ministry of the Economy and it is called the Slovak business protection.

As far as Romania is concerned, in the last few years, there were adopted important pieces of regulations concerning the consumer protection field. This legislation was, of course, related to the provisions regarding the contracts from our Civil Code that was adopted in 1865.
So, the Romanian legislation deals with general provisions concerning the consumers' protection. The main principles in this area are contained in a law that also sets up the National Authority for the Protection of the Consumers.
With regard to the EC Directives, Romania has several laws regarding the selling outside the commercial areas, the unfair competition, the liability for defective products and the legal regime of distance contracts.
Regarding the consumers' protection in the field of e-commerce, alongside the general provisions, we can mention:
- Law no.455/2001 on electronic commerce
- Law no.365/2002 on e/commerce
- Government Ordinance no.79/2002 on the general framework of telecommunications.
The law on e-commerce contains the main provisions from the EC Directive on e-commerce.
The main principles of this law are:
- free movement of the services for the information society;
- commercial communications through electronic means;
- Contract conclusion through electronic means.
For the main purpose of consumers' protection, the law contains provisions regarding the competent authorities that will supervise the e-commerce activity. These authorities, the NGO's with the scope of consumers' protection and the Ministry of Justice are responsible for regulating a Code of Conduct that is meant to guarantee the correct implementation of the law on e-commerce and on electronic signature.
Another aspect of the law is the establishing of the degree of liability of service providers acting as intermediaries.
The law contains, also, special provisions regarding dispute settlements.
Thus, cases can be brought to courts by the consumer itself, but also, by the NGO's from the field of consumers' protection, the National Authority for Consumers' Protection or the entities constituted with this purpose in the Member States of EU.
In accordance with Article 17 from the Directive on e/commerce, disputes may be, also, settled out of court, throughout arbitration.
The law contains also, civil and administrative remedies for infringements of the rules regarding the contracts of the information society.
There are also, stipulated, offences committed in relation to the issuance and use of electronic payment instruments and the use of identification data for the purpose of undertaking financial operations.

These are, of course, in brief, the relevant aspects that were discussed by the participants in the second part of the Working Group on legal requirements and problems related to e-commerce.

As a conclusion, the participants of the working group agreed that consumers' protection in electronic sales is a subject that needs to be further developed in connection with the implementation of the EC Directives on electronic sales.

Thank you.

to the Symposium