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Das Symposium von Budapest

E-commerce - problems in the writing of contracts

Report of the working group C, Budapest 15 November 2002

by Robert Zegadlo

Robert Zegadlo

Our Working party discussed new developments in EU-law and in internal legal systems in respect of e-commerce. 
The following countries were represented in this working group: 

Belarus, Bosnia and Herzegovina, Czech Republic, Estonia, Hungary, Latvia, Federal Republic of Yugoslavia, Poland, Romania and Slovakia. 

All participants appreciate very informative and detailed overwiev concerning matters of e-commers, their economical background and their legal aspects presented by Dr. Christoph Brenn, judge at the Innsbruck Regional Court, who took part in European Commission and works in these matters. 
I would like to underline that it is not an easy task to present such complicated questions in such a clear and comprehensible manner as Dr. Brenn made it.

This topic is as difficult as fascinating. The phenomenon of Internet has begun to develop on a larger scale only recently, however the dynamics of its expansion and the role it plays in economy, make it absolutely necessary to introduce relevant and clear legal rules for its functioning.
An important role in the process of developing regulations in this area belongs to the European Union.

Dr. Brenn mentioned many EU initiatives focused on developing Internet in European societies and creating legal framework for its functioning. 
At the beginning there was an EC action plan focused on promoting use of Internet in social life. In 1998 the discussion on e-commerce Directive started. After two years this Directive was adopted. The works on electronic signature Directive were finished even faster. This Directive was adopted in 1999.

Both of the mentioned Directives have created the legal framework for national legislators in the EU and in candidate countries. Probably it is not usual in the process of implementation of European law that we - for example we in Poland - don't need to replace old internal regulations because they didn't exist. 

Both mentioned of the Directives are strictly connected. Article 9 of the e-commerce Directive concerning treatment of contracts refers to instruments, which are foreseen in the Directive on electronic signatures. Similar relation exists between the e-commerce Directive and Directive on the protection of consumers in respect of distance contracts. This remark concerns especially obligatory information, which should be given to the consumer.
E-commerce Directive and the Directive on electronic signatures provide the principal legal framework for electronic transactions, imposing the obligation to accept them as fully binding and equal to transactions concluded in the traditional form.

Other topics regulated in e-commerce Directive are advertising and liability of service providers. However, in my opinion the most difficult question is the regulation concerning concluding of contracts (Article 9 to 11 of the e-commerce Directive). Dr. Brenn presented essential problems in this respect, for example answered the question of legal character of websites inviting consumers to make orders. Websites are normally not valid offers, because they are to general and are directed "ad incertam personam". Therefore next step - made by a consumer - an order is qualified as an offer. This interpretation results in a fact that a website of a serviceprovider is treated only as an invitation to make offers - "invitatio ad offerendum". 

This aspect is very important for the question in what time a contract is concluded. Because an order made by the consumer is usually a binding offer, there is a next question concerning revocation of this offer or cancellation of the contract. In this question we must apply general solutions of civil law. They are not in favour of a consumer making an order. It is the reason and it is the place for a special consumer protection provided for in the Directive on distance contracts. I mean the right of withdrawal proclaimed in article 6 of this Directive. 

Another problem is to determine the time when the order and the acknowledgement of receipt of the order are deemed to be received in the meaning of article 11 paragraph 1 second intent of the e-commerce Directive. 

National legislators tend to add to this provision a clause of normal circumstances, it means that an order is not deemed to be received during the night hours after the time of business activity. This interpretation is not correct, as Mr Brenn said. The German and Austrian implementations of the Directive are not in line with the Brussels interpretation. 
It is an important statement for the countries, which are preparing now internal provisions implementing this Directive.

Another important issue is the question of the applicable law in case of international contracts concluded via the Internet. In this respect the Rome Convention on law applicable to contracts should be applied. 

I mentioned only a few aspects of the e-commerce European legal framework, which were indicated by Dr Brenn. It turned out that the transposition of the Directives in this area is not an easy process for the Member States. And this difficult task is now the task for the candidate States.

The delegations taking part in the working group presented their internal legal frameworks for the e-commerce. The delegations from candidate countries presented their efforts aiming at harmonisation of their legal systems with European standards.

In Belarus the Electronic Document Act was adopted in the year 2000 and it constitutes the legal fundaments of electronic document application, determines the main requirements for it, settles rights and duties and responsibilities of participants in legal relations which appear in the field of electronic documents circulation. In accordance with the Belarussian Civil code while contracting, usage of an electronic signature is allowed in cases and on the basis of legislation unless the parties of a contact agreed otherwise. 
However usage of an electronic signature requires an interim (preliminary) agreement in writing between parties of a contract.

In Czech Republic, Estonia, Romania and in Poland legal acts are existing, which transpose the EU Directive on electronic signature. These laws specify the conditions for the use of electronic signature, legal consequences thereof, as well as the rules for the provision of certification services and for the supervision of certification service providers.

Romanian Parliament passed this year a law on e-commerce which transposes the main provisions of the relevant EU Directive. 

In other countries governments started works aiming at transposition of this Directive. That's the case in Czech Republic, Federal Republic of Yugoslavia and in Poland. 

In my country (Poland) the implementation of e-commerce Directive is divided into two parts. The questions concerning concluding of a contract will be introduced to the Polish Civil Code. Relevant draft law prepared by the Polish Codification Commission of Civil Law is now discussed in the Parliament. Other aspects of the e-commerce Directive, public law aspects and liability of service providers are contained in a separate act which was prepared by the Polish Ministry of Infrastructure and it was adopted by the Parliament last summer.

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