1 Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the internal market (implementation deadline 17 Jan 2002).Google Scholar

2 Art 3.Google Scholar

3 The use of the term ‘Member State’ is to include EEA States.Google Scholar

4 Council Directive 89/552/EEC of 3 Oct 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, published in OJ L298 of 17 Oct 1989,23 and Council Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.Google Scholar

5 This essay will focus on cross-border media and therefore will not deal with country of origin regulation in the banking and insurance sector in any detail.Google Scholar

6 Art 3 (4).Google Scholar

7 Art 2 a of the E-commerce Directive refers to the definitions in Art 1 (2) of Directives 98/34/EC and 98/84/EC.Google Scholar

8 See Smith, G and Hand, A ‘Implementing the E-commerce Directive’ (2002) 152 (7053) New Law Journal 1597–8.Google Scholar

9 See also Recital 18: ‘[T]hese activities can, in particular consist of selling goods online; activities such as the delivery of goods as such or the provision of services off-line are not covered’; also Ketteley, S ‘The E-commerce Directive: Thoughts on Issues Raised during the Government's Recent Consultation’ (2002) 18 (3) Computer Law & Security Report 172–4 at 172.Google Scholar

10 Art 2 h (i).Google Scholar

11 ibid.

12 A Lodder ch 4 ‘Directive 2000/31/EC’ in Lodder, A and Kaspersen, H (eds) E-Directives: Guide to the European Union Law on E-commerce (Kluwer Law International The Hague 2002) 67–93 at 75; see also Recital 26: ‘Member States, in conformity with conditions established in this Directive, may apply their national rules on criminal law and criminal proceedings with a view to taking all investigative and other measures necessary for the detection and prosecution of criminal offences, without there being a need to notify such measures to the Commission.’Google Scholar

13 See also Art 3 (4) (a) (i) which mentions as one of the reasons for which derogation is allowed ‘the detection and prosecution of criminal offences…’. Such derogation would not be necessary if criminal offences were outside the coordinated field; see also (agreeing) Moerel, L ‘The Country of Origin Principle in the E-commerce Directive: the Expected ‘One Stop Shop’ (2001) 7 (7) Computer and Telecommunications Law Review 184–90 at 186Google Scholar. The country of origin rule does not apply in pure criminal cases outside cross-border service provision (such as a case of private individuals exchanging paedophile images—on a non-commercial basis).

14 See Case C-274/96 Judgment of the Court of 24 Nov 1998, Criminal proceedings against Horst Otto Bickel and Ulrich Franz paras 5 and 17. This case concerned a German and an Austrian national who were, on separate occasions, arrested by the police in the province of Bolzano, in the north of Italy, which has a large German-speaking community. They relied on the law which gives native German speakers resident in this province the right to have criminal proceedings conducted in German. The Court found that it would be discriminatory and contrary to Art 59 to deny this right to German-speaking persons travelling through the province to receive or provide services. The fact that this matter concerned criminal law was irrelevant, see also the similar case 186/87 Cowan v French Treasury.Google Scholar

15 Arts 47 (2), 55, and 95, see Recitals.Google Scholar

16 In this example it would be hard to subsume the activity under the definition of an information society service.Google Scholar

17 Unless the UK derogated, see below.Google Scholar

18 Under s 1 (1) (a) it is an offence to apply a false trade description to goods.Google Scholar

19 Discussed below.Google Scholar

20 Art 2 h (ii).Google Scholar

21 The categorization of prescription-only medicines has not fully been harmonized at European level; there is part harmonization in Directive 92/26/EC— it is up to the Member States to decide which substances are prescription-only, Art 5.Google Scholar

22 The question of the regulation of online pharmacies has been decided by the European Court of Justice, Case C 322/01 Deutscher Apothekerverband e.V v 0800 DocMorris NV— a Dutch online pharmacy argued successfully that the German requirement of presence sales in pharmacies is contrary to the free movement of goods, however Member States can make an exception regarding prescription-only medicines. The case arose before the E-commerce Directive was in force. See <http://www.curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Suchen&docrequire=alldocs&numaff=&datefs=&datefe=&nomusuel=&domaine=&mots=docmorris&resmax=100> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004.>Google Scholar

23 Where, for example, the national law requires that in the case of prescription-only medicines, the prescription is checked before dispensation or that advice has to be given.Google Scholar

24 Art 2 (h) (ii).Google Scholar

25 Recital 21 clarifies that ‘the co-ordinated field covers only requirements relating to online activities such as online information, online advertising, online shopping, online contracting and does not concern Member States’ legal requirements relating to goods such as safety standards, labelling obligations or liability for goods'.Google Scholar

26 See Recital 21 ‘including the distribution of medicinal products’. Moerel disagrees in Moerel, L ‘The Country of Origin Principle in the E-commerce Directive: the Expected ‘One Stop Shop’ (2001) 7 (7) Computer and Telecommunications Law Review 184–90 at 185.Google Scholar

27 Art 2 (h) (ii).Google Scholar

28 Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I 6097; confirmed by Case C-292/92 Hünermund v Landesapothekerkammer Baden Würtenberg; [1993] ECR I-6787;Google Scholarsee also Hanlon, JEuropean Community Law (3rd edn Sweet & Maxwell London 2003) 253–7.Google Scholar

29 To date, the ECJ has refused to apply this rule in Keck and Mithouard to services.Google Scholar

30 Cases C-267 and 268/91 Keck and Mithouard.Google Scholar

31 ibid.

32 Case C-292/92 Hünermund v Landesapothekerkammer Baden Würtenberg.Google Scholar

33 Case C-391/92 Commission v Greece [1995] ECR I-1621.Google Scholar

34 Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TFI Publidté SA; [1995] ECR I-179.Google Scholar

35 Ie Member States can apply their (non-discriminatory) national requirements to incoming online marketing of goods.Google Scholar

36 Art 2 (h) (i).Google Scholar

37 Art 2 (h) (ii).Google Scholar

38 Art 2 (h) (i).Google Scholar

39 Case C-315/92 Verband Sozialer Wettbewerb eV v Clinique Laboratories SNC [1994] ECR I-317; Case C-470/93 Verein gegen Unwesen im Handel und Gewerbe, Köln eV v Mars GmbH [1995] ECR I-1923.Google Scholar

40 Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689.Google Scholar

41 Case C-384/93 Alpine Investments BV v Minister van Financien, Judgment of the Court of 10 May 1995 [1995] ECRI-1141 paras 35–8;Google Scholarsee also Kapteyn, PJG and van Themaat, PVIntroduction to the Law of the European Communities (3rd edn Kluwer Law International The Hague 1998) 756.Google Scholar

42 Case C-384/93 Alpine Investments BV v Minister van Financien, Judgment of the Court of 10 May 1995 [1995] ECRI-1141 paras 35–8;Google Scholaralso Kort, M ‘Schranken der Dienstleistungsfreiheit im Europaischen Recht’ (1996) Juristen Zeitung 132–40 at 136; andGoogle ScholarWeatherhill, S ‘After Keck: Some Thoughts on How to Clarify the Clarification’ (1996) 33 Common Market Law Review 885–906 at 889–91.Google Scholar

43 See the Annex to the Directive.Google Scholar

44 At the time the E-commerce Directive was negotiated the Member States could not agree on whether to prohibit unsolicited commercial emails. A harmonized opt-in approach (unsolicited commercial emails prohibited without prior consent) has now been adopted in Art 13 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector.Google Scholar

45 COM (2001) 66 final of 7 Feb 2001,18.Google Scholar

46 The single passport rule states that prudential supervision is to be carried out by the headquarter rather than where the branch is located, as pointed out by Moerel, L ‘The Country of Origin Principle in the E-commerce Directive: the Expected ‘One Stop Shop’ (2001) 7 (7) Computer and Telecommunications Law Review 184–90 (186).Google Scholar

47 Communication from the Commission to the Council, the European Parliament and the European Central Bank on the Application to Financial Services of Arts 3(4) to (6) of the Electronic Commerce Directive, dated 14 May 2003, COM(2003) 259 final, available from <http://www.europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Service-Search&LANGUAGE=en&GUILANGUAGE=en&SERVICE=all&COLLECTION=com&DOCID=503PC0259> last visited on 29 Jan 2004 at 5.+last+visited+on+29+Jan+2004+at+5.>Google Scholar

48 Communication from the Commission to the Council, the European Parliament and the European Central Bank on the Application to Financial Services of Arts 3(4)-(6) of the Electronic Commerce Directive, dated 14 May 2003, COM (2003) 259 final, available from <http://www.europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Service-Search&LANGUAGE=en&GUILANGUAGE=en&SERVICE=all&COLLECTION=com&DOCID=503PC0259> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004.>Google Scholar

49 ibid 5.

50 ibid 6; quoting from Case 30/77 Bouchereau [1977] ECR 1999.Google Scholar

51 ibid.

52 ibid 5; see also Case C-243/01 Criminal Proceedings against Piergiorgio Gambelli.

53 Art 3 (4) (a) (i) and (iii), see also the Communication, 9 et seq.Google Scholar

54 Art 22 (1) ‘programmes, which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence’.Google Scholar

55 Art 22a of the revised TWF Directive 97/36/EC.Google Scholar

56 This covers, by way of example, the investigation and prevention of crime, public order, protection of minors from pornography and violence, the fight against incitement to hatred and violations of human dignity. This latter ground probably refers to pornography in general (and not only in relation to the protection of minors).Google Scholar

57 Art 3 (4) (a) (i).Google Scholar

58 Fourth Report, para 3.6 and Third Report from the Commission to the Council, the European Parliament, the EESC and the Committee of the Regions on the application of Directive 89/552/EEC ‘Television without Frontiers’ of 15 Jan 2001, para 4.5.Google Scholar

59 See for further exposition Hanlon, JEuropean Community Law (3rd edn Sweet & Maxwell London 2003) 236–7. By way of example one could think of a national law that classifies alcohol drinks according to a certain alcohol percentage as customary in that particular Member State. To take this illustration further, say a UK law provided that ‘beer’ must not have more than seven per cent alcohol to be called ‘beer’, then a Belgian manufacturer whose beer has eight per cent alcohol would not be able to call its product beer when importing it into the UK. Thus although the law does not make a distinction between the origins of beer, it may have a discriminatory effect on some foreign beers.Google Scholar

60 Public policy, public security, public health.Google Scholar

61 Public policy, public morality, public security; the protection of health and life of humans, animals and plants; the protection of national treasures possessing artistic, historic or archeological value; the protection of industrial or commercial property.Google Scholar

62 Public policy, public health, public security, and the protection of consumers, including investors, see also above.Google Scholar

63 This point is stressed in the Communication (n 48) 5.Google Scholar

64 Case C-76/90 Manfred Säger v Dennemeyer & Co Ltd, Judgment of the Court of 25 July 1991; [1991] ECR I-4221.Google Scholar

65 ibid para 13.

66 Commission Communication (n 48) 12.Google Scholar

67 Case C-362/88 GB-INNO-BM [1990] ECR I-667. This case concerned a national prohibition (under unfair competition law) on the publication of the duration of a special offer or promotion and a national prohibition on the disclosure of the price previously charged. The reason behind this law was that the disclosure of this information would put unfair pressure on consumers to buy. The Court stated in para 18 that ‘under Community law concerning consumer protection the provision of information to the consumer is considered one of the principal requirements. Thus Art 30 cannot be interpreted as meaning that national legislation which denies the consumer access to certain kinds of information may be justified by mandatory requirements of consumer protection.’Google Scholar

68 Case C-470/93 Mars [1995] ECR I-1923, para 24; Case C-220/98 Estée Louder [2000] ECR I-117, para 27; and Case C-210/96 Gut Springenheide GmbH [1998] ECR I-4657, para 31.Google Scholar

69 Case C-368//95 Vereinigte Familiapress Zeitungsverlags- und Vertriebs GmbH v Heinrich Bauer Verlag, Judgment of the Court of 26 June 1997 [1997] ECR I-3689.Google Scholar

70 Ibid para 23.

71 Ibid paras 27–33.

72 Case C-405/98, Judgment of the Court of 8 Mar 2001 [2001] ECR I-1795.Google Scholar

73 Paras 26–8 and 32–4.Google Scholar

74 See Case C-275/92 HM Customs and Excise v Gerhart and Jörg Schindler, Judgment of the Court of 24 Mar 1994 [1994] ECR I 1039; Case C-124/97 Läärä and Others [1999] ECR I 6067; and Case C-67/98 Zenatti [1999] ECR I 7289. These cases held that Member States have a wide margin of discretion in the area of lotteries and betting. However this must now be seen in the light of Case C-243/01 Criminal Proceedings against Piergiorgio Gambelli, where Advocate General Alber questioned the automatic wide discretion in matters of betting and pointed out that there must be non-economic public policy interest to justify a restriction. See para 126: ‘il s'ensuit que les consequences financières positives des jeux de hasard pour le budget de l'Etat ne peuvent être considereés comme des raisons imperieuses d'interêt general’, Opinion of 13 Mar 2003; available on the European Court of Justice's website <http://www.curia.eu.int>. The Court did not go quite as far and agreed with the previous cases in principle that the proportionality of the measure must be assessed by the referring national court, para 76. However the Court also pointed out in paras 61 and 62 that ‘to justify restrictions on games of chance and betting, suffice it to note that it is settled case law that the diminution or reduction of tax revenue is not one of the grounds listed in Art 46 and does not constitute a matter of overriding general interest which may be relied upon to justify a restriction on the freedom of establishment or the freedom to provide services…the restrictions must reflect in any event a concern to bring about a genuine diminution of gambling opportunities’ Judgment of 6 Nov 2003; available on the European Court of Justice's website <http://www.curia.eu.int>..+The+Court+did+not+go+quite+as+far+and+agreed+with+the+previous+cases+in+principle+that+the+proportionality+of+the+measure+must+be+assessed+by+the+referring+national+court,+para+76.+However+the+Court+also+pointed+out+in+paras+61+and+62+that+‘to+justify+restrictions+on+games+of+chance+and+betting,+suffice+it+to+note+that+it+is+settled+case+law+that+the+diminution+or+reduction+of+tax+revenue+is+not+one+of+the+grounds+listed+in+Art+46+and+does+not+constitute+a+matter+of+overriding+general+interest+which+may+be+relied+upon+to+justify+a+restriction+on+the+freedom+of+establishment+or+the+freedom+to+provide+services…the+restrictions+must+reflect+in+any+event+a+concern+to+bring+about+a+genuine+diminution+of+gambling+opportunities’+Judgment+of+6+Nov+2003;+available+on+the+European+Court+of+Justice's+website+.>Google Scholar

75 Art 1 (5).Google Scholar

76 See (n 48) 12.Google Scholar

77 Art 3 (4) (b).Google Scholar

78 ibid.

79 Art 3 (5) and Recital 26 of the Directive make clear that Member States may apply their national rules on criminal law and criminal proceedings, without there being a need to notify such measures to the Commission.Google Scholar

80 Art 3 (6)—a right which the Commission has anyway under the EC Treaty.Google Scholar

81 Directly applicable EU law creates rights (and obligations) for citizens.Google Scholar

82 See (n 48) 7.Google Scholar

83 Conversely, it can be argued that the country of origin rule leads to better cross-border cooperation, see below in the Conclusion.Google Scholar

84 In the EU the Commission is driving ahead the cooperation between Member States in the area of consumer protection, see the Proposal for a Regulation of the European Parliament and the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws of 18 July 2003 COM (2003) 443 final, and see further the the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices of 11 June 2003 <http://www.oecd.org/document/56/0,2340,en_2649_34267_2515000_1_1_1_1,00.html> last visited on 29 Jan 2004 and mutual assistance procedures under the 2000 Convention on Mutual Assistance in Criminal Matters <http://www.europa.eu.int/comm/justice_home/fsj/criminal/assistance/fsj_criminal_assistance_en.htm> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004+and+mutual+assistance+procedures+under+the+2000+Convention+on+Mutual+Assistance+in+Criminal+Matters++last+visited+on+29+Jan+2004.>Google Scholar

85 R v Secretary of State for National Heritage exparte Continental Television [1993] 3 CMLR 387 (CA).Google Scholar

86 Case C-327/93.Google Scholar

87 C(95)2678 final.Google Scholar

88 C(96)3933 final.Google Scholar

89 Commission Decision of 22 Dec 1998.Google Scholar

90 Case T-69/99 Danish Satellite TV (DSTV) A/S (Eurotica Rendez-vous Television) v Commission of the European Communities Judgment of 13 Dec 2000 [2000] ECR II-4039.Google Scholar

91 Fourth Report from the Commission to the Council, the European Parliament, the EESC, and the Committee of the Regions on the application of Directive 89/552/EEC ‘Television without Frontiers’ of 6 Jan 2003, para 3.6.Google Scholar

92 ICSTIS is the Independent Committee for the Supervision of Standards of Telephone Information Services, see their press release of 22 Oct 2002 ‘ICSTIS takes action under Ecommerce Directive’, available at <http://www.icstis.org> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004.>Google Scholar

93 Implementation deadline 17 Jan 2002.Google Scholar

94 Annex of the E-commerce Directive.Google Scholar

95 Art 3 (2).Google Scholar

96 Art 3 (1).Google Scholar

97 Council Directive 89/552/EEC of 3 Oct 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, published in OJ L298 of 17 Oct 1989, 23.Google Scholar

98 Council Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.Google Scholar

99 In the following (unless stated otherwise) I shall refer to the Directive as amended, revised Directive 97/36/EC.Google Scholar

100 Ie those whose broadcasting is directed to another Member State Case C-222/94 Commission v United Kingdom [1996] ECR I 4025.Google Scholar

101 Case C-14/96 Paul Denuit [1997] ECRI-2785.Google Scholar

102 Stipulating that a certain percentage of programming must be of European origin.Google Scholar

103 At para 32.Google Scholar

104 Covering such details as name, geographic address, email address, and trade register number of the service provider.Google Scholar

105 Unless, of course the destination Member State regards these information requirements as excluded (as the UK does) from the country of origin rule.Google Scholar

106 Ignoring the possibility of derogation for the moment.Google Scholar

107 This is politically unlikely.Google Scholar

108 See Case C-14/96 Paul Denuit [1997] at para 34 and also Case C-11/95 Commission v Belgium [1996] ECR I 4155 at para 34.Google Scholar

109 Cases 6 and 9/90; [1991] ECR-I 5357.Google Scholar

110 Arts 18 (Injunctions Directive 98/27/EC) and 19 (cooperation) of the E-Commerce Directive.Google Scholar

111 See Case C-14/96 Paul Denuit [1997] at para 34 and also Case C-11/95 Commission v Belgium [1996] ECR I 4155 at para 34.Google Scholar

112 Case C-8/74 Procureur du Roi v Dassonville [1974] ECR 837.Google Scholar

113 Under the country of origin rule there must be no duplication, as otherwise a derogation will not satisfy the proportionality test, see the Commission Communication (n 48) 8.Google Scholar

114 Case 279/80 Criminal Proceedings against Alfred John Webb Judgment of the Court of 17 Dec 1981 [1981] ECR 3305; see also Case C-355/98 Commission v Belgium [2000] ECR I-1221, para 38 (additional Belgian identity card for security staff).Google Scholar

115 ibid paras 19 and 20.

116 See also Thünken, A ‘Multi-State Advertising over the Internet and the Private International Law of Unfair Competition’ (2002) 51 ICLQ 909–42 at 938.CrossRefGoogle Scholar

117 Case C-384/93 Alpine Investments BV v Minister van Financien, Judgment of the Court of 10 May 1995 [1995] ECR I-1141.Google Scholar

118 Unsolicited telephone call to market financial products, in this case commodities futures.Google Scholar

119 ibid para 30.

120 Para 28.Google Scholar

121 Para 44.Google Scholar

122 Albeit that the Court in Alpine Investments (n 117) accepted that country of origin regulation is more suitable, see para 48: ‘The Member State from which the telephone call is made is best placed to regulate cold-calling. Even if the receiving State wishes to prohibit cold-calling or to make it subject to certain conditions, it is not in a position to prevent or control telephone calls from another Member State without the co-operation of the competent authorities of that State.’Google Scholar

123 See also the argument made above that the country of origin rule is the lex specialis and applies over and above the freedom to provide services, see section II B 4.Google Scholar

124 Art 2 c, see also Recital 16.Google Scholar

125 ibid.

126 Directive 89/552/EC, Art 2 (1).Google Scholar

127 Case C-222/94 Commission v United Kingdom [1996] ECR I 4025.Google Scholar

128 See, eg, Case 205/84 Commission v Germany [1986] ECR 3755; Case C-221/89 R v The Secretary of State for Transport, ex parte Factortame Ltd [1991] ECRI-3905; Case C-55/94 Gebhard v Consiglio dell'Ordine degli Advocati e Procurati di Milano [1995] ECR I-4165.Google Scholar

129 Para 58: ‘referring to the place in which a broadcaster has the centre of its activities, in particular the place where decisions concerning programme policy are taken and the programmes are finally put together’.Google Scholar

130 Directive 97/36/EC, Art 2 (3).Google Scholar

131 Art 2 (c).Google Scholar

132 Recital 19: ‘[T]he place of establishment of a company providing services via an Internetwebsite is not the place at which the technology supporting its website is located or the place at which its website is accessible but the place where it pursues its economic activity.’Google Scholar

133 So-called ‘regulatory arbitrage’, see further Reed, CInternet Law: Text and Materials (1st edn Butterworths London 2000) 233.Google Scholar

134 Case 33–74 Van Binsbergen [1974] ECR 1299; Case C-148/91 Veronica [1993] ECR I 487; C-23/93 TV10 [1994] ECR I 4795.Google Scholar

135 Case C-56/96 [1997] ECR I-3143.Google Scholar

136 Para 22; the Court followed Advocate General Lenz in this respect who had found that ‘it must be emphasized that the fact that VT4's programmes are aimed at Flanders is in itself of no significance. An undertaking established in one Member State may be exercising its freedom to provide services even if it is not offering services in the State of establishment itself (para 28 of the AG's opinion [1997] ECR I-3143).Google Scholar

137 Also Jones, CA ‘Television without Frontiers’ (1999/2000) 19 Yearbook of European Law 299–345 at 304;CrossRefGoogle Scholarsee also Farrar, C ‘EC Broadcasting Law Clarified: The Paul Denuit and VT4 Cases and the New Television without Frontiers Directive’ (1998) 9 (1) Entertainment Law Review 16–20 at 18–19.Google Scholar

138 138 [1997] ECR I 3843, at para 47.Google Scholar

139 Ie regulation by the country of establishment.Google Scholar

140 Advocate General Lenz in VT4 [1997] ECR I 3143, para 38.Google Scholar

141 Commission Decision of 26 June 1997 (OJ 1997 L244/18), Vlaamse Televisie Maatschappij NV v EC Commission [2000] 4 CMLR 1171.Google Scholar

142 ‘The Court of Justice has consistently held that a Member State retains the right to take measures against a service provider that is established in another Member State but directs all or most of its activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the provider had he been established on the territory of the first Member State.’Google Scholar

143 Which is in conformity with EU law.Google Scholar

144 See the VT4 case, discussed above.Google Scholar

145 This has also been argued by Advocate General Jacobs in De Agostini [1997] ECR I 3843 at paras 49 and 50.Google Scholar

146 Discussed below.Google Scholar

147 Drijber, BJ ‘The Revised Television without Frontiers Directive: Is it Fit for the Next Century?’ (1999) 36 Common Market Law Review 87–122 at 94.CrossRefGoogle Scholar

148 Reference for a Preliminary Ruling in joint cases-Case C-34/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) AB and TV-Shop i Sverige AB (C-35/95 and C-36/95) [1997] ECR I-3843.Google Scholar

149 Swedish company belonging to the Italian group.Google Scholar

150 Para 16. Arts 16 and 22 of the TWF Directive.Google Scholar

151 Para 58–62.Google Scholar

152 Ie outside the scope of the Directive.Google Scholar

153 Para 32. By contrast, the Advocate General found that misleading advertising fell within the fields coordinated by the Directive, adopting a much wider interpretation of its scope. He held that Member States cannot apply their national law on misleading advertising. The Advocate General stressed that the fields coordinated by the TWF and the specific matters regulated by it are not congruent. See Opinion of Mr Advocate General Jacobs delivered on 17 Sept 1996 [1997] ECR I-3843, paras 70–86. However the Court deviated from the Attorney General's opinion in this respect.Google Scholar

154 Para 37. This has been extended to incitement to racial hatred in Art 22a of the new TWF Directive.Google Scholar

155 Other than preventing the broadcast, such as issuing a prohibitive injunction or prosecuting the service provider.Google Scholar

156 By restricting or blocking the transmission, in order to enforce the laws and regulations falling within the coordinated field; to what extent this is technically possible is another question.Google Scholar

157 Eg by ordering Swedish ISPs to block the relevant internet site, which might not be a very effective measure, anyway, as not all access providers will be in Sweden and this is difficult to control and enforce.Google Scholar

158 Art 2 (h).Google Scholar

159 Assuming that the relevant service provider is the UK website operator, providing the Italian publishers with paid-for advertising space.Google Scholar

160 Just as in De Agostini broadcasting as a whole was the relevant service. See also Attorney-General Jacob's Opinion at para 39: ‘[T]o regard the activity of broadcasting as intrinsically distinct from ancillary activities such as advertising could pave the way for Member States to frame legislative measures so as to be applicable only to producers, advertisers, sponsors etc., thereby in fact fettering broadcasting activities as a whole albeit without formal contravention of the Directive. Such a construction can not be consistent with the objectives of the Directive and the legislature.’ See also the discussion on defining the relevant information society service.Google Scholar

161 ‘Member States may not for reasons falling within the co-ordinated field restrict the freedom to provide information society services from another Member State.’Google Scholar

162 See also (n 159).Google Scholar

163 Para 38.Google Scholar

164 Product safety is outside the scope of the coordinated field, see the definition of the coordinated field in Art 2 (h) (ii) of the E-commerce Directive: ‘requirements applicable to goods as such’.Google Scholar

165 Drijber, BJ ‘The Revised Television without Frontiers Directive: Is it Fit for the Next Century?’ (1999) 36 Common Market Law Review 87–122 at 104.CrossRefGoogle Scholar

166 BJ Drijber (n 165) 110; Jones, CA ‘Television without Frontiers’ (1999/2000) 19 Yearbook of European Law 299–345 at 315–16;CrossRefGoogle Scholarcontrast this with Johnson, H ‘Advertising Aimed at Children: Problems with Dinosaurs’ (1998) 3 (1) Communications Law 22–5 at 24, who argues that it makes sense that the Misleading Advertising Directive, as an important aspect of consumer protection, is enforced in the destination country.Google Scholar

167 ibid. See also Attorney General Jacob's Opinion (n 153).

168 Art 2 (h) (i) of the E-commerce Directive.Google Scholar

169 All other Directives containing a country of origin rule work on the same basis as the TWF Directive: in a particular sector, certain minimum standards are set. Within these standards, the country of origin rule applies: Directive 89/646/EEC, Directive 93/22EEC and Directive 92/49/EEC, Directive 92/96/EEC. Unlike all these other Directives, the E-commerce Directive contains a country of origin rule that is wider than the standards defined in the Directive itself.Google Scholar

170 See also Moerel, L ‘The Country of Origin Principle in the E-commerce Directive: the Expected ‘One Stop Shop’ (2001) 7 (7) Computer and Telecommunications Law Review 184–90 at 184.Google Scholar

171 Thünken, A ‘Multi-State Advertising over the Internet and the Private International Law of Unfair Competition’ (2002) 51 ICLQ 909–42 at 936.CrossRefGoogle Scholar

172 As has been pointed out above, the court in Alpine Investments (n 117) accepted that country of origin regulation is more suitable, see para 48: ‘The Member State from which the telephone call is made is best placed to regulate cold-calling. Even if the receiving State wishes to prohibit cold-calling or to make it subject to certain conditions, it is not in a position to prevent or control telephone calls from another Member State without the co-operation of the competent authorities of that State.’Google Scholar

173 LICRA and UEJF v Yahoo! Inc and Yahoo France Tribunal de Grande Instance de Paris, 20 Nov 2000.Google Scholar

174 Yahoo! Inc v La Ligue Contra Le Racisme et L'Antisemitisme 145 F Su2d 1168 (ND Cal 2001).Google Scholar

175 Reed, CInternet Law: Text and Materials (1st edn Butterworths London 2000) 232.Google Scholar

176 Thünken, A (n 171) 930.Google Scholar

177 The Act on Discounts (Rabattgesetz), which prohibited promotional discounts with certain exceptions and the Regulation on Gifts (Zugabeverordnung), which prohibited certain promotional offers such as ‘two for the price of one’ have been abolished with effect from 25 July 2001; see <http://www.mittelstandsportal.de/wirtschaft/Aufhebung%20Rabattgesetz2.html> and <http://www.heise.de/newsticker/data/mbb-13.12.00-000> last visited on 29 Jan 2004.+and++last+visited+on+29+Jan+2004.>Google Scholar

178 This so-called Van Binsbergen principle allows Member States to take measures against service providers who deliberately avoid national regulation by establishing themselves in and providing services from another Member State; see Recital 57 of the E-commerce Directive and see also Recital 14 of the Television without Frontiers Directive 97/36/EC of 30 June 1997 and amending Directive 89/552/EEC, see further above.Google Scholar

179 Proposal for a Directive of the European Parliament and the Council concerning unfair business-to-consumer commercial practices in the Internal Market of 18 June 2003, COM (2003) 356 final, available at <http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/directive_prop_en.pdf> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004.>Google Scholar

180 See Recital 8; this Proposal has been advocated by Member States with strict unfair competition regimes who feel that consumer protection may be undermined by the country of origin rule; see <http://www.mittelstandsportal.de/wirtschaft/Aufhebung%20Rabattgesetz2.html> and <http://www.heise.de/newsticker/data/mbb-13.12.00-000> last visited on 29 Jan 2004.+and++last+visited+on+29+Jan+2004.>Google Scholar

181 On the implications for the UK, see Report by Professor Robert Bradgate, Professor Roger Brownsword, and Dr Christian Twigg-Flesner ‘The Impact of Adopting a Duty to Trade Fairly’, July 2003 available from the DTI website <http://www.dti.gov.uk/ccp/consultations.htm> last visited on 29 Jan 2004.+last+visited+on+29+Jan+2004.>Google Scholar

182 See (n 177).Google Scholar

183 At the time of writing there was only one case.Google Scholar