European Communities (Directive 2000/31/EC) Regulations 2003
I, MARY HARNEY, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to certain provisions of Directive No. 2000/31/EC[1] of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particu-lar electronic commerce, in the Internal Market, hereby make the following regulations:
Citation and commencement.
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(1) These Regulations may be cited as the European Communities (Directive 2000/31/EC) Regulations 2003.
(2) These Regulations shall come into operation on 24 February 2003.
Non-application of Regulations.
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These Regulations do not apply to the following activities:
(a) the imposition, charging, levying, collection, payment, remission or abatement of any tax, charge or levy by or under any enactment,
(b) any matter relating to relevant services to which
(i) the Data Protection Act 1988 (No. 25 of 1988) (including that Act as it stands amended for the time being for the purpose of giving effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data),
or
(ii) the European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002 (S.I. No. 192 of 2002) ,
applies or apply,
(c) any issue relating to the validity, lawfulness or enforceability of any agreement or practice by reason of the Competition Act 2002 (No. 14 of 2002), the Treaties establishing the European Communities or any other enactment or rule of law concerning restraints on trade,
(d) the activities of notaries or commissioners of oaths to the extent that those activities involve a direct and specific connection with the exercise of a public function,
(e) the representation of a party to legal proceedings and the defence of his or her interest before a court or tribunal,
(f) activities to which the Betting Act 1931 (No. 27 of 1931), the Gaming and Lotteries Acts 1956 to 1979 or the National Lottery Act 1986 (No. 28 of 1986) applies or apply.
Interpretation.
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(1) In these Regulations, unless the context otherwise requires -
at a distance means, in relation to a service, that the service is provided without the parties being simultaneously present;
at the individual request of a recipient of a service means that the service concerned is provided through the transmission of data on individual request;
authorised officer means an officer appointed under Regulation 21;
by electronic means means, in relation to a service, 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;
commercial communication means any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession; however, the following do not in themselves constitute commercial communications:
(a) information allowing direct access to the activity of the company, organisation or person, in particular a domain name or an electronic mail address, or
(b) communications relating to the goods, services or image of the company, organisation or person compiled in an independent manner, particularly when this is without financial consideration;
Community act means an act adopted by an institution of the European Communities;
consumer means a natural person who is acting for purposes which are outside his or her trade, business or profession;
coordinated field means requirements of any enactment which are applicable to relevant service providers or relevant services, regardless of whether those requirements are of a general nature or specifically relate to such service providers or such services and includes -
(a) requirements with which a service provider has to comply in respect of the taking up of a relevant service, such as qualifications, authorisation or notification,
(b) requirements concerning the pursuit of the activity of a relevant service, such as requirements regarding the behaviour of the re-levant service provider, the quality or content of the service, including those applicable to advertising and contracts or require-ments concerning the liability of the relevant service provider,
but does not include requirements applicable to -
(i) goods as such,
(ii) the delivery of goods, or
(iii) services not provided by electronic means;
designated authority means, in relation to a regulated profession, an authority of the kind mentioned in paragraph (a) or (b) of the definition of designated authority in, as appropriate
(a) Regulation 3(1) of the European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991 (S.I. No. 1 of 1991), or the corresponding provision of any regulations amending or replacing those Regulations,
or
(b) Regulation 2(1) of the European Communities (Second General System for the Recognition of Professional Education and Training) Regulations 1996 (S.I. No. 135 of 1996), or the corresponding provision of any regulations amending or replacing those Regulations;
Directive means Directive No. 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market;
Director means the Director of Consumer Affairs;
enactment includes an instrument made under an enactment;
legal rights includes rights relating to copyright or intellectual property, rights to which the law of defamation and malicious falsehood relate and rights under contract;
"Member State" means
(a) a Member State of the European Communities, or
(b) a Member State of the EEA;
"Member State of the EEA" means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;
Minister means the Minister for Enterprise, Trade and Employment;
recipient of the service means any natural or legal person who, for professional ends or otherwise, uses the relevant service concerned and, without prejudice to the generality of the foregoing, in particular for the purposes of seeking information or making it accessible;
regulated profession means a professional activity or range of activities for which an authority of the kind mentioned in paragraph (a) or (b) of the definition of designated authority in -
(a) Regulation 3(1) of the European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991 (S.I. No. 1 of 1991), or the corresponding provision of any regulations amending or replacing those Regulations,
or
(b) Regulation 2(1) of the European Communities (Second General System for the Recognition of Professional Education and Training) Regulations 1996 (S.I. No. 135 of 1996), or the corresponding provision of any regulations amending or replacing those Regulations,
has been designated;
relevant service means an information society service within the meaning of Article 1.2 of Directive 98/34/EC as amended by Directive 98/48/EC, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service, other than a service specified in Schedule 1 to these Regulations;
relevant service provider means any natural or legal person providing a relevant service.
(2) In these Regulations references to a relevant service provider being established in the State are references to such a provider who effectively pursues an economic activity using a fixed establishment in the State for a definite or indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider.
(3) In these Regulations -
(a) a reference to a Regulation is a reference to a Regulation of these Regulations unless it is indicated that reference to another enactment is intended,
(b) a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.
(4) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.
Freedom to provide relevant services.
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(1) A relevant service provider, being a relevant service provider established within the State, has, subject to any requirements for the time being in force of the coordinated field and these Regulations, the right to provide relevant services within the State and from the State to another Member State or States; accordingly only those requirements and these Regulations govern the provision of relevant services by such a provider.
(2) The right under the Directive of a relevant service provider, other than a relevant service provider established within the State, to provide relevant services from one or more other Member States to the State shall not
(a) be made subject to any requirement of the co-ordinated field, or
(b) be restricted in any other way save as provided in Regulations 4(4) and 5.
(3) Without prejudice to the generality of paragraphs (1) and (2) -
(a) the taking up and pursuit of an activity referred to in para-graph (1) shall not be made subject to prior authorisation or any other requirement having equivalent effect,
(b) the rights referred to in paragraph (1) or (2) extend...
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