Public Consultation on the Future of Electronic Commerce in the Internal Market and The

1. December 2010 European Commission, DG Internal Market and Services

08/00653

Public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on Electronic DANISH COMPETITION- AND CON- commerce (2000/31/EC) SUMER AUTHORITY

Amagerfaelledvej 56 Danish Competition and Consumer Authority has on August 10, 2010 re- DK-2300 Copenhagen S ceived a public consultation from the Commission on the future of electronic commerce in the internal market and the implementation of the Tlf. +45 32 66 90 00 Directive on Electronic Commerce. Fax +45 32 66 91 00

CVR-nr. 10 29 48 19 According to the public consultation the Commission wishes to study in [email protected] detail the various reasons for the limited takeoff of electronic commerce, www.kfst.dk as stated in the Retail Market Monitoring Report “Towards more effi- cient and fairer retail services in the internal market for 2020” (COM (2010) 355) and evaluate the implementation of the Directive, in MINISTRY OF ECONOMIC accordance with its Article 21, as announced in the Communication “A AND BUSINESS AFFAIRS Digital Agenda for Europe” (COM (2010) 245).

The realisation of the single market is often and well-deservedly mentioned as one of the European Unions greatest achievements. However the single market is not yet a fait accompli.

Various surveys from the European Commission document that consumers and businesses experience a number of barriers – prohibiting them from doing cross-border e-commerce. Hereby inhibiting the full potential of the single market to be realized.

A single European online market would give European consumers access to a wider range of goods and services at lower prices – and would provide European businesses with a marketplace of a much greater scale.

A single European online market would then not only strengthen competition and competitiveness but also improve consumer conditions – to the benefit of both consumers, businesses and our society as a whole.

In order to make the single market – indeed “a single market” the European Commission has launched “A Digital Agenda for Europe”. Here the Commission sets out to reduce the barriers facing consumers and businesses when doing cross-border e-commerce. Page 2

The Danish Competition and Consumer Authority applauds this very important effort from the Commission and supports the work of the Com- mission in this field as it is important to strengthen conditions for cross- border e-commerce within the EU for both consumers and businesses.

The Danish Competition and Consumer Authority has sent the Commis- sions consultation in national consultation with relevant public authorities in Denmark, including; Danish Consumer Ombudsman, The Ministry of Science, Technology and Innovation, The Ministry of the Interior and Health, the Danish Ministry of Food, Agriculture and Fisheries.

The feed back from the national Danish public authorities lead us to answer following questions:

27. Are you aware of statistics or general or sectoral studies at national level on the electronic commerce market and in particular its cross-border aspects? If in the affirmative, which? The Danish Ministry of Economic and Business Affairs is currently con- ducting a qualitative study on how to improve conditions for cross-border e-commerce seen from the perspective of Danish consumers and en- terprises. The aim of the study is twofold: First, to identify what kind of trust-related barriers Danish consumers face, and to develop initiatives on how to overcome these. Secondly, to identify how and when cultur- al factors affect SME's participation in cross-border e-commerce, and to develop initiatives that addresses these with the purpose of enhancing SME's participation in cross-border e-commerce. The final report is ex- pected to be published March 2011.

Issue 3: Cross-border commercial communications, in particular for the regulated professions According to the Danish Ministry of Food, Agriculture and Fisheries, Danish Veterinary and Food Administration have in April 2010 contacted the Commission concerning the sale of food supplements on the internet.

Denmark is experiencing an increase in number of companies situated in other member states or third countries that from websites are marketing food supplement to Danish consumers. These websites are in Danish language and it is often very difficult for consumers to find information on the physical location of the company responsible for the websites.

In many cases these companies based outside Denmark are selling products containing substances or combinations of substances that are forbidden in Denmark because they are considered to be dangerous. It is also common for these companies to use illegal health claims.

Denmark has from a risk assessment perspective decided to allocate resources to an ongoing surveillance of foreign websites that in Danish language are marketing food supplements to Danish consumers. Page 3

If the Danish Veterinary and Food Administration becomes aware that companies from other member states sell illegal/dangerous products to Danish consumers the relevant authorities in the other member state is contacted for verification of the company. In parallel they issue warnings to Danish consumers on purchase of the identified dangerous products.

The problem has been raised in the Standing Committee (SCoFCAH), 12 July 2010 where a number of countries said that they have experienced the same problem.

39. Do measures exist in your Member State which guarantee that the service provider who sends unsolicited commercial communications by email regularly consults "opt-out" registers (in which nat- ural persons who do not wish to receive this type of communication can register)? If so, are these registers respected? The Danish Marketing Practices Act bans use of email, fax or automatic calling systems for unsolicited marketing purposes. Therefore there is no “opt-out”-register.

40. Is the legislation of your Member State sufficiently clear on the criteria making it possible to determine if a commercial communication can be regarded as unsolicited or not? According to the Danish Consumer Ombudsman the legislation is relat- ive clear, but in some cases there can be doubt about whether a legal con- sent is given or if the e-mail is unsolicited.

41. Is the 'acquis communautaire' (European law) on unsolicited commercial communications and national regulations well-adapted to new forms of commercial communications? The EU-legislation was adopted in 2000, where no one knew Bluetooth- marketing or marketing by social media like Facebook. According to the Danish Consumer Ombudsman this can cause some doubt.

46. Are on-line pharmacy services authorised in your Member State for over-the counter (OTC) medicines and/or for prescription-only medicines? If so, under which conditions? Please indicate the relevant legislative provisions.

According to The Ministry of the Interior and Health only pharmacies are allowed to sell prescription-only human medicines to the public in Denmark. Pharmacies and companies which hold a licence from the Danish Medicines Agency are allowed to sell OTC medicines. Pharma- cies and companies that hold a licence from the Danish Medicines Agency are allowed to sell prescription-only veterinary medicines. There is no restriction as to how the sale is carried out, as long as the general provisions governing their activities are respected. The sale may therefore in principle take place on-line.

The legislative provisions relevant to the sale of medicinal products by pharmacies are to be found in the Danish Pharmacy Act (lov om apoteks- Page 4

virksomhed, jf. lovbekendtgørelse nr. 855 af 4. august 2008), especially sections 11(1), 12(1), 12 a and 15. Other provisions relevant to pharmacies when selling medicines to the public are to be found in the Execut- ive Order on distribution of medicinal products (bekendtgørelse nr. 1243 af 12. december 2005 om distribution af lægemidler med senere ændringer).

The legislative provision relevant to the sale of medicinal products which may be sold outside pharmacies by companies holding a licence, are to be found in Chapter 3 of the Medicinal Products Act (lov nr. 1180 af 12. december 2005 om lægemidler med senere ændringer), especially sections 39(1), 40 a og 40 b. Other provisions relevant to the said companies when selling medicines to the public, are to be found in the Executive Order on distribution of medicinal products (bekendtgørelse nr. 1243 af 12. december 2005 om distribution af lægemidler med senere ændringer) and in the Executive Order on the sale of medicinal products for produc- tion animals outside pharmacies (bekendtgørelse nr. 93 af 25. januar 2007 om forhandling af lægemidler til produktionsdyr udenfor apoteker).

None of the provisions mentioned above deal with the specific question of on-line sale.

47. Are there specific measures in your Member State on products (safety devices, checks of compliance with medicine marketing regulations, etc), and/or on internet sites (specific logo indicating legal pharmacies, public register of legal pharmacies, etc) aiming to guarantee that all medicines bought on-line are safe? If so, what are they? According to the Ministry of the Interior and Health, so far, no specific measures are being taken, but the matter is under continuous review.

48. What are the advantages and disadvantages of the legal possibil- ity for citizens in general or certain categories of citizens to buy medicines on-line and of having them home-delivered? E.g.: paracetamol, aspirin, vitamins etc. According to the Ministry of the Interior and Health buying medicines on-line on the one hand, is convenient, more discrete and less time con- suming for the consumer. At the same time, it is, however, important that the consumer can easily identify and be assured that the pharmacy or company selling the medicines is under the supervision of the competent authority of the Member State where it is established, and that it com- plies with the relevant national provisions regarding safety etc.

49. Are you aware of studies or surveys relating to the volume of legal or illegal purchase of on-line medicines within the European Uni- on and, more specifically, in your Member State? If so, what sources and assessment methods were used? The Ministry of the Interior and Health do not know the exact figure, but the Danish Medicines Agency estimates that less than 1 % of the sale of Page 5

medicinal products from legitimate pharmacies in Denmark are pur- chased online.

Issue 5: Interpretation of the provisions concerning intermediary li- ability in the Directive

59. From a technical and technological point of view, are you aware of effective specific filtering methods? Do you think that it is possible to establish specific filtering? According to the Ministry of Science, Technology and Innovation, Den- mark has experienced examples where the courts have granted an injunction for an internet service provider to block access to a web-page, which violated copyright legislation. The actual blocking was established by DNS blocking. One of the limitations of this approach is that the actual violator – the owner of the website – (in this instance thepiratebay.org) is not consulted in the matter. Consequently the Danish government has asked the Danish judicial council to consider this practice with a modifi- cation in mind, so that the third party (the actual violator) in the future might be consulted before an injunction is granted.

In addition, the Danish Gambling Act was revised in 2010. In the new act, it has been determined that the transmission of information in a communication network to an illegal game system is not allowed. This means that the Danish gaming-authority may seek an injunction according to the rules of the Danish Administration of Justice Act against sites offer- ing illegal gambling in Denmark.

Question 60 (Issue 5): Do you think that the introduction of technical standards for filtering would make a useful contribution to combat- ing counterfeiting and piracy, or could it, on the contrary make mat- ters worse? According to the Ministry of Science, Technology and Innovation, the Danish Government has held a series of meetings on the subject of technical means for enforcing copyright online. The series of meetings was completed in the spring of 2009 and concluded that technical blocking is not an effective way of enforcing copyright online, additionally that technical blocking has a number of juridical problems associated. Following these conclusions the Danish government does not consider filtering as an optimal means to combat online piracy. In addition, it is the funda- mental position of the Danish government that:

 As a starting point the telephone companies are not responsible for content online, but the Danish government recognizes that service providers have a role to play in enforcing copyright online.  Both the blocking of a subscriber’s internet access and the blocking of access to a certain internet site should only be done through decisions by the courts.  Illegal activities shall of course not be protected just because they take place online. Page 6

70. Does a procedure to ensure notification to the other Member States and to the Commission of any restriction falling under Article 3 (4) exist in your Member State. If so, please specify this procedure and the number of notifications made to the Commission and to other Member States since 17 January 2002. According to the Ministry of Economic and Business Affairs it is com- pulsory for Danish authorities to notify under EU's information procedure following dir. 98/34/EC as amended by 98/48/EC when introducing technical regulations related to information society services. The authority notifies by sending relevant documents (notification form, draft regu- lation and basis document) to Denmark's contact point for directive 98/34/EC (i.e. Internal Market Centre of the Danish State situated in the Danish Enterprise and Construction Authority). The contact point then sends the documents to the Commission. The number of notifications related to information society services since 17 January 2002 is 10.

71. Do you think that the system of notification provided for in Art- icle 3 (4) is effective or should it be clarified, or strengthened by information systems such as the IMI (Internal Market Information System)? The Ministry of Economic and Business Affairs finds that the present system of notification is effective.

Yours sincerely

Kenneth Skov Jensen

Head of Division Consumer Policy Division Danish Competition and Consumer Authority