  
  
INF/ECOM/22  
 
26 April  2019 
(19-2880) Page: 1/9 
  Original: English  
 
JOINT STATEMENT ON E LECTRONIC COMMERCE  
EU PROPOSAL FOR WTO DISCIPLINES AND COMM ITMENTS  
RELATING TO ELECTRON IC COMMERCE  
Communication from the European Union  
The following communication, dated 26 April 2019, is being circulated at the request of the 
delegation of the European Union.  
 
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1  INTRODUCTION  
1. The EU is  fully committed to ongoing  WTO negotiations on e -commerce. In this context, it 
will seek to negotiate  a comprehensive and ambitious set  of WTO disciplines and 
commitments, to be en dorsed by  as many  WTO Members as possible.  The EU  supports the 
open,  transparent and inclusive character of these negotiations.   
2. To this end, the EU proposes to negotiate  a series  of WTO disciplines and 
commitments  relating to electronic commerce and telec ommunications services, aiming to 
enhance regulatory predictability and improve market access conditions, to be incorporated 
in the schedules of the  individual Members.  
3. The EU and its Member States maintain the possibility to define and implement cultural and 
audio -visual policies for the purposes of preserving their cultural diversity, including by not  
taking commitments on audio -visual services.  
4. This proposal  is without prejudice to the EU position  with respect to the final  negotiated 
outcome, which in so me cases may depend on the level of support for individual provisions.  
5. The EU  reserves the right to table  additional  text proposals  on other issues  in the course 
of the negotiations.  
2  TEXT PROPOSALS FOR T HE WTO RULES ON E -COMMERCE  
2.1  ELECTRONIC CONTRACTS  
1. Memb ers shall ensure that contracts may be concluded by electronic means and that their 
legal systems neither create obstacles for the use of electronic contracts nor results in 
contracts being deprived of legal effect and validity solely on the ground that th ey have been 
made by electronic means.  
2.  Paragraph 1 does  not apply to broadcasting services, gambling services, legal representation 
services, to services of notaries or equivalent professions involving a direct and specific 
connection with the exercise  of public authority, and to contracts that establish or transfer 
rights in real estate, contracts requiring by law the involvement of courts, public authorities 
or professions exercising public authority, contracts of suretyship granted and or collateral INF/ECOM/22  
 
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  securities furnished by persons acting for purposes outside their trade, business or 
profession and contracts governed by family law or by the law of succession.  
2.2  ELECTRONIC  AUTHENTICATION AND ELECTRONIC SIGNATURES  
Definitions  
Electronic authentication means the process or act of verifying the identity of a party to an 
electronic communication or transaction, or ensuring the origin and integrity of data in electronic 
form.  
Electronic signature means data in electronic form, which is attached to or logic ally associated 
with other data in electronic form that:  
(a) is used by a natural person to agree on the data to which it relates; or  
(b) is used by a juridical person to ensure the origin and integrity of the data to which it 
 relates; and  
(c) ensures that any subsequent change  in the data to which it relates is detectable.  
Provision  
1. Members shall not deny legal effect and admissibility as evidence in legal proceedings of 
electronic signature solely on the basis that it is in electronic form.  
2. Members shall ensure that parties to an electronic transaction are not prevented  from:  
 (a) mutually determining the appropriate electronic authentication methods for their 
transaction;  
 (b) being able to prove to judicial and administrative authorities that the use of electronic 
authentication or an electronic signature in that transaction complies with the applicable legal 
requirements.  
3. Notwithstanding paragraph 2, certification requirements by an authority accredited in 
accordance with domestic law or certain performance standards may apply for a particular 
category of transactions, the method of authentication or electronic signature.  Such 
requirements and standards shall be objective, transparent and non -discriminatory and shall 
only relate to the  specific characteristics of the category of transactions concerned.  
4. To the extent provided for under domestic law, Members shall apply paragraphs 1 to 3 to 
other electronic processes or means of facilitating or enabling electronic transactions, such as  
electronic time stamps,  electronic registered delivery services or website authentication.  
2.3  CONSUMER PROTECTION  
1. Recognising the importance of enhancing consumer trust in electronic commerce, Members 
shall adopt and maintain measures that protect consume rs from fraudulent and deceptive 
commercial practices when they engage in electronic commerce transactions.  
2. Additionally, Members should consider adopting or maintaining measures that:  
(a) require traders to act in good faith;  
(b) require traders to pro vide accurate information on the goods or services and the terms 
of the contract; and  
(c) grant consumers access to redress.  INF/ECOM/22  
 
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  3. Members recognise the importance of cooperation between their consumer protection 
agencies or other relevant bodies in order to  protect consumers and enhance online 
consumer  trust.  
2.4  UNSOLICITED  COMMERCIAL ELECTRONIC MESSAGES  
Definition  
Commercial electronic message  means an electronic message, which is sent for commercial 
purposes using telecommunications services, comprising at l east electronic mail and, to the extent 
provided for in domestic law, other types of electronic messages.  
Provision  
1.  Members shall adopt and maintain measures that protect consumers against unsolicited 
commercial electronic messages. To this end : 
(a) the recipient 's consent shall be required, as specified according to the laws and 
regulations, to receive commercial electronic messages; or  
(b)  suppliers of commercial electronic messages shall be required to facilitate the ability of 
recipients to preve nt ongoing reception of such messages.  
2.  Members shall provide access to redress against suppliers of unsolicited commercial 
electronic messages who do not comply with the measures implemented pursuant to 
paragraph 1.  
3.  Members shall ensure that comme rcial electronic messages are clearly identifiable as such 
and clearly disclose on whose behalf they are sent.  
2.5  CUSTOMS DUTIES  ON ELECTRONIC TRANSMISSIONS  
Members shall not impose customs duties on electronic transmissions, which include the transmitted 
content. 
2.6  TRANSFER OR ACCESS TO SOURCE CODE  
1. Members shall not require the transfer of, or access to, the source code of software owned by 
a natural or juridical person of other Members.  
2.  For greater certainty:  
(a) the general exception, the security exception as well as the exceptions in the 
paragraph  2 of the GATS Annex on Financial Services apply to measures adopted or 
maintained in the context of a certification procedure;  
(b) paragraph 1 does not apply to the voluntary transfer of or granting of a ccess to source 
code on a commercial basis by a natural or juridical person, for instance in the context of a 
public procurement transaction or a freely negotiated contract.  
3.  Paragraph 1 is without prejudice to:  
(a) requirements by a court, administrati ve tribunal, or by a competition authority to 
remedy a violation of competition law;  
 (b) the protection and enforcement of intellectual property rights; and  
 (c) the right to take any action or not disclose any information that is considered necessary 
for the protection of essential security interests relating to the procurement of arms, INF/ECOM/22  
 
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  ammunition or war materials, or to procurement indispensable for national security or for 
national defence purposes.  
2.7  CROSS -BORDER DATA FLOWS  
1. Members are committed to ensuring cross -border data flows to facilitate trade in the digital 
economy. To that end, cross -border data flows shall not be restricted by:  
(a) requiring the use of computing facilities or network elements in the Member's territory 
for processing, includ ing by imposing the use of computing facilities or network elements that 
are certified or approved in the territory of the Member;  
(b) requiring the localization  of data in the Member's territory for storage or processing;  
(c) prohibiting storage or proces sing in the territory of other Members;  
(d) making the cross -border transfer of data contingent upon use of computing facilities or 
network elements in the Member's territory or upon localization  requirements in the  Member's 
territory.  
2.8  PROTECTION OF PERSON AL DATA AND PRIVACY  
1. Members recognize  that the protection of personal data and privacy is a fundamental right 
and that high standards in this regard contribute to trust in the digital economy and to the 
development of trade.  
2. Members may adopt and maintain the safeguards they deem appropriate to ensure the 
protection of personal data and privacy, including through the adoption and application of 
rules for the cross -border transfer of personal data. Nothing in the agreed discipl ines and 
commitments  shall affect the protection of personal data and privacy afforded by the Members ' 
respective safeguards.  
3. Personal data means any information relating to an identified or identifiable natural person.  
2.9  OPEN INTERNET  ACCESS  
Subject to applicable policies, laws and regulations, Members should maintain or adopt appropriate 
measures to ensure that end- users in their territory are able to:  
(a) access, distribute and use services and applications of their choice available on the  
Internet, subject to reasonable and non -discriminatory network management;  
(b) connect devices of their choice to the Internet, provided that such devices do not harm 
the network; and  
(c) have access to information on the network management practices of  their Internet 
access service supplier.  
3  REVISION OF THE WTO REFERENCE  PAPER ON TELECOMMUN ICATIONS SERVICES  
The EU proposes that the following set of disciplines replaces the WTO reference paper on 
telecommunication services.  
3.1  Scope  
1. The following are de finitions and principles on the regulatory framework for public 
telecommunications transport services.  
2. For the purposes of these principles, public telecommunications transport services shall 
include, inter alia , data transmission services and leased c ircuit services.  INF/ECOM/22  
 
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  3.2  Definitions  
For the purpose of these principles:  
1. "essential facilities " means facilities of a public telecommunications transport network or 
service that  
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and  
(b) cannot feasibly be economically or technically substituted in order to provide a service;  
2. "interconnection" means linking with suppliers of public telecommuni cations transport 
networks or services in order to allow users of one supplier to communicate with users of the 
same or another supplier or to access services provided by the suppliers involved or any other 
supplier who has access to the network;  
3. "major  supplier " means a supplier of public telecommunications transport networks or services 
which has the ability to materially affect the terms of participation (having regard to price and 
supply) in a relevant market for public telecommunications services as  a result of:  
(a) control over essential facilities; or  
(b) use of its position in the market;  
4. "network element" means a facility or equipment used in supplying a telecommunications 
service, including features, functions and capabilities provided by m eans of that facility or 
equipment;  
5. "telecommunications regulatory authority" means the body or bodies charged by a Member 
with the regulation of public telecommunications transport networks and services covered by 
these principles;  
6. "user" means any natural or juridical person using a public telecommunications transport 
service.  
3.3  Competitive  safeguards  
1. Appropriate measures shall be maintained for the purpose of  preventing suppliers of public 
telecommunications transport networks or services who, alone or together, are a major 
supplier from engaging in or continuing anti -competitive practices.  
2. The anti -competitive practices referred to in paragraph 1 shall in clude in particular:  
(a) engaging in anti -competitive cross -subsidization;  
(b) using information obtained from competitors with anti -competitive results; and  
(c) not making available to other services suppliers on a timely basis technical information 
about essential facilities and commercially relevant information which are necessary for them 
to provide services.  
3.4  Interconnection  
1. Interconnection with a major supplier shall be ensured at any technically feasible point in the 
network.  Such interconnecti on shall be provided.  
(a) under non -discriminatory terms, conditions (including technical standards and 
specifications) and rates and of a quality no less favourable than that provided for its own like 
services or for like services of its subsidiaries or other affiliates;  INF/ECOM/22  
 
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  (b) in a timely fashion, on terms and conditions (including rates, technical standards and 
specifications) that are transparent, reasonable, having regard to economic feasibility, and 
sufficiently unbundled so that the supplier need not pay for network compone nts or facilities 
that it does not require for the service to be provided; and   
(c) upon request, at points in addition to the network termination points offered to the 
majority of users, subject to charges that reflect the cost of construction of necessa ry 
additional facilities.  
2. The procedures applicable for interconnection to a major supplier shall be made publicly 
available.   
3. Major suppliers shall make publicly available either their interconnection agreements or a 
reference interconnection offer . 
3.5  Universal  service  
1. Any Member has the right to define the kind of universal service obligations it wishes to 
maintain and to decide on their scope and implementation.  
2. Universal service obligations shall be administered in a transparent, objective an d non -
discriminatory manner, which is neutral with respect to competition and not more burdensome 
than necessary for the kind of universal service defined by the Member.  
3. The designation of universal service suppliers shall be made through an efficient, transparent 
and non -discriminatory mechanism that is open to all suppliers of public telecommunications 
transport networks or services.  
4. Where suppliers of public telecommunications transport networks or services are compensated 
for the provision of univ ersal service, such compensation shall not exceed the financial needs 
directly attributable to the universal services obligations.  
3.6  Licencing  and Authorisation  
1. Authorisation to provide public telecommunications transport networks or services should in 
principle be granted without a formal licencing procedure, so that the supplier may start 
providing its networks or services without having to wait for a decision by the 
telecommunications regulatory authority.  
2. Where a licence is required, the following s hall be made publicly available:   
(a) the types of networks or services requiring a licence;  
(b) all the licensing criteria, applicable procedures and the period of time normally required 
to reach a decision concerning an application for a licence; and  
(c) the terms and conditions of individual licences.  
3. An applicant for a licence shall receive, on request, the reasons for any denial of a license, 
imposition of supplier -specific conditions on a license, revocation of a license, or refusal to 
renew a lic ense.  
3.7  Telecommunications  Regulatory Authority  
1. The telecommunications regulatory authority shall be separate from, and not accountable to, 
any supplier of public telecommunications transport networks or services. To this end, the 
telecommunications regul atory authority shall not hold a financial interest or maintain an 
operating or management role in any such supplier.  INF/ECOM/22  
 
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  2. Tasks shall be assigned by law to the telecommunications regulatory authority to enforce the 
obligations set out in these principles, a nd shall be made public in an easily accessible and 
clear form.  
3. The telecommunications regulatory authority shall have the power, including the ability to 
impose sanctions, to carry out the tasks assigned to it by law. Such power shall be exercised 
transparently and in a timely manner.  
4. The decisions of and the procedures used by the telecommunications regulatory authority shall 
be impartial with respect to all market participants.  
3.8  Allocation  and use of scarce resources  
1. Any procedures for the allocation and use of scarce resources, including frequencies, numbers 
and rights of way, shall be carried out in an objective, timely, transparent and non -
discriminatory manner.  
2. The current state of allocated frequency bands wil l be made publicly available, but detailed 
identification of frequencies allocated for specific government uses is not required.  
3. The allocation of frequency bands for public telecommunication transport services shall be 
carried out via an open process t hat takes into account the overall public interest, including 
the promotion of competition. Such allocation shall in principle be carried out using market -
based approaches, including through mechanisms such as auctions where appropriate.  
3.9  Essential  Faciliti es 
1. A major supplier  shall make its essential facilities available to suppliers of public 
telecommunications transport networks or services on reasonable, transparent and non -
discriminatory terms and conditions for the purpose of providing public telecom munications 
transport services, except when, on the basis of the facts collected and the assessment of the 
market conducted by the telecommunications regulatory authority, this is not necessary to 
achieve effective competition.  
2. The telecommunications r egulatory authority shall be empowered to:  
(a) determine those essential facilities required to be made available by a major supplier;  
(b) require a major supplier to offer access on an unbundled basis to its network elements 
that are essential facilities.  
3.10  Resolution of Disputes  
A supplier of public telecommunications transport network or services shall have recourse, within a 
reasonable and publicly available period of time,  to the  telecommunications  regulatory authority or 
other competent autho rity to resolve disputes regarding the measures relating to matters set out in 
these principles . 
3.11  Transparency  
Further to Article 4 of the GATS Annex on Telecommunications and to other dispositions in these 
principles pertaining to publication of informatio n, any measure relating to public 
telecommunications transport networks or services shall made publicly available.  INF/ECOM/22  
 
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  4  MARKET ACCESS REQUES TS 
4.1  Information  Technology Agreement and Information Technology Agreement 
Expansion  
The EU requests that other Members joi n the Information Technology Agreement and its expansion.  
4.2  COMPUTER  SERVICES  
1.  The EU requests that other Members make commitments on computer services in accordance 
with the following:  
(a) Mode 1 -3: Full market access and national treatment commitments in modes 1 - 3 for 
the sector as a whole (CPC84, 2 -digit based), with no limitations.  
(b) Mode 4: No exclusion of computer and related services from horizontal Mode 4 
commitments. No additional limitations beyond horizontal limitations, at least for 
Intra-corporate transferees (ICTs).  
2.  The EU requests that other Members to commit to the Understanding on computer and related 
services  (S/CSC/W/51) . 
4.3  TELECOMMUNICATION  SERVICES  
The EU requests tha t other Members make commitments on telecommunications services in 
accordance with the following:  
1. Sectoral Coverage : Commitments should have commercially meaningful coverage of all 
subsectors listed in 2.C. of MTN.GNS/W/120, in particular fixed and mobile voice and data 
transmission services, leased circuit services (through any means of technology), and value -
added services.  
2. All subsectors:  
(a) Mode 1 : No national treatment limitations and no substantial market access limitations, 
specifically:  
- No unbound;  
- No requirement to use networks of specific suppliers;  
- No requirement of commercial presence; and  
- No requirement for commercial arrangements.  
(b) Mode 2 : No market access or national treatment limitations.  
(c) Mode 3 : No national treatment limitations and no substantial market access limitations, 
specifically:  
- No limitations on the establishment or number of service suppliers (e.g. quotas, 
exclusive service suppliers, or geographic restrictions within a Member 's territory);  
- No economic needs tests;  
- No restr ictions on the types of legal entity permitted;  
- No limitations on nationality or residency; and  
- Majority foreign capital participation and effective control to be allowed.  INF/ECOM/22  
 
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  (d) Mode 4 :  
- No additional limitations beyond horizontal limitations, at least for Intra-corporate 
transferees (ICTs);  
- No exclusion of telecommunications services from horizontal Mode 4 commitments.  
3. All telecommunications services provided on a non -facilities or resale basis:  no 
limitations on Modes 1 to 3.  
4. Subsectors 2.C.h. to 2.C.n. in  MTN.GNS/W/120:  no limitations on Modes 1 to 3.  
5.  MFN Exemptions: Removal of all MFN exemptions . 
 
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