The EU Commission has today (6th May 2015) issued a new Digital Single Market Strategy for Europe laying out the proposed roadmap for action over the next 18 months. The key aim of the Strategy is to create an on-line free market of goods, persons, services and capital across Europe so that citizens and business can seamlessly carry out on-line activities irrespective of nationality or place of residence. The Commission considers that fragmentation and barriers in the European on-line world are holding the EU back and the aim is to remove these barriers.

The Commission’s key proposals are:

Better access for consumers and businesses to online goods and services across Europe

The Commission aims to break down barriers to cross-border on-line activity in a wide variety of situations in order to build consumer trust in cross-border on-line sales but also to prevent unfair discrimination against consumers.

Cross-border e-commerce rules that consumers and business can trust: The Commission proposes to make the law of the seller the point of reference whilst harmonising the main rights and obligations of the parties in sales contracts, including non-performance remedies and minimum warranty periods.

Affordable high-quality cross-border parcel delivery: The Commission will launch measures to improve delivery price transparency and enhance the regulatory oversight of the cross-border parcels market.

Preventing unjustified geo-blocking: The Commission will put forward legislation to abolish what it regards as being unjustified geo-blocking in 2016.

Better access to digital content – A modern copyright framework: The Commission plans to reduce the differences between national copyright regimes and allow for wider EU access, in particular, wider online access to works by users across the EU.

Reducing VAT related burdens and obstacles when selling across borders: The VAT exemption for the importation of small consignments from suppliers outside the EU will be removed and the administrative burden on businesses arising from different VAT regimes across the EU will be reduced.

Creating the right conditions for digital networks and services to flourish

Reliable, trustworthy, high-speed and affordable networks that safeguard consumers’ fundamental rights to privacy are seen as being essential to the digital single market.

Making the telecoms and media rules fit for purpose: Radio spectrum revenues will stay with the Member States but the way spectrum is used across the EU will be harmonised. The Audiovisual Media Services Directive will be reviewed to focus on the roles and responsibilities of all market players, measures for the promotion of European works, advertising and the protection of minors.

A regulatory environment for platforms and intermediaries fit for purpose: The Commission will launch a comprehensive assessment of the role of platforms in such areas as transparent presentation of search results; platform usage of acquired data; use of copyright material by intermediaries; removal of constraints on portability and dealing with illegal content.

Reinforcing trust and security in the handling of personal data: Following agreement on the EU Data Protection Regulation “by the end of 2015” the ePrivacy Directive will be reviewed with a view to ensuring a level playing field for all market players.

Maximising growth potential of the digital economy

Digital ecosystems, hardware and software, applications, data and integrating digital infrastructure will become the base of the majority of economic activity.

Building a data economy: a ‘free flow of data’ initiative will be launched addressing the different data usage restrictions, but maintaining data protection with the aim of restoring consumer and business faith in the Big Data sector and use of cloud services.

Boosting competitiveness through interoperability and standardisation: the Commission will promote ICT standardisation throughout the EU, through an integrated standardisation plan setting out priorities and essential sectoral standards.

An inclusive e-society: The Commission will propose a new e-Government Action Plan 2016-2020 which will aid a ‘Single Digital Gateway’, achieving cross-border interoperability and accelerate transition to full e-procurement.

Investing in the Digital Single Market and governance: Further investment is required as public funds and the European Structural and Investment Funds do not cover the required investment. The Member State governments need to work together to facilitate the move to a Digital Single Market.

The Commission’s proposals could provide benefits across the EU, both for consumers and businesses. A digital single market is a laudable aim but many and significant issues remain to be identified and resolved that will play a pivotal role when implementing the Commission’s proposals. A digital single market should not result in a dogmatic approach to the free movement of goods and services which interferes with the freedom to commercial contract.

More generally, the Strategy does not mention the diversity of language across the EU which in practice is one of the main barriers to cross border on-line trade. Until more websites operate in multiple languages there will inevitably be barriers to wider-consumer use of non-domestic on-line services.

The Strategy provides only a cursory mention of the wider, non-EU international environment. Whilst a unified on-line EU would be beneficial, there would be dangers if this were to develop inconsistently to wider world-wide standards. If the on-line EU becomes a “walled-garden” with a different legal framework to much of the rest of the world, there is a danger that the EU will be bypassed.

We have provided only the briefest of summaries of the Commission’s proposals. Further commentary and review of the implication of the proposals will be provided by Bird & Bird as more details emerge.


Roger Bickerstaff

Phil Sherrell

Gemma Briance