Attorney at Law and Economist
Copyright © 1998 Georgios I Zekos
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Electronic technology is a vital means of development for maritime transport in the European Union. One of the key benefits of electronic data interchange is the exchange of information and completion of transactions directly between computers, eliminating the need for processing purchase orders, bills of lading or invoices. Clear, constructive, harmonised, and easy applicable legal rules affect differently the economic parameters of maritime transport than vague and contradictory legal rules or even more the absence of legal provisions. Community legislation now exists for all modes of transport creating new open market conditions. The coherence of this legislation will be investigated.
Integration of the economies of the member states entails increased transport movements across frontiers which means challenges for the European transport policy. The importance of transport and communications infrastructures in promoting integration and stimulating economic growth has been recognised for some time. Extra mobility will be due to the single market. This increase in mobility will mean more congestion unless efficient trans-European networks are created. New technology and its applications are creating an information based society which will bring about profound changes in production, working and living habits. Information technology can provide answers to new needs of European society.
The transport sector makes a vital contribution to the European Union's frontier-free single market. Without efficient transport networks two of the European Union's basic principles, the free movement of goods and of people, would not function. In preparation for the single market, the Union has adopted a series of laws liberalising the main modes of transport: road, rail , air , sea and inland waterway. The community is integrating national networks to create trans-European Networks (TENs). This was given priority status in the Maastricht Treaty on European Union by the new articles 129b to 129d. The development of TENs would be underpinned by a series of measures. These would include the better use of existing networks by modernising equipment and by an improved flow of information between systems by using electronic data interchange (EDI) and telecommunications. Radio, cable and satellite technology is used to supply customers instantaneously with vast amounts of data, the essential element in the functioning of an information society. Modern data transmission technology has made the distance between the source of the information and the consumer irrelevant. A world-wide network, capable of serving millions of users simultaneously, will make it easier and faster to find wider variety of solutions to problems. The Council of Ministers , acting on a proposal from the Commission, established a consultation procedure and set up a transport infrastructure committee(1).
The Maastricht Treaty marked the beginning of a new phase for the common transport policy. Broadening the external dimension by improving transport links with third countries and fostering the access of EU operators to other transport markets is the aim of the new CTP. The aim of this article is to show the economic importance of the use of logistics and electronic technology in maritime transport and at the same time to investigate the legal regime which governs their use in the European Union. The investigation of matters such as paperless documents of title, banks and EDI or letters of credit, which until now have been left outside the provisions of EU regulations, will show the absence of a spherical coverage of matters related to the use of electronic information in specific areas. All the applications of electronic data investigated herein are used in the whole process of maritime transport. Of course the aim is not to present an exhaustive list of regulations, directives and recommendations issued in the Union but only to highlight to what extent the Union sufficiently tackles problems of electronic transfer of data . An econometric model, which will identify the interrelation between economic and legal factors involved in maritime transport, can be produced. Obviously clear, constructive, harmonised, and easily applicable legal rules affect differently the economic parameters of maritime transport than vague and contradictory legal rules or even more the absence of legal provisions. The cost of their application can be evaluated as well. The production of such a model, however, is outwith the scope of this article.
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The EEC Treaty sought a common policy for inland transport, namely roads, rail and inland waterways. So, the concept of a common transport market was limited to these three modes of transport. Sea and air transport made their entrance onto the community stage in the middle of the seventies. Nowadays , the priority in the transport sector in moving towards infrastructures and in particular trans-European networks are developed which will help complete the internal market. Article 84 excluded sea and air transport from the provisions of Title IV (transport), which applies only to the three modes of inland transport: rail , road and waterways. The European Court of Justice(2) decided that sea and air transport were subject to the general rules of the Treaty, namely those governing freedom of movement, competition, aid, social policy and taxation. The parliament considered that minimum provisions had been adopted in the area of transport policy in accordance with Articles 3 and 74 and therefore the Council was in breach of the Treaty. The court ruled that the Council had failed to ensure the free provision of services in the area of transport(3).
The following regulations have shaped the EC legal framework regarding maritime transport. Council Regulation No 4056/86(4) lays down detailed rules for the application of Articles 85 and 86 of the Treaty to sea transport. It applies only to international maritime transport services from or to one or more community ports, other than tramp vessel services. On 25 February 1992 the Council adopted Regulation No 479/92(5) on the application of Article 85(3) to certain categories of agreements, decisions and concerted practises between liner shipping companies ( consortia). Council Regulation No 4055/86(6) applies the principle of freedom to provide services to maritime transport between member states and between member states and third countries. On the other hand Council Regulation No 4057/86(7) regulates unfair pricing practices in maritime transport. The regulation lays down the procedure to be followed in order to respond to unfair pricing practices. Co-ordinated actions to safeguard free access to cargoes trades are governed by Council Regulation No 4058/86(8). More progress has been made in creating an integrated EC transport policy in the past 10 years than in the previous 30. Community legislation now exists for all modes of transport creating new open market conditions. It will be of interest to consider the coherence of this legislation.
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Jules Dupuit (Dupuit 1952, p 42) first introduced the concept of logistics and compared road transport with transport over water in order to identify the most optimal way of transporting goods from origin to destination. Modern logistics incorporates information technology, generating the definition that "modern logistics is the movement and storage of goods, together with associated information flows, from the beginning to the end of the supply chain"(Cooper 1994, p150). Only by linking all logistics activities directly to the organisation's strategic plan can logistics managers work effectively to support their organisation's strategy for achieving competitive advantage. The cost of information was one of the few business costs to reduce during the 1980's. The revolution in information technology provides the opportunity for logistics to utilise transaction based and decision support systems as a source of competitive differentiation and increased market share. Management of inbound raw materials utilising electronic data interchange (EDI) between the organisation and key suppliers can provide substantial cost savings. Logistics manage the interrelationship of all the factors which affect the flow of both information and goods necessary to fill orders. Strategic planning forces management to reconcile two contradictory tasks: long term planning with short term responsiveness to customers.
The principles of logistics excellence are the following:
Due to the complexity of logistics , it is nowadays almost inconceivable to manage the logistics operation without the support of computers and management information systems. Computer hardware and software provide a solid basis for computer systems to be used in logistics. Electronic data interchange is currently one of the most important subjects in the area of computer applications in logistics. The use of EDI in logistics applications mainly concerns the electronic interchange of trading documents such as purchase orders, acknowledgements ,letters of credit, bills of lading , and invoices. For several reasons, including legal and government conditions, different requirements per industry often exist concerning the format and content of these documents. Besides trading data, often data such as technical data, CAD (quality and performance data), electronic funds transfers (EFT), interactive queries and general business information can be interchanged as well. Defining the limits of responsibility for an international transaction between two parties is a significant issue. So, the International Chamber of Commerce prepared a list of standard Incoterms defining the responsibilities of exporter and importer. The increase in the number of laws requiring that firms recall products that are defective has resulted in the realisation that companies must begin to develop reverse distribution systems to handle the flow of recycled and defective products.
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Information technology (IT) is used to develop new ideas and to implement the policy of a transport company. For example the application of advanced shipment notices refers to the process whereby a party obtains through EDI exact information about the freight that is still en route for delivery. Thus, this advanced knowledge enables him to plan and execute a number of logistical activities before the arrival of the cargo. Therefore, to maximise the benefits from the new technologies, companies need to reengineer their existing logistical operations. The new development in transportation is the establishment of network firms known as mega carriers (Benson 1994, p75). Distribution companies, liner shipping companies, freight forwarders, integrated parcel carriers, and airlines are combined in a different kind of alliances in order to improve competitive advantage which is mostly due to a superior capability of information handling. Alliances for the development of intermodal traffic is an example. Small and Medium Sized companies (SMEs) have to integrate in multi-company networks in order to stay in business. However, finding the appropriate partner is not easy. Loosing the identity of a successful company is one basic problem in co-operative ventures. On the other hand the success of the co-operation not only depends on the hardware but also on the software which is the communication network.
Specific attention should be given to new cargo handling systems which provide substantial reduction of transit times and improve the quality of intermodal services. Tracking and tracing systems in combination with electronic communication give an advantage to any company network by increasing reliability, quality and flexibility which is translated into increasing safety and reduction of costs. The use of telematics in ports for the clearance of hazardous goods minimises the negative consequences for the environment of maritime accidents. Finally, attention should be paid to the co-operation of European ports in order to monitor all the traffic by using the suitable EDI to run an electronic vessel traffic systems.
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The efficiency of maritime transport can only be increased if the mode is better integrated into existing and future transportation chains. First the mode concentrates on the vertical integration of its activities into transportation chains. Maritime transport will need to adjust its operations to needs of the customer. A key element will be the efficient use of telematics. It is necessary for maritime operators to exchange on an on-line basis information on their activities enabling the next operator in the logistical chain to schedule its activities. This has generated an increased need for information and communication networks and on-line computer-to-computer communications.
Second, the maritime mode competes with other transportation modes in order to obtain cargo and operate on a port-to-port basis. If this strategy is applied, Shortsea Shipping (SSS) companies need to provide SSS services which actually meet customer requirements. Major maritime transport companies have recognised the importance of intermodal transport and provide a wide range of services to their customers. Large SSS companies (e.g. P&O, Bell Lines) have sufficient resources to offer their customers a wide range of door to door services (including joint IT services) and use various transport modes. Smaller SSS companies (SMEs) have traditionally lacked the financial resources to develop such services. In order to increase the participation of these smaller companies in the logistical chain and to satisfy customer demand several requirements in the field of EDI such as interoperability and interconnectivity have to be met. So, there is a need for the development of complex networks.
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Additional to pure economic features which have to be taken into consideration by companies, a fundamental market force is governmental regulation. European regulations are at present much in favour of waterborne transport. European decision makers have recognised that this mode offers a valid and environment friendly alternative for long distance road haulage, which resulted in a favourable strategy for waterborne transport development on a European level within the framework of the European Common Transport Policy (CTP). The importance of developing information and communication networks in order to achieve competitive advantage, has been recognised by the undertakings in the EU. The new developments in telematics such as the integration between science and telecommunications and their potential contribution to modern transportation and logistics are defined. Information has always been necessary to manage efficiently logistics and at present it is becoming the driving force for a competitive logistics strategy. There is an interrelationship between the development of transport and communications. Modern logistics trends led to the separation of the information flow from the physical cargo flow in such a way that the information concerning the transport is now exchanged in advance. Telematics can offer great advantages for improved efficiency of the logistical chain, which will lead to an increased efficiency of the whole transportation chain. Most developments in telematics are based upon advanced computer network systems. The ultimate objective of innovations is the implementation of an integrated services digital network (ISDN).
The interest of European countries in ISDN resulted in the development of MOBITEX. MOBITEX is a network using packet data for the transmission of radiographic and digital data. An important step to integrate fully ISDN in Europe is the introduction of EURO-ISDN. The EURO-ISDN operating standard was introduced in 1994. ISDN is a computerised transmission network capable of transmitting text, data, speech and images at a rate of 64,000 bits per second in comparison with a standard rate of 4,800 bits per second for a telephone network. The creation of a modern transmission infrastructure will allow the delivery of a wider range of services.
Companies increasingly discover the opportunities provided by new applications in telematics. Telematic applications for logistical services are placed into four categories: transaction systems, operational systems, controlling systems , and directive information systems. Transaction systems process the daily transactions of the company. Electronic mail, electronic dialogue and electronic data interchange are three forms of processing data. The most important communication link in modern logistics is EDI. Operational systems co-ordinate resource utilisation such as capacity planning, the routing and scheduling of vehicles. One of the newest telematics applications of operational systems is the concept of virtual inventory management. Through information systems manage dispersed inventories in the integrated logistical chain as if they were a single inventory. The use of EDI is vital in the operation of such systems. On the other hand controlling systems measure and control costs and revenues, productivity and performance. Moreover, most important controlling systems in modern logistics are tracking and tracing systems. Tracking and tracing systems are currently used as intracompany systems.
EDI has been used to create an electronic booking system. It is considered the most appropriate way to link computerised accounting and routine transaction systems with trading partners. EDI can be simultaneously a transportation/communication innovation, affecting the flow of information associated with the movement of goods and at the same time an organisational innovation, affecting the relationship between customer and supplier.
The above concise analysis shows the importance of the electronic technology in maritime transport. Has the European Union enveloped these technologies with the appropriate legal framework in order to be implemented?
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The European commission is contributing to efforts to simplify European and national legislation. The Maastricht Treaty, in giving a specific section (Title XII) to trans-European networks, gave formal recognition to their importance for the Union and its member states. Article 129b of the Treaty lays down that the TENs should contribute to economic and social cohesion and to creation of the internal market. The European Council, at its meeting in Brussels in December 1993, took a series of important decisions aimed at accelerating the implementation of the TENs. The Commission adopted, in July 1994, a communication(10) addressed to the parliament and to the Council on Europe's way to the information society. Information and communication technologies and related services have the potential to promote steady and sustainable growth, to increase competitiveness in the European Union. Standardisation is essential to achieve network interconnection and interoperability of services at the international level. The European Council , Corfu June 1994, agreed on a first priority list of major transport projects and reaffirmed the importance it attached to all transport projects in the report. Traffic management services have an important contribution to make in achieving the goals of the common transport policy.
The absence of a common European approach has led many of the different parts in the transport field to develop, implement, and operate different information and command systems. The EURET and DRIVE community programmes have led to the development of more advanced and standardised traffic management services concepts. Euro-ISDN(11) and integrated broadband communications (IBC) are two very important networks which will play a major role in the development of the information society. Article 3 of the EC Treaty offers great scope for promoting the development of the construction of a European information society and creating a community-based legal framework. The basis for community involvement in building the information society is to be found in the Treaty provisions on the upholding of the four internal market freedoms (free movement of people, goods, capital and services), competition policy and the construction of the trans-European networks. The advantages of EDI are identified at the operational level (increased productivity, cost reductions), the technical level (improved customer service ) and the strategic level (using JIT- suppliers, repositioning on the market). EDI has significant implications regarding the firm's behaviour and its organisational structure. It assists in achieving internal efficiency in the firm and improves its competitive position by speeding up its response to customer service. There are some problems related to the interconnectivity of EDI systems of different companies. The differences are related to: data structure, operating systems, transmission services, organisation of data and organisational differences between companies. Thus, there is a need to agree upon all that issues. The system provider defines the message format and all participants have to apply the same message format. The same rule applies if the data has to be sent according to legal regulations.
EDI is described as the computer-to-computer communication of structured business information in recognised formats. EDI converts information that traditionally would be conveyed on paper into standard electronic format. It includes also electronic funds transfer messages. Electronic contracting is distinguished from other forms of electronic messaging in that the content of the message and the conduct of sender and receiver are legally operative facts. Electronic contracting differs, for example, from electronic publishing in the fact that the content of electronic contracting messages give rise to legal rights and duties. The European Union left every state to deal with the problems of electronic contracting under its own national law and initiative. A fundamental legal challenge in all contract law, including electronic contracting, is determining what constitutes an adequate record of the acts of contracting and of the content of the contract. How evidence of electronic contracting transactions can be made sufficiently reliable to prove the making of and the content of contracts. In contract formation the important characteristic of electronic messages and the appropriate analogy to pre-electronic methods is that electronic contract transactions are instantaneous not that they are written.
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Low-cost telecommunication networks will provide European wide an essential infrastructure for improving the competitiveness of the European economy. The operation of services of general economic interest in the sense of Article 90(2) EC must not be prejudiced. In June 1987 the European Commission published a green paper, towards a dynamic European economy, to provide a framework for competition through the abolition of the statutory monopolies previously enjoyed by the telecommunication utilities in member states(12). The network infrastructure should be safeguarded in order to allow the parties to fulfil their public service obligations. Application of EU competition law under Article 90 and Article 100a gained primary importance. Article 100a states that the Council shall " adopt the measures for the approximation for the provisions laid down by law, regulation, or administrative action in member states which have as their object the establishment and functioning of the internal market". The Commission adopted the directive 88/301/EEC(13) on competition in the market in telecommunication terminal equipment. Before that Directive there was no European wide market for terminal equipment. The directive sets out the obligation of the member states to withdraw all special and exclusive rights for terminal equipment. The opening of the telecommunications services market was initiated by the Directive 90/388/EEC(14) on competition in the market for telecommunication services. The Directive requires that the member states should: abolish all special and exclusive rights for the supply of telecommunication service, ensure that conditions for access to networks are objective, non-discriminatory and transparent(15), and the separation of regulatory powers and operational functions of public telecommunications operators. The above directives have rectified the commission's powers under article 90(3) to enforce competition rules on both private companies and public suppliers which were granted special and exclusive rights under article 90(2). The existence of a legal monopoly does not per se constitute an infringement of the Treaty, but in the case of telecommunications the legal monopolies led to a violation of provisions of the Treaty by preventing users from choosing the equipment that best suited their needs, regardless of their origin. The Commission Directive 94/46/EC of 13 October 1994 amended the previous directives(16). Concerned with satellite communications and running parallel with these Directives are the three key international satellite conventions: The International Telecommunications Union (ITU), The International Telecommunications Satellite Organisation (INTELSAT) , and The European Telecommunications Satellite Organisation (EUTELSAT). Articles 85, 86 and 90 of the Treaty are the main competition rules governing undertakings in the public and private sector. These provisions are supplemented by the Merger Control Regulation (MCR) adopted in 1989(17).
The development of trans-European telecommunications networks must enable information to be freely exchanged between economic operators and individuals. The European Parliament and the Council introduced Decision No 1336/97/EC(18) on a series of guidelines for trans-European telecommunications networks. The guidelines conform with Article 129c of the Treaty. The present networks, which include existing ISDN(19), are evolving towards becoming advanced networks offering a variable data flow rate up to broadband capabilities and adaptable to different needs. Activities undertaken in the context of these guidelines are subject to the full application of the competition rules laid down in the Treaty and implementing legislation.
The community supports the interconnection of networks in the sphere of telecommunications infrastructure with the objectives of facilitating the transition towards the information society. The trans-European telecommunications networks will open up the Union's market to the new applications and services which will form the basis for development of the information society. The projects of common interest for applications include health telematics, telematics for the environment, telematic services for SMEs, distance education, and transport telematics. Full advantage should be taken of trans-European telecommunications networks to provide services in the domains of logistical support for transport industries and of the development of value added services, such as information services, integrated payment and reservation services, freight and fleet management. Euro-integrated services digital networks, commercial introduction of Asynchronous transfer mode (ATM) and other IBC networks and development of mobile and satellite networks with the aim of supporting the application referred above are the basic networks to which the guidelines are referred. On the other hand essential facilities should be available to all competitors. The Sealink(20) case is a classic example on the Commission's approach with regard to the doctrine of essential facilities. Sealink had abused its power in one market (port services) to strengthen its position in another related market (ferry services) without objective justification. An undertaking holding a dominant position in a market violates Article 86 when it refuses to supply a customer or imposes unfair contractual conditions(21). The advance of technology is followed by the adoption of new rules by the Commission in order to cope with and introduce all these technologies into the European Union legal framework. To that extent the Commission Decision 97/544/EC(22) on a common technical regulation for terminal equipment introduced lately and followed by the Commission Decision 97/545/EC on a common technical regulation for the general attachment requirements for data terminal equipment.
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There is a close correlation between the development prospects of individual technologies, products and the associated services and networks. The European Union is in a strong competitive position in several of the fields where technology is applicable. However, it should remove various administrative obstacles to an optimal exploitation of information and communications technologies (ICTs). It should be encouraging the implementation of trans-European telecommunication services. The work programme (IMPACT II)(23) aims at establishing an internal market in information services. The objectives of the programme are to reduce legal and economic uncertainty in the market to reinforce the competitive capability of European suppliers of information services, to promote the use of advanced electronic information services in the community and to strengthen the community's internal and external cohesion in this area. The technological development programme in the field of telematics applications of common interest (1994-98) aims to involve users in all stages of the projects and establish partnerships between users and suppliers(24).
Digital technology allows the integrated transmission of sound, text and image in one communication system and project Europe into the information era. Advanced communications technologies and services are a vital link between industry and market. These services are therefore crucial for consolidation of the internal market. The creation of a single market of telecommunications networks is the aim of the community policy(25). Standardisation of information technology prevents distortions of competition and ensures exchanges of information. Through its successive amendments the Directive entitles suppliers of telecommunications services to use capacity on cable television networks for all telecommunications services, closed corporate networks and multimedia services(26).
Information stored, processed and transmitted electronically plays an increasingly important role in economic and social activities, but the pervasive use of electronic handling of information emphasises the need for adequate protection(27). There is a close link between telecommunications, information technology, standardisation, the information market and research, development and technology (RDT) policies. The complexity of the security of information systems calls for the development of strategies to enable the free movement of information within the Union while ensuring the security of the use of information systems throughout the Union. In accordance with Article 2 of the Council Decision 92/242/EEC, the Annex , attached to the Decision, illustrates a summary of action lines and orientations for an action plan in the field of the security of information systems. The commission shall be responsible for implementing the action and it shall be assisted by an advisory committee composed of representatives of the member states.
The Council adopted the Decision 94/801/EC(28) on the application of telematics which illustrates a programme for the application of telematics in transport together with other sectors. The promotion of research activities in telematics is necessary to implement other common policies of the EU. The development of a Global Navigation Satellite System (GNSS)(29) and the contribution of the Union is the subject of the Council Resolution of 19 December 1994. Harmonisation of data bases, further development of the information and communication systems for computerised data exchange, implementation and improvement of the electronic data interchange for commerce and transport, and automatic transport control are aims of the Resolution. The use of standards for the transmission of television signals is governed by the Directive 95/47/EC(30) of the European Parliament. The member states shall bring into force the laws, regulations and administrative provisions necessary for them to comply with the Directive.
The fourth R&D framework programme constitutes a new basis for a co-ordinated approach to transport-related research including new transport technologies. Stimulating new technologies and applications such as ISM Code (Safe Management Ro-Ro Ferries)(31), which is a legislative initiative, is part of the programme.
All the Regulations and Directives issued by the Council of the European Union are based on the articles of the Treaty. Therefore, the legal framework upon which all the legal actions are based has to be the correct one. Otherwise, all the actions taken upon the wrong article are nullified. A characteristic example is the Council Decision 94/445/EC(32) on inter-administration telematic networks (Edicom) which has been challenged in the European Court of Justice. In European Parliament v Council of the European Union case C 271-94 , concerning Council Decision 94/445/EC, the Council argued that the purpose of the Edicom decision was not to create a trans-European network in the sense of Articles 129b-d, but to take ad hoc measures of an operational nature. The Council referred to previous decisions in the field of telematics, which were adopted on the basis of Article 235 EC. The CADDIA programme (Council Decision 85/214/EEC)(33) concerning the co-ordination of the activities of the member states and the commission related to the implementation of a long term programme for the use of telematics. The TEDIS programme (Council Decision 87/499/EEC)(34) introduces a communications network community programme on the trade electronic data interchange. The INSIS programme (Council Decision 82/869/EEC)(35) relates to the co-ordination of the activities of the member states to assessing the need for a community inter-institutional information system. The Court decided that the Decision should have been based on Article 129d and therefore the Council Decision was nullified. The preamble and the contents of the Edicom decision confirmed that it is intended to assure the interoperability of national; telematic networks in the perspective of a trans-European telematic network. However, on the basis of Article 174, the effect of three Commission decisions(36) adopted pursuant to the annulled Council decision are maintained until a decision adopted on the correct legal basis enters into force. Article 174 (2) EC provides for the possibility to maintain the effects of regulations which have been declared void. It is established case law that this provision applies to other community acts as well(37).
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The Council Directive 90/531/EEC of September 17, 1990(38) on procedures for the award of contracts in the water, energy, transport and telecommunications sectors regulates these four sectors which were initially excluded from Community legislation on public procurement. All entities operating in objectively similar situations in different member states are treated equally. Contracts must be awarded under proper commercial conditions and in accordance with the principle of non-discrimination. The transparency of and non discrimination in public service contracts are guaranteed by a Council Directive 92/13/EEC(39) on the co-ordination of procedures for the conclusion of these contracts at national, regional and local levels. The Commission instituted a system for checking that the execution of projects financed by the European Union is carried out in compliance with the community rules on public procurement. Measures against infringements of the rules governing public procurement on the basis of the proceedings for failure to act as provided for in Article 169 EEC are strengthened. Additionally the Council adopted a directive relating the application of review procedures to the award of public supply and public works contracts. Parties have effective remedies whereby alleged infringements by a contracting authority of community law have taken place. Legal recourse is provided by a Directive(40) co-ordinating the various legislative, regulatory and administrative provisions relating to the application of community rules on procedures for the award of contracts in the sectors of transport and telecommunications. Effective means of recourse exist both at national and community levels as regards procedures for the award of contracts in these sectors. A conciliation procedure to which parties can have recourse to find a settlement to any dispute regarding the application of rules governing public contracts is defined. It introduces a mechanism for the rapid correction of clear and evident offences.
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Generally speaking, when considering whether the effect of an agreement is likely to be appreciable, one must consider the network of similar agreements operated by the parties(41). Where the industry in which the agreement operates is characterised by a series of networks of restrictive agreements. This is one of the factors which should be taken into account in assessing the extent of the effect of the agreement(42). In addition to these problems caused by paper contracting has to be considered the kinds of problems created by electronic contracting. Has the legal machinery of the European Union determined it or has it left it to the national systems first to deal with it? Aside from agency, it will normally be difficult to ascribe contractual responsibility without consent. There are instances where the terms of a contract may be effective to vary or qualify the rights of third parties even without their consent to the contract. These cases often arise in commercial situations where there is a network of contracts. The courts have failed to develop a special set of principles for the ascription of contractual responsibility in the context of network. Unless an agency relation can be inferred in the circumstances, the third party will not normally be bound by the terms of the contract in another chain in the network. Some of the leading cases in this field concern the international carriage of goods by sea. Here the owner of goods arranges with a carrier for transport and delivery through the bill of lading contract (Zekos 1997). These matters are left to be decided by the national laws. Networks of agreements arise hen we are dealing with electronic contracts referred to telecommunication services and electronic technology. It seems that the legal status of the substantive agreement is decided by the national law.
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As mentioned above the existence of a uniform European approach to issues relating to the use of EDI will improve the position of undertakings within the member states in their negotiating power when trading via EDI. A better understanding between Europe and third countries regarding the legal implications of conducting transactions by the use of EDI is needed. So, the Commission issued the Recommendation 94/820/EC(43) relating to the legal aspects of electronic data interchange, where a European Model EDI Agreement is presented. The preparation of a draft of a European model EDI agreement has been initiated by Council Decision 87/499/EEC(44). This model agreement will contribute to the promotion of EDI by providing a flexible approach to the legal issues raised by the use of EDI. It would reduce the legal uncertainty. The model consists of legal provisions which need to be supplemented by technical specifications provided in a technical Annex in accordance with the user's needs. The drafters of the model agreement made clear in the scope of the agreement that unless the parties agreed so the provisions of this model agreement are not intended to govern the contractual obligations arising from any underlying transactions effected by the use of EDI. Thus, the basic need of regulating the obligations and duties which arise from any paperless transaction is left ungoverned and answered. It seems that the applicability as mandatory law of the model agreement has been ruled out from its genesis. The main problem with EDI is the standardisation of their legal effects upon the traditional regulations. The point is to substitute or at least put electronic transactions in the same legal level of applicability and enforcement such as the traditional paper ones. Its legal provisions should have brought uniformity in the understanding of concluding a contract and its legal effects regarding duties and obligations of the contracting parties. This uniformity should have been transplanted to the national laws which means updating all the national legal systems. The EDI is defined as the electronic transfer of data from computer to computer relating to commercial and administrative matters using an agreed standard to structure an EDI message. The standardisation is left to the parties and it is not introduced a standard format of data. Article 2 specifies the meaning of EDI message without giving a single form of format. The important definition is that of the `acknowledgement of receipt' by demanding the receiver to send a corresponding `acknowledgement of receipt' of the EDI message. The conclusion of the contract is achieved at the moment the EDI message constituting acceptance of an offer reaches the computer of the offeror. The parties if and when they want to be bound by the agreement have to expressly waive their right to contest the validity of a contract effected by the use of EDI. Furthermore, it is stated that the EDI message has to be in a form acceptable by the national law of the contracting party. In fact this legal provision does not define a format of an EDI message which will be endorsed by the national laws but merely advises the parties to form an EDI message in accordance with their national laws if and when there is a national legislation about it, not mentioning the case to have non uniform laws concerning the subject. The agreement advises parties to agree to the admissibility in evidence of EDI messages to the extent permitted by their national law which may apply. Thus, the admissibility of EDI messages is not established.
The provisions of the model agreement regulate the processing and acknowledgement of receipt of EDI messages where the acknowledgement is not requested, security of EDI messages, confidentiality and protection of personal data(45), recording and storage of EDI messages, and operational requirements for EDI. Specifically the agreement states the standards of EDI messages have to be transmitted in accordance with the UN/ Edifact standards and the European standards(46). Article 11 refers to the liability of parties using EDI in their contract and assumes that no party to this agreement will be liable for any damages caused by a failure to perform obligations of this agreement. On the other hand if one of the parties engages a third party to perform services in the process of EDI messages then the party should be liable for any damages caused by a failure in the provision of said services.
The model agreement clarifies the ways of dispute settlement by providing as first alternative arbitration where the parties agree the nomination and the rules of procedure and as a second alternative a jurisdiction clause where the parties specifically will refer to the courts of a state of their choice which shall have sole jurisdiction. The parties have the right to choose the applicable law regarding recording and storage of EDI messages or confidentiality and protection of personal data, but without prejudice to any mandatory national law. So, national law is above this model law which is supposed to be a model for the harmonisation of national law in order to achieve uniformity. The Commission in Annex 2 brings out a commentary about the legal provisions of the European Model EDI Agreement where it is stated that it is merely a model, a kind of an interchange agreement which offers the possibility for adaptation where required and there is mention to an inconsistency with a national law. Does Europe need merely a model rather than a specific regulation or it could be said a codification of contracting by the use of EDI messages or data? It is supposed that European undertakings and organisations need a solid, specific and mandatory law regulating the conclusion of the contract, the exchange of EDI data and messages, and the liabilities and duties arising out of such an electronic contracting. The Commission states that the objective of the model agreement is to provide a contractual basis for the EDI users. The users need a mandatory legal basis regulating their obligations and duties deriving from an EDI agreement.
What has this model added to the national laws? Parties can contract under the national laws of the member states without the model agreement, when in fact the model agreement itself refers to the national law. The model agreement does not give an answer to different legal issues which have been identified with the use of EDI for the purposes of commercial transactions or other purposes involving legal consequences, for example, as mentioned above, the case of networks of agreements. Legal uncertainty is not prevented by a non mandatory legal framework when the parties have to go back to different and non harmonised national laws. Many national laws have no provisions about electronic contracting or principles are still developing. The Commission in its commentary states that the legal provisions of the model agreement merely indicate and provide for the legal matters which need to be addressed when using EDI, but there are no answers to these legal demands and specifically the parties have to determine even the technical specifications. Of course the substance of transactions which will effectively be carried out by using EDI will be regulated by the applicable law decided by the contracting parties. According to its provisions, the parties should not challenge the validity of transactions effected by use of EDI, on the sole ground of that means.
The determination of the moment and place where a contract is concluded or formed is important with regard to the legal consequences it involves. Rules have been defined regarding contracts concluded by mail or telephone but uncertainty exists on the kind of the rule which might be applicable to contracts concluded by EDI. The application of the `reception rule', which ensures that acceptance takes place at the place and at the time of receipt of such acceptance by the offeror, should apply for the conclusion where the parties are not in the presence of each other. The Vienna Convention on the International Sale of Goods provides for this rule to be applicable to contracts concluded at distance. The reception rule means that an EDI message is received at the time and the place where the message reaches the computer of the offeror. It is specified that in case the parties have not included a jurisdiction clause then the competent court shall be determined by reference to the Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters(47). In case of absence of a choice of law then the agreement will be regulated by the provisions of the Convention on the Law applicable to Contractual Obligations(48).
The issue of admissibility and evidential value is one where uncertainty is still predominant. EDI as an alternative to paper implies that the EDI messages effectively will replace the documents that were exchanged previously on paper. In most countries legal provisions regarding evidence of EDI documents are not mandatory or even there is a lack of regulation. EDI messages should be admissible before the courts as evidence but the model law does not provide the mandatory regime to that extent.
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Reflecting the rapid changes in the use of electronic technology and the form of exchanges, the term `electronic data interchange (EDI)' (UN , 1997) , which originally defined the basic focus, was dropped from the title. The definition of EDI is presented in article 2 specifying the exchange and transfer of compatible information from computer to computer. The first definition is that of data message which is not restricted to electronic data interchange. The meaning of information system is illustrated in the model law. Wide uses of open text on open computer networks had become the norm rather than the use of EDI. The term `commerce' is given a broad interpretation rather than the narrow use of the word in some civil law countries. Articles 5 to 9 are intended to assume that electronic messages used in commercial activity are not denied validity, effectiveness or use as evidence. The provisions are essentially rules of interpretation for other statutes or legal requirements setting out criteria for example as to when electronic messages satisfy requirements of writing, signature or originality. Article 10 refers to the retention of data messages where some safeguards for the storage of data are defined as well. The formation and validity of contracts concluded by the exchange of data messages is defined by article 11. The allocation and pricing of risk, standards for attribution and reliance are specified in details in chapter II of the model law. The major problem in electronic commerce of dispatch and receipt of data is regulated by article 15. The rules provide that messages are sent and received at the place and time relevant to the principal place of business, rather than premising certain results on factual determinations of the location of computer systems, which could give rise to results inconsistent with commercial practice.
Articles 16 and 17 concern use of computer communications in the carriage of goods and related transport documents. Any action in connection with a contract of carriage of goods governed by the provisions of article 16. Transferring rights and obligations under the contract are regulated as well. It is specified that in cases where there is a need to transfer a paper document in order to convey rights or obligations to a person then this requirement is met if the right or obligation is conveyed by using data messages. The main problem is that the article itself demands the provision of a reliable method in order to render such data message unique. On the other hand the method is not identified. Additionally data messages can be replaced by paper documents where a statement of such replacement should be inserted in the document. Of course the replacement does not affect the rights or obligations of the parties involved. A kind of interchange between electronic documents and paper ones is introduced, rather than a complete replacement of the paper documents in carriage of goods. It comes out the hesitation of the legislator to take drastic measures and replace paper documents with electronic ones or at least to put electronic documents the same legal status as paper ones.
The UNCITRAL model law does not define when the contract is concluded - when we have offer and acceptance expressed by means of data messages. Probably the principles of the paper-concluded contract should apply. The common element between the UNCITRAL model law and European model agreement is that the parties should not deny the conclusion of the contract merely because we had exchange of data messages instead of written statements. Admissibility and evidential weight of data messages, security storage, acknowledgement of receipt are matters which are regulated by both the model laws. The UNCITRAL law specifically identifies the meaning of writing, signature, and originality which are very important matters regarding the law of contracts in contrast with the European model agreement where there is not such a reference.
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While most letters of credit communications between banks and beneficiaries are still paper based, communications among banks themselves are in very large measure paperless. Despite the large volume of paperless transactions their rules of transfer and formal requirements have yet to be validated legislatively and judicially. Most transactions are contracted under the rules of SWIFT (Society for World-wide Interbank Financial Telecommunications) and the Uniform Customs and Practice for Documentary Credits (UCP). EDI has been the basis of SWIFT. The bulk of Interbank letter of credit messages shifted from paper communications to teletransmissions. Uniformity and standardisation in EDI messages has made it possible for the computers communicating through EDI to exchange and process data without re-keying the data (UNCITRAL, 1990).
EDI transactional rules are concerned with the binding effect of a message upon an issuer, a recipient, and any other parties who receive and rely upon the message where documentary credits are concerned, The UCP are the universally accepted transactional rules(49). There are no decisions upon these rules in European Community cases. On the other hand in United States courts have not applied SWIFT rules to SWIFT issued letters of credit(50). Electronic variants of paper instruments replace the paper work in international trade. Funds transfer by electronic means is the most efficient way of effecting payments for goods and services sold in international trade. Technological developments in the area of information technology have made for relatively cheaper and faster international electronic funds transfer services. Networks such as SWIFT are important means of setting financial obligations arising out of trade between members of different states. SWIFT is a co-operative society established under Belgian law by banks. The cost of processing paper payment instruments is higher than processing a transaction by electronic means. It is expected that electronic funds transfers will save more than half the transaction costs involved in paper transfers (Mitshell, 1980) . The risk of forgery and fraud that usually attend the transfer of bills of exchange may be eliminated, but fraud and forgery are inherent in electronic funds transfer systems as well. Despite the benefits of electronic systems paper based payments retain the advantages of predictability and stability arising out of their long usage and existence of a well established legal regime under which liabilities for losses could be effectively apportioned.
The Vienna Convention of 1980(51) provides the vehicle by which evidential impediments have been relaxed. This facilitates the use of EDI to conclude international sale contracts. The Convention reduces the scope for technical objection in the proof of EDI contracts to which it applies. On the other hand the CISG lacks a definition of the commercial terms that provide rules for the delivery terms in contracts for sales of goods. Incoterms introduced by ICC (International Chamber of Commerce) provide the provisions of their definition. Their latest revision (Incoterms 1990) include references to electronic messages and the new transport documents or their equivalent electronic ones. The increasing use of electronic data interchange made necessary their introduction. There is a disadvantage in the use of EDI because there is a dearth of information regarding the legal implications of EDI (UN, 1993). The costs of negotiating an EDI trading agreement are perceived to be high. The formality of such a negotiation may be perceived to work against an existing and harmonious trading relationship. There are a number of legal systems which permit litigants to submit all relevant computer records as evidence, leaving to the discretion of the forum the weight to be attributed. So admissibility is decided by the judge. Many states have established an exhaustive list of acceptable evidence, other evidence such as computer records being excluded. In some common law jurisdictions statutory exceptions apply specifically to computer records and EDI messages.
Commission Recommendation 87/598/EEC(52) recommends a European code of conduct relating to electronic payment. It deals with relations between financial institutions, traders and service establishments and consumers through voluntary compliance with a code of conduct. The free movement of goods and capital will be effective if it enjoys the technological support provided by the new means of payment. A code of conduct should be flexible so as to make it easier to adapt to changes in the new technology. It recommends that all economic partners concerned should comply with the provisions of the European code of conduct relating to electronic payment. In Part III general principles stated that contracts concluded by issuers with traders should be in writing. Thus, the electronic transactions have to be based on written contracts which diminishes the usefulness of electronic bargain. In December 1994(53) the Commission published a proposal for a European Parliament and Council Directive on cross-border credit transfers. The amended proposal (95/C199/07) concerning the same matter submitted by the Commission pursuant to article 189a of the EC Treaty on 7 June 1995(54). In accordance with article 3b of the Treaty this directive lays down the minimum requirements needed to ensure an adequate level of customer information. A Commission notice(55) on the application of the EC competition rules to cross-boarder credit transfers supplements the proposal for a directive. This sets out the approach which Commission intends to take when assessing the compatibility of cross-boarder credit transfer systems with articles 85 & 86 of the EC Treaty. The whole effort resulted in the introduction of Directive 97/5/EC(56) on cross-boarder credit transfers. The purpose of this directive is to improve cross-border credit transfer services and therefore to assist the European Monetary Institute (EMI) in its task of promoting the efficiency of cross-border payments.
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Computer and telecommunications technology has attempted to incorporate the three functions of the bill of lading (receipt of goods, contract of carriage, and document of title) into telecommunicated messages. Several types of paperless bills of lading are currently in use (Zekos, 1994). The negotiable document of title function has not been fully incorporated into a paperless bill. This does not mean that paperless bills have no banking value. A paper based bill of lading is valuable to banks for both its informational and its document of title functions. A negotiable document of title is valuable collateral, as it allows quick, easy and inexpensive possession and release of the cargo. Nowadays few banks rely primarily on the collateral value of bills of lading when deciding to issue or confirm a letter of credit. They rely more on the applicant's creditworthiness than on the cargo's market value. The sea waybill , the air waybill and the rail consignment note function as receipts of the goods by the sea, air and rail carriers. These bills do not have to be presented to the carrier in order to obtain possession of the goods. As long as their layout is uniform and their text is standardised they can be transmitted to anyone by using the same EDI software. They allow the ship to unload immediately upon arrival and reduce time, cost of unloading, processing and warehousing of the cargo. The sea waybill allows the consignor to vary his delivery instructions during carriage(57).
The Rules for electronic bills of lading adopted in 1990 by the CMI are the most complete attempt to regulate open ended, computerised issuance and negotiation of bills of lading. Unlike the SWIFT rules the CMI rules can apply to any contracting party willing to abide by them. The main feature of CMI rules is the creation of an electronic bill of lading not by a centralised entity such as Seadocs, which acts as a registry of negotiations, but by the carrier. On the other hand the electronic message could not be used to finance the transfer and was not formally a negotiable document of title. The first attempt to establish a negotiable electronic bill of lading was made by Seadocs Registry limited. A London co-operative venture between Chase Manhattan Bank and INTERTANKO, an association of oil tankers, that proved to be technically feasible, was unsuccessful. Seadocs attempted to simulate a negotiable document of title, such as an electronic bill of lading, by creating a registry which could act as a document of title. Seadocs PIN conveyed rights to the goods equivalent to those conveyed by a negotiable bill of lading that were enforceable as of the moment of the transmission of the appropriate message by Seadocs. At the end, Seadocs would electronically deliver a paper copy of the negotiable bill of lading to the last endorsee to enable it to obtain the goods from the carrier. Once again parties had to switch to a paper document which would be used as a document of title. On the other hand SETFREIGHT is an information system for import and export cargo. The system can be accessed from terminal or from a stand alone PC. It has a number of components, including: cargo manifest, customs manifest, container tracking and bills of lading. The bill of lading details can be fed into the central system. After completion of the actual transport, the bill of lading can be put in a separate archive file, where it can no longer be modified. Neither the paperless letter of credit nor the CMI electronic bill of lading can viably embody a promise whose enforcement depends upon unknown contractual rights, duties, defences or equities. SWIFT's usage could not qualify as inveterate because of their recency and changeability. SWIFT rules apply to a closed number of users, so their usage could not be inveterate. CMI rules , on the other hand, are intended to apply to an open number of users. All efforts to replace paper bills of lading with electronic ones were not able to create a commercially feasible electronic replacement for the document of title that banks would accept in a financial transaction. The European Commission sponsored a project, entitled project Bolero (Sharona, 1995) ( bills of lading in Europe), examining the feasibility of electronic bills of lading. The initial task of Bolero is to dematerialise those documents used in trade process including bills of lading.
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Electronic technology is a vital means of development for maritime transport in the European Union. One of the key benefits of electronic data interchange is the exchange of information and completion of transactions directly between computers, eliminating the need for processing purchase orders, bills of lading or invoices. It is not only the actual time of carrying the goods from one port to another where electronic technology and information is used but also during the whole process before loading, during carriage, and the finance of the whole transaction. The legislative machinery of the Union has produced and produces every day volumes of regulations, directives and recommendations concerning electronic information and technology. On the other hand the provisions regulating the obligations and duties of the parties taking part in the transaction are contained in the national legal systems. In most cases a difference in the application of the provisions related to the use of electronic technology and information exists depended upon the characteristics of the individual legal regimes. There is a lack of regulation concerning electronic contracting related to the duties and obligations of the contracting parties. On the other hand there is a detailed regulation of technical maters of the use and development of electronic technology. The need of a codification of all the provisions related to the use of electronic information and technology is clear. Additionally matters of electronic documents of title, sales of goods by the use of electronic means, legal obligations and duties coming out from the transfer of funds through the use of electronic systems should be addressed as well. The European Union should take the initiative to lead in the field of regulating EDI and electronic contracting.
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Benson, D, Whitehead, G & Bugg, R (1994) Transport and Logistics (New York: Woodhead- Faulkner).
CMI Rules (1991) JMLC 620
Cooper, J, Brown, M & Peters, M (1994) European Logistics: Markets, Management and Strategy (Oxford: Blackwell Publishers).
Dupuit, J ( 1952 ) On the measurement of the utility of public work, reprinted in International Economic Papers No2 translated from French by Barback R, (London: Macmillan Press).
Electronic Data Interchange, Preliminary Study of Legal Issues Related to the Formation of Contracts by Electronic Means. Report of Secretary General ( A/CN.9/33) UNCITRAL 1990.
Mitshell ,G, (1980) "Introduction Electronic Funds Transfer Systems" 2 Computer Law Journal 2.
Sharona, T ( 1995) " olero Trade Steps" 145 Banker 72.
United Nations Commission on International Trade Law: Model Law International Credit Transfers 1993 ILM 587.
United Nations: UNCITRAL Model Law on Electronic Commerce 1996, 1997 ILM Vol. XXXVI Number I.
Zekos , G (1997) "The contractual role of bills of lading under Greek law" 39 Managerial Law Number 3.
Zekos ,G, (1997) "The contractual role of bills of lading under English law" 39 Managerial Law Number 5
Zekos, G & Carby Hall, J (1994) "Seawaybills : A new marketable name for straight bills of lading", Il Diritto Marittimo 714.
Zekos, G (1996) "EU Competition Rules in Maritime and Air Transport" Il Diritto Marittimo 679.
Zekos, G (1997) "The contractual role of bills of lading under US law" 39 Managerial Law Number 4.
(1) OJ 1978 L 54
(2) Case 167/73 (1974) ECR 367
(3) Case 13/83 European Parliament v Council (1985) ECR 1513 OJ 1985 C 144/36.
(4) OJ 1986 L 378/4 as amended by the Act of Accession of 1994 and the protocol adjusting the European Economic Area Agreement.
(5) OJ 1992 L 55/3 as amended by the Commission Regulation No 870/95 OJ 1995 L89/7.
(6) OJ 1986 L 378/1 as amended by the Council Regulation No 3573/90 OJ 1990 L 353/16
(7) OJ 1986 L378/14
(8) OJ 1986 L 378/21
(9) Successful logistics departments take full advantage of information and information processing technology. Electronic data interchange links with customers. Creative use of computer based models can yield cost service improvements which bolster competitive advantage.
(10) COM (94) 347. See Proposals for the implementation of projects intended to help improve the efficiency of the various modes of transport. OJ 1995 C 12, OJ 1995 C 337, OJ 1996 C 381.
(11) COM (93 ) 347 . See Green paper on common approach to mobile communications COM (94) 145. Green paper on common approach to field of satellite communications COM (90) 490. COM (94) 347, COM (96) 607, COM(96) 395, COM(95) 382. For the priorities of the information society see OJ 1996 C 389, OJ 1996 C 319. Commission Decision of 20 May 1997 on a common technical regulation for the Pan-European integrated services digital network ( 97/346/EC) (ISDN) primary rate access (97/347/EC) OJ 1997 L 148/24.
(12) COM (87) 290
(13) OJ 1988 L 131
(14) OJ 1990 L 192/10
(15) See Framework Directive 90/387/EEC OJ 1990 L121/1
(16) OJ 1994 L 268, See COM ( 90) 790
(17) OJ 1989 L 395/1, See OJ 1990 L 257/13. The Commission published its Green paper on the review of the merger regulation COM ( 96) 19 final.
(18) OJ 1997 L 183/12
(19) See EURO-ISDN ( integrated services digital network) Decision No 2717/95/EC OJ 1995 L 282/16
(20) B & I Line Plc v Sealink Harbours Ltd (1992) ECR 255.
(21) Case No 6 and 7/73 Commercial Solvents v Commission (1974) ECR 223. Centre Belge dietude de Marche-Telemarketing (1985) ECR 3261. BT Atra Case OJ 1993 L 20/23. MSG Media Services 1994 OJ L 364 1994. The commission employed the Merger Regulation No 4064/89 on the control of concentrations between undertakings OJ 1989 L 395/1 corrected in OJ 1990 L 257/13. Nordic Satellite Distribution 1995 Commission Press Release IP 95-801 19 July 1995. Holland Media Group 1995 Commission Press Release IP 95-955 20 Sep 1995. International Private Satellite Partner case 1994 OJ L 354/75 1994.
(22) OJ 1997 L 223/18 See Commission Decisions 97/520/EC, 97/521/EC OJ 1997 L 215/41.
(23) OJ 1991 L 377
(24) OJ 1994 L 334
(25) See Council Decision and Resolution on standardisation in the field of information technology pursue the objective of creating a European market in telecommunications equipment OJ 1987 L 36, OJ 1989 C 117.
(26) OJ 1995 L 256. OJ 1996 L 74
(27) Council Decision 92/242/EEC of 31 March 1992 in the field of security of information systems OJ 1992 L 123/19. See OJ 1990 C 277/18. OJ 1992 C 94. OJ 1991 C 159/38.
(28) OJ 1994 L 334/1. See Council Resolution on the deployment of telematics in the road transport sector OJ 1995 C 264 /1
(29) OJ 1994 C 379/2. See OJ 1994 C 309/1
(30) OJ 1995 L 281/51. The protection of individuals with regard to the processing of personal data and on the free movement of data is established by the 95/47/EC Directive of the European Parliament OJ 1995 L 281/31
(31) COM (95) 028 final, COM (95) 318 final , COM (95) 317 final.
(32) OJ 1994 L 183/42
(33) OJ 1985 L 96/35
(34) OJ 1987 L 285/35
(35) OJ 1982 L 368/40
(36) Commission Decisions 94/765/EC OJ 1994 L 304/41, 95/126/EC OJ 1995 L 84/10, 95/234/EC OJ 1995 L 156/80.
(37) See Case 295/90 Parliament v Council (1992) ECR I 4193, Case 300/89 Commission v Council (1991) ECR 2867, Case 155/91 Commission v Council (1993) ECR I 939. See (IDA) Interchange of data between administrations OJ L 269 1995
(38) OJ 1990 L297/1 as amended by the European Economic Area Agreement and the Protocol adjusting it. Directive 93/36/EEC OJ 1993 L199/1, Directive 93/37/EEC OJ 1993 L 199/54, Directive 93/38/EEC OJ 1993 L 199/84 and Directive 94/22/EEC OJ 1994 L164/3. See Notice C(88) 2510 to the member states on monitoring compliance with public procurement rules ( 89/C22/03) OJ 1989 C22/3.
(39) OJ 1992 L76/14. See 93/38/EEC OJ 1993 L199/84 as amended by the Act of Accession of 1994 and corrected by OJ 1994 L82/39. In June 1995 the Commission published a proposal to amend Directive 93/38/EEC, COM (95) 107, OJ 1995 C 138/38.
(40) See OJ 1989 L395/33 and OJ L1 1994.
(41) Case No 23/67 Brasserie de Haecht v Wilkin (1967) ECR 407. Cutsforth v Masfield (1986) 1 WLR 558
(42) Case C-234/89 Delimitis v Henninger Brau (1991) 1 ECR 935
(43) OJ L 338/98 1994
(44) OJ 1987 L 285/35
(45) See COM (92) 422 final on protection of personal data.
(46) See UN/ Edifact Syntax Rules ISO 9735-EN 29735. UN/Edifact TDED ISO 7372-EN 27372.
(47) Convention 72/454/EEC OJ 1972 L 299/32
(48) Rome Convention 80/934/EEC OJ 1980 L 266/1
(49) See American Bar Association Model Agreement, The Commercial Use of Electronic Data Interchange- A Report, 45 Bus L. 1647 (1990). Uniform Rules of Conduct for Interchange of Trade Data by Teletransmission (UNCID) ICC Publication N 452 1988.
(50) Lloyd's Bank v Lynch (1988) 702 F Sup 157. Regarding other rules of guidelines promulgated by other systems of Interbank communication in the Delbrueck v Manufactures Hanover case (1979) 609 F2d 1047 the court accepted the practices followed as conclusive evidence of the legal effect of those transactions. Thus, the CHIPS rules were given a binding legal effect.
(51) (1980) 19 ILM 671
(52) OJ 1987 L 365/72
(53) COM (94) 436, OJ 1994 C 360/13
(54) COM(95) 264, OJ 1995 C 199/16
(55) OJ 1995 C 251/3
(56) OJ 1997 L 043/25. See Commission Recommendation 97/489/EC of 30 July 1997 concerning transactions by electronic payment instruments OJ 1997 L 208/52. It applies to transactions referred to transfer of funds and cash withdrawals by means of an electronic payment instrument. There is a need to sign a written contract prior to delivering on electronic payment instrument. Obligations and liabilities of the parties to a contract are specified in it.
(57) In 1971 the Atlantic Container Lines ( ACL ) introduced a sea waybill named Data Freight Receipt ( DFR ) for its North Atlantic shipments. The DFR eliminated the need to send paper documents with the shipment. All that was need was a computer connection. The DFR was non negotiable. It acknowledged receipt only for shipment and not for on board loading. It lacked the terms and conditions of carriage of the traditional bill of lading. The DFR was not a document of title but merely a receipt and it did little to assure the consignee or bona fide purchaser of the goods that the shipper would not resell or reroute the goods in transit.