B2B Internet Trading Platforms - EDIS

and conditions of the contract 17 . In other cases, such requirements are not mandatory, in the sense that
the Directive allows business partners to deviate from them by making a different agreement, e.g. for
the provision of information on the different steps for the conclusion of the contract 18 , legal rules on
the placing of the order 19 etc.
A harmonised legal framework for electronic transactions, by lowering barriers to market access and
enhanced transparency, is likely to increase trust in cross-border transactions and consequently to
increase cross-border trade. It must be underlined that the existence of clear and established
competition rules acts as a facilitator, creates trust and ensures that dominant enterprises can not abuse
their position vis-à-vis suppliers or customers infringing Art. 82 EC or that enterprises enter into
agreements contrary to Art. 81 EC.
Competition rules are important to ensure undistorted competition in B2B e-marketplaces. Such e-
marketplaces may create a network effect because the value of an electronic exchange increases with
the number of users. This may lead to market ‘tipping’ and the creation of a dominant position if the
network effects are strong enough to induce all market participants to use the same network. This
problem could in particular arise in the context of sector specific e-market places, if most buyers and
suppliers are linked to the same system.
There is the concern of buyers or sellers that sensitive information on prices and quantities may be
exchanged in an uncontrolled manner, thus leading to anti-competitive agreements on prices or other
terms and conditions of the contract. Furthermore, there are fears that the participants in an electronic
market can effectively bundle purchasing or selling volumes. If this is the case, a competition concern
could arise if they were able to co-ordinate their behaviour as buyers or as sellers.
Finally, the ownership of e-marketplaces and the rules governing them may raise concerns. These
rules could be used, for instance, to exclude certain participants from the most efficient e-marketplace,
thus putting them at a competitive disadvantage. In other cases, companies, in particular SMEs, may
be forced by dominant enterprises to use specific e-marketplaces in order to continue to transact with
their business partners. An issue of discrimination could arise if certain market participants (e.g. the
founders) were to receive privileged information about transactions in the market. To deal with this
issue, certain market places are setting up “Chinese walls” to impede any information flows between
the parent companies and the joint venture.
16
17
18
19
supervisory authority … (f) where the service provider undertakes an activity that is subject to VAT, the
identification number referred to in Article 22.1 of the sixth Council Directive 77/388/EEC
“Article 5.2: “Where information society services refer to prices these are to be indicated clearly and
unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs”.
Article 10.3 : “Contract terms and general conditions provided to the recipient must be made available
in a way that allows him to store and reproduce them”.
Article 10.1: “Member States shall ensure, except than otherwise agreed by parties who are not
consumers, that at least the following information is given by the service provider clearly,
comprehensible and unambiguously and prior to the order being place by the recipient of the service:
(a) the different technical steps to follow to conclude the contract; (b)whether or not the concluded
contract will be filled by the service provider and whether it will be accessible; (c) the different
technical means for identifying and correcting input errors prior to the placing of the order; (d) the
languages offered for the conclusion of the contract
Article 11.1: “Member States shall ensure, except than otherwise agreed by parties who are not
consumers, that in cases where the recipient of the service places his order through technological
means, the following principles apply: (a)the service provider has to acknowledge the receipt of the
recipient’s order without undue delay and by electronic means; (b) the order and the acknowledgement
of receipt are deemed to be received when the parties to whom they are addressed are able to access
them ; Article 11.2 : “Member States shall ensure that except when otherwise agreed by parties who are
not consumers the service provider makes available to the recipient of the service appropriate, effective
and accessible technical means allowing him to identify and correct input errors, prior to the placing of
the order.
23