-
欧洲
EU – Distributed ledger technology – What happened in 2018
3 1 月 2019
- 契约
- Information Technology
If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.
Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.
In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.
Europe
Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.
Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.
Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.
Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.
Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.
However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.
Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?
If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.
An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.
The race to regulating DLT in Europe
Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.
EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.
Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.
In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.
France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.
Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.
Conclusions
To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.
To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.
The author of this post is Alessandro Mazzi.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
The Court of Justice of the European Union (CJEU) ruled, on December 20, 2017, that the service provided by Uber cannot be regarded as a digital service.
The question raised
The request for preliminary ruling was referred by a decision made by the Juzgado de lo mercantil de Barcelona relating to a dispute between the Asociacion Profesional Elite Taxi and Uber where the first considers that the second offers a paid service consisting of connecting non-professional drivers with persons who wish to make urban journeys, without holding any local administrative license nor authorization.
The question at stake was clearly set by the Court. The starting point is the principle of freedom of services (article 56 TFUE) and its implementation by two directives: the 2000/31 Directive on e-commerce and the 2006/123 Directive on services in the internal market. On the other side, in each of these three set of rules (TFUE, 2000 and 2006 Directives), an exception is made for “transport services”. The question at stake was to know whether the service offered by Uber could be qualified as a digital service (subject only to the national law of establishment of the service provider) or as a transport service (which must comply with the 28 national laws on transport).
The decision of the Court
The Court first stated (i) that “an intermediation service consisting of connecting a non-professional driver using his own vehicle with a person wishes to make an urban journey is, in principle, a separate service from a transport service“, and (ii) that a transport service is defined as “the physical act of moving persons or goods from one place to another by means of a vehicle“. With this fine line between the two types of services, the Court then concluded that the hereabove intermediation service “meets, in principle, the criteria for classification as an “information society service” within the meaning of the Directive 2000/31“.
The CJEU ruled however that the very activity conducted by Uber is “more than an intermediation service consisting of connecting, by means of a smart phone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey“. The Court then explained that Uber “simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application (…) and whose general operation it organizes for the benefit of persons who wish to accept that offer in order to make an urban journey“.
The Court grounded its reasoning with the two following features to qualify Uber’s service as a transport service:
- This intermediation service is “based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the service provided by those drivers“.
- “Uber exercises decisive influence over the conditions under which that service is provided by those drivers” (e.g. the maximum fare fixed by Uber, the amount cashed in first by Uber and then repaid to the drivers, the quality control of the vehicles and of the drivers by Uber with possible exclusion as a sanction).
The impact for startup using intermediation platforms
Although the Court mentions that the service of Uber is “more” than an intermediation service, and that the provider of this intermediation service “simultaneously offer” urban transport services, which imply that this intermediation service does however exist, the Court judged that specific features should invalidate this intermediation service as a digital service. A more up-to-date approach of what is today the Digital Single Market could have led the Court to choose another solution and stay on the digital side.
The reasoning of the Court does not really constitute a guideline for other intermediation platforms. The shortness of the reasoning might convey a more political decision applying to a US giant like Uber. The briefness of the reasoning may also show the inadequacy of the current EU regulation vis-à-vis the new trends of digital economy, specially the large variety of intermediation platforms business models (the « digital service » to which the Court referred has been defined in the 1998 directive).
It seems that this ruling will not materially impact Uber which is already subject to local transport rules in several EU countries.
This ruling will impact European Uber-like businesses as they will have to take into consideration this decision to build their offer: they will deal with 28 local regulations if they cannot qualify as a digital service. But should they fall into the transport service rules, intermediation platforms will have anyway to control whether national political and judicial authorities implement local transport rules in compliance with the general principles of the TFUE.
As regards service providers dealing with non-transport services, it is difficult to anticipate the real impact of this decision since this ruling is highly focused on the relation between liberalization of services and specific rules applicable to transport.
The author of this post is Christophe Héry.
意大利 
法国 
德国 
巴西 
Netherlands 
Serbia 互联网技术服务合同中须拟定与著作权相关的条款
25 1 月 2018
-
波兰
- Information Technology
- 契约
- 知识产权
If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.
Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.
In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.
Europe
Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.
Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.
Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.
Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.
Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.
However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.
Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?
If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.
An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.
The race to regulating DLT in Europe
Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.
EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.
Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.
In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.
France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.
Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.
Conclusions
To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.
To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.
The author of this post is Alessandro Mazzi.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
The Court of Justice of the European Union (CJEU) ruled, on December 20, 2017, that the service provided by Uber cannot be regarded as a digital service.
The question raised
The request for preliminary ruling was referred by a decision made by the Juzgado de lo mercantil de Barcelona relating to a dispute between the Asociacion Profesional Elite Taxi and Uber where the first considers that the second offers a paid service consisting of connecting non-professional drivers with persons who wish to make urban journeys, without holding any local administrative license nor authorization.
The question at stake was clearly set by the Court. The starting point is the principle of freedom of services (article 56 TFUE) and its implementation by two directives: the 2000/31 Directive on e-commerce and the 2006/123 Directive on services in the internal market. On the other side, in each of these three set of rules (TFUE, 2000 and 2006 Directives), an exception is made for “transport services”. The question at stake was to know whether the service offered by Uber could be qualified as a digital service (subject only to the national law of establishment of the service provider) or as a transport service (which must comply with the 28 national laws on transport).
The decision of the Court
The Court first stated (i) that “an intermediation service consisting of connecting a non-professional driver using his own vehicle with a person wishes to make an urban journey is, in principle, a separate service from a transport service“, and (ii) that a transport service is defined as “the physical act of moving persons or goods from one place to another by means of a vehicle“. With this fine line between the two types of services, the Court then concluded that the hereabove intermediation service “meets, in principle, the criteria for classification as an “information society service” within the meaning of the Directive 2000/31“.
The CJEU ruled however that the very activity conducted by Uber is “more than an intermediation service consisting of connecting, by means of a smart phone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey“. The Court then explained that Uber “simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application (…) and whose general operation it organizes for the benefit of persons who wish to accept that offer in order to make an urban journey“.
The Court grounded its reasoning with the two following features to qualify Uber’s service as a transport service:
- This intermediation service is “based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the service provided by those drivers“.
- “Uber exercises decisive influence over the conditions under which that service is provided by those drivers” (e.g. the maximum fare fixed by Uber, the amount cashed in first by Uber and then repaid to the drivers, the quality control of the vehicles and of the drivers by Uber with possible exclusion as a sanction).
The impact for startup using intermediation platforms
Although the Court mentions that the service of Uber is “more” than an intermediation service, and that the provider of this intermediation service “simultaneously offer” urban transport services, which imply that this intermediation service does however exist, the Court judged that specific features should invalidate this intermediation service as a digital service. A more up-to-date approach of what is today the Digital Single Market could have led the Court to choose another solution and stay on the digital side.
The reasoning of the Court does not really constitute a guideline for other intermediation platforms. The shortness of the reasoning might convey a more political decision applying to a US giant like Uber. The briefness of the reasoning may also show the inadequacy of the current EU regulation vis-à-vis the new trends of digital economy, specially the large variety of intermediation platforms business models (the « digital service » to which the Court referred has been defined in the 1998 directive).
It seems that this ruling will not materially impact Uber which is already subject to local transport rules in several EU countries.
This ruling will impact European Uber-like businesses as they will have to take into consideration this decision to build their offer: they will deal with 28 local regulations if they cannot qualify as a digital service. But should they fall into the transport service rules, intermediation platforms will have anyway to control whether national political and judicial authorities implement local transport rules in compliance with the general principles of the TFUE.
As regards service providers dealing with non-transport services, it is difficult to anticipate the real impact of this decision since this ruling is highly focused on the relation between liberalization of services and specific rules applicable to transport.
The author of this post is Christophe Héry.
写信给 EU – Distributed ledger technology – What happened in 2018
EU Court of Justice – Uber is not a digital service
2 1 月 2018
- 反垄断
- Information Technology
If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.
Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.
In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.
Europe
Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.
Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.
Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.
Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.
Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.
However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.
Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?
If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.
An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.
The race to regulating DLT in Europe
Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.
EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.
Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.
In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.
France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.
Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.
Conclusions
To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.
To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.
The author of this post is Alessandro Mazzi.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
The Court of Justice of the European Union (CJEU) ruled, on December 20, 2017, that the service provided by Uber cannot be regarded as a digital service.
The question raised
The request for preliminary ruling was referred by a decision made by the Juzgado de lo mercantil de Barcelona relating to a dispute between the Asociacion Profesional Elite Taxi and Uber where the first considers that the second offers a paid service consisting of connecting non-professional drivers with persons who wish to make urban journeys, without holding any local administrative license nor authorization.
The question at stake was clearly set by the Court. The starting point is the principle of freedom of services (article 56 TFUE) and its implementation by two directives: the 2000/31 Directive on e-commerce and the 2006/123 Directive on services in the internal market. On the other side, in each of these three set of rules (TFUE, 2000 and 2006 Directives), an exception is made for “transport services”. The question at stake was to know whether the service offered by Uber could be qualified as a digital service (subject only to the national law of establishment of the service provider) or as a transport service (which must comply with the 28 national laws on transport).
The decision of the Court
The Court first stated (i) that “an intermediation service consisting of connecting a non-professional driver using his own vehicle with a person wishes to make an urban journey is, in principle, a separate service from a transport service“, and (ii) that a transport service is defined as “the physical act of moving persons or goods from one place to another by means of a vehicle“. With this fine line between the two types of services, the Court then concluded that the hereabove intermediation service “meets, in principle, the criteria for classification as an “information society service” within the meaning of the Directive 2000/31“.
The CJEU ruled however that the very activity conducted by Uber is “more than an intermediation service consisting of connecting, by means of a smart phone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey“. The Court then explained that Uber “simultaneously offers urban transport services, which it renders accessible, in particular, through software tools such as the application (…) and whose general operation it organizes for the benefit of persons who wish to accept that offer in order to make an urban journey“.
The Court grounded its reasoning with the two following features to qualify Uber’s service as a transport service:
- This intermediation service is “based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the service provided by those drivers“.
- “Uber exercises decisive influence over the conditions under which that service is provided by those drivers” (e.g. the maximum fare fixed by Uber, the amount cashed in first by Uber and then repaid to the drivers, the quality control of the vehicles and of the drivers by Uber with possible exclusion as a sanction).
The impact for startup using intermediation platforms
Although the Court mentions that the service of Uber is “more” than an intermediation service, and that the provider of this intermediation service “simultaneously offer” urban transport services, which imply that this intermediation service does however exist, the Court judged that specific features should invalidate this intermediation service as a digital service. A more up-to-date approach of what is today the Digital Single Market could have led the Court to choose another solution and stay on the digital side.
The reasoning of the Court does not really constitute a guideline for other intermediation platforms. The shortness of the reasoning might convey a more political decision applying to a US giant like Uber. The briefness of the reasoning may also show the inadequacy of the current EU regulation vis-à-vis the new trends of digital economy, specially the large variety of intermediation platforms business models (the « digital service » to which the Court referred has been defined in the 1998 directive).
It seems that this ruling will not materially impact Uber which is already subject to local transport rules in several EU countries.
This ruling will impact European Uber-like businesses as they will have to take into consideration this decision to build their offer: they will deal with 28 local regulations if they cannot qualify as a digital service. But should they fall into the transport service rules, intermediation platforms will have anyway to control whether national political and judicial authorities implement local transport rules in compliance with the general principles of the TFUE.
As regards service providers dealing with non-transport services, it is difficult to anticipate the real impact of this decision since this ruling is highly focused on the relation between liberalization of services and specific rules applicable to transport.
The author of this post is Christophe Héry.
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