Letter: Status of EU Directive Is a Factual Matter

I saw your article “DMA Warns Members About Coming EU ‘Opt-In’ Law” (July 28) and am concerned that the Direct Marketing Association may have misrepresented the EU Directive to you. One might debate vigorously Charles Prescott’s interpretation, which I would, but the status of the Directive is a factual matter.

Contrary to the DMA assertion that you reported, EU Directive 2002/58/EC on electronic communications has been in effect since July 31, 2002. See Article 20. Under EU law, the Directive sets out standards that must be enacted into the national laws of the EU member states. This process is called “transposition” because no EU directive can be self-executing.

The obligations on companies are imposed by national law, not the Directive itself. Article 17(1) of the Directive provides for a transitional period to allow member states the time to transpose the Directive. This period ends Oct. 31, 2003, and is not particularly significant as far as companies are concerned.

If a member state fails to enact the conforming legislation by the deadline (which is usually the case in the EU), then the country is in violation of its obligations to the EU and may be sued by the EU before the EU Court of Justice — this happens periodically.

Joel Reidenberg, Professor of law, Fordham University School of Law, New York

[email protected]

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