Revisiting country of origin principle: Challenges related to regulating e-commerce in the European Union

The article analyses the country of origin principle of information society services in the light of harmonisation and unification efforts undertaken by the European lawgiver. Although the country of origin principle remains the key element of the construction of freedom to provide information society services, the principle itself suffers a number of both explicit and implicit restrictions which render its practical application a serious challenge. The difficulty is posed by the fact that the Electronic Commerce Directive fails to expressly specify both the scope of harmonisation as regards the principle, and the level of harmonisation of the directive itself. Furthermore, it is understood differently by private international lawyers. In the eDate Advertising case the ECJ ruled that the principle is not a conflict-of-laws rule, neither does it require implementation to the national legal systems in this shape. This is not to mean, however, that the debate over the function of the country of origin principle in private international law is over. Last but not least, there are many different types of country of origin principles applicable to various types of services provided via the Internet. This multitude of country of origin principles is perhaps the greatest weakness the regulatory approach adopted by the European lawmaker.