lo26065006 law 20/2014, 16 October, regulating the electronic contracting and the operators who carry out their economic activity in a digital space since the General Council in its session of October 16, 2014 has approved the following: law 20/2014, 16 October, regulating the electronic contracting and the operators who carry out their economic activity in a digital space exhibition of illustrations and The social and economic growth of the Principality of Andorra and in the countries of its environment depends on the form each time more substantial and determinant of related sectors in the digital space, so that all areas of social and economic activity are developed each time with more frequency, extent and intensity in this space. Predictable regulation and adapted to the evolution of the State of the art, the habits and social practices, and business strategies that do not negligeixi the proper protection of the rights and the interests at stake, is an essential element to provide certainty and generate confidence in the digital space. This would be the way to encourage the business sector and the location of innovative companies in the country, to attract foreign investment, to promote innovation and creativity, and to facilitate economic exchanges and social interaction.
The development of the regulations, both international and regional or national, on electronic contracting and other matters related to the development of the activity in the digital space, offers consolidated experiences today and very useful references to craft a balanced and comprehensive legislation. Therefore, the legislation of the Principality of Andorra should be logically in the legal systems of the countries of their environment and of the countries with which socio-economic and business relations established. This makes the Community regulations and of the Member States of the European Union in a logical reference point and forced. In addition, the approval of this law regulating the electronic contracting and the operators who carry out their economic activity in a digital space is an excellent occasion to incorporate doctrinal and jurisprudential advances, and to strengthen the substantive basis with the fundamental principles of international law on this matter.
Thus, this law is inspired by the principles and rules that have been checked and provides innovative solutions on the issues that the practice has exported the most uncertainty, conflicting or not enough covered by existing rules. Innovation takes place both in the use of concepts more adapted to the reality of the moment, business, social or technical as in the perfection of some rules or in the incorporation of new solutions.
The law is divided into six chapters. The chapter first contains general provisions relating to the object of the Act and the main definitions of the terms used in the articles and its scope of application. The second chapter establishes the obligations of the operators. The third chapter is dedicated to the regime of liability of operators and, in particular, of intermediary service providers. The fourth chapter is devoted entirely to the regime of communications for electronic commerce. The fifth chapter is dedicated to electronic contracting and contains, in addition, provisions relating to the out-of-court settlement of disputes and the recourse to instruments of self-regulation, codes of conduct and seals of guarantee. Finally, in the sixth chapter establishes a system of sanctions for operators who develop their activity in a digital space, provided effective and aimed to deter non-compliance of the provisions of this law.
The object of this law is to establish a basic legal framework for the development of economic activities in a digital space and electronic contracting in particular, with regard to commercial communications, the electronic process of formation and perfection of contracts, and the conditions for its validity and effectiveness.
On the other hand, this law should not be conceived as a sectoral law that regulates a independent activity and stagnate. But on the other hand, responds to a disciplinary regulations initiative that regulates, in fact, the performance of the operators in a space, the digital space, where there is commercial and social relations and activities of nature and very diverse entity, and increasingly preponderants. Therefore, this law should be applied in combination with other regulations in force in the Principality of Andorra regarding related matters or such collateral, among others: procedural rules; of contract; public prosecutors; of electronic trust services; of competition, unfair competition and consumer protection; intellectual and industrial property; and the protection of personal data.
The delimitation of the subject-matter of the law in article 1 incorporates an innovative concept to describe the regulated activity and the subjects that develop.
With the expression "operators who develop their activity in a digital space" is replaced and, above all, extends the concept of "information society service providers" that will run through Community law. The use of the latter term has been rejected by two main reasons. Firstly, the activity on the network is not only in the provision of services. Secondly, the reference to "information society services" is an expression beyond the terminology most commonly used. A website, a blog, a website, a platform, an application or a social network are digital spaces managed by operators. The operator who carries out its activity in the network creates a space in which it develops its activity and interact with users. This digital space results from the combination of electronic means of communication and digital media. The user, therefore, does not see a website as if it were a page of a book, but you get a space, a digital space, managed by the operator to use their services, access to their content or to purchase their products. This spatial perspective is crucial to ensure that the solutions of this law are adequate and dynamic enough to avoid obsolescence in time.
The spatial perception of activity is reflected in the rest of the definitions in article 2 and all the rules contained in the provisions of the law.
The scope of application of the law is defined in the chapter. By virtue of article 3, the law is applicable to operators established in the Principality of Andorra and the activities that develop. It is understood that an operator is established in the Principality of Andorra when the place in what are effectively centralized administrative management and direction of their business is in the territory of the Principality, which boasts that it is the place of usual residence, address or registration. In case of direct debit or resident operators in another State, the law applies when these individuals develop their activities through a permanent establishment in the Principality of Andorra. It is considered that an operator acts through a permanent establishment located in the Principality of Andorra, when this operator has, continuously or usual, of facilities or of places of work in which performs the whole or a part of its activity. In this case, the precise Law that is not determining the mere use of technology in the country. In this way, got a legal framework of predictable application that gives a broad protection to the parties.
From the objective point of view, the law covers the provision of any economic activity to the extent that develop in a digital space. In the article 5 establishes that this exercise, Furthermore, does not require prior authorisation, without prejudice to the authorization scheme that, if appropriate, the development of the specific activity itself.
The second chapter establishes the obligations of operators who develop their activity in a digital space.
The need to build trust in relationships that are established in a digital space required to ensure a high level of certainty about the basic elements of the transaction and increase transparency through information obligations. All operator that develop activities in a digital space must comply with the obligation to provide information to their recipients regarding identification and other basic data contained in article 6. The operator must provide this information in a visible, permanent, free and clear, and in a manner appropriate to the digital space in which the activity.
This obligation to provide information on essential data is added in article 8, the obligation to inform on aspects related to security.
In relation to the intermediary service providers, in the article 7 reflects the anticipation that the competent bodies may be ordered, in the exercise of its powers, the interruption, suspension or withdrawal of a content or a certain activity, so that will count with the collaboration of the operators who provide the intermediation service.
The third chapter sets out the liability of the operators who develop their activity in a digital space and, in particular, of intermediary service providers.
The liability of intermediary service providers is one of the issues that require more attention, because it represents a key piece in the normal development of activities in the digital space and the expansion of electronic contracting.
With the aim of offering a more complete model, modern and developed, it has adopted a more systematic structure and in line with the regulations, the reports and consultation documents and European case law and other jurisdictions especially active. Defines an open-minded concept of "provider of brokerage services" that will allow their development in the face of the progress of the State of the art and the business models; establish rules specifically relating to the obtaining of knowledge of any unlawful activity by the lender; It details a voluntary procedure of notification, removal and replacement; and establish clear rules about the cast and the attribution of responsibilities between the operator, the recipient affected and notifying all along the process of voluntary notification, withdrawal and, if necessary, replace.
The fourth chapter is dedicated to the regime of communications for electronic commerce.
Before the new digital advertising strategies, we must, first of all, to maintain the concept of "electronic commercial communication", on the one hand, to differentiate it from simple digital location data of the operator, and, on the other hand, to incorporate the growing phenomenon of personalization and cover the cases based on schemes of accessibility to information and not just of the shipment or the referral of commercial communications. Equally, regulates in a balanced way the use of storage devices and data recovery (cookies) in all its forms.
The fifth chapter contains general provisions on the negotiation process, training and perfection of contract by electronic communications and specific provisions on automated contracting procedures and with consumers. Are defined clearly, following the line of the international instruments, uniforms, the concepts of "offer" and "invitation to bid" and will require, in general, and for a digital space, the forms of express acceptance. In addition, it offers a simplified and comprehensive regulation of the moment of perfection of contract, applicable to all environments and stages of recruitment.
The chapter five includes, in addition, two relevant provisions. On the one hand, the forecast that the parties decide to submit their disputes to procedures for the out-of-court settlement of disputes and, in particular, the possibility that entaulin and develop by electronic means. On the other hand, the job, the adoption or the involvement of operators in codes of conduct or other forms of self-regulation, as well as the seals proving compliance with standards, and standards of conduct or best practices.
In the sixth chapter establishes a system of sanctions for operators who develop their activity in a digital space. The offences are classified as minor, serious and very serious, and the sanctions are correlatively so. It has designed a system of sanctions provided, and with the aim of deterring non-compliance of the provisions of this law.
Chapter first. General provisions Article 1 Object
1. The object of this law is to regulate the operators who develop their economic activity in a digital space, and electronic contracting in particular, with regard to commercial communications, the electronic process of previous information, training and perfection of the contracts, and the conditions for its validity and effectiveness.
2. The regulation contained in this law should be understood without prejudice to the subjection of such operators in the regulations is applicable, in the exercise of their specific activity; in the General provisions on obligations and contracts that are applicable to electronic contracting; to the rules of electronic trust services; to the rules of competition, unfair competition and consumer protection; to the rules of Commerce; the regulations on the protection of personal information and; in general, any other regulations that may be applicable.
Article 2 Definitions for the purposes of this law, it is understood by: a) "activity in a digital space": activity that takes place in a digital space when the provision of information or content, the provision of services or the supply of goods are carried out, in whole or in part, in digital media and electronic media, in such a way that the recipient requests , search for or access to the information, the content, the services or the goods in said digital space.
Are not considered activities carried out in a digital space subject to this law:-the services provided via voice telephony or fax. However, the use of mobile telephone devices to access information, content, services or goods, or sending or receiving communications via such devices in the framework of the provision of an activity in a digital space, does not imply the exclusion of the provisions of this law.
-Television broadcasting services. However, the use of apparatus television receivers for access to information, content, services or goods, or sending or receiving communications via such devices within the framework of the provision of an activity in a digital space, does not imply the exclusion of the provisions of this law.
-The sound broadcasting services.
-The tv and teletext are equivalent services.
b) "operator": any natural or legal person to develop their economic activity, be it business or professional, in a digital space.
c) "Recipient an activity developed in a digital space" or simply "recipient": individual or legal entity that accesses the digital space of an operator to purchase, hire or use of information, content, goods or services, regardless of whether or not for business or professional purposes. Sometimes the recipient can be another operator. It is considered that the recipient is a consumer when, in accordance with the consumer protection legislation, acting within the framework of consumer relations in an area other than a business or professional activity.
d) "brokerage services": services provided in a digital space in order to facilitate the provision of another service, to provide visibility to contents or activities of other operators, or to give them access to their recipients.
e) "intermediary service provider": the operators to develop an activity in a digital space and that consists of the provision of brokerage services.
f) "electronic communication": information, in digital media, created, issued, received, processed, or stored by electronic, magnetic, optical, digital media or similar.
g) "commercial communication": communication that has the purpose of promoting, directly or indirectly, the goods, services or image of a person, or company, you have a business or professional activity.
For the purposes of this law, are not considered a "commercial communication" data that are simply related to the address of the natural or legal person who carries out the business or professional activity, or that allow the recipient to locate the operator or access to their content, services or their goods in a digital space.
h) "electronic commercial communication": commercial communications made by means of electronic communications sent to the recipient, or that, at the initiative of the operator, is accessible to the recipient in a digital space, as long as they do not respond to a request expressed by the same recipient on the specific information of the operator, its activity, its products or its services. It is understood also by "electronic commercial communication" delivering on the initiative of the operator, although it is customized, taking into account the circumstances of the recipient, their location or device, or any other circumstance of the relationship in what is offered or made accessible communication.
I) "competent body": any judicial or administrative body, acting in the exercise of powers legally attributed.
Article 3 scope of application 1. This law is applicable to operators established in the Principality of Andorra and the activities that develop.
It is understood that an operator is established in the Principality of Andorra when the site in what is effectively the centralized administrative management and direction of their business is in the territory of the Principality. For this purpose, it is assumed, unless you try the opposite, that the administrative management and direction of the business of an operator are centralized in the territory of the Principality of Andorra when the operator mentioned has its habitual residence or domicile registration in the Principality, or when it has been registered in the register of companies or other public record of the Principality of Andorra where the registration is necessary to acquire legal personality.
2. At the same time, this law is applicable to residents or operators located in another State as long as they do their activities through a permanent establishment located in the Principality of Andorra.
It is considered that an operator acts through a permanent establishment located in the Principality of Andorra, when this operator has, continuously or usual, of facilities or of places of work in which performs the whole or a part of its activity.
3. The use of technological resources located in the Principality of Andorra to provide or access the activity is, by itself, as a criterion to determine the residence in the Principality of Andorra of the operator.
Excluded services 1. The services listed below are governed by its specific regulations: a) Are provided by notaries in the exercise of their public functions.
b) Are provided by lawyers and attorneys in the exercise of their functions of representation and defence in court.
c) Are gambling involving bets of economic value.
2. But what determines the previous section, this law can be applied subsidiary in everything that is not incompatible with the specific regulations.
Article 5 non-additional licensing the development of economic activity in the digital space in the Principality of Andorra does not require additional authorization to which, in accordance with the applicable legislation, the development of the specific economic activity in question. If the economic activity is carried out solely in the digital space, are required, in any case, the authorisations which, in accordance with the applicable legislation, may correspond to the development of the activity or activities in question.
Second chapter. Obligations of operators who develop their activity in a digital space Article 6 identification of the operator and basic information the operators must make available to the recipient, in the same digital space in which to develop the activity, in a visible, permanent, clear and free of charge, the following minimum information: a) the identification and contact data of the operator, including the name or company name residence or domicile or, if not available, the address of their permanent residence in the Principality of Andorra, as well as any address and contact data that enables a direct communication to the benefit of the activity in the digital space.
b) The registration details and tax that, in accordance with the applicable legislation, corresponding to the operator and its activities.
c) information relating to any authorization that the development of the activity of the operator may require, in accordance with the applicable legislation and, in this case, the data to identify the competent body responsible for its supervision.
d) in the event that the activity of the operator implies the exercise of a regulated profession, the data of the professional association to which belong the operator with the registered number, the academic qualification or professional that enable the State that issued the title and its recognition or approval where appropriate, and the content of the applicable professional standards or a referral to these rules.
e) The codes of conduct to which it is attached and the stamps issued receipts, in accordance with the provisions of this law.
f) in the event that the operator refers to prices in the digital space, the information required by the regulations in the area of trade.
g) any other additional information that require specific regulations applicable to the trade in general or to one of the methods of sale, to the protection of the consumer or to the protection of personal data, among others.
Article 7 duty to collaboration of intermediary service providers 1. When a competent body has ordered, in the exercise of the powers legally have attributed, is interrupted or suspended the exercise of the activity carried out by operators to whom this law is applicable, that will remove a certain information or content from the above mentioned operators, or prevent access to such activities, information or content from the Principality of Andorra , and it is necessary the collaboration of intermediary service providers, the organ in question can sort the listed lenders, provided that they are subject to this law, which suspends the intermediation service used for the exercise of the activity or the provision of the information or the content in question.
2. The adoption and compliance with the measures to which it refers in the above paragraph, it is necessary to respect, in all circumstances, the rules, procedures and the guarantees provided for in the law, including those that are intended to protect the rights to personal and family privacy, personal data, freedom of expression or freedom of information, when such rights might be affected.
3. In all cases in which the Constitution, the regulations of the respective rights and freedoms, or those that are applicable to the various subjects, the competence attributed jurisdictional bodies of the form excluding to intervene in the exercise of activities or of rights, only the competent judicial authority may adopt the measures that are envisaged.
4. The measures to which this article refers must be objective, proportionate and non-discriminatory, and should adopt provisional form or in execution of the resolutions to be taken, in accordance with the legally established administrative procedures or the procedures established in the corresponding procedural law.
Article 8 safety information the operators subject to this law must provide to the recipients, so visible, permanent, clear and free of charge, as long as it is relevant and appropriate according to the type of activity given, information on: a) the different technical means that allow the restriction of commercial electronic communications not requested.
b) The updated security certificates that apply in relation to the payment transactions of services or products purchased in connection with their activities.
c) existing tools for filtering and restricting access to certain information, content or unwanted activities that could be harmful to the youth and children, or, in general, contrary to morality or public order.
Third chapter. Liability of operators and, in particular, of intermediary service providers Article 9 general scheme of liability of the operators 1. The operators who develop their activity in a digital space are subject to the rules on criminal, civil and administrative liability that, in general, sets up the legal system.
2. Without prejudice to the provisions of the previous section, in order to determine the liability of intermediary service providers must take into account the provisions of the following articles.
Article 10 there will be a general obligation to monitor
The intermediary service providers do not have the general obligation to supervise the activities, the information or the contents of the provision, use or access of which facilitate. I also have the obligation to do active research of facts or circumstances that reveal activities or illegal behavior of recipients.
Article 11 liability of intermediaries 1. The intermediary service providers are not responsible for the activity, the information or the contents of recipients to which facilitate the provision, use or access, as long as they do not have control, nor have knowledge of its unlawful nature, in accordance with article 14.
2. For the purposes of the provisions in the above paragraph, it is understood that the intermediary service providers, the service of which consist in providing access to a telecommunications network or to transmit data provided by recipients, do not have knowledge or control as long as they are not generated or modified or have chosen the data or recipients.
It is not considered that the activities of manipulation and storage of the information transmitted with a purpose strictly technique involve generating, the modification or the selection of the information, in accordance with the provisions of the preceding paragraph, provided that their duration is that reasonably requires the execution of the activity of handling or storage of question.
3. It is understood that the intermediary service providers, the activity of which consists of the automatic storage, temporary and provisional data supplied for a recipient, with the sole purpose of making more efficient the onward transmission of the data mentioned in other recipients who request, do not have the knowledge or control of the contents of the data stored, as long as they do not change and meet the conditions on access , update and track, in accordance with article 12.
4. intermediary service providers whose activities consist in recipient data stay at, at the request of the latter, are not responsible for the information or content stored or the activity to develop recipients, as long as they do not have control, nor have knowledge of its unlawful nature, in accordance with article 14.
For the purposes of the provisions in the above paragraph, it is understood that the brokerage services provider has control over the information stored at the request of if the recipient who stored the data acts under the authority, direction and control of the lender.
5. the intermediary service providers that provide tools for finding information or contents, or referencing services to facilitate the location, the presentation, the link or the visibility of the information or the content or activities of recipients, are not responsible for what found, present or link, as long as they do not have control, nor have knowledge of his illegal in accordance with article 14.
Article 12 conditions relating to the automatic storage, temporary and provisional data for the purposes of the provisions of article 11.3, it is understood that the intermediary service providers whose activity consists of the automatic storage, temporary and provisional data supplied for a recipient, with the sole purpose of making more efficient the onward transmission of the data in question to other recipients who request have no knowledge or control of your content provided that: a) Respect the rules of access to the information or the content established by the recipient of the service of intermediary service provider that provides this information or these contents.
b) Respect the norms of updating of the information or other content provided by the recipient of the service of intermediary service provider that provides this information or these contents, or, where appropriate, the standards normally accepted and applied in the sector.
c) does not interfere with the use of technology used by the recipient of the service circulate the brokerage services provider that provides the information or the content to obtain data on the use of such information or content, provided that such use is made in accordance with the applicable legislation and is compatible with the widely accepted industry standards.
Article 13 Intellectual Property 1. The intermediary service providers are not responsible, in accordance with the regulations on intellectual property, the reproduction that involves the automatic storage, temporary and provisional data supplied for a recipient, with the sole purpose of making more efficient the onward transmission of such information to other recipients that request.
2. strictly technical intermediation service aimed to facilitate the location of information or contents, in accordance with the recipient's specific query, does not mean, by itself, the infringement of intellectual property rights in relation to the information or content referred to or presented reasonably and enough with the sole purpose of being located by the recipient.
Article 14 effective knowledge of the unlawful nature for the purposes of the provisions of article 11, it is understood that the intermediary service providers have knowledge of an illegal in any of the following cases: a) When a competent body has declared illegal information, the contents or the activity of recipients to which facilitate the provision, has ordered the withdrawal or has disabled access to this information , content or activity, or when the competent body has declared the existence of an injury from such information, content or activity and the provider of brokerage services to calculate the corresponding resolution of the competent body.
b) When the provider of brokerage services have knowledge of illegal by reason of a notification procedure, removal and replacement of the information and content or activity that the provider of brokerage services have been forced to apply voluntarily. It is understood that the brokerage services provider is aware of the illegal if, by virtue of such a procedure:-identifies the owner of the rights infringed.
-properly identify both the rights infringement which are alleged as the alleged infringement committed.
-identify sufficiently the information, content or activity infractores and its location.
-Will provide the data that make it possible to identify all the possible, the owner of the information, the content or the offender activity.
c) When, by virtue of a prior agreement with the recipient, the intermediary service provider controls the request for the information, the contents or the activity of other recipients that use the service, in accordance with the instructions and parameters provided by the recipient, the owner of the rights infringed. In these cases, the responsibility of the provider of brokerage services in the face of the recipient, the owner of the rights is governed by that sets out the agreement.
Article 15 obligation to Act 1. Without prejudice to the fulfilment of the measures that order a competent body, in any of the cases provided for in article 14, the intermediary service providers who have knowledge of any unlawful activity must act with diligence to notify the recipient affected the communication received, and in case you have voluntarily established, implement withdrawal and, if necessary, proceed to the replacement.
For this purpose, the intermediary service providers that have been forced to apply voluntarily a procedure of notification, removal and replacement of the information and contents or of the activity must inform recipients of the terms and conditions in which they operate.
2. The provider of brokerage services is only liable for damages that affected the notifying and the recipient could cause if you have acted negligently in relation to the notification, the withdrawal or replacement to the referenced in the previous section.
Article 16 notification voluntary Procedure, replacement and withdrawal for the purpose of the voluntary procedure for notification, removal and replacement, to which reference is made in article 14. b), it is understood that the provider of brokerage services act diligently if this procedure complies with the following conditions: a) the procedure of notification of withdrawal and replacement is free and is available on a permanent basis.
The notifier to provide false or inaccurate information, and is an expert of this falsity or inaccuracy in any of the listed procedures, is responsible for any damage caused to the brokerage services provider to perform relying on the information provided, and also the damages caused to any other third party affected.
b) notification procedure allows the provider of brokerage services to obtain, so reasonable, the information provided for in article 14. b). However, you cannot require specific information that make virtually impossible, in reasonable conditions, the complaint by the notifier.
In case the reporting does not provide the information referred to in article 14. b), the provider of brokerage services may choose to require the notifying the information that you need because there is sent within a reasonable time or to inform the notifying that it cannot continue with the procedure without prejudice to the notifying the decide to start again.
If the intermediary service provider does not receive the required information within the deadline specified, or with the information provided is not sufficient to continue with the procedure, is not required to respond to the complaint or to continue with the procedure.
c) the provider of brokerage services must confirm to the notifier receipt of your notification and should proceed to send it quickly to the recipient in question.
d) If the provider of brokerage services is estimated in accordance with the notification received and the information it contains and that may have been provided by the notifying, that the alleged infringement is obvious, you can opt to remove the information or the content or prevent access to them or to the activity in question, as long as you have submitted previously notified to the addressee in question.
If the provider of brokerage services are not considered to be the obvious infringement, or with the information available can not assess the existence of an infringement, you may decide not to withdraw or suspend access by notifying the decision on notifying. The provider of brokerage services will in no case liable for notifying to the decision not to withdraw the information or the content or does not prevent access to the activities in question if it has acted reasonably.
For the assessment of a possible infraction subject to a notification, it is understood that the provider of brokerage services has the knowledge and the resources with which they have reasonably the professionals and the companies in its sector to carry out its activities. To such effects, cannot require the provider of brokerage services for the assessment of a possible infraction subject to a notification to the employer advising of specialists or have to carry out a particular task of analysis or study, since it is not subject to a general obligation to monitor the activities, the information or the contents of the provision, use or access of which facilitate.
The provider of brokerage services is not liable to the recipient affected by the measures of removal or suspension of access if you have acted reasonably given the information we had available at the time of the decision, in accordance with the provisions of the preceding paragraphs, and you always have access to promptly to the recipient affected the notification received and as scheduled.
The provider of brokerage services can also withdraw the information or the content or prevent access to them or to the activity in question if you do not have contact details of the recipient affected that allow effective electronic communication delivery.
e) the recipient affected by the notification can respond to the notification received, within a reasonable time, opposing the complaint.
If the provider of brokerage services estimated that the allegations of the affected recipient are reasonable, you can choose to replace the information or the contents removed, facilitate the access or the access to the activity in question or, in the case of not having them removed before, keep access under the same conditions. In any case, the brokerage services provider should inform promptly the notifying of the decision taken.
The brokerage services provider is not obliged to proceed with the removal or replacement, nor to investigate the facts reported, or do a search for additional information beyond the information provided by the notifying party and the recipient affected by notification, in accordance with the procedure of notification of withdrawal and replacement in the conditions laid down in this article.
For the assessment of the allegations of the affected recipient, it is understood that the provider of brokerage services has the knowledge and the resources with which they have reasonably the professionals and the companies in its sector to carry out its activities. To such effects, cannot require the provider of brokerage services for the assessment of a possible infraction subject to a notification to the employer advising of specialists or have to carry out a particular task of analysis or study, since it is not subject to a general obligation of monitoring activities, the information or the contents of the provision, use or access of which facilitate.
The provider of brokerage services will not be responsible in any case before the notifier if, according to the information received, decide to diligently do not adopt measures of removal or suspension of access, nor will it be liable to the recipient affected if you decide to reasonably do not adopt measures of replacement.
The fourth chapter. Commercial communications Article 17 the legal regime of electronic communications for electronic commerce electronic commerce communications shall be governed, in addition to this law, other regulations that may be applicable in accordance with the provisions of article 1.2.
In particular, apply the legislation on protection of personal data to all data processing operations related to the delivery, the delivery and customization of commercial communications.
Article 18 obligations of the operator in relation to electronic communications 1. The operator has to make sure that the electronic commercial communications at any time, are identified clearly and unambiguously as such. To this end, they must identify themselves as commercial communications with an unequivocal expression, visible and suitable to the characteristics of the communication, of the commercial message and the device or devices to which you go used, or from which you can access in order to ensure that the commercial character of the communication clearly is warned to the recipient.
Likewise, the name of the natural or legal person on behalf of whom the electronic commercial communications must be clearly identifiable at any time.
2. The electronic commercial communication should allow the recipient to access under the conditions agreed upon, or in a reasonable if there is prior agreement, to information, to the content or to the activity that you have requested. To this end, the electronic commercial communication must clearly indicate how you disable it and, if appropriate, the terms and conditions of their provision.
3. Moreover, the electronic commercial communication is to enable the recipient to access, directly or indirectly, in an easy and simple way, to the conditions of the offer, its duration or validity, the application form or access, and any exception or limit that is relevant.
If the commercial communication refers to promotional offers, contests or games, you have to be able to access directly or indirectly, so easy and simple, and to the conditions of participation.
Article 19 the sending of commercial electronic communications 1. The electronic sending of commercial communications sent to the recipient by any electronic means of communication that involves the direct and personal reception of the message requires the prior consent of the recipient.
2. If the contact details of the recipient has been obtained so lawfully by the operator in the context of a prior business relationship, the operator can send commercial communications using these contact details, provided that, at the time of the collection of contact details, has been given the opportunity to the recipient to reject the sending of commercial communications, and commercial communications relating to the goods or services of the same operator or If you refer to the goods or services of a third party, you have informed the recipient, and the latter do not have opposed.
3. In any of the previous cases, the operator has to enter your contact information to the recipient, as well as offer you a procedure at all times easy, simple and free to oppose the processing of your data for commercial purposes or to withdraw freely, at any later time, your consent.
Article 20 storage devices and data recovery 1. In the event that you use storage devices and data recovery, the operator must provide to the recipient, clear information, complete and visible place on the use and purposes of this device because the recipient may give their consent.
2. For the purposes of the provisions of the preceding paragraph about the obligation of information of the operator, it is understood that the information provided is complete if it is structured and has in various levels or layers, provided that they are easily accessible.
3. For the purposes of the provisions of paragraph 1 of this article, the consent of the recipient, you can get either a State expressly action of the same recipient, conscious and positive, provided that it is duly and previously of the value of the action in question as a manifestation of his consent, or by means of the technical configuration of your device, the functionality of the service or of the relevant applications , provided that the recipient's acceptance requires a positive action and that the operator inform in a clear, understandable and simple about how to proceed in relation to this action and on its value as a manifestation of consent.
4. It is not necessary to request the consent of the recipient, nor to inform of its use, in cases in which the storage of data or access have an exclusively technical, security or are necessary for the provision of the service requested by the recipient. For the purposes of determining this appropriateness for the purposes indicated above, must have especially in mind the duration of the use of the device in relation to its purpose.
5. In any case, the operator must provide to the recipient, at all times, an easy, simple and free to freely withdraw your consent.
Chapter five. Electronic contracting Electronic Contracts Article 21 1. Any statement or act referred to the training, the perfection, the Administration, compliance and the termination of contracts may be made by means of electronic communication between the parties, and between these parties and third parties, unless there is an express legal provision against it.
2. The use of electronic communications for the negotiation, training, perfection, administration, compliance and the termination of the contract does not require the prior agreement between the parties.
3. The contracts held by means of electronic communications produced all the effects foreseen by the law, when legally required consent and are met the other requirements necessary for its validity.
4. The provisions of this chapter apply in general and regardless of the purpose business, professional, personal or family of the transaction.
Article 22 form of contract 1. As long as the applicable legislation requires that the contract, or any information that relates, the record in writing, it is understood that it has satisfied this requirement if the contract or the information contained in electronic communications and the information they contain is accessible because it can be consulted at a later date.
2. If the applicable law requires, for the validity of contracts, business or events, or for the production of certain effects, the public documentary form, or require the intervention of jurisdictional bodies, notary or public authorities, must comply with the specific legislation concerned.
Article 23 the legal system of electronic contracting procedures 1. The contracts, signed by any means of electronic contracting, are governed by what is agreed upon by the parties, the provisions of this law and any other applicable legislation, in accordance with the provisions of article 1.2.
2. The contracts agreed to by, with, or completely or partially automated electronic systems are among contract validity and effectiveness. The rights and obligations arising from these contracts are attributed directly to the person, identified as a party to the contract, in the sphere of control of which will find the automated system.
3. It is understood by "automated electronic system" that takes place, without that there is human intervention, one or more actions or specific functions in accordance with a set of instructions or rules previously established and in response to the interaction of a recipient or another automated system.
Article 24 Legal Regime of recruitment with automated consumer recipients 1. The provisions set out in article 25 apply to electronic contracting procedures that will develop through an automated electronic system of recruitment, in a digital space organized and managed by the operator, in order to formalize contracts with recipients, consumers.
2. The provisions envisaged in article 25 does not apply to electronic contracting procedures that involve the exchange of personal and individualized form of electronic communications between systems that are respectively under the control of the sender and the recipient of the communication.
Article 25 electronic contracting Procedures by means of automated systems in contracts with consumers recipients When the procedure of recruitment will develop through an automated electronic system of recruitment in a digital space organized and managed by the operator, in the case of contracts with consumers, recipients, the operator has the obligation to: 1. Provide, before starting the procedure of contracting, and clearly permanent, free, and suitable electronic procedure used, and procurement to the device from which you can access, information understandable and unambiguous on the stages of the recruitment procedure, the way of manifesting acceptance, the perfection of the contract, the language or languages in which you can follow the procedure and improve the contract, and, if applicable, the additional cost that could involve the use of the electronic system without prejudice to any other information required by the specific legislation in the area of consumer protection, in the area of trade, or in any other matter that may be applicable.
2. Make available to the recipient, the consumer the General conditions, if any, would be applicable to the contract, so that you can access during the booking procedure and can be stored in any medium, for if you want to access later.
Without prejudice to the obligation of making available, the operator must provide to the recipient consumer identifying the most relevant conditions and understanding of its content in any way that is appropriate to the circumstances of the transaction.
3. To enable a system of detection and correction of errors available throughout the hiring process and before the perfection of contract.
4. To enable a system of confirmation of the contract, so that the confirmation is made accessible by the end of the recruitment procedure in the same digital space, or are published or made accessible by other means of personal and individualized form, as soon as possible, and provided that the recipient of the confirmation has provided the data for such shipment or have the details to access the said confirmation of personal way and individualized. In any case, the confirmation should allow the recipient the have available in a suitable support in order to access it later.
In all matters not of this article, and as long as it is not incompatible with what it has, apply the provisions of the following articles regarding the contracting procedures that regulate.
Article 26 invitation to make offers and offer of contract 1. It is considered "invitation to make a contract offer" the proposal to formalise a contract made by a means of electronic communication addressed to one or more people a, or accessible to the general public or to a number of people by electronic means.
2. The proposal to hold a contract, made by means of an electronic communication addressed to one or more specific persons constitutes an offer if it is sufficiently accurate and indicates the intention of the offeror to be bound by this offer in case it is accepted.
3. However the contained in the two previous sections, in the case of proposals made by means of electronic communications or accessible electronically in consumer relations, applies the specific regulations regarding the protection of the consumer.
Article 27 applicability of the invitations and offers without prejudice to that established by specific legislation that might be applicable, the invitations to make offers and the offers made by means of electronic communications are in force during the period established by those who run or, if there is, during the time that they are accessible to their recipients.
Article 28 acceptance Forms 1. The contracts are perfect by means of the acceptance of an offer.
2. The offer be accepted expressly or by means of the carrying out of an act or conduct which expresses assent and enough palesi intends to accept it. In order to determine whether an act or conduct sufficiently demonstrate the intention to accept, you have to take into account what indicates the offer, the uses and common practices between the parties. Silence or inaction does not mean alone acceptance.
3. Without prejudice to the established in the previous sections, in the case of contracts held with consumer recipients, prevails, if appropriate, the provisions of the legislation regarding the protection of the consumer.
Article 29 the Moment of perfection of the contract, the acceptance of the offer takes effect at the moment in which, once the sender has taken all actions that reasonably correspond to the acceptance, or once you have executed the Act or conduct directed to accept, the recipient can know the acceptance in terms appropriate to the circumstances of the transaction, the procedure of Contracting , uses and practices between the parties.
Article 30 acknowledgement of receipt without prejudice to the provisions of article 25, the issuer of any electronic communication issued under or in connection with a contract, you can request your recipient an acknowledgement of receipt of the communication. When you receive this request, the recipient shall acknowledge the notification without delay.
Article 31 of the document and electronic signature 1. Electronic communications, as long as you allow them to access his content, are considered documents and have the probative effect which, as such, are appropriate, in accordance with the applicable legislation in procedural and in the area of electronic trust services.
2. All electronic communication issued negocials purposes it must be attributed to its sender. For this purpose, unless there is a provision or agreement to the contrary, you can use a digital signature to the purposes sought and the circumstances of the case.
Article 32 policies for electronic communication you have to improve a contract that may contain terms and conditions, you must include them in its entirety, to incorporate them by reference, in such a way that they are accessible in a suitable support, or make it the mere reference in the event of conditions widely known and regularly observed in the traffic considered, this without prejudice to the provisions of article 25. In these last two cases, both the reference as the mere referral must be made in the manner and in the right conditions to the characteristics of the procedure of contracting in what is intended to streamline the contract. In addition, the policies have to be accessible to the parties, which must be able to retrieve them at any time during the term of the contract.
In any case, the incorporation, the interpretation and validity of the General conditions shall be governed by its specific legislation, depending on the subject matter of the contract in question and, where applicable, for the consumer protection regulations.
Article 33 applicable law in the absence of agreement between the parties, the law applicable to electronic contracts, shall be determined in accordance with the provisions of the rules of private international law that are applicable.
In the case of contracts with consumers, recipients applies the law of the country where the consumer has his habitual residence, provided that the operator performs its activities in the said country or run their activities, and the contract in question refer to these activities. The parties can also agree that these electronic contracts are managed according to another law, as long as this law provides at least the same level of protection to consumers that the legislation of the Principality of Andorra in the field.
Article 34 electronic invoice the invoice issued by means of an electronic communication has the same effect as the issued in a document on paper, provided that it meets the requirements set out in the applicable legislation in the area of invoicing.
Article 35 change of support 1. The parties may agree at all times to support change from paper to a digital format and vice versa, unless there is a legal provision against it.
2. In the case of contracts with consumers, recipients if the clause that allows the operator to proceed to an exchange of support is included in the General conditions of the contract, require the express acceptance of the adherent.
Article 36 out-of-court settlement of conflicts and the provision of services of out-of-court settlement of disputes in line 1. The parties may submit their disputes in connection with any transaction in procedures for the out-of-court settlement of disputes, in accordance with the legislation in force at any time in the field of mediation, conciliation or arbitration, and the consumer protection legislation.
2. In the same way, the parties may submit their disputes to negotiation procedures, assisted or automated, and out-of-court settlement of disputes, which procures by means of agreement between the parties, of codes of conduct and other self-regulatory instruments, without prejudice to the provisions of the consumer protection legislation.
3. In the procedures for the out-of-court settlement of disputes to which reference the previous sections, you can use electronic media in the terms established in this law, and with the effects that recognizes the specific legislation relating to means of conflict resolution used.
4. it is referred to as "the services of out-of-court settlement of conflicts online" all services of out-of-court settlement of disputes that are developed by electronic means and in digital format.
For the purposes of the provisions of the preceding paragraph, it is understood by "service provider of out-of-court settlement of conflicts online" the operator that provides and administers electronic platform through which develops the procedure of conflict resolution, and makes it easy for the parties and the neutral mediator services necessary to develop the performances.
5. The provider of services of out-of-court settlement of disputes in line and the neutral mediator are subject to the provisions of this law and, in all that is applicable to the specific legislation relating to the system of conflict resolution used.
It is understood by "neutral third party" every person who provided assistance to the parties in conflict, whether providing they reach a resolution of the dispute, either by issuing a decision on this dispute.
Article 37 codes of conduct, warranty stamps and other self-regulatory instruments 1. Associations, corporations and professional organizations, trade and consumers, as well as the operators individually or collectively, can adopt voluntary codes of conduct relating to matters covered in this law. In relation to the matters of consumption, is also subject to the provisions of the legislation regarding the protection of the consumer.
2. The associations, corporations and professional organizations, trade and consumers to provide a service of accreditation of operators in relation to the accession and compliance with a code of conduct, or issued stamps recognising the fulfilment of certain standards of conduct or standards of good practice, must inform a comprehensive and up-to-date permanently, the content of the standards, codes of conduct or good practices which certifies the compliance and review procedure and accreditation.
3. operators who adopt or adhere to a code of conduct or have received a seal certifying the mentioned in the previous section must provide to the recipients, at all times, full information and access to the contents of the code of standards, the rules of conduct or good practices, to the data of the entity formuladora and supervisor of compliance and of the accrediting , if applicable.
4. In accordance with the regulations on the defence of competition, consumer protection, unfair competition and deceptive trade practices are considered that cehipar to affirm, without it being true, that the operator has adhered to a code of conduct, or who has received the accreditation of a specific organism or entity, or to display a seal of quality that does not has been effectively granted.
Article 38 Actions regarding the protection of the consumer Against the breach of the obligations provided for in this law for the relationships with consumers, recipients can exercise the actions provided for in the legislation on the protection of the consumer.
Chapter six. Infractions and sanctions Article 39 liability for non-compliance on the part of the operators of the obligations provided for in this law in all that refers to the exercise of their activity in a digital space, gives rise to administrative responsibility, and also, if necessary, to criminal or civil liability that may arise.
The operators are subject to the penalties set forth in this chapter when this law is applicable.
Article 40 competent body 1. The competent body for steps and solve the sanctioning is the Ministry of economy.
2. The opening and resolution of the corresponding sanctions takes place in accordance with the provisions in the area of administrative procedures sanctioning.
Article 41 Infringement 1. Infringements of the provisions of this law shall be considered as a very serious, severe and mild.
2. very serious offences Are: a) the breach of the obligation to suspend the provision of intermediation services ordered by a competent body, in accordance with the provisions of article 7.
b) The simultaneous Commission and settled in various serious offences.
3. Are serious offences: a) the significant non-compliance with the provisions of article 6.), in relation to the basic identifying information operator.
b) significant and systematic non-compliance with the requirements set out in paragraphs 1 and 2 of article 18, in conjunction with the communications for electronic commerce.
c) sending bulk commercial electronic communications and systematic that does not comply with the conditions laid down in article 19.
d) not put at the disposal of the recipient, a procedure to oppose to the processing of your personal data or to revoke your consent to the conditions laid down in article 18 or for the purposes of article 19.
e) Use storage devices and data recovery without providing the information or require the consent of the recipient, according to the provisions of article 20.
f) significant non-compliance with the obligations set out in article 25 in conjunction with automated procedures of contracting consumer recipients.
4. minor offences Are: a) does not provide the information prescribed in article 6, when not constitutes serious violation.
b) significant non-compliance with the obligation to provide the information on security, established in article 8.
c) breach the requirements set forth in paragraphs 1 and 2 of article 18, in conjunction with the electronic communications, they do not constitute a serious violation.
d) the sending of commercial electronic communications without complying with the conditions laid down in article 19, when they do not constitute a serious violation.
Article 42 Penalties 1. By the Commission of the offences contained in article 41, impose the following sanctions: a) for very serious offences, fine of 10,000 to 100,000 euros.
Recurrent Commission of very serious offences, and in case of especially serious circumstances, can lead to the sanction of prohibition of the operator's performance in the Principality of Andorra for a maximum period of two years.
b serious infringements) to fine of 2,000 to 10,000 euros.
c) for minor infractions, fine of up to 2,000 euros.
2. the Commission of an offence may not lead to an economic benefit for the offender, so, if the amount of the penalty imposed and the cost of the actions that will eventually have to adopt the operator to remedy the effects of the infringement were lower than the benefit resulting from the infringement, the fine may be increased to the amount of the profits obtained unlawfully.
3. serious infringements and very serious may, moreover, lead to the publication of the sanctions resolution firm. The cost of the publication is in charge of the sanctioned.
Article 43 prescription of infringements 1. Very serious offences prescribed three years counting from the day on which cease the action or the default worthy of sanction.
2. serious offences prescribed two years counting from the day on which cease the action or omission worthy of sanction.
3. minor offences prescribed in the head of one year counting from the day on which cease the action or omission worthy of sanction.
4. The beginning of the performance Inspector suspends the period of prescription.
Article 44 provisional measures 1. In the disciplinary procedures for very serious offences or serious can be adopted, under the conditions set out in this article and, where appropriate, in accordance with the administrative legislation in force at any given time, the provisional measures, foreseen in the rules above, that love needed in order to ensure the effectiveness of the resolution that will definitely make , the good end of the procedure, which will prevent the maintenance of the effects of the infringement, and the consideration of general interests.
In particular, you can arrange the following provisional measures: a) temporary suspension of the activity of the operator and, if necessary, temporary closure of your establishment.
b) Seal, deposit or seizure of records, media and digital archives, and documents in general, as well as appliances and computer equipment of all types.
c) Warning to the recipients of the activity of the operator of the existence of possible behaviours infractores and sanctioning of the case shall question, as well as the measures adopted for the cessation of these behaviours.
2. In any case, it respects the principle of proportionality of the measures that have been taken with the goals that you aim to achieve in each case. Unable to adopt provisional measures that could cause prejudice to difficult or impossible to repair those interested or which involve the violation of the rights protected by the laws.
3. Once initiated the procedure, the competent body for steps and solve the sanctioning, that is to say, the Ministry of economy, can adopt, ex officio or at the request of a party, the provisional measures it deems appropriate to the purposes provided for in paragraph 1 of this article, if there are elements of judgment enough for it.
4. In cases of urgency and for the immediate protection of the interests involved, the provisional measures provided for in this article may be agreed upon before the initiation of the disciplinary record. The measures must be confirmed, modified or raised on the agreement of initiation of the procedure, which must be made within fifteen days of their adoption.
In any case, these measures remain without effect if it does not start the sanctioning procedure within the period established in the preceding paragraph or when the agreement of initiation does not contain an express statement about the measures.
5. provisional measures may be lifted or modified during the procedure, ex officio or at the request of a party, by virtue of a diseased or circumstances that could not be taken into account at the time of their adoption.
In any case, they burn out with the efficiency of the administrative resolution that put an end to the corresponding procedure.
Article 45 Graduation of sanctions the amount of the fines to be imposed in accordance with this law has graduated from taking into account the following criteria: to) the existence of intentionality.
b) recidivism for Commission of offences of the same nature when it has been declared so by a firm resolution.
c) the nature and amount of the damage caused.
of) the benefits obtained by the infringement.
Article 46 Moderation of sanctions the competent body for steps and solve the sanctioning applied the sanctions corresponding to the class of infractions that precedeixi immediately in severity to that to which the infringement committed by the operator and sanctioned when any of the following cases: a situation where a) When the offender has regularized the irregular situation diligently.
b) When the nature and amount of the damage caused are of little relevance and the benefits obtained by the violation are non-existent or reduced significantly.
c) when you can appreciate that the conduct of the person concerned has contributed or have induced the Commission of the offence.
Article 47 Warning 1. The competent body for steps and solve the sanctioning may not agree on the opening of the disciplinary procedure and, instead, warn the offender in order that, within the period determined by the sanctioning body, certifies the adoption of corrective measures that, in each individual case, are relevant, as long as they attend the following presuppositions: a) That the facts be mild or serious offence constituting in accordance with this law.
b) That the offender has not been sanctioned or cautioned in advance in relation to some of the offences envisaged in this law.
c) That there are some of the criteria for the mitigation of the penalty laid down in article 46.
2. If the warning to the accreditation of the adoption of the corrective measures were not due within the period specified by the competent body, will proceed to the opening of the procedure for sanctioning non-compliance mentioned.
Article 48 Limitation of sanctions 1. The sanctions imposed for very serious offences prescribed in the three years from the date of notification of the decision to impose sanctions strong.
2. The penalties imposed for serious offences prescribed two years counting from the date of notification of the decision to impose sanctions strong.
3. The penalties imposed for minor offences prescribed after one year from the date of notification of the decision to impose sanctions strong.
Article 49 appeals against resolutions issued by the competent body for steps and solve the sanctioning, that is to say, the Ministry of economy, and to adopt measures of a temporary nature, they can lodge an appeal in accordance with the available administrative resources regulations in force at any given time.
Transitional provision. Adaptation period the operators that they are developing a business in the digital space to the date of entry into force of this law shall have a period of 6 months from the date mentioned in order to adapt to the provisions of this law.
Final provision. Entry into force this law enters into force the day after being published in the official bulletin of the Principality of Andorra.
Casa de la Vall, 16 of October of 2014 Vicenç Mateu Zamora Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Joan Enric Vives Sicília François Hollande Bishop of Urgell, President of the French Republic Co-prince of Andorra Co-prince of Andorra