These are my views about the legal and technical status of .eu registrations, particularly in relation to the Landrush. Please don't flame me (well, not too much!). I'm just referring you to the actual regulations. I don't personally care much about .eu... I got three domains I wanted anyway. I do care a bit about rules and regulations, because some consumers lose out if the rules are broken. But anyway, here's what I think the rules say - take it or leave it, and good luck!
My primary concern is that, under the terms of EUROPEAN COMMISSION REGULATION NO 733/2002 of 22 April 2002, Article 4e, and also EUROPEAN COMMISSION REGULATION NO 874/2004 of 28 April 2004, "Accreditation of registrars should be carried out by the Registry following a procedure that ensures fair and open competition between Registrars."
I put it to Eurid, and will also put it to the Communications Committee established by Article 22 (1) of Directive 2002/21/EC set up to oversee Eurid's performance and report to the Commission, that "fair" competition was not ensured, because Eurid's arrangements disadvantaged a large number of registrars by allowing "multiple outlets" to afford certain "parent" companies extra places in the first-come-first-served queues... in some cases, 100's of extra places, whereby they were able to acquire popular domain names which would otherwise have been available to individual registrars who did not attempt to "game" the system and only had one place in the queue.
Moreover, I believe Eurid made it possible for some people to gain "unfair" advantage by drafting accreditation procedures which enabled 100's of temporary registrars to be set up and reclaim their accreditation fee of 10000 Euros once they had served their purpose and terminated their contracts with Eurid. Although money would be deducted from this accreditation fee for registrations, any such money would of course be recouped (with profit) from registrants, so - in effect - it cost nothing to become a registrar for the sole purpose of obtaining extra places in the .eu queues. The 10000 Euros is not a payment to apply (like ICANN charges) but a "float" of cash to guarantee transactions, with any unspent money refundable in the event of a registrar deciding to shut down their operations (how long to do reckon these 'shell' registrars will stay open? Therefore I believe that Eurid were in breach of Article 4e. They failed to "ensure" that there was "fair" competition between registrars. The accreditation process was completely open to invasion by multiple outlets. Many single-entity registrars were disadvantaged.
I specifically warned Eurid that this could happen, back in July 2005.
To continue...
Under the terms of EUROPEAN COMMISSION REGULATION NO 874/2004:
4. "Registrars should only accept applications for the registration of domain names filed after their accreditation." - As many of these accredited registrars (for example those created for a Canadian company) were only accredited at the last moment, I find it highly unlikely that the applications from Registrants took place in accordance with European Commission regulations. Indeed, the parent company were taking applications months before its "additional" registrars were accredited.
Article 5: "A registrar who receives more than one registration request for the same name shall forward those requests to the Registry in the chronological order in which they were received." - it is well-publicised that parent companies have been selling .eu domains in auctions to the highest bidder from a group of applicants *after* the domain was registered. This would appear to be in breach of the EC regulation that the domain must go to the person who applied first.
Turning to EURID's own "Domain Name Registration Terms and Conditions" which are binding on registrants and registrars (and published on the EURID website), a valid "Application" is defined as "a complete, technically correct request for a domain name registration submitted to the Registry, which complies with all the requirements provided for in the Registration Guidelines." This must include, as stated in Section 4, that "all information provided to the Registry during the domain name registration process is true, complete and accurate."
According to EURID's "Registration Policy" Section 5 (ii): "through a Registrar, the Registrant must provide the Registry with... an address and country within the community" Furthermore, the application for a registration should include the Registrant's name. I am fairly clear, even from the simple logic that many domain names were not initially distributed but kept back for "auction", that a significant number of domains were *NOT* registered with the required details, and indeed could not be, since the Registrants were not to be those who legally should have been "first to apply" but unknown entities who would later bid the highest. Therefore I believe that these "shell registrar" multiple outlets not only resulted in "unfair" distribution of names to the loss of other registrants, but may also have been in breach of EURID's own rules requiring a "technically correct request for a domain name registration" complying "with all the requirements provided".
I believe EURID's accreditation and launch policies resulted in abuse of their own rules and of the European Commission regulations.
Turning to the EURID "Registrar Agreement", each accredited registrar was obliged to have an active website to be in compliance with Article 15:6 of this agreement. And according to Article 2.4 each accredited registrar was also required to make terms and conditions available - "if the registrar fails to provide such services in one or more of the indicated languages
such failure will constitute a material breach of this Agreement."
I am of the view that in scores if not hundreds of cases, there were no complying websites - and besides, any such websites with required services would have been irrelevant to the applicants who had applied for .eu names through the 'parent' company months before these 100's of registrars had ever been accredited.
In the context of these very late accreditations (and many missing websites), Article 4 of the Registrar Agreement with Eurid is particularly interesting: "The Registrar must guarantee that the Holder has accepted the registration agreement applicable when the application is made." Now if the "parent" company argues that it provided the terms of the registration agreement *before* its "shell" registrar was accredited, then it's in breach of the rules, because the application and agreement was not allowed to take place until *after* accreditation... and if it claims that somehow, mysteriously, amazingly, the customer did indeed apply in the last moments through these never-seen-before registrars, then where are the websites, and where is the interface, and why were these 100's of registrars serving a parent company which had the actual interface?
I believe, in reality, these 100's of "shell" registrars are in breach of Article 4 (and other rules) because not only did the Registrants fail to accept agreements through their websites... they didn't even apply through these registrars at all.
And indeed, not only that, but in various cases, the Registrant was not even known at the time of registration *because the auction for the name hadn't yet taken place*!
Article 4 also states: "During the Registration process, the Registrar will always submit (including but not limited to any submission in the WHOIS database) the data of the end user who made the initial request for the registration of the domain name(s) concerned and not its own data."
In many cases - and specifically in the case of names auctioned later to multiple applicants - this clearly did not happen.
When I warned EURID back in July 2005 about "parent" companies using multiple registrars to game the queues, they replied: "The accredited registrar must forward to EURid only those applications he received after accreditation, and he must do so on a first-come-first-served basis. Auctioning the domain name is definitely not allowed. Not complying with the regulation ...is a breach of contract."
I live in the real world. I accept that these things happen in the market place. At the same time, it seems to me that EURID have failed to uphold their own rules.
How can these auctions conform with the .eu regulations? EURID requires the specific registrant to be named in the application, and that is not possible if the auction has not happened prior to registration. Furthermore, where a registrar receives more than one applicant for the same name, .eu rules stipulate that the registrar must submit the first application it received.
Good luck to everyone anyway.
Yours sincerely,
Richard Henderson
