Published the: 2017-05-23 Numac: 2017040323 FEDERAL PUBLIC SERVICE economy, SMEs, class averages, and energy may 5, 2017. -Law on the audiovisual media services in the bilingual region of Brussels-capital (1) PHILIPPE, King of the Belgians, to all present and future salvation.
The rooms have adopted and we sanction the following: Chapter 1. -General provisions and definitions Article 1. This Act regulates a matter referred to in article 74 of the Constitution.
Art. 2 § 1. This law transposes the directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 aimed at the coordination of certain provisions of legislative, regulatory and administrative provisions of the Member States concerning the provision of audiovisual media ("Audiovisual media Services" Directive) services.
2. This Act partially transposes the following guidelines: (1) directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks and associated resources, as well as their interconnection ("Access" Directive);
(2) directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of networks and services of electronic communications ("Authorisation" Directive);
(3) directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework common to the networks and services of electronic communications ("Framework" Directive);
(4) directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users in terms of networks and services of electronic communications ("Universal Service" Directive).
3. in this Act, means: (1) "Institute": the Belgian Institute of postal services and telecommunications, as referred to in article 13 of the Act of 17 January 2003 on the status of the regulator of the positions and Belgian telecommunications sectors;
(2) "Minister": the Minister or Secretary of State who has Telecommunications responsibilities;
(3) "national regulatory authority": the body or bodies charged by a Member State of the European Union of any of the regulatory tasks assigned in directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC of the European Parliament and of the Council of 7 March 2002;
(4) "BEREC": body of European regulators for electronic communications, established by Regulation (EC) no 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the body of European regulators for electronic communications (BEREC) and the Office;
(5) "audiovisual media service": a service under the editorial responsibility of a provider of audiovisual media services, whose main purpose is the provision of programmes by networks of communications, in order to inform, entertain and educate the general public or to ensure an audiovisual commercial communication;
(6) "on-demand audiovisual media service": an audiovisual media service provided by a service provider of audiovisual media for the viewing of programmes at the moment chosen by the user and upon individual request on the basis of a catalogue of programmes selected by the media service provider;
(7) "editorial responsibility": the exercise of effective control both over the selection of programs than on their organization, either in a chronological schedule, in the case of television, either on a catalogue, in the case of on-demand audiovisual media services;
(8) "media service provider": the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;
(9) "broadcasting organization": a provider of audiovisual media of television broadcasting services;
(10) "television broadcasting" or "television broadcast": an audiovisual media service provided by a provider of audiovisual media services for simultaneous viewing of programmes on the basis of a programme schedule;
(11) "program": a set of images animated, combined or no sound, constituting a single item in a grid or in a catalogue established by a media service provider and whose form and content are comparable to those of television broadcasting;
(12) "audiovisual commercial communication": images, combined or not to sound, which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person exercising an economic activity. These images come with a program or there are inserted by means of payment or other consideration, or for self-promotion purposes. Audiovisual commercial communication forms including the following: television advertising, sponsorship, teleshopping and product placement;
(13) "surreptitious audiovisual commercial communication": the representation in words or Visual of goods, services, the name, the brand, or the activities of a producer of goods or a provider of services in programmes when this presentation is done intentionally by the service provider in a purpose advertising and risk of misleading the public about the nature of such a presentation. A presentation is considered intentional especially when it is done for payment or other consideration;
(14) "sponsorship": any contribution from a company public or private or of a natural person, non activity of supplier of audiovisual media services or in the production of audio-visual works, to the financing of programmes or audiovisual media services, with a view to promoting its name, its brand, its image, its activities or its products;
(15) 'product placement': any form of audiovisual commercial communication include a product, service, or brand, or to refer, by inserting it into a program, by means of payment or other consideration;
(16) "European work": has) the original work of Member States of the European Union which is made basically with the help authors and workers residing in one or more of these States and that meets one or more of the following three conditions:-it is performed by one or more producers established in one or more of those States,
-the production of this work is supervised and actually controlled by one or more producers established in one or more of these States, - the contribution of co-producers of those States has a majority in the total cost of the co-production, and it is not controlled by one or more producers established outside those States;
(b) the original work of European third States party to the European Convention on transfrontier television of the Council of Europe which is carried out mainly with the support of authors and workers residing in one or more of these States and meets one of the following three conditions:-it is performed by one or more producers established in one or more of these States , - the production of this work is supervised and actually controlled by one or more producers established in one or more of these States, - the contribution of co-producers of those States has a majority in the total cost of the co-production, and it is not controlled by one or more producers established outside those States;
The original work of a European third State party to the European Convention on transfrontier television of the Council of Europe is however considered European work on the condition that works originating in the Member States of the Union do not the subject of discriminatory measures in the European third State concerned;
(c) the work co-produced under agreements relating to the audiovisual sector concluded between the European Union and third countries meeting the conditions defined in each of these agreements, on the condition that works originating in the Member States of the Union do not have the subject of discriminatory measures in the third countries concerned;
(d) the work which is produced under bilateral co-production agreements between Member States and third countries, provided that the community co-producers supply a majority share in the total cost of production and that the production is not controlled by one or more producers established outside the territory of the Member States;
(17) "television advertising": any form of message inserted in an audiovisual media service for payment or other consideration by an institution or a public or private company or a natural person in the context of a commercial activity, industrial, craft or of a profession in order to promote the provision, for a fee, goods or services, including immovable property rights and obligations;
18 ° "teleshopping": the dissemination of direct offers to the public for the provision, authorial payment, goods or services, including real estate, rights and obligations;
(19) "isolated spot": spot television advertising or teleshopping that is neither preceded nor followed by an another spot of television advertising or teleshopping;
20 ° "self-promotion": any message broadcast on the initiative of a provider of audiovisual media services, which seeks to promote its own services, programs or related products directly derived from its own programs;
(21) "distributor services": any moral person who makes available to the public one or more audiovisual media services in any way whatsoever. The supply of services may include services which the person bears the editorial responsibility and services that editorial responsibility is borne by third parties with which it establishes a contractual relationship. Is also considered as a distributor of services, any corporation which is a service offering by establishing contractual relationships with other distributors of services;
(22) "user": any natural or legal person who uses or requests an available electronic communications service; the public or an audiovisual media service
(23) "Subscriber": any natural or legal person party to a contract with a provider of communications services accessible to the public, for the provision of such services or with distributor services;
(24) "consumer": any natural person using or requesting an available electronic communications service; the public or an audiovisual media service for purposes other than professional
25 ° "network operator": any company that provides or is authorized to provide a communications network for the transmission and dissemination to the public electronic communications services accessible to the public or media or to a resource associated; services
(26) "electronic communications network": transmission systems, and applicable, switching or routing equipment and other resources, including network elements which are not active, allowing the routing of signals by cable, over-the-air, by optical means or by other electromagnetic means including satellite networks, fixed terrestrial networks (with switching of circuits or packages (, including Internet) and mobile, systems using the grid, insofar as they are used for the transmission of audiovisual media services.
(27) "electronic communications service": the service provided normally against remuneration which consists wholly or mainly in transmission, including operations of switching and routing of signals of audiovisual media services on networks of electronic communication, with the exception of the information society services as defined in article 2 of the Act of 11 March 2003 on certain legal aspects of the services of the company information that are not entirely or mainly in the transmission of signals on electronic communications networks;
(28) "public communications network": an electronic communications network used wholly or mainly for the provision of electronic communications services available to the public, allowing for the transmission of information between endpoints of the network;
(29) 'related resources': the associated services, physical infrastructure and other resources or associated with an electronic communications network and/or an electronic communications service, which enable and/or support the provision of services via that network and/or service or have the potential, and
These include buildings, antennae, towers and other retaining constructions, gaines, pipes, pylons, manholes and boxes;
30 ° "associated services": services associated with a network of electronic communications and/or an electronic communications service, which enable and/or support the provision of services via that network and/or service or have the potential, and include such as the conversion of the number of appeal or systems offering equivalent functionality, conditional access systems and electronic program guides , as well as other services such as those relating to the identity, location and occupation;
(31) 'access': the making available of a network operator, under well-defined conditions and exclusive or non-exclusive way, resources and/or services for the provision of electronic communications services, including when they are used for the provision of services of the information society.
This includes: access to networks and associated resources elements and eventually the connection of equipment by fixed or not; means in particular this includes access to the local loop as well as the resources and services necessary to the provision of services by the local loop; access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for the preparation of orders, supply, control, maintenance and repair requests and billing. access to the conversion of the call number or systems offering equivalent functionality; access to fixed and mobile networks for roaming; access to virtual network services; access systems for digital television services conditional access and access to virtual network services;
(32) "interconnection": form special access consisting of linking physical and logical of public electronic communications networks used by the same network operator or a different network operator, to allow users to communicate with each other, or to access services provided by another network operator;
(33) "local loop": physical circuit linking the end point of the network to a dispatcher or other equivalent facility in the fixed public electronic communications network;
34 ° "local sous-boucle": part of a local loop that connects the end point of the network to a concentration point or a public access point intermediate specified of the electronic communications network fixed;
35 ° "totally unbundled local loop access": the provision of access to the local loop or local sous-boucle of a network that has a significant power in a relevant market, operator authorising the use of the full capacity of the network infrastructure;
36 ° 'access to bit rate': access consisting of the supply of transport capacity with switching associated to a user for which the interface to the user is defined by the access provider;
(37) "shared access to the local loop": the provision of access to the local loop or the sous-boucle local operator network that has power in a relevant market, allowing for the use of a specified part of the capacity of the network infrastructure such as a part of the frequency or something equivalent;
(38) "unbundled local loop access": the provision of a fully unbundled access or access shared local loop involving no change in the ownership of the local loop;
(39) "sheath": envelope used to spend and protect optical, telephone or coaxial cables, and/or resources network;
40 ("RF"): the frequencies of radio waves;
(41) "technical specification": the definition of the characteristics of all services electronic communications provided via interface or endpoint of the network radio;
(42) "conditional access system": any measure or technical provision subordinating the access in an intelligible form protected TV to a subscription or other form of prior individual authorisation;
43 ° "registered auditor": an auditor on the roll of the Institute of the Auditors.
CHAPTER 2. -Section 1 audiovisual media services. -Provisions applicable to all providers of audiovisual media art. 4 § 1. For the purposes of this Act, under the jurisdiction of the federal State, the providers of audiovisual media services, in application criteria fixed in paragraph 2, are under the jurisdiction of the Belgium provided that, in accordance with article 127, § 2, of the Constitution, the point of reference for this jurisdiction is located in the bilingual region of Brussels-capital , and that they are not institutions whose activities are to be considered as belonging exclusively to one or the other community.
§ 2. For the purposes of this Act, it is necessary to hear by providers of audiovisual media services which are under the jurisdiction of a Member State of the European Union, including the Belgium, or of a State signatory of the agreement on the European economic area, those: (1) who are established in that State in accordance with paragraph 2;
(2) to which paragraph 3 applies.
For the purposes of this Act: (1) is considered to be established in a Member State of the European Union or in a State signatory of the agreement on the European economic area, the provider of audiovisual media services which has its head office, and which programming decisions are taken in this State;
(2) where it has its head office in a Member State of the European Union or in a State signatory of the agreement on the European economic area, but that programming decisions are taken in another Member State also the Union European signatory to the agreement on the European economic area, the provider of audiovisual media services is deemed be established in the State which operates a part
the workforce involved in the pursuit of television broadcasting; When a significant part of the workforce involved in the television broadcasting activities operates in each of those States, the media service provider shall be established in the State where it has its head office; When a significant part of the workforce involved in its activities operates in any of these States, the media service provider is established in the first State where he started broadcasting in accordance with the law of that State, provided that it maintains a stable and real economic link with that State;
(3) where a media service provider has its head office in a Member State of the European Union or in a State signatory of the agreement on the European economic area, but that programming decisions are taken in a third country, or vice versa, it is deemed established in the State in question, Member of the Union European or European signatory to the agreement on the economic area If a significant part of the workforce involved in the television broadcasting activities operates in this State.
Audiovisual media services providers that does not apply paragraph 2 shall fall within the jurisdiction of a Member State of the European Community or of a State signatory of the agreement on the European economic area: (1) if they use an uplink to a satellite located in this State;
(2) If, although not using an uplink to a satellite located in this State, they use satellite capacity falling within this State;
If the competent State cannot be determined in accordance with paragraphs 2 and 3, the competent State is one in which the media service provider is established within the meaning of article 49 and following of the Treaty on the functioning of the Union European.
Art. 5. the Institute Exchange with the European Commission and the competent institutions of the European Union Member States all the information necessary for the application of this chapter.
Art. 6. without prejudice to articles 18 and 28, the providers of audiovisual media services which are the responsibility of a community of the Belgian State, of a Member State of the European Union or another signatory State of the agreement on the European economic area freely broadcast their programmes.
7. § 1. Audiovisual media services providers are registered with the Institute for each audiovisual media service they intend to provide. They go to this effect a prior declaration to the Institute by registered mail.
§ 2. The statement referred to in paragraph 1 includes: (1) the name of the declarant and each audiovisual media service to save;
(2) the address of the head office or place of business of the registrant;
(3) the statutes of the declarant;
(4) a financial plan for a period of three years;
(5) the nature and description of the audiovisual media service, including description of the possibly planned information service as well as, where applicable, evidence of the occupation of journalists;
(6) the period in which the audiovisual media service will be launched;
(7) the means to distribute the service of audiovisual media to users and the identity of the operators of these means;
Planned changes, dealing with the conditions listed in paragraph 1, must be communicated in writing to the Institute before be executed.
Art. 8 for easy, quick and permanent access, audiovisual media services providers make the following information available to users: (1) their name;
(2) the postal address of the place where they are established;
(3) the contact information to get in touch quickly and to communicate directly and efficiently with them, including their e-mail address;
(4) a statement that the provider of audiovisual media services is the responsibility of the Institute.
9. the providers of audiovisual media services do no broadcasting of cinematographic works outside periods agreed with the rights holders.
Art. 10. news and information programs are designed in collaboration with professional journalists or people working in conditions that allow to become, in accordance with the law of December 30, 1963 on the recognition and protection of the title of professional journalist.
Art. 11. the providers of audiovisual media services broadcast programs inciting to hatred based on race, sex, religion or nationality.
Art. 12. the King shall lay down provisions according to which providers of audiovisual media services gradually make their services accessible to persons with Visual or hearing impairments.
Art. 13. the King fixed the code of conduct to be respected by service providers of audiovisual media in the audiovisual commercial communication accompanying children's programs or are included relating to foods or beverages containing nutrients or other substances whose presence in excessive amounts in the overall scheme is not recommended.
Art. 14 § 1.
Audiovisual commercial communications: (1) must be recognisable as such.
(2) don't use subliminal techniques;
(3) do not infringe human dignity;
(4) there is no discrimination based on sex, racial or ethnic, nationality origin, religion or beliefs, age, or sexual orientation, or not promote such discrimination;
(5) encourage behaviour prejudicial to health or to safety no;
(6) encourage no behaviour seriously detrimental to the protection of the environment;
(7) cause any physical or moral harm to minors.
Constitute a prejudice in the sense of the (7): has) direct incitement to the rental or the purchase of a product or a service by exploiting the inexperience or credulity of the minor;
(b) incitement to the rental or the purchase of a product or service by persuading the parents of the minor or of third parties;
(c) the operation of the special trust of minors to their parents, teachers or other persons;
(d) the unjustified introduction of minors in dangerous situations.
2. Are prohibited audiovisual commercial communications: 1 ° underground.
(2) for cigarettes and other tobacco;
(3) for medicines and medical treatment available only on prescription in Belgium;
(4) for alcoholic beverages aimed specifically at minors or encouraging their binge.
Art. 15 § 1.
Audiovisual media services or programmes that are sponsored meet the following requirements: (1) their content and their programming are in no way affected so as to undermine the independence and responsibility editorial of the audiovisual media service provider;
(2) they do not incite directly to the purchase or rental of goods or services, including by making promotional specific references to those goods or services;
(3) the viewers are clearly informed of the existence of a sponsorship agreement. Sponsored programmes must be clearly identified as such by the name, logo, or any other symbol of the sponsor, for example by means of a distinctive sign, in a suitable way, at the beginning, during or at the end.
2. Is prohibited sponsorship: (1) on the TV news, news programs and programs for children;
(2) audiovisual media services or programmes by companies which have for main activity the manufacture or sale of cigarettes and other tobacco products;
(3) audiovisual media services or programmes by companies who have especially for activity the manufacture or sale of medicines and treatment when he promotes of the medicines or specific medical treatment available only on prescription in Belgium.
16 § 1. Product placement is prohibited for: (1) tobacco and cigarettes;
(2) products from firms that have for main activity the manufacture or sale of cigarettes and other products of tobacco;
(3) drugs and specific medical treatment available only on prescription in Belgium.
2. Without prejudice to paragraph 1, product placement is admissible only: (1) in cinematographic works, films and series made for audiovisual media, as well as for sports programs and entertainment; services
(2) when there is no payment but only the provision, free of charge for certain goods or services, such as accessories and production lots, for inclusion in a programme.
The derogation provided for in paragraph 1, 1 °, does not apply to children's programmes.
3. Programs that involve the placement of product meet at least all of the following requirements: (1) their content and their programming are in no way affected so as to undermine the independence and responsibility editorial of the audiovisual media service provider;
(2) they do not incite directly to the purchase or rental of goods or services, including by making promotional specific references to those goods or services;
(3) they do not forward in an unjustified manner the product in question;
(4) the viewers are clearly informed of the existence of product placement. Programmes containing product placement are identified by the presence at the bottom of screen of a pictogram round, gray color, with the inlay of a "PP" in white, for ten seconds at the beginning and end of their dissemination, as well as when a programme resumes after an advertising break, in order to avoid any confusion on the part of the Viewer.
This is application for programs produced or commissioned by the media service provider.
§ 4. This section applies only to programmes produced after 19 December 2009.
Section 2 – specific provisions on television broadcasting organizations art. 17 § 1. Television broadcasting organizations broadcast programmes: (1) contrary to the laws undermining respect for human dignity or containing incentives to discrimination, to hatred or to violence, in particular for reasons of race, ethnic group, sex, nationality, religion or of philosophy, disability, age or sexual orientation or to the negation minimization, justification, approval of the genocide committed by the nazi regime during the second world war;
(2) likely to seriously affect the development of physical, mental or moral of minors, including programs including scenes of pornography or gratuitous violence. This last prohibition extends to other programs or sequences of programs, including the trailers, that may interfere with the development of physical, mental or moral of minors;
(3) promoting a current of thought, belief or opinion hostile to fundamental freedoms guaranteed by the Constitution or the European Convention on human rights in order to oppose a principle essential to the democratic nature of the regime and manifesting by incitement to violate a legal standard in force.
§ 2. Paragraph 1, second sentence, and (2) does not apply if he is assured by the choice of time of the program or by any technical measure, that minors in the broadcasting field are not normally likely to see this program and provided that this program be preceded by a warning sound or it is identified by a Visual throughout its symbol.
Art. 18 § 1. The Institute notifies the Organization of television broadcasting referred to in section 6 where it provides a television programme which, in a way shows, serious and severe: has) or incites hatred based on race, sex, religion or nationality;
(b) or seriously undermines the development of physical, mental or moral of minors, such as programs including scenes of pornography or gratuitous violence;
(c) or night to develop physical, mental or moral of minors.
Paragraph 1, c), is not applicable if it is assured that, by the time option, program or by any technical measure minors in the field of dissemination are normally not likely to see this program.
§ 2. The Institute cannot take action only after two warnings in the previous twelve months and after addressed prior written notification to the television broadcasting organization warned, as well as the European Commission,
indicating the measures envisaged in case of persistence of the situation. These measures may extend to banning broadcast addressed to distributors of services for a maximum period of six months.
3. If the situation persists and that, within a period of fifteen days from the notification referred to in paragraph 2, the consultations with the transmitting Member State and the Commission not resulted in a settlement with the television broadcasting organization warned, the measures envisaged are carried.
§ 4. In the event of incompatibility declared by the Commission, the Institute immediately withdraw its measures.
Art. 19 § 1. The King fixed a clear and transparent procedure for the establishment of a list containing the events of major importance for society that must be broadcast in full or partially online, unless objective reasons of general interest that prefer a delayed broadcast.
§ 2. It is forbidden to the television broadcasters to exercise exclusive rights on the events referred to in paragraph 1 so that they deprive some important public in Belgium or in another Member State of the possibility of following them in full or partially live or, if necessary or appropriate for objective reasons of general interest, in full or partially offline on a free television channel.
A TV station is deemed to be free when it can be captured by the public located in the bilingual region of Brussels-capital without another payment than the eventual price of subscription to the base of a distributor of services offer apart from technical costs.
Art. 20. for the realization of short news reports, any broadcaster established in a Member State of the European Union has the right to access on fair, reasonable and non-discriminatory terms to short extracts of events referred to in article 19, paragraph 1, or of any other event of great interest for the public, which are subject to an exclusive transmission by a broadcasting organization subject to this Act.
If several television broadcasting bodies established in the same Member State ask the access referred to in paragraph 1, the first having been given access the following must ask you.
Television broadcasting bodies freely choose their brief excerpts from the signal of the television broadcasting organization that ensures the dissemination, by indicating, in all cases where it is possible in practice, their origin by affixing in one of the corners of the image of a logo of the television broadcasting body concerned.
The brief extracts are used exclusively in the General news programmes and may be exploited in the context of on-demand audiovisual media services only if the same programme is offered offline by the same television broadcaster.
The brief extracts are limited to a short news report of the event referred to in paragraph 1 may not exceed 90 seconds, which may be broadcast only at least twenty minutes after the end of the event.
The King fixed the other terms and conditions of provision of these brief extracts, including with respect to financial compensation, although it cannot exceed the additional costs directly incurred by the provision of access to these brief extracts.
Art. 21 § 1.
Television broadcasters reserve, if possible, to European works a majority proportion of their broadcasting time, excluding the time devoted to information, sports events, games, advertising and Teletext services and teleshopping.
2. Television broadcasters reserve, if possible, at least 10% of their air time, excluding the time spent on information, sports events, games, advertising, teletext and teleshopping services, from television broadcasters independent producers European works.
The dissemination of these works cannot be more than five years after their production.
§ 3. Television broadcasters provide to the Institute annually a report on the achievement of the objectives referred to in paragraphs 1 and 2 so that, where appropriate, a re-assessment of their failure as well as the measures adopted or envisaged to achieve.
4. This section does not apply: (1) to the television broadcasters who only broadcast for a local audience, as long as they do not part of a national network;
(2) television broadcasting organizations broadcasting in one language other than those of the Member States of the European Union.
However, when the television broadcasting organization referred to the paragraph 1, 2 °, is also in a language of the European Union, paragraphs 1 to 3 apply to only broadcast time in that language.
22 § 1. Television advertising is easily identifiable as such, and is distinguished from the editorial content by optical, acoustic or space means.
Teleshopping windows are clearly identified as such and are distinguished from content editorial by optical and acoustic means. They have a minimum uninterrupted duration of fifteen minutes.
3. The percentage of broadcasting time of spots spots within a given clock hour teleshopping and television advertising does not exceed 20%. Each spot television advertising has a maximum of twelve minutes.
§ 4. Paragraph 3 does not apply to messages broadcast by the television broadcaster regarding its own programs and related products directly derived from those programmes, sponsorship announcements and product placement.
The isolated spots of television advertising and teleshopping are exceptional, except during the broadcast of sports events.
§ 6. Paragraph 3, and articles 21 and 23, § 3, do not apply to television channels exclusively devoted to television advertising and teleshopping, as well as to television channels exclusively devoted to self-promotion.
23 § 1. Integration of television advertising or teleshopping in programs does not affect the rights of rights holders or the integrity of the programmes, given their natural interruptions, their duration and their nature.
§ 2. Television advertising or teleshopping do not interrupt the broadcast of programs for children and religious services.
3. Television advertising or teleshopping do not interrupt the dissemination of films designed for television (excluding series, serials and documentaries), cinematographic works and news programmes more than once per scheduled 30 minutes.
Art. 24. the teleshopping for medical treatment or medicines subject to authorisation for placing on the market is prohibited.
Art. 25. television advertising and teleshopping for alcoholic beverages: (1) are not specifically intended for minors and, in particular, don't show minors consuming these beverages;
(2) do not associate the consumption of alcohol to an improvement in physical performance or to driving;
(3) do not give rise to the impression that alcohol consumption promotes the successful social or sexual;
(4) do not suggest that alcoholic beverages have therapeutic properties or have an effect stimulating, sedative or anticonflictuel;
(5) do not encourage immoderate consumption of alcoholic beverages or give a negative image of abstinence or sobriety;
(6) do not emphasize like positive drinks quality their high alcohol content.
Art. 26. the television broadcasting organizations retain a complete copy of their programs for a period of three months from the date of their circulation and make this copy available from any authority that would make the request under a legal or regulatory provision. They keep, for the same period, the daily conduct of each audiovisual media service which includes all of the programs, program sequences and the exact time of their broadcast.
If, during the period referred to in paragraph 1, a program is disputed, bonds didn't end that when the challenge has been lifted by an administrative decision which is no longer subject of appeal or by a court decision cast in force of res judicata.
Anyone who, in writing, makes it likely Institute infringed its rights may, during the period referred to in paragraph 1, access free of charge or be ship at the cost of returns a copy of the record or everyday driving.
Section 3. -Provisions specific to the providers of audiovisual media on demand art. 27 § 1. The provider of audiovisual media services on demand does not programs that might seriously impair the development of physical, mental or moral of minors, including programs including scenes of pornography or gratuitous violence broadcast. This ban extends to other programs or sequences of programs, including the trailers that may interfere with the development of physical, mental or moral of minors.
§ 2. Paragraph 1 does not apply if he is secure, including through an access code, minors do not see or hear normally not this program and as far as this program is identified by the presence of a Visual symbol in the catalogue of programmes.
The King determines the modalities of application of paragraph 1. It is also empowered to impose the obligations which, when it is applied to a code access system, are necessary in order to ensure the effectiveness of the provisions of paragraph 1 to distributors of services.
Art. 28 § 1. The Institute warns and request the intervention of the competent institutions of the Member State within the jurisdiction of which is the service provider of audiovisual media referred to in article 6 when it provides of the media on demand, that threaten severely and seriously or services infringe on: has) public order, in particular prevention and investigation and prosecution of criminal offences including the protection of minors and the fight against incitement to hatred based on race, sex, religion or nationality and against attacks on the dignity of the human person;
(b) the protection of public health;
(c) public security, including the protection of security and national defence;
(d) the protection of consumers, including investors.
2. If the Member State concerned does not or not adequately, Institute for prior notification it as well as the European Commission indicating the measures that it has decided to take. These measures are proportionate to the objective and can go up to the prohibition to broadcast addressed to distributors, for a maximum period of six months.
3. If, within a period of fifteen days from the notification referred to in paragraph 2, the situation persists the Institute offers execution actions.
§ 4. In an emergency, the Institute may immediately take measures, which may go up to the prohibition to broadcast addressed to distributors, for a maximum period of six months. These measures, as well as their justification given the urgency, are immediately notified to the European Commission as well as to the competent institutions of the Member State within the jurisdiction of which is the body of television broadcasting to the origin of the grievance referred to in paragraph 1.
Inconsistent with the law of the European Union declared by the European Commission, the Institute does not take the measures envisaged or immediately withdraw the measures taken.
Art. 29. the providers of on-demand audiovisual media services provide a special development of the works included in their catalog, highlighting, by an attractive presentation, the list of available European works.
CHAPTER 3. -Distributors of services art.
30 § 1. Any distributor of services whose activities are not exclusively attached to the French community or the Flemish community and whose subscribers are located, in whole or in part, in the bilingual region of Brussels-capital, must make a prior declaration to the Institute by registered mail.
§ 2. The statement includes the following: (1) the name of the registrant;
(2) the composition of the offer of audiovisual media and the details of his marketing services.
Planned changes, dealing with the conditions listed in paragraph 1, must be communicated in writing to the Institute before be executed.
Art. 31 § 1. For the purpose to preserve the pluralist character and cultural diversity of the programs on the networks of electronic communications in the bilingual region of Brussels-capital, and ensure access to programs intended for them, the distributor of services to viewers in this region must, as long as a significant number of people using the network of electronic communications that he chose to develop its audiovisual media services available to the public as a main means of reception of programs and, in the case of complementary services, transmit in digital mode and, if any, analog, at the time of their release and in their entirety:-all of the audiovisual media services broadcast by television broadcasters to public service of the French community, the German-speaking community or the Flemish community;
-the audiovisual media services broadcast by television broadcasting agencies designated by the Minister in accordance with paragraphs 2 to 6 and 8.
In this paragraph, means among other complementary services: subtitling, audio description and sign language the videotext.
2. The Minister designates, in accordance with the procedure described in paragraphs 3 to 6, as beneficiaries of the right to mandatory distribution:-broadcasting organizations television international in which are involved the broadcasting of public service organizations under the communities French or Flemish, for all or part of their audiovisual media services intended for viewers in the bilingual Brussels-capital region;
-local television stations of the State, French or Flemish communities, for all or part of their services for audiovisual media whose programs are especially intended for viewers in the bilingual region of Brussels-capital.
3. The mandatory distribution is granted for a term of three years from the date of publication in the Official Gazette of the designation by the Minister of the right of such beneficiary.
4. The television broadcasting organisation wishing to make use of the right of distribution required for all or part of its audiovisual media services applied by letter to the Minister and to the Institute.
§ 5. The Institute has three months to make to the Minister a notice motivated on the legality and the opportunity to right to demand.
§ 6. At the end of this three month period, the Minister has a period of two months to notify to the applicant its decision to grant or not the right to mandatory distribution.
In the absence of notification on the part of the Minister in the period referred to in the preceding paragraph, its decision is deemed positive.
§ 7. The Minister may, on the advice of the Institute, provide a distributor of services of the obligation to distribute all or part of the audiovisual media services if it is technically impossible to distribute all or part of the audiovisual media with the right to mandatory distribution services. The distributor of services wishing to benefit from this exemption address a reasoned request to the Institute. The Institute has a month to issue his opinion.
The Minister shall notify its decision about the exemption within fifteen days following the expiry of the period provided for in paragraph 1.
§ 8. For the designation of the audiovisual media services referred to in the second indent of paragraph 1, it is necessary to take into account the following criteria of general interest:-television broadcasting agencies, by their media services, daily circulation of newspapers;
-they contribute by their audiovisual media services to the development of culture in the audiovisual sector by participating in the production and purchase of Belgian and European audiovisual works.
32. each distributor services sends to the Institute each year, before 30 June, a report of activities whose content is fixed by the King.
CHAPTER 4. -Operators of network art. 33. This chapter applies to network operators whose electronic communications network serves all or part of the territory of the bilingual region of Brussels-capital and whose activities are not exclusively attached to the French community or the Flemish community.
Art. 34. in the context of the exercise of its powers, the Institute takes all appropriate measures in order to achieve the objectives set out in articles 36 to 38. These measures are based on the nature of the problems identified, justified and applied proportionally. They must be proportionate to those objectives, and the principles of objectivity, transparency, non-discrimination and technological neutrality.
Art. 35. in the accomplishment of the tasks entrusted under this chapter, the Institute promotes competition in the provision of electronic communications services, electronic communications networks and associated resources: (1) ensuring that users, including disabled people, the elderly and people with special social needs, benefit maximum in terms of choice price and quality;
(2) ensuring that competition is not distorted or obstructed in the electronic communications sector, including the transmission of content.
Art. 36. in the performance of duties imposed under this chapter, the Institute contributes to the development of an internal market of networks and electronic communications services: (1) by encouraging the provision of networks and services of electronic communications at European level.
(2) encouraging the establishment and development of trans-European and the interoperability of pan-European services networks and connectivity from end to end;
(3) in cooperation with other national regulatory authorities as well as with the European Commission and BEREC, in a transparent manner, to ensure the development of consistent regulatory practices at European level.
37. in the performance of duties imposed under this chapter, the Institute ensures the interests of users: (1) ensuring a level high level of protection of consumers in their relationships with suppliers;
(2) helping to ensure a high level of protection of the personal data and privacy;
(4) taking into account the needs of specific social groups, including end-users with disabilities, aged or with special social needs;
(5) ensuring the integrity and security of public networks of electronic communications and security of public electronic communications services;
(6) promoting the ability of end users to access information and to share, so to use applications and services of their choice.
Art. 38 § 1.
In the performance of duties imposed under this chapter, the Institute shall apply objective, transparent, non-discriminatory and proportionate, regulatory principles including the following: a) promoting regulatory predictability by ensuring a consistent regulatory approach on periods of review appropriate;
(b) ensuring that, in similar circumstances, there be no discrimination in the treatment of businesses providing networks and electronic communications services;
(c) preserve competition for the benefit of consumers and promote, if there is place, competition based on infrastructure;
(d) promote efficient investment and innovation in new and enhanced infrastructures, including ensuring that any access obligation take due account of the risk incurred by businesses that invest and allowing various modalities of cooperation between investors and those seeking access, in order to diversify the risk of investment, while ensuring that competition in the market and the principle of non-discrimination are respected;
(e) take due account of the diversity of situations on competition and consumers in different geographical areas;
(f) impose obligations of ex ante regulation only when there is no effective and sustainable competition and suspend or remove them as soon as this condition is satisfied.
2. In the performance of the tasks imposed under this chapter, the Institute recognizes as possible the Commission's recommendations pursuant to article 19 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework common to the networks and electronic communications services. When the Institute chooses not to follow one of these recommendations, it informs the European Commission providing the motivation of its position.
Art. 39. all information from one network operator to another operator of network as part of the process of negotiating an access agreement is confidential, without prejudice to the right of anyone interested to communicate confidential information to the Institute or any other administrative or judicial proceeding. It is processed exclusively for the purpose of the conclusion of the agreement.
Art. 40 § 1. The Institute may intervene, either on its own initiative or at the request of one of the parties, after having heard them, in order to promote and, if necessary, to ensure appropriate access or interoperability of services, in accordance with what is stipulated in this chapter and in order to ensure the respect of the objectives defined in articles 36 to 38.
When the Institute is involved in accordance with paragraph 1, it may in particular: (1) impose time limits in which the negotiations on access and interoperability services must lead.
(2) set the guiding principles for access or interoperability of services, to reach an agreement;
(3) in the case where an agreement between the parties cannot be reached, set the conditions that it deems appropriate to provide access or to achieve interoperability.
§ 2. Without prejudice to the measures provided for in article 44, paragraph 3, the Institute can always, and on its own initiative, impose obligations necessary to ensure end-to-end connectivity or interoperability of services to network operators that control access to end-users.
§ 3. The Institute can still, on its own initiative but nevertheless in case by case, require operators to block access to numbers and services where this is justified for reasons of fraud or abuse, and that network operators deduct in such revenues for interconnection or other corresponding services.
41. every network operator providing a public electronic communications network has the duty to bargain in good faith with any network operator making the request, an interconnection agreement for the provision of publicly available electronic communications services.
When the Institute, in accordance with the procedure laid down in article 40, § 1, notes that the obligation referred to in paragraph 1 is not complied with, it may, without prejudice to the application of section 20 or 21 of the Act of 17 January 2003 on the status of the regulator of the sectors of posts and telecommunications Belgian, impose reasonable interconnection that it deems appropriate and on which the parties must negotiate in good faith.
Art. 42. the King fixed, after opinion of the Institute, the elements that should at least be addressed in an agreement relating to the interconnection or access agreement.
Any interconnection agreement and any access agreement is communicated to the Institute in its entirety.
43. after each publication by the European Commission of its "recommendation on relevant markets of products and services in the sector of electronic communications", also referred to as: the "recommendation", and at regular intervals, the Institute determines the relevant markets for electronic communications services and networks, as well as their geographical extent.
Art. 44 § 1. According to paragraph 4, the Institute
performs an analysis of the relevant markets, taking into consideration the markets identified in the recommendation in order to determine if these are actually competitive. It takes into account as much as possible the guidelines published by the European Commission. The exchange of information necessary for this analysis is done in accordance with article 57, § 2.
This market analysis is carried out by the Institute in accordance with articles 60 to 64: has) in the three years following the adoption of a previous decision of the Institute on this market. This period may, exceptionally, be extended up to three additional years when the Institute has notified to the European Commission a reasoned proposed extension and that it has not opposed objection within one month of such notification;
(b) within two years of adoption by the Commission of a revised recommendation on relevant markets to markets that were not previously notified to the European Commission.
When the Institute has not completed its analysis of the market within the time limit set in paragraph 2, it may apply to BEREC assistance in order to complete the analysis of the relevant market and the specific obligations to be imposed. In this case, the Institute consulted within six months the Commission, BEREC and the national regulatory authorities of the Member States according to article 61.
§ 2. If the Institute, in accordance with paragraph 4, concludes that a relevant market is effectively competitive, it does not impose or does not maintain a any of the obligations referred to in articles 47 to 53.
When the Institute decides not to maintain an obligation in accordance with paragraph 1, it shall inform the parties concerned in the month following its decision.
3. If the Institute concludes that a relevant market is not effectively competitive, it identifies in accordance with paragraph 4 any operator network having individually or jointly with others, significant market power, and decides to impose, maintain or modify the obligations referred to in articles 47 to 53 as he considers appropriate.
A network operator is considered with significant power in a relevant market if, individually or jointly with others, it is in a position equivalent to dominance, that is able to behave, to a significant degree, independently of its competitors, customers or consumers.
When a network operator is seen as having significant power on a relevant market (the market), it can also be considered with significant power on a closely related market (the secondary market). This can be the case when links between the two markets are such as to enable the operator of powerful network to use on the secondary market, by leveraging the power that it holds the first market so as to strengthen its market power.
In this case, the Institute decides, without prejudice to the application of 1st paragraph, taxation, maintaining or changing on the second market, bonds referred to in articles 47 to 49 and 51, and when these obligations were insufficient, obligations referred to in article 52 that it considers appropriate in order to prevent this leverage effect.
For each relevant market, the Institute publishes on its website the list with significant power network operators and, where applicable, network operators with power on a closely related market, as well as the list of obligations imposed on each of these network operators.
§ 4. The Institute submits its decisions referring to this paragraph at a prior consultation with the Belgian competition authority. The Belgian competition authority shall deliver its opinion within 30 days calendar from the date of the sending of the draft decision by the Institute. After this time, the opinion of the Belgian competition authority is no longer required.
§ 5. The Institute sends its decisions referring to this paragraph, prior to the Belgian competition authority, which, within thirty days, from the sending of the draft decision by the Institute, issues an opinion on the question of whether the decisions planned by the Institute are consistent with the objectives of the competition law. After this time, the opinion of the Belgian competition authority is no longer required.
§ 6. In the case of transnational markets identified in a decision of the European Commission, the Institute is conducting the analysis of these markets jointly with regulatory authorities of the other Member States concerned, taking the utmost account of the guidelines. The Institute to pronounce in concert with these authorities on taxation, maintenance, modification or deletion of sectoral regulatory obligations referred to in paragraph 3.
Art. 45 § 1.
The Institute does not impose any of the obligations set out in articles 47 to 51 to network operators that have not been designated as having significant power on a relevant market, without prejudice to the need: (1) to comply with international commitments;
(2) to ensure compliance with the provisions on co-location and sharing of resources;
(3) to ensure compliance with the provisions of article 55;
(4) to provide connectivity from end-to-end or, in justified cases and to the extent which is necessary, the interoperability of services, or to encourage or, if necessary, to ensure adequate access;
(5) to enforce the commitments made by network operators who have obtained the right to use radio frequencies in the course of a competitive or comparative selection procedure;
(6) enforce the provisions on the treatment to the protection of privacy and personal data.
2. In exceptional circumstances, when the Institute intends to impose on operators who have significant power in a relevant market of the access obligations other than those which are set out in sections 47 to 51, it shall submit this request to the Commission for approval European.
Art. 46. in order to ensure compliance with the obligations imposed under section 44, § 3, the Institute may impose the change of access already concluded agreements.
47. with regard to access, the Institute may, in accordance with article 44, §§ 3 and 5, impose obligations of non-discrimination.
The obligations of non-discrimination includes ensuring network operators apply equivalent conditions in circumstances equivalent to other companies providing similar services, and provide other information and services under the same conditions and with the same quality as they provide for their own services, or those of their subsidiaries or partners.
Art. 48 § 1.
The Institute may, in accordance with article 44, §§ 3 and 5, set the transparency obligations concerning access, under which network operators must make public certain information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use and prices, set by the Institute.
The Institute says the information to be provided, the level of detail required and the terms of publication.
2. When a network operator is subject to obligations of non-discrimination, the Institute may impose to publish a reference offer, which is sufficiently detailed to ensure that network operators are not required to pay for resources which are not necessary for the service requested. It includes a description of the relevant offerings broken down into components according to the needs of the market, accompanied by the corresponding conditions, including rates and terms.
3. Notwithstanding paragraph 1, where a network operator is subject to one of the obligations under article 50, § 1, concerning wholesale network infrastructure access, the Institute may impose the obligation to publish a reference such as described in paragraph 2, offer about interconnection, access to the local loop or local sous-boucle or totally unbundled access access a bitrate, or another form of access, depending on the type of access that must be authorized by the network operator concerned.
If the Institute is required to publish a reference offer such as described in paragraph 2, concerning the wholesale access to network infrastructure, this reference offer must at least contain the elements set by the Institute.
§ 4. New reference offer is, prior to its publication, approved by the Institute, which may impose the adjustments as it deems necessary.
5. The Institute may impose that the offer should be changes it judges necessary to impose the measures provided for in this chapter.
§ 6. When the author of a reference offer wants to change it, it shall notify the Institute the change at least ninety days before the date of entry into force.
Within this period, the Institute may notify the author of the modification of the reference offer it will make a decision about the desired change. Such notification suspends the entry into force of the desired change.
The Institute may impose the adaptations that are necessary or refuse the change.
The Institute provides for the modalities of entry into force of the amendment in its decision.
§ 7. The offer is available free of charge, in electronic form, on a freely accessible website.
The Institute shall determine the manner of this publication and the information to be provided to the beneficiaries of the reference offer.
§ 8. The publication of a reference offer does not obstacle to reasonable access requests not covered by this offer.
Art. 49 § 1.
The Institute may, in accordance with article 44, §§ 3 and 5, impose obligations of accounting separation with regard to any activity in the area of access to which the network operator has a significant power on the market.
The Institute specifies the model and methodology accounting to be used by the operator of network referred to in paragraph 1.
Among other, the Institute may require a vertically integrated network operator to make its wholesale prices and its internal transfer transparent prices, among other things, to ensure compliance with the obligation of non-discrimination laid down in article 47 or, in case of necessity, to prevent unfair cross-subsidies.
An authorized auditor designated by the network operator checks, at the expense of the network operator, the respect of the decisions noted in paragraphs 1 to 3. The Institute publishes each year a statement of compliance with the obligation of accounting separation and arrangements are related following the report of the auditor approved.
§ 2. When the Institute deems it necessary, it may request, so motivated to present all accounting records, including data on revenues from third parties. The Institute set the deadline in which the documents must be provided.
The Institute may publish this information and may require the network operator to which it imposed an obligation of accounting separation to also publish this information insofar as they contribute to the establishment of an open and competitive market, in accordance with the rules of confidentiality of company data.
Art. 50 § 1.
The Institute may, in accordance with article 44, §§ 3 and 5, an obligation to meet reasonable requests for access to network elements and associated resources specified by the Institute.
Network operators may notably be imposed: (1) to give third parties access to elements or specific network resources, including access to network elements which are not active and/or unbundled access to the local loop, including allowing the selection and/or pre-selection of operators and supply of resale of subscriber lines;
(2) to negotiate in good faith with the network operators seeking access;
(3) not to withdraw access to resources when it has already been granted;
(4) to provide services specified in bulk for resale to third parties;
(5) to grant open access to technical interfaces, protocols or other key technologies that are crucial for the interoperability of services or virtual network services;
(6) to provide co-location or other forms of associated resources sharing;
(7) to provide specific services
to ensure users concerns the interoperability of services from end to end, including resources for intelligent network services or roaming on mobile networks;
(8) to provide access to the operational support systems or similar software systems necessary to ensure fair competition in the provision of services;
(9) to interconnect networks or network resources;
(10) to provide access to associated services such as services related to the identity, location and the occupation of the Subscriber.
The Institute may fix the terms and conditions for equity, reasonableness and deadline for the enforcement of the obligations imposed pursuant to this section.
§ 2. When the Institute consider whether it is necessary to impose the obligations referred to in paragraph 1, it takes into account the following: (1) the technical and economic viability of using or resources competitors, in place given the pace at which the market is changing and the type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts;
(2) the degree of feasibility of providing access proposed, in view of the available capacity;
(3) the initial investment made by the owner of the resources, taking into account public investments and the risks inherent in the investment;
(4) the need to safeguard competition in the long run, paying special attention to economically effective competition based on infrastructure;
(5) as applicable, any rights of intellectual property;
(6) the provision of pan-European services.
§ 3. When the Institute requires a network operator to provide access in accordance with the provisions of this article, it may impose technical or operational conditions which the provider and/or beneficiaries of access must meet when necessary to ensure the normal operation of the network.
The obligation to respect technical specifications or standards must be compatible with the standards and specifications in accordance with article 17 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework common to the networks and electronic communications services.
§ 4. As far as this is necessary to give effect to the obligations imposed by the Institute, network operators negotiate between them access appropriate agreements to provide.
Fixed Institute, either on its own initiative where justified, either at the request of a party, after hearing the parties concerned, the obligations concerning access to provide.
Art. 51 § 1. The Institute may, in accordance with article 44, paragraphs 3 and 5, impose obligations related to the recovery of costs and prices, including bonds control about the direction of prices based on costs and obligations concerning cost accounting systems, for the provision of particular interconnection and/or access types, when according to a market analysis that the network operator may in the absence of effective competition, keep prices at an excessively high level, or compress the prices, at the expense of end users.
When the Institute one of those obligations to a network operator, costs related to the provision of effective delivery are taken into account. The Institute ensures promote sustainable competition and maximize the benefits for the consumer. In this respect, it may take into account prices in comparable competitive markets.
To encourage the network operator to invest in next-generation networks, the Institute takes into account the investments he has made and enables compensation reasonable to the adequate capital employed, taking into account any risk specifically related to a particular investment project.
§ 2. Any network operator subject to the obligation of orientation of tariffs based on costs provides to the Institute, at the request, proof of compliance with this obligation.
The Institute may request the network operator to fully justify its rates. If necessary, the Institute may require the adaptation of prices.
To determine the costs associated with the provision of effective delivery, the Institute can use accounting and costing methods distinct from those applied by the network operator.
§ 3. When the implementation of a cost accounting system is mandatory, the Institute publishes a description of the cost accounting system which includes at least the main categories grouping the costs and rules in terms of cost accounting.
§ 4. Compliance with the cost accounting system is checked by an authorized auditor designated by the network operator at the expense of the network operator.
The Institute publishes each year a statement of respect for the system following the report of the auditor approved.
Art. 52 § 1. If the Institute finds that the obligations imposed under articles 47 to 51 would not achieve the goals set by articles 35 to 37, it may impose, in accordance with article 44, §§ 3 and 5, one or more of the obligations referred to in clause 2 to network operators designated as operators with power on a given retail market.
The obligations imposed by the Institute focus on the ban: (1) use abnormally high prices;
(2) to hinder access to the market;
(3) use predatory pricing restricting competition;
(4) to apply undue preferences for certain end users;
(5) to group services in an unjustified manner.
§ 2. If the Institute wishes to control prices of end users in accordance with paragraph 1, it may determine the systems of cost accounting necessary and appropriate, that the target network operator applies.
At the expense of this operator, an authorized auditor designated by the network operator checks the respect of cost accounting systems. The Institute publishes every year
a statement of compliance of these systems.
Art. 53 § 1. When the Institute concludes that the appropriate obligations imposed under articles 47 to 51 have failed to ensure effective competition and that significant problems of competition and/or market failures persist in the provision of certain access products, it may, as an exceptional measure and in accordance with the provisions of article 45, § 2 a vertically integrated network operator an obligation to entrust its operations for the supply of the products concerned to a functionally independent economic entity.
This economic entity is required to provide the products and services of access to all network operators, including other economic within the parent company, on the same terms and conditions, including in terms of price and quality of service, and using the same systems and processes.
§ 2. When the Institute intends to impose an obligation for functional separation, it submits to the European Commission a proposal that includes: (1) of the elements justifying the conclusion reached by the Institute under subsection 1;
(2) a reasoned assessment that there is little or no prospects of developing effective and sustainable competition based on infrastructure within a reasonable time;
(3) an analysis of the effect expected on the Institute, on the network operator, especially on workers of the economic entity separated, in the area of electronic communications as a whole, on incentives for investment in this sector as a whole, the need to ensure social and territorial cohesion, as well as other stakeholders, including, in particular, on competition , as well as potential for consumer effects;
(4) an analysis of the reasons that this obligation would be the most effective way to solve the competition problems or failures of the markets identified.
§ 3. The draft measure includes the following: (1) the nature and the precise degree of separation and, in particular, the legal status of the separate business entity;
(2) the list of assets of the separate economic entity as well as products or services must be provided;
(3) management arrangements to ensure the independence of the staff employed by the separate economic entity, and the corresponding incentive measures;
(4) the rules designed to ensure respect for obligations;
(5) the rules to ensure transparency of operational procedures, in particular to other interested parties;
(6) a control program to ensure compliance and with the publication of an annual report.
4. Following the decision of the European Commission on the draft measure, the Institute conducts a coordinated analysis of the different markets related to the access network according to the procedure referred to in articles 44 and 45. On the basis of its assessment, the Institute imposes, maintains, modifies or withdraws bonds in accordance with articles 60, 61 and 63.
§ 5. The economic entity that is functionally independent of the network operator on which functional separation has been imposed may be subject to any obligation referred to in articles 47 to 51 in any market relevant where the network operator has been designated as having significant power in accordance with article 44, paragraph 3, or to any other duty imposed after authorisation by the Commission in accordance with article 45 European , § 2.
54 § 1. The network operator that has been designated as having significant power on one or several markets relevant in accordance with article 44, § 3, shall notify the Institute, six months beforehand, in order to enable it to assess the impact of the proposed transaction, its intention to sell its local access network assets or a substantial part of these, to a legal entity under control of a third party , or to establish a separate economic entity in order to provide to all retailers, including its own divisions "retail", fully equivalent access products.
The network operator shall also notify the Institute any change in this intention as well as the end result of the process of separation.
2. The Institute evaluates the impact of the transaction on the existing obligations imposed under this chapter or article 20 of the Act of 17 January 2003 on the status of the regulator of the positions and Belgian telecommunications sectors.
For this purpose, the Institute conducts a coordinated analysis of the different markets related to the access network according to the procedure referred to in articles 43 and 44.
On the basis of its assessment, the Institute imposes, maintains, modifies or withdraws bonds in accordance with articles 60, 61 and 63.
§ 3. The economic entity legally and/or functionally distinct may be subject to any obligation referred to in articles 47 to 51 of all relevant market where she or the network operator who made the notification under this section has been designated as having significant power in accordance with article 44, paragraph 3, or to any other duty imposed after authorisation by the Commission European in accordance with article 45 , § 2.
Art. 55 § 1. Any operator network providing networks or public services of electronic and communications who has exclusive or special rights for other activities is obliged to: 1 ° be keep separate accounts for the provision of public electronic communications services, in the same way as if these activities were carried out by legally independent companies or networks in order to identify, on the basis of their calculations and details of imputation methods applied, all items of expenditure and revenue related to their activities in the provision of public electronic communication services or networks, including a breakdown by post fixed assets and structural expenditure;
(2) either to put in place structural separation for the activities associated with the provision of public electronic communications services or networks.
2. Resource transfers, including transfers of capital and equipment of the subject activities
exclusive or special rights to the activities of networks or public electronic communications services, are based on the market conditions.
§ 3. The King sets, after opinion of the Institute, the model and accounting methodology to be used which must be applied in order to fulfil the obligations of this article.
Separate accounts referred to in paragraph 1, 1 °, is subject to a check made by an approved auditor appointed by and at the expense of the network operator.
The Institute determines how is published the financial report on the separate accounts.
Art. 56. in order to ensure respect of article 55, the Institute or its delegates can hear anyone want to Institute.
The Institute or its delegates can consult all documents and request all information they consider necessary to verify if section 55 is respected.
Art. 57 § 1.
Within its competence, the Institute may, by reasoned request, companies providing electronic communications services and networks require all necessary information.
The Institute sets the time limit for provision of the information requested and informs businesses of the use that will be made.
§ 2. The King fixed, after opinion of the Institute, given after consultation of the market players concerned, the modalities for the exchange of information provided in the present chapter.
§ 3. Under the control of the compliance with this chapter, the Institute may request that information that is reasonably necessary and objectively justified to enable: (1) carry out a check on a case by case basis, when a complaint is received, when the Institute has reason to believe that a condition is not met or when the Institute conduct an investigation on its own initiative;
(2) proceed with treatment and assessment of requests for granting rights of use;
(3) publish, in the interest of consumers, comparative reports on the quality and price of services;
(4) pursue specific statistical objectives;
(5) perform market research;
(6) maintain effective utilization and management of the radio spectrum;
(7) assess the evolution of networks or services likely to have an impact on the services provided to competitors.
The information referred to in paragraph 1, points 1 °, 3 °, 4 °, 5 °, 6 ° and 7 °, cannot be raised as a precondition or as a condition of access to the market.
Art. 58. § 1. The Institute is obliged to respond favourably to any request motivated the European Commission or a national regulatory authority to obtain the information, as long as they are necessary and proportionate for the performance of their tasks. The Institute indicates the degree of confidentiality of the transmitted information to their recipients.
The Institute can match the communication of this information to the European Commission of opposition motivated that they be provided to another authority.
2. The Institute informs operators about the possibility of communication at the European Commission or a national regulatory authority or to an international organization with which the Institute has a relationship as part of the exercise of its powers of information obtained from them.
§ 3. Without prejudice to other legal provisions, the Institute provides information to other authorities at least the same degree of confidentiality that the authority who provided him.
59. the Institute may organize a public consultation in accordance with article 14 of the Act of 17 January 2003 on the status of the regulator of the positions and Belgian telecommunications sectors for the purposes of this chapter.
Art. 60. insofar that a draft decision of the Institute is likely to have a significant impact on a relevant market, the Institute organizes a prior public consultation for a maximum period of two months, in accordance with the rules of confidentiality of business data.
All information about the current public consultations are centralized at the Institute.
The results of the public consultation are made public, in accordance with the rules of confidentiality of company data.
The King says, after opinion of the Institute, details of the public consultation and advertising of its results.
61 § 1. The Institute consults the Commission, BEREC and the national regulatory authorities of the Member States for as long as a draft decision of the Institute can have an impact on trade between the Member States and it tends to: (1) defining a relevant market, pursuant to article 43, or (2) conclude that a relevant market is competitive or not, pursuant to article 44 , §§ 2 and 3, or 3 ° impose or change bonds to a network operator with significant power in a relevant market in accordance with article 44, paragraph 3, or (4) impose obligations on network operators that have not been designated as having significant power on a relevant market, in application of article 45, § 1, 1 ° to 5 ° , or (5) impose the change of access agreements already concluded, in application of article 46, or 6 ° impose the change of the offer, in application of article 48, § 4, or (7) determine the conditions of access to supply, in application of articles 40, 41 and 50, § 3, paragraph 2.
§ 2. Institute considers as possible comments which are sent within one month of notification of the draft decision by the European Commission, BEREC and the national regulatory authorities of the Member States.
§ 3. When the decision is amended in accordance with article 63, § 2 or in article 64, § 4, the Institute began a consultation in accordance with article 60 and again notify the European Commission amended in accordance with the provisions of paragraph 1.
4. Final decisions, including the projects referred to in paragraph 1, shall be notified to the European Commission and BEREC.
Art. 62. the interim measures within the meaning of article 20 of the Act of 17 January 2003 on the status of the regulator of the sectors of posts and telecommunications Belgian taken to ensure compliance with this chapter are exempted from the planned consultations in the
articles 60 and 61. They shall however be notified without delay to the Commission, BEREC and the national regulatory authorities of the Member States.
Any extension of interim measures is subject to the provisions of articles 61 and 62.
Art. 63 § 1.
Institute for delaying the adoption of the final decision for two months when the draft decision of the Institute referred to in article 61, § 1: has) is likely to have an impact on trade between Member States and tends to: (1) defining a relevant market which differs from those identified by the European Commission, or (2) designate an operator of network as having individually or jointly with others, significant power in a relevant market;
(b) and that the European Commission indicated at the Institute within a period of one month from the date of its notification in accordance with article 61, that the draft decision would hamper the single market or if it has serious doubts as to its compatibility with Community law.
§ 2. Where, within the period of two months referred to in paragraph 1, the Commission shall adopt a decision requiring the withdrawal of the draft decision, the Institute modifies or withdraws its draft decision within six months following the date of the decision of the European Commission.
64 § 1. If, within a period of one month from the date of notification of the draft decision of the Institute in accordance with article 61, the Commission European notified the Institute that its draft decision, which tends to impose, amend or withdraw an obligation on an operator with power in a relevant market, is a barrier to the single market or has serious doubts as to its compatibility with Community law the Institute delayed its decision for three months.
§ 2. Within the period of three months referred to in paragraph 1, the Commission European, BEREC and the Institute co-operate closely to identify as the most efficient and appropriate in the light of the objectives referred to in articles 34 to 37, while taking into account the opinions of the economic actors and the need to ensure the implementation of consistent regulatory practices.
§ 3. When, within a period of six weeks from the beginning of the period of three months referred to in paragraph 1, BEREC shall issue an opinion on the notification of the European Commission referred to in paragraph 1 stating that he shares the doubts of the European Commission, the Institute may, before the end of the three months period referred to in paragraph 1 : (1) amend or withdraw its draft decision taking into account as much as possible of the notification of the Commission referred to paragraph 1 as well as the opinion and advice of BEREC.
(2) maintain its draft decision.
§ 4. When BEREC does not share the serious doubts of the Commission does not agree, or when the Institute modifies or maintains its draft decision in accordance with paragraph 3, the Commission may, within a period of one month after the end of the three months period referred to in paragraph 1: (1) issue a recommendation driven asking the Institute to change or withdraw the draft decision;
(2) decide to lift its reservations in accordance with paragraph 1.
Within a period of one month from the issue of the recommendation of the European Commission in accordance with paragraph 1, 1 °, or of the lifting of the reserves in accordance with paragraph 1, 2 °, the Institute shall communicate to the European Commission and BEREC the adopted final decision. This period may be extended to enable the Institute to hold a public consultation on the modified project.
When the Institute decides to do not change or remove the draft decision on the basis of the recommendation referred to in paragraph 4, paragraph 1, 1 °, it provides a reasoned justification.
§ 5. The Institute may withdraw the draft decision at any stage of the procedure.
Art. 65. the Institute shall make public, according to the arrangements laid down by the King, on the advice of the Institute, decisions made by the Commission under section 64.
CHAPTER 5. -Provisions amending and final art. 66. in article 14, § 1, of the Act of 17 January 2003 on the status of the regulator of the sectors of posts and telecommunications Belgian, the following changes are made: has) 3 °, the words "of the Act of 30 March 1995 on the distribution of broadcast networks and exercise of broadcasting activities in the bilingual region of Brussels-capital" are replaced by the words "of the Act of May 5, 2017 on the audiovisual media services in" bilingual Brussels-capital region";
(b) to the 4 °, the words "of broadcasting organizations covered by the Act of 30 March 1995 on the distribution of broadcast networks and exercise of broadcasting activities in the bilingual region of Brussels-capital" are replaced by the words "of the providers of audiovisual media services covered by the Act of May 5, 2017 on the audiovisual media services in the bilingual region of Brussels-capital";
(c) to 4 / (1), the words "of broadcasting organizations covered by the Act of 30 March 1995 on the distribution of broadcast networks and exercise of broadcasting activities in the bilingual region of Brussels-capital" are replaced by the words "providers of audiovisual media services covered by the Act of May 5, 2017 on the audiovisual media services in the bilingual region of Brussels-capital".
Art. 67. in article 20, § 1, paragraph 1, of the Act, amended by the law of July 10, 2013, the words "as well as to articles 45, 46 and 53 of the Act of May 5, 2017 on the audiovisual media services in the bilingual region of Brussels-capital" are inserted between the words "relative to electronic communications" and the words "or their enforcement measures".
68 article 21, § 5, 2 °, of the law, amended by the law of March 4, 2016, is supplemented by the following sentence: "for offences in Chapter 2 of the Act of 5 may 2017 on the audiovisual media services in the bilingual region of Brussels-capital, the amount of the administrative fine is of maximum 5% of the turnover of the offender in the area in question during the most recent complete year capped at 125.000 euros."
Art. 69. the Act of 30 March
1995 concerning networks and electronic communications services, and the audiovisual media services in the bilingual Brussels-capital region is repealed.
Enact this Act, order that it self clothed with the seal of State and published in the Moniteur belge.
Given to Brussels, may 5, 2017.
PHILIPPE by the King: the Minister of the Digital Agenda, Telecommunications, A. DE CROO sealed with the seal of the State: the Minister of Justice, K. GEENS _ Note (1) House of representatives (www.lachambre.be): Documents of the House of representatives: 54-2242.
Full report: April 20, 2017.