5 MAY 2017. - Law on Audiovisual Media Services in the Bilingual Region of Brussels-Capital (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provisions and definitions
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. § 1^er. This Act transposes Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the coordination of certain legislative, regulatory and administrative provisions of the Member States relating to the provision of audiovisual media services (Directive "Audiovisual media services").
§ 2. This Act partially transposes the following directives:
1° Directive 2002/19/EC of the European Parliament and the Council of 7 March 2002 on access to electronic communications networks and associated resources, as well as their interconnection (Directive "Access");
2° Directive 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorization of electronic communications networks and services (Directive "Authorization");
3rd Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Directive "Cadre");
4th Directive 2002/22/EC of the European Parliament and the Council of 7 March 2002 on universal service and user rights in relation to electronic communications networks and services (Directive "Universal Service").
Art. 3. In this Act:
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 Belgian postal and telecommunications sectors;
2° "Minister": the Minister or Secretary of State who has the Telecommunications in his powers;
3° "national regulatory authority": the body or bodies entrusted by a Member State of the European Union with 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 the Council of 7 March 2002;
4° "ORECE": Organ of European Electronic Communications Regulators, established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Organization of European Electronic Communications Regulators (ORECE) and the Office;
5° "audiovisual media service": a service under the editorial responsibility of an audiovisual media service provider, whose main purpose is the provision of programs by electronic communications networks, with the aim of informing, entertaining and educating the general public or for the purpose of ensuring audiovisual commercial communication;
6° "audio-visual media service on demand": an audio-visual media service provided by an audio-visual media service provider for the viewing of programs at the time selected by the user and upon individual request on the basis of a catalogue of programs selected by the audio-visual media service provider;
7° Editorial responsibility: the exercise of effective control over the selection of programs and their organization, either on a chronological grid, in the case of television programs, or on a catalogue, in the case of audiovisual media services on demand;
8° "audiovisual media service provider": the physical or legal person who assumes the editorial responsibility of the choice of audiovisual content of the audiovisual media service and who determines how it is organized;
9° "TV broadcasting organization": a television broadcasting audiovisual media service provider;
10° "TV broadcast" or "TV broadcast": an audiovisual media service provided by an audiovisual media service provider for the simultaneous viewing of programs based on a program grid;
11° "program": a set of animated images, combined or not with sound, forming a single element within the framework of a grid or catalog established by an audio-visual media service provider whose form and content are comparable to that of television broadcasting;
12° "audiovisual commercial communication": images, combined or not with sound, which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person who carries on an economic activity. These images accompany a program or are inserted for payment or other consideration, or for self-promotion purposes. Audiovisual commercial communication includes the following forms: television advertising, sponsorship, telemarketing and product placement;
13° "Creditary commercial communication": the verbal or visual presentation of goods, services, name, mark or activities of a producer of goods or service provider in programs, when this presentation is made intentionally by the service provider for an advertising purpose and may mislead the public on the nature of such a presentation. A presentation is considered intentional in particular when made for payment or other consideration;
14° "sponsorship": any contribution of a public or private enterprise or a natural person, not carrying out any activity as a provider of audiovisual media services or the production of audiovisual works, to the financing of audiovisual media services or programs, with the aim of promoting its name, brand, image, activities or products;
15° "Product location": any form of audiovisual commercial communication consisting of including or referring to a product, service, or brand, by inserting it into a program, for payment or other consideration;
16° "European work":
(a) the work originating from Member States of the European Union which is carried out mainly with the assistance of authors and workers residing in one or more of these States and which meets one or more of the following three conditions:
- it is carried out by one or more producers established in one or more of these States,
- the production of this work is supervised and effectively controlled by one or more producers established in one or more of these States,
- the contribution of co-producers of these States is majority in the total cost of co-production, and it is not controlled by one or more producers established outside these States;
(b) the work originating from third European States parties to the European Convention on Transboundary Television of the Council of Europe which is carried out mainly with the assistance of authors and workers residing in one or more of these States and which meets one of the following three conditions:
- it is carried out by one or more producers established in one or more of these States,
- the production of this work is supervised and effectively controlled by one or more producers established in one or more of these States,
- the contribution of co-producers of these States is majority in the total cost of co-production, and it is not controlled by one or more producers established outside these States;
The work originating from a third European State party to the European Convention on Transboundary Television of the Council of Europe is, however, considered European work only provided that works originating from the Member States of the Union are not discriminated against in the third European State concerned;
(c) the co-produced work in the framework of agreements on the audiovisual sector between the European Union and third countries meeting the conditions defined in each of these agreements, provided that works originating from the Member States of the Union are not discriminated against in the third countries concerned;
(d) the work that is produced in the framework of bilateral co-production agreements between member States and third countries, provided that community co-producers mainly participate in the total cost of production and that production is not controlled by one or more producers established outside the territory of the Member States;
17° "TV advertising": any form of message inserted in an audio-visual media service for payment or other consideration by an institution or public or private enterprise or a natural person in the context of a commercial, industrial, craft or profession activity in order to promote the provision, by payment, of goods or services, including real property, rights and obligations;
18° "téléachat": the dissemination of direct offers to the public for the provision, means of payment, of goods or services, including real property, rights and obligations;
19° "spot isolated": TV or TV spot that is neither preceded nor followed by another TV or TV spot;
20° "self-promotion": any message broadcast on the initiative of an audiovisual media service provider that aims to promote its own services, programs or related products directly derived from its own programs;
21° "service distributor": any legal person who makes available to the public one or more audiovisual media services in any way. The offer of services may include services from which the person itself bears editorial responsibility and services whose editorial responsibility is borne by third parties with whom it establishes contractual relations. is also considered a service distributor, any legal person who constitutes a service offering by establishing contractual relationships with other service distributors;
22° "user": any natural or legal person who uses or requests an electronic communications service accessible to the public or an audiovisual media service;
23° "subscribed": any natural or legal person party to a contract with a communications service provider accessible to the public, for the provision of such services or with a service distributor;
24° "consumer": any natural person who uses or requests an electronic communications service accessible to the public or an audiovisual media service for non-professional purposes;
25° "network operator": any company that provides or is authorized to provide an electronic communications network for the transmission and dissemination to the public of publicly accessible electronic communications services or audiovisual media services or an associated resource;
26° "Electronic communications network": transmission systems and, where applicable, switching or routing equipment and other resources, including network elements that are not active, that allow the transmission of cable signals, by microwave, by optical means or by other electromagnetic means including satellite networks used, fixed terrestrial networks (with switching of circuits or packets)
27° "electronic communications service": the service normally provided against remuneration that consists entirely or principally in the transmission, including commutation and routing operations, of signals of audiovisual media services on electronic communications networks, with the exception of the services of the information society as defined in section 2 of the Act of 11 March 2003 on certain legal aspects of the services of the information society that do not consist entirely or
28° "public network of electronic communications": an electronic communications network used entirely or principally for the provision of electronic communications services accessible to the public for the transmission of information between network termination points;
29° "associated resources": associated services, physical infrastructure and other resources or elements associated with an electronic communications network and/or an electronic communications service, which allow and/or support the provision of services via this network and/or that service or have the potential, and include, among other things, buildings, antennas, towers and other support constructions, ducts, pipelines, towers, inspection holes and
30° "associated services": services associated with an electronic communications network and/or an electronic communications service, which allow and/or support the provision of services through or have the potential of this network and/or service, including the conversion of the call number or systems offering equivalent features, conditional access systems and electronic program guides, as well as other services such as those relating to the identity, occupancy and
31° "access": the provision of resources and/or services for the provision of electronic communications services, including when used for the provision of services of the information society, to a network operator under well-defined and non-exclusive conditions. This includes: access to network elements and associated resources and possibly connection of equipment by fixed or non-fixed means; This includes, in particular, access to the local loop as well as the resources and services required to provide services through the local loop; access to physical infrastructure, including buildings, ducts and pylons; access to relevant software systems, including operating support systems; access to information systems or databases for order preparation, procurement, order, maintenance and repair requests and billing; access to the conversion of the call number or systems with equivalent features; access to fixed and mobile networks, including roaming; access to virtual network services; access to conditional access systems for digital television services and access to virtual network services;
32° "interconnection": a particular form of access consisting of the physical and logical connection of public electronic communications networks used by the same network operator or a different network operator, in order to allow users to communicate with each other, or to access the services provided by another network operator;
33° "local loop": physical circuit that connects the network termination point to a dispatcher or any other equivalent installation of the fixed public network of electronic communications;
34° "local loop": part of a local loop that connects the network termination point to a concentration point or to a specified intermediate access point of the fixed public electronic communications network;
35° "Totally unbundled access to the local loop": the provision of access to the local loop or the local sub-coil of a network operator with significant power in a relevant market, authorizing the full capacity of network infrastructure;
36° "access to a binary flow": access consisting of the provision of a transport capacity with the associated switching to a user for which the user interface is defined by the access provider;
37° "Shared access to the local loop": provision of access to the local loop or local sub-coil of a network operator with significant power in a relevant market, authorizing the use of a specified part of the network infrastructure capacity such as part of the frequency or something equivalent;
38° "unbundled access to the local loop": the provision of unbundled access or shared access to the local loop does not imply any change in ownership of the local loop;
39° "gaine": envelope used to transfer and protect optical, telephone and/or coaxial cables, and/or network resources;
40° "radiofrequences": radio wave frequencies;
41° "technical specification": the definition of the characteristics of all electronic communications services provided via the network termination point or radio interface;
42° "conditional access system": any technical measure and/or provision that subordinates access in an intelligible form to a television protected service to a subscription or other form of personal prior authorization;
43° "approved reviewer": a company reviewer listed in the table of the Institute of Business Reviewers.
CHAPTER 2. - Audiovisual media services
Section 1^re. - Provisions applicable to all suppliers
Audiovisual media services
Art. 4. § 1^er. For the purposes of this Act, the providers of audio-visual media services, which, pursuant to the criteria set out in paragraph 2, fall within the competence of Belgium, provided that, in accordance with Article 127, § 2, of the Constitution, the point of reference determining for this competence is in the bilingual region of Brussels-Capital, and that they are not institutions whose activities are to be considered exclusively belonging to the Community.
§ 2. For the purposes of this Act, it is necessary to hear by audio-visual media service providers that fall within the competence of a Member State of the European Union, including Belgium, or another State signatory to the European Economic Area Agreement:
1° that are established in that State in accordance with paragraph 2;
2° to which paragraph 3.
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 to the Agreement on the European Economic Area, the provider of audiovisual media services that has its main seat and whose programming decisions are made in that State;
2° when it has its main seat in a Member State of the European Union or in a signatory State of the Agreement on the European Economic Area, but that the programming decisions are taken in another State, also a member of the European Union or a signatory to the Agreement on the European Economic Area, the audio-visual media service provider is deemed to be established in the State where an important part of the workforce used in the television broadcasting activities; where a significant portion of the staff employed in television broadcasting activities operates in each of these States, the media service provider is deemed to be established in the State in which it has its main seat; where a significant part of the workforce employed in any of these States does not operate, the media service provider is deemed to be established in the first State in which it began to issue in accordance with the law of that State, provided that it maintains a stable and real economic link with that State;
3° where an audio-visual media service provider has its main seat in a Member State of the European Union or in a signatory State of the Agreement on the European Economic Area, but that the programming decisions are taken in a third country, or vice versa, it is deemed to be established in the State in question, a member of the European Union or a signatory of the Agreement on the European Economic Area, if an important part of the effective broadcasting State.
Audio-visual media service providers to which paragraph 2 does not apply are deemed to fall within the competence of a Member State of the European Community or a State signatory to the European Economic Area Agreement:
1° if they use a rising connection to a satellite located in that State;
2° if, although not using a rising connection to a satellite located in that State, they use a satellite capacity under that State;
If the competent State cannot be determined in accordance with paragraphs 2 and 3, the competent State shall be the State in which the provider of audiovisual media services is established within the meaning of articles 49 and following of the Treaty on the Functioning of the European Union.
Art. 5. The Institute shall exchange with the European Commission and the competent institutions of the other Member States of the European Union all the information necessary for the application of this chapter.
Art. 6. Without prejudice to articles 18 and 28, the audiovisual media service providers that fall within the competence of a Belgian State Community, a member State of the European Union or another signatory State of the European Economic Area Agreement freely disseminate their programmes.
Art. 7. § 1^er. Audiovisual media service providers are registered with the Institute for each audiovisual media service they plan to provide. To this end, they send a statement to the Institute by registered mail.
§ 2. The declaration referred to in paragraph 1^er includes:
1° the denomination of the declarant and each audiovisual media service to be recorded;
2° the address of the applicant's head office or operating seat;
3° the status of the declarant;
4° a financial plan established for a period of three years;
5° the nature and description of the audiovisual media service, including the description of the information service, if any, as well as proof of the occupation of journalists;
6° the time limit in which the audiovisual media service will be launched;
7° means of distribution of audiovisual media service to users and the identity of operators of these means;
The proposed amendments, covering the conditions listed in the first paragraph, must be communicated in writing to the Institute before being executed.
Art. 8. As part of easy, fast and permanent access, audiovisual media service providers provide the following information to users:
1° their name;
2° the postal address of the place where they are established;
3° the coordinates for rapid contact and direct and effective contact with them, including their e-mail address;
4° the mention that the audiovisual media service provider falls within the competence of the Institute.
Art. 9. Audiovisual media service providers do not broadcast film works outside the agreed deadlines with the right holders.
Art. 10. The news and news programmes are designed in collaboration with professional journalists or people working in conditions that allow it to become so, in accordance with the Act of 30 December 1963 on the recognition and protection of the title of professional journalist.
Art. 11. Audio-visual media providers do not broadcast hate programmes based on race, sex, religion or nationality.
Art. 12. The King sets out the conditions under which audiovisual media service providers gradually make their services accessible to people with visual or hearing impairments.
Art. 13. The King sets out the ethical code to be respected by audio-visual media service providers in audio-visual commercial communication accompanying children's programs or including food or beverages containing nutrients or other substances whose presence in excessive quantities in the global regime is not recommended.
Art. 14. § 1^er. Audiovisual commercial communications:
1° shall be easily recognizable as such;
2° do not use subliminal techniques;
3° does not affect human dignity;
4° does not discriminate on the basis of sex, racial or ethnic origin, nationality, religion or belief, age or sexual orientation, or does not promote such discrimination;
5° does not encourage behaviour that is harmful to health or safety;
6° does not encourage behaviours that are seriously harmful to the protection of the environment;
7° do not cause physical or moral harm to minors.
Constituent damage within the meaning of 7°:
(a) direct incentive to rent or purchase a product or service by exploiting the inexperience or credulity of the minor;
(b) Inciting the rental or purchase of a product or service by persuading the parents of the minor or third parties;
(c) the exploitation of the particular trust of minors to their parents, teachers or other persons;
(d) the unjustified presentation of dangerous minors.
§ 2. Audiovisual commercial communications are prohibited:
1° clandestine;
2° for cigarettes and other tobacco products;
3° for medicines and medical treatments available only on prescription in Belgium;
4° for alcoholic beverages specifically directed to minors or encouraging their inmodested consumption.
Art. 15. § 1^er. Audiovisual media services or programs that are sponsored meet the following requirements:
1° their content and programming are in no way influenced in such a way as to undermine the independence and editorial responsibility of the audiovisual media service provider;
2° they do not directly encourage the purchase or rental of goods or services, in particular by making promotional references specific to these products or services;
3° viewers are clearly informed of the existence of a sponsorship agreement. Sponsored programs must be clearly identified as such by the name, logo or other symbol of the sponsor, e.g. by means of a distinctive sign, in an appropriate manner, at the beginning, at the end or during the sponsor;
§ 2. The sponsorship is prohibited:
1st of television newspapers, news programs and children's programs;
2° of audiovisual media or programs by companies that have the main activity of manufacturing or selling cigarettes and other tobacco products;
3° of audio-visual media services or programs by companies that are active in the manufacture or sale of medicines and medical treatments when it promotes specific medicines or medical treatments available only on prescription in Belgium.
Art. 16. § 1^er. The product placement is prohibited for:
1° tobacco and cigarettes;
2° products from companies that have the main activity of manufacturing or selling cigarettes and other tobacco products;
3° specific medicines and medical treatments available only on prescription in Belgium.
§ 2. Without prejudice to paragraph 1^er, the product placement is eligible only:
1° in film works, films and series for audiovisual media services, as well as sports and entertainment programmes;
2° where there is no payment but only the provision, free of charge, of certain goods or services, such as production accessories and lots, for inclusion in a program.
The exemption under paragraph 1^er, 1°, does not apply to children's programs.
§ 3. Programs with product placement meet at least all of the following requirements:
1° their content and programming are in no way influenced in such a way as to undermine the independence and editorial responsibility of the audiovisual media service provider;
2° they do not directly encourage the purchase or rental of goods or services, in particular by making promotional references specific to these products or services;
3° they do not unjustify the product in question;
4° viewers are clearly informed of the existence of a product placement. The programs with product placement are identified by the presence at the bottom of the screen of a round pictogram, of grey color, with the incrustation of a "PP" in white, for ten seconds, at the beginning and end of their broadcast, as well as when a program resumes after an advertisement interruption, in order to avoid any confusion on the part of the viewer. This condition is applied only for programs produced or commissioned by the audiovisual media service provider.
§ 4. This section applies only to programs produced after December 19, 2009.
Section 2.- Specific provisions
television broadcasting organizations
Art. 17. § 1^er. Television broadcasting organizations do not broadcast programs:
1° contrary to laws that violate respect for human dignity or contain incitements to discrimination, hatred or violence, in particular for reasons of race, ethnicity, sex, nationality, religion or philosophical conception, disability, age or sexual orientation or for negation, minimization, justification, approval of the genocide committed by the Nazi regime during the Second World War;
2° likely to seriously affect the physical, mental or moral development of minors, including programmes including scenes of pornography or free violence. The latter prohibition extends to other programs or sequences of programs, including advertisement bands, which may affect the physical, mental or moral development of minors;
3° promoting a current of thought, belief or opinion hostile to the fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights with the aim of opposing a principle essential to the democratic character of the regime and manifesting itself by the incitement to violate a legal standard in force.
§ 2. Paragraph 1^er, 2°, second sentence, does not apply if it is ensured, by choosing the time of the program or by any other technical measure, that minors in the broadcast field are normally not likely to see this program and provided that this program is preceded by an acoustic warning or that it is identified by a visual symbol throughout its duration.
Art. 18. § 1^er. The Institute shall notify the television broadcasting organization referred to in section 6 when it provides a television program that, in a manifest, serious and serious manner:
(a) incitement to hatred based on race, sex, religion or nationality;
(b) seriously affects the physical, mental or moral development of minors, such as programmes that include scenes of pornography or free violence;
(c) the physical, mental or moral development of minors.
Paragraph 1^er, c), is not applicable if it is assured that, by choosing the time of the program or by any other technical measure, minors in the broadcast field are normally not likely to see this program.
§ 2. The Institute can only take action after two warnings launched in the preceding 12 months and after having previously sent a written notification to the television broadcaster, as well as to the European Commission, indicating the measures envisaged in the event of the persistence of the situation. These measures may extend to the prohibition to broadcast to service distributors for a maximum of six months.
§ 3. If the situation persists and, within fifteen days of the notification referred to in paragraph 2, consultations with the transmitting Member State and the Commission have not resulted in an amicable agreement with the notified television broadcasting organization, the measures envisaged are implemented.
§ 4. In the event of incompatibility declared by the Commission, the Institute immediately withdraws its measures.
Art. 19. § 1^er. The King sets out a clear and transparent procedure for the establishment of a list of events of major importance to society that must be broadcast in full or in part live, except objective reasons of general interest preferring a postponed broadcast.
§ 2. Television broadcasting organizations are prohibited from exercising on the events referred to in paragraph 1^er exclusive rights in such a way that they would deprive an important part of the public in Belgium or in another Member State of the possibility to follow them fully or partially live or, if necessary or appropriate for objective reasons of general interest, fully or partially deferred on a free-access television channel.
A television channel is deemed to be in free access when it can be captured by the public in the bilingual Brussels-Capital region without being subject to any other payment than the possible subscription price to the basic offer of a distributor of services other than possible technical costs.
Art. 20. For the purpose of carrying out brief news reports, any television broadcasting organization established in a Member State of the European Union has the right to access, in fair, reasonable and non-discriminatory conditions, short excerpts from the events referred to in Article 19, paragraph 1^er, or any other event of great interest to the public, which is the subject of an exclusive transmission by a television broadcasting organization subject to this Act.
If a number of television broadcasting organizations established in the same Member State request access referred to in paragraph 1st, the first person who has obtained access must request the following.
Television broadcasting organizations freely select their short extracts from the signal of the television broadcasting organization that ensures the broadcast thereof, indicating, in all cases where it is possible in practice, their origin through the apposition in one of the corners of the image of a logo of the television broadcasting organization concerned.
Short excerpts are used exclusively in general news programs and may only be used as part of audiovisual media services on request if the same program is offered as a deferred program by the same television broadcasting organization.
Short excerpts are limited to a short news report of the event referred to in paragraph 1^er which can not exceed 90 seconds and can only be broadcast at least twenty minutes after the end of the event. The King sets out the other terms and conditions for the provision of these short extracts, particularly with regard to financial compensation, without the King being able to exceed the additional costs directly caused by the provision of access to these short extracts.
Art. 21. § 1^er. Television broadcasting organizations reserve, if possible, European works a majority of their broadcast time, excluding the time devoted to information, sports events, games, television advertising and teletext services and telecommunication services.
§ 2. Television broadcasting organizations, where possible, reserve at least 10% of their airtime, excluding the time devoted to information, sports events, games, television advertising, teletext services and tele-purchasing, to European works from independent producers of television broadcasting organizations.
The dissemination of these works cannot be more than five years after their production.
§ 3. Each year, television broadcasting organizations provide the Institute with a report on the achievement of the objectives set out in paragraphs 1^er and 2 as well as, where appropriate, a circumstantial motivation for their non-realization and the measures adopted or envisaged to achieve them.
§ 4. This section does not apply:
1° to television broadcasting organizations that broadcast only programs for a local audience, provided that they are not part of a national network;
2° to television broadcasting organizations broadcasting in a language other than those of the Member States of the European Union.
However, where the television broadcasting organization referred to in paragraph 1^er, 2°, also in a language of the European Union, paragraphs 1 to 3 apply only to the time of issuance in that language.
Art. 22. § 1^er. Television advertising is easily identifiable as such and is distinguished from editorial content by optical, acoustic or spatial means.
§ 2. The purchase windows are clearly identified as such and are distinguished from editorial content through optical and acoustic means. They have a minimum uninterrupted duration of fifteen minutes.
§ 3. The percentage of time for the broadcast of television advertising spots and TV spots within a given clock hour does not exceed 20%. Each TV spot has a maximum duration of twelve minutes.
§ 4. Subsection 3 does not apply to messages broadcast by the television broadcasting organization with respect to its own programs and related products directly derived from these programs, sponsorship announcements and product placement.
§ 5. Insulated spots of television advertising and teleshopping are exceptional, except during the broadcast of sports events.
§ 6. Paragraph 3, as well as articles 21 and 23, § 3, do not apply to television channels devoted exclusively to television advertising and tele-purchasing, as well as to television channels devoted exclusively to self-promotion.
Art. 23. § 1^er. The inclusion of television advertising or tele-purchasing in the programs does not affect the rights of beneficiaries or the integrity of the programs, given their natural interruptions, duration and nature.
§ 2. Television advertising or tele-purchasing do not interrupt the broadcast of children's programs and religious services.
§ 3. Television advertising or tele-purchasing do not interrupt the broadcast of films designed for television (excluding series, films and documentaries), film works and television newspapers more than once per 30-minute scheduled band.
Art. 24. The purchase of medical treatments or medications licensed to market is prohibited.
Art. 25. Television advertising and telemarketing for alcoholic beverages:
1° are not specifically intended for minors and, in particular, do not show minors using these drinks;
2° do not involve alcohol consumption in improving physical performance or driving;
3° do not create the impression that alcohol consumption promotes social or sexual success;
4° do not suggest that alcoholic beverages have therapeutic properties or have a stimulating, sedative or anti-conflict effect;
5° do not encourage the immoderate consumption of alcoholic beverages or give a negative image of abstinence or sobriety;
6° do not emphasize as positive quality of drinks their high alcohol content.
Art. 26. Television broadcasting organizations shall maintain a full copy of their programs for a period of three months from the date of their broadcast and shall make such a copy available to any authority that makes the request under a legal or regulatory provision. During the same period, they keep the day-to-day conduct of each audiovisual media service that takes over all programs, program sequences and the exact time of their broadcast.
If, during the period referred to in paragraph 1st, a program is contested, the obligations shall be terminated only when the dispute has been raised by an administrative decision that is no longer subject to appeal or by a judicial decision that is cast as a force of action.
Any person who, in writing, makes it likely for the Institute that he or she is infringed on his or her rights may, during the period referred to in paragraph 1st, consult freely or be dispatched at the cost of returning a copy of the registration or daily conduct.
Section 3. - Supplier-specific provisions
audiovisual media services on demand
Art. 27. § 1^er. The demand-driven audio-visual media provider does not broadcast programs that could seriously affect the physical, mental or moral development of minors, including programmes that include scenes of pornography or free violence. This prohibition extends to other programs or sequences of programs, including advertisement strips that may affect the physical, mental or moral development of minors.
§ 2. Paragraph 1^er does not apply if it is insured, including through an access code, that minors do not normally see or hear this program and provided that this program is identified by the presence of a visual symbol in the program catalogue.
The King shall determine the terms and conditions for the application of paragraph 1. It is also authorized to impose on service distributors the obligations that, when using a code access system, are necessary to ensure the effectiveness of the provisions of paragraph 1st.
Art. 28. § 1^er. The Institute shall notify and request the intervention of the competent institutions of the Member State of the competence of which the audio-visual media provider referred to in Article 6 shall report when the latter provides audio-visual media services at the request that seriously and seriously threaten or infringe upon:
(a) public order, in particular prevention and investigation and prosecution of criminal offences, including the protection of minors and the fight against incitement to hatred on the basis of race, sex, religion or nationality and against violations of the dignity of the human person;
(b) protection of public health;
(c) Public security, including the protection of national security and defence;
(d) consumer protection, including investors.
§ 2. If the Member State concerned does not intervene or do not intervene adequately, the Institute shall first notify the Member State and the European Commission of the measures it has decided to take. These measures are proportionate to the objective pursued and can go to the ban to broadcast to service distributors for a maximum period of six months.
§ 3. If, within fifteen days of the notification referred to in paragraph 2, the situation persists, the Institute shall implement the measures envisaged.
§ 4. In the event of an emergency, the Institute may immediately take steps, which may go to the prohibition to broadcast to service providers, for a maximum period of six months. These measures, as well as their justification for the emergency, are immediately notified to the European Commission and to the competent institutions of the Member State of the jurisdiction of which the television broadcasting organization reports to the origin of the grievance referred to in paragraph 1^er.
In case of incompatibility with the European Union law declared by the European Commission, the Institute refrains from taking the measures envisaged or immediately withdrawing the measures taken.
Art. 29. The demand-driven audiovisual media service providers provide a special focus on European works included in their catalogue, highlighting, through an attractive presentation, the list of available European works.
CHAPTER 3. - Service distributors
Art. 30. § 1^er. Any distributor of services whose activities are not exclusively linked to the French Community or the Flemish Community and whose subscribers are, in whole or in part, in the bilingual region of Brussels-Capital, must make, by registered mail, a prior statement to the Institute.
§ 2. The statement includes:
1° the denomination of the declarant;
2° the composition of the offer of audiovisual media services and the modalities of its marketing.
The proposed amendments, covering the conditions listed in the first paragraph, must be communicated in writing to the Institute before being executed.
Art. 31. § 1^er. In order to preserve the pluralistic character and cultural diversity of the offer of programs on the electronic communications networks of the bilingual region of Brussels-Capital, and to guarantee the access of the viewers of this region to the programs that are intended for them, the distributor of services must, as long as a significant number of people use the electronic communications network that he has chosen to make its audiovisual media services available to the public as a principal means of receiving programs.
- all audio-visual media services broadcast by the public service television broadcasters of the French Community, the German-speaking Community or the Flemish Community;
- audio-visual media services broadcast by television broadcasting organizations designated by the Minister pursuant to paragraphs 2 to 6, and 8.
This paragraph includes additional services: captioning, audio description, sign language and videotext.
§ 2. The Minister shall designate, in accordance with the procedure described in paragraphs 3 to 6, as beneficiaries of the mandatory distribution right:
- the international television broadcasting organizations involved in the public service television broadcasting organizations of the French and Flemish Communities, for all or part of their audio-visual media services for viewers in the bilingual Brussels-Capital region;
- local televisions belonging to the State, the French or Flemish Communities, for all or part of their audiovisual media services whose programmes are specially designed for viewers in the bilingual region of Brussels-Capital.
§ 3. The mandatory right of distribution shall be granted for a term of three years, from the date of publication to the Belgian Monitor of the designation by the Minister of the beneficiary of that right.
§ 4. The television broadcasting organization that wishes to benefit from the mandatory distribution right for all or part of its audio-visual media services shall apply by registered letter to the Minister and the Institute.
§ 5. The Institute has a three-month period to give the Minister a reasoned opinion on the legality and the opportunity to apply.
§ 6. At the end of this three-month period, the Minister shall have a two-month period to notify the applicant of the decision to grant or not the mandatory right to broadcast.
In the absence of notification from the Minister within the period referred to in the preceding paragraph, the Minister's decision is deemed positive.
§ 7. The Minister may, on the advice of the Institute, exempt a distributor of services from the obligation to distribute all or part of the audio-visual media services if it is technically impossible to distribute all or part of the audio-visual media services entitled to mandatory distribution. The Service Distributor who wishes to benefit from this exemption addresses a motivated application at the Institute. The Institute has a month to render its opinion.
The Minister shall notify the Minister of his decision regarding the exemption within fifteen days of the deadline set out in paragraph 1.
§ 8. For the designation of audiovisual media services referred to in the second dash of paragraph 1^er, the following general interest criteria should be taken into account:
- the television broadcasters, through their audio-visual media services, provide the daily broadcast of information 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.
Art. 32. Each service distributor sends to the Institute each year, before June 30, a report of activities with the King's content.
CHAPTER 4. - Network operators
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 attached exclusively to the French Community or the Flemish Community.
Art. 34. As part of the exercise of its competencies, the Institute takes all appropriate measures to achieve the objectives set out in sections 36 to 38. These measures are based on the nature of the problems identified, are applied proportionally and justified. They must be proportional to these objectives and respect the principles of objectivity, transparency, non-discrimination and technological neutrality.
Art. 35. In carrying out its tasks under this chapter, the Institute promotes competition in the provision of electronic communications networks, electronic communications services and associated resources:
1° ensuring that users, including persons with disabilities, older persons and persons with specific social needs, withdraw maximum benefit in terms of choice, price and quality;
2° ensuring that competition is not distorted or hindered in the electronic communications sector, including for the transmission of content.
Art. 36. In carrying out its tasks under this chapter, the Institute contributes to the development of an internal market for electronic communications networks and services:
1° by encouraging the provision of electronic communications networks and services at the European level;
2° by encouraging the establishment and development of trans-European networks and the interoperability of pan-European services and end-to-end connectivity;
3° by cooperating with other national regulatory authorities as well as with the European Commission and ORECE in a transparent manner to ensure the development of consistent regulatory practices at the European level.
Art. 37. In carrying out its tasks under this chapter, the Institute shall ensure the interests of users:
1° ensuring a high level of consumer protection in their relationships with suppliers;
2° by contributing to a high level of protection of personal data and privacy;
3° by promoting the provision of clear information, including by requiring transparency of rates and conditions of use of publicly accessible electronic communications services;
4° taking into account the needs of specific social groups, including end-users with disabilities, age or with specific social needs;
5° ensuring the integrity and security of public electronic communications networks and the security of public electronic communications services;
6° by promoting the ability of end-users to access and disseminate information, as well as to use applications and services of their choice.
Art. 38. § 1^er. In carrying out its tasks under this chapter, the Institute ensures that objective, transparent, non-discriminatory and proportionate regulatory principles are implemented, including:
(a) promote regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods;
(b) ensure that, in similar circumstances, there is no discrimination in the treatment of companies providing electronic communications networks and services;
(c) preserve competition for consumers and promote, where appropriate, infrastructure-based competition;
(d) promote effective investments and innovations in new and improved infrastructure, including by ensuring that any access obligation takes due account of the risk incurred by companies that invest and permit various modalities of cooperation between investors and those seeking access, in order to diversify the risk of investment, while ensuring that market competition and the principle of non-discrimination are respected;
(e) take due account of the diversity of competition and consumer situations in different geographic areas;
(f) impose ex ante regulatory obligations only when there is no effective and sustainable competition, and suspend or delete them as soon as this condition is met.
§ 2. In carrying out its tasks under this chapter, the Institute shall take into account as much as possible the recommendations made by the European Commission pursuant to Article 19 of Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services. When the Institute chooses not to follow any of these recommendations, it informs the European Commission of the reasons for its position.
Art. 39. Any information provided from a network operator to another network operator in the process of negotiating an access agreement is confidential, without prejudice to the right of any interested person to disclose this confidential information to the Institute or any other administrative or judicial proceeding. It is treated exclusively for the purposes of the conclusion of the agreement.
Art. 40. § 1^er. The Institute may intervene, either on its own initiative or at the request of one of the parties, after hearing them, in order to promote and, if necessary, ensure appropriate access or interoperability of services, in accordance with the provisions of this chapter and in order to ensure respect for the fundamental objectives set out in sections 36 to 38.
When the Institute intervenes in accordance with paragraph 1^erin particular:
1° impose deadlines in which the access or interoperability negotiations of the services must be completed;
2° establish the guiding principles for access or interoperability of services, for which agreement must be reached;
3° in the event that an agreement between the parties cannot be reached, establish the conditions that it considers appropriate in terms of access to be provided or interoperability to be achieved.
§ 2. Without prejudice to the measures provided for in Article 44, § 3, the Institute can always, and on its own initiative, impose on network operators who control access to end-users the obligations necessary to guarantee end-to-end connectivity or interoperability of services.
§ 3. The Institute can always, on its own initiative but nevertheless on a case-by-case basis, require operators to block access to numbers and services when warranted for fraud or abuse, and that network operators deduct interconnection revenues or other related services in such cases.
Art. 41. Any network operator providing a public electronic communications network has a duty to negotiate in good faith, with any network operator who makes the request, an interconnection agreement for the provision of electronic communications services accessible to the public.
When the Institute, in accordance with the procedure provided for in Article 40, § 1^er, notes that the obligation referred to in paragraph 1^er, is not respected, it may, without prejudice to the application of section 20 or 21 of the Act of 17 January 2003 relating to the status of the regulator of the sectors of Belgian posts and telecommunications, impose the reasonable conditions for interconnection which it considers appropriate and on which the parties must negotiate in good faith.
Art. 42. The King shall, after the advice of the Institute, establish the elements that must at least be settled in an interconnection agreement or an access agreement.
Any interconnection agreement and any access agreement shall be communicated to the Institute in its entirety.
Art. 43. After each publication by the European Commission of its "Recommendation concerning the relevant markets of products and services in the electronic communications sector", also referred to below: the "Recommendation", and at regular intervals, the Institute determines the relevant markets for electronic communications networks and services, as well as their respective geographical scope.
Art. 44. § 1^er. In accordance with paragraph 4, the Institute conducts an analysis of the relevant markets taking into account the markets identified in the Recommendation in order to determine whether they 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 contract analysis is carried out by the Institute in accordance with Articles 60 to 64:
(a) within three years of the Institute's previous decision on this market. However, this period may, on an exceptional basis, be extended up to three additional years when the Institute has notified the European Commission of a reasoned proposal for an extension and that there is no objection within the month following this notification;
(b) within two years of the adoption by the European Commission of a revised recommendation on relevant markets for markets that have not been previously notified to the European Commission.
When the Institute has not completed its market analysis within the time limit set out in paragraph 2, it may request assistance from ORECE to complete the relevant market analysis and specific obligations to be imposed. In this case, the Institute consults within six months the European Commission, ORECE and the national regulatory authorities of the Member States in accordance with Article 61.
§ 2. If the Institute, pursuant to paragraph 4, concludes that a relevant market is actually competitive, it does not impose or maintain any of the obligations referred to in sections 47 to 53.
When the Institute decides not to maintain an obligation under paragraph 1^erthe Committee shall inform the parties concerned within one month of its decision.
§ 3. If the Institute concludes that a relevant market is not effectively competitive, it identifies, in accordance with paragraph 4, any network operator that has a significant capacity individually or jointly with others in that market, and decides to impose, maintain or amend the obligations under sections 47 to 53 that it considers appropriate.
A network operator is considered to have significant power in a relevant market if, individually or jointly with others, it is in a position equivalent to a dominant position, i.e., it is able to behave, to a significant extent, independently of its competitors, customers or consumers.
When a network operator is considered to have significant power in a relevant market (the first market), it can also be considered to have significant power in a closely linked market (the second market). This can be the case when the links between the two markets are such that they allow the powerful network operator to use on the second market, by leverage effect, the power it holds on the first market in order to strengthen its power on the market.
In this case, the Institute decides, without prejudice to the application of paragraph 1^er, the imposition, maintenance or modification on the second market, of the obligations referred to in sections 47 to 49 and 51, and where these obligations prove insufficient, of the obligations referred to in section 52, which it considers appropriate in order to prevent this leverage effect.
For each relevant market, the Institute publishes on its website, the list of network operators with significant power and, where applicable, network operators with significant power on a closely linked 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 to a prior consultation with the Belgian Autorité de la concurrence. The Belgian Autorité de la concurrence issues its opinion within thirty calendar days of sending the draft decision by the Institute. After this period, the opinion of the Belgian Competition Authority is no longer required.
§ 5. The Institute sends its decisions referring to this paragraph, in advance to the Belgian Autorité de la concurrence, which within 30 days, from the time of the submission of the draft decision by the Institute, issues an opinion on whether the decisions proposed by the Institute conform to the objectives of competition law. After this period, 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 conducts the analysis of these markets in conjunction with the national regulatory authorities of the other Member States concerned, taking into account the guidelines. The Institute agrees with the same authorities on the imposition, maintenance, modification or elimination of sectoral regulatory obligations referred to in paragraph 3.
Art. 45. § 1^er. The Institute does not impose any of the obligations set out in sections 47 to 51 on network operators that have not been designated as having significant power in a relevant market, without prejudice to the need:
1° to comply with international commitments;
2° ensure compliance with co-location and resource sharing provisions;
3° to ensure compliance with the provisions of Article 55;
4° to ensure end-to-end connectivity or, in justified cases and to the extent necessary, interoperability of services, or to encourage or, where appropriate, ensure adequate access;
5° to enforce commitments made by network operators who have obtained the right to use radio frequencies during a comparative or competitive selection procedure;
6° to enforce the provisions relating to the processing of personal data and the protection of privacy.
§ 2. In exceptional circumstances, where the Institute intends to impose on network operators who have significant power on a relevant market access obligations other than those set out in sections 47 to 51, it submits this application for approval to the European Commission.
Art. 46. In order to ensure compliance with the obligations imposed under Article 44, § 3, the Institute may impose the amendment of the access agreements already entered into.
Art. 47. With regard to access, the Institute may, in accordance with Article 44, §§ 3 and 5, impose non-discrimination obligations.
Non-discrimination obligations include ensuring that network operators apply equivalent conditions in circumstances equivalent to other companies providing equivalent services, and that they provide services and information to others under the same conditions and with the same quality as they provide for their own services, or for those of their subsidiaries or partners.
Art. 48. § 1^er. The Institute may, in accordance with Article 44, §§ 3 and 5, define the transparency obligations regarding access, under which network operators must make public certain information, such as accounting information, technical specifications, network characteristics, terms and conditions of supply and use as well as prices, as defined by the Institute.
The Institute specifies the information to be provided, the level of detail required and the terms of publication.
§ 2. When a network operator is subject to non-discrimination obligations, the Institute may require it to issue a reference offer, which is sufficiently detailed to ensure that network operators are not required to pay for resources that are not necessary for the requested service. It includes a description of the relevant offers distributed in various elements as required by the market, along with the corresponding terms and conditions, including rates.
§ 3. Notwithstanding paragraph 1^erwhere a network operator is subject to one of the obligations under Article 50 § 1^er, with respect to wholesale access to network infrastructure, the Institute may impose on it the obligation to publish a reference offer as described in paragraph 2 regarding interconnection, unbundled access or shared access to the local loop or local sub-cool, access to a binary flow, or other access form, depending on the type of access that must be authorized by the relevant network operator.
If the Institute imposes the obligation to publish a reference offer as described in paragraph 2, regarding wholesale access to network infrastructure, this reference offer must at least contain the elements fixed by the Institute.
§ 4. Any new reference offer is, prior to its publication, approved by the Institute, which may impose the necessary modifications.
§ 5. The Institute may require that the reference offer be subject to any modifications that it considers necessary to impose the measures set out in this chapter.
§ 6. When the author of a reference offer wishes to amend it, he shall notify the Institute of the desired modification at least nounating days before the expected date of entry into force.
In this period, the Institute may notify the author of the amendment of the reference offer that it will make a decision on the desired amendment. This notification suspends the entry into force of the desired amendment.
The Institute may impose any modifications that it deems necessary or refuse the desired modification.
The Institute provides for the entry into force of the amendment in its decision.
§ 7. The reference offer is available free of charge, in electronic form, on a freely accessible website. The Institute determines the terms of this publication and the information to be provided to the recipients of the reference offer.
§ 8. The issuance of a reference offer does not impede reasonable access requests not provided for in this offer.
Art. 49. § 1^er. The Institute may, in accordance with Article 44, §§ 3 and 5, impose accounting separation obligations in respect of any activity in the field of access for which the network operator has a significant market power.
The Institute specifies the accounting model and methodology to be used by the network operator referred to in paragraph 1^er.
The Institute may, among other things, require a vertically integrated network operator to make its wholesale prices and its transparent internal transfer prices, among other things, to ensure compliance with the non-discrimination obligation provided for in section 47, or, if necessary, to prevent cross-residious subsidies.
A registered company reviewer designated by the network operator shall verify, at the expense of the network operator, compliance with the decisions referred to in paragraph 1^er 3. The Institute publishes an annual statement on compliance with the accounting separation obligation and the manner in which it relates to the report of the revisor of registered companies.
§ 2. Where the Institute deems it necessary, it may request, in a reasoned manner, to submit all accounting documents, including data on third-party revenue. The Institute sets the time limit for the documents to be provided.
The Institute may publish this information and may require the network operator to whom it has imposed an accounting separation obligation to also publish this information to the extent that it contributes to the establishment of an open and competitive market, in accordance with the privacy rules of business data.
Art. 50. § 1^er. The Institute may, in accordance with Article 44, §§ 3 and 5, impose the obligation to meet reasonable requests for access to network elements and associated resources specified by the Institute.
Network operators may be required to:
1° to grant third parties access to specific network elements and/or resources, including access to network elements that are not active and/or unbundled access to the local loop, in particular in order to allow the selection and/or pre-selection of operators and/or the offer of resale of subscriber lines;
2° to negotiate in good faith with network operators who request access;
3° not to withdraw access to resources when it has already been granted;
4° to offer wholesale services specified for resale to third parties;
5° to provide open access to technical interfaces, protocols or other key technologies that are critical to the interoperability of virtual network services or services;
6° to provide a possibility of co-location or other forms of sharing associated resources;
7° to provide the specific services necessary to guarantee users the interoperability of end-to-end services, especially with regard to resources for intelligent network services or allowing roaming on mobile networks;
8° to provide access to operational assistance 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 related services such as identity, location and occupation of the subscriber.
The Institute may set the conditions and terms and conditions for fairness, reasonability and deadlines for the fulfilment of obligations under this Article.
§ 2. When the Institute examines whether the obligations referred to in paragraph 1 should be imposed^erin particular, it takes into account the following:
1° the technical and economic viability of the use or development of competing resources, taking into account the pace at which the market is evolving and the type of interconnection and/or access concerned, including the viability of other upstream access products, such as access to the sheaths;
2° the degree of feasibility of the proposed access supply, taking into account the available capacity;
3° the initial investment made by the owner of the resources, taking into account the public investments made and the risks inherent in the investment;
4° the need to preserve long-term competition, paying particular attention to economically efficient competition based on infrastructure;
5° where applicable, potential intellectual property rights;
6° the provision of pan-European services.
§ 3. When the Institute imposes on a network operator the obligation to provide access in accordance with the provisions of this Article, it may establish technical or operational conditions to which the provider and/or beneficiaries of access must meet when necessary to ensure the normal operation of the network.
The requirement to meet specific technical standards or specifications must be consistent with the standards and specifications established in accordance with Article 17 of the Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services.
§ 4. As long as it is necessary to implement the Institute's obligations, network operators negotiate with each other the appropriate access agreements to be provided.
The Institute sets, either on its own initiative when warranted, or at the request of one of the parties, after hearing the parties concerned, the access obligations to be provided.
Art. 51. § 1^er. The Institute may, in accordance with Article 44, paragraphs 3 and 5, impose obligations related to cost recovery and price control, including obligations relating to price orientation based on costs and obligations relating to cost accounting systems, for the provision of specific types of interconnection and/or access, when it appears from a market analysis that the operator of the network concerned may, in the case of an efficient cost accounting
When the Institute imposes one of these obligations on a network operator, the costs associated with the provision of an effective delivery are taken into account. The Institute is committed to promoting sustainable competition and maximizing consumer benefits. In this regard, it can take into account prices in comparable competitive markets.
In order to encourage the network operator to invest in the next generation networks, the Institute takes into account the investments it has made and allows for a reasonable remuneration of the appropriate capital involved, given any specific risk associated with a new particular investment project.
§ 2. Any network operator subject to the obligation to direct its tariffs on a cost basis shall provide the Institute, at the request of the Institute, with proof of compliance with that obligation.
The Institute may ask the network operator to fully justify its rates. If necessary, the Institute may require tariff adjustment.
In order to determine the costs associated with the provision of an effective benefit, the Institute may use accounting and cost calculation methods distinct from those applied by the network operator.
§ 3. When the introduction of a cost-accounting system is made mandatory, the Institute publishes a description of the cost-accounting system that includes at least the main categories of costs and rules applied in the cost-accounting system.
§ 4. Compliance with the cost accounting system is verified, at the expense of the network operator, by an approved company reviewer designated by that network operator.
The Institute publishes an annual statement on system compliance following the report of the approved company reviewer.
Art. 52. § 1^er. If the Institute finds that the obligations imposed under sections 47 to 51 would not achieve the objectives set out in sections 35 to 37, it may impose, in accordance with Article 44, §§ 3 and 5, one or more of the obligations referred to in paragraph 2 to network operators designated as operators with significant power on a particular retail market.
The Institute's obligations relate to the prohibition:
1° to use abnormally high prices;
2° to obstruct market access;
3° to use awards restricting competition;
4° to apply unwarranted preferences for certain end-users;
5° to unjustify services.
§ 2. If the Institute wishes to control end-user rates in accordance with paragraph 1^er, it can determine the necessary and appropriate cost accounting systems that the intended network operator applies.
A registered company reviewer designated by the network operator shall verify, at the expense of that operator, compliance with cost accounting systems. The Institute publishes an annual certificate of compliance with these systems.
Art. 53. § 1^er. When the Institute concludes that the appropriate obligations imposed under sections 47 to 51 have failed to ensure effective competition and that significant competition problems and/or market failures persist with respect to the wholesale provision of certain access products, it may, as an exceptional measure and in accordance with the provisions of Article 45, § 2, impose on a vertically integrated network operator the obligation to entrust its supply activities to an independent entity.
This economic entity is required to provide access products and services to all network operators, including other economic entities within the parent company, on the same terms and conditions, including in terms of tariff and quality of service, and using the same systems and processes.
§ 2. When the Institute intends to impose a functional separation obligation, it submits to the European Commission a proposal that includes:
1° of evidence justifying the conclusion to which the Institute arrived under paragraph 1^er;
2° a reasoned assessment that there is little or no prospect of developing effective and sustainable infrastructure-based competition within a reasonable time;
3° an analysis of the intended impact on the Institute, on the network operator, in particular on workers of the separate economic entity, on the electronic communications sector as a whole, on incentives for investment in this sector as a whole, on the need to ensure social and territorial cohesion, as well as on other interested parties, including, in particular, on competition, as well as potential effects for consumers;
4° an analysis of the reasons justifying that this obligation would be the most effective way to solve competition problems or market failures identified.
§ 3. The draft measure includes:
1° the specific nature and degree of separation and, in particular, the legal status of the separate economic entity;
2° the list of assets of the separate economic entity as well as the products or services it must provide;
3° the management arrangements to ensure the independence of personnel employed by the separate economic entity and the corresponding incentives;
4° the rules for ensuring compliance;
5° rules to ensure transparency of operational procedures, in particular for other interested parties;
6° a control program to ensure compliance and to publish an annual report.
§ 4. Following the decision of the European Commission on the draft measure, the Institute conducts a coordinated analysis of the various markets related to the access network in accordance with the procedure referred to in Articles 44 and 45. Based on its assessment, the Institute imposes, maintains, amends or withdraws obligations in accordance with sections 60, 61 and 63.
§ 5. The functionally independent economic entity of the network operator to whom the functional separation has been imposed may be subject to any obligation referred to in sections 47 to 51 in any relevant market where the network operator has been designated as having a significant power in accordance with Article 44, § 3, or to any other obligation imposed after the authorization of the European Commission in accordance with Article 45, § 2.
Art. 54. § 1^er. The network operator who has been designated as having significant power on one or more relevant markets in accordance with Article 44, § 3 shall notify the Institute, six months in advance, to enable it to assess the impact of the proposed transaction, its intention to assign its local access network assets, or an important part of them, to a separate legal entity under the control of a third party, or to provide a retail entity
The network operator in question also notify the Institute of any change in this intention and the final outcome of the separation process.
§ 2. The Institute assesses the impact of the proposed transaction on existing obligations imposed under this chapter or section 20 of the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors.
To this end, the Institute conducts a coordinated analysis of the various access network markets in accordance with the procedure set out in sections 43 and 44.
Based on its assessment, the Institute imposes, maintains, amends or withdraws obligations in accordance with sections 60, 61 and 63.
§ 3. The legally and/or functionally distinct economic entity may be subject to any obligation referred to in sections 47 to 51 in any relevant market where it or the network operator that has made the notification in accordance with this Article has been designated as having a significant power in accordance with Article 44, § 3, or any other obligation imposed after the authorization of the European Commission in accordance with Article 45, § 2.
Art. 55. § 1^er. Any network operator that offers public electronic communications networks or services and that has exclusive or special rights for other activities is obliged to:
1° to maintain a separate accounting for the provision of public electronic communications networks or services, in the same way as if these activities were carried out by legally independent companies, in order to identify, on the basis of their calculations and the details of applied imputation methods, all the expenses and revenues related to their activities in the provision of public electronic communications networks or services, including a breakdown by post of capital assets;
2° to establish a structural separation for activities related to the provision of public electronic communications networks or services.
§ 2. Transfers of resources, including transfers of capital and equipment from activities subject to exclusive or special rights to public electronic communications networks or services, are based on market conditions.
§ 3. The King shall, after the Institute's notice, establish the model and accounting methodology to be used to meet the obligations of this section.
Separate accounting referred to in paragraph 1^er, 1°, is subject to a control by a registered company reviewer designated by and at the expense of the network operator.
The Institute determines how the financial report on separate accounting is published.
Art. 56. In order to ensure compliance with section 55, the Institute or its delegates may hear any person whom the Institute wishes.
The Institute or its delegates may consult all documents and request any information they consider necessary to verify whether section 55 is being complied with.
Art. 57. § 1^er. As part of its expertise, the Institute may require, by reason of request, companies providing electronic communications networks and services with all necessary information. The Institute sets the deadline for the provision of the requested information and informs companies of its use.
§ 2. The King shall, after the advice of the Institute, give after consultation with the relevant market actors, the terms and conditions for the exchange of information provided in this chapter.
§ 3. As part of the monitoring of compliance with this chapter, the Institute may only request information that is reasonably necessary and objectively justified to enable it to:
1° conduct a case-by-case check, where a complaint is received, where the Institute has reason to believe that a condition is not met or when the Institute conducts an investigation on its own initiative;
2° to process and evaluate applications for the granting of user rights;
3° to publish, in the interest of consumers, comparative balances on the quality and price of services;
4° to pursue specific statistical objectives;
5° to conduct a market study;
6° preserve the effectiveness of the use and management of radio frequencies;
7° assess the evolution of networks or services likely to affect services provided wholesale to competitors.
The information referred to in paragraph 1^er, points 1°, 3°, 4°, 5°, 6°, and 7°, cannot be put as a prerequisite or as a condition for access to the market.
Art. 58. § 1^er. The Institute is obliged to respond favourably to any reasoned request from the European Commission or a national regulatory authority to obtain information, provided that they are necessary and proportionate to the fulfilment of their missions. The Institute tells their recipients the degree of confidentiality of the information transmitted.
The Institute can match the communication of this information to the European Commission with a reasoned opposition that it is provided to another authority.
§ 2. The Institute informs operators of the possibility of communication to the European Commission or to a national regulatory authority or to an international organization with which the Institute maintains relations within the framework of the exercise of its information skills obtained from them.
§ 3. Without prejudice to other legal provisions, the Institute shall ensure the information obtained from other authorities at least the same degree of confidentiality as the authority that provided it.
Art. 59. The Institute may organize for the purposes of this chapter a public consultation in accordance with Article 14 of the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors.
Art. 60. As long as a draft decision of the Institute is likely to have significant impacts on a relevant market, the Institute organizes a pre-public consultation of up to two months, in accordance with the rules of confidentiality of business data.
All information on current public consultations is centralized at the Institute.
The results of the public consultation are made public, in accordance with the rules of confidentiality of business data.
The King, after the Institute's advice, specifies the terms of public consultation and publicity of his results.
Art. 61. § 1^er. The Institute consults the European Commission, the ORECE and the national regulatory authorities of the Member States as long as a draft decision of the Institute may have an impact on the exchanges between the Member States and tends to:
1° define a relevant market pursuant to section 43, or
2° conclude that a relevant market is competitive or not, pursuant to Article 44, §§ 2 and 3, or
3° imposing or modifying obligations to a network operator with significant power on a relevant market, pursuant to Article 44, § 3, or
4° imposing obligations on network operators who have not been designated as having significant power in a relevant market, pursuant to Article 45, § 1^er, 1° to 5°, or
5° impose the amendment of access agreements already entered into pursuant to section 46, or
6° imposing the amendment of the reference offer, pursuant to Article 48, § 4, or
7° determine the conditions of access to be provided pursuant to Articles 40, 41 and 50, § 3, paragraph 2.
§ 2. The Institute takes into account as much as possible the comments made to it in the month of the notification of the draft decision by the European Commission, ORECE and the national regulatory authorities of the Member States.
§ 3. When the draft decision is amended in accordance with Article 63, § 2 or Article 64, § 4, the Institute shall initiate a public consultation in accordance with Article 60 and shall notify the European Commission of the amended draft in accordance with the provisions of paragraph 1^er.
§ 4. Final decisions, whose projects are referred to in paragraph 1^er, are notified to the European Commission and the ORECE.
Art. 62. The interim measures within the meaning of Article 20 of the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors taken to ensure compliance with this chapter are exempted from the consultations provided for in Articles 60 and 61. However, they are notified promptly to the European Commission, the ORECE and the national regulatory authorities of the Member States.
Any extension of the interim measures shall be subject to the provisions of articles 61 and 62.
Art. 63. § 1^er. The Institute delays the adoption of the final two-month decision when the draft decision of the Institute referred to in Article 61, § 1^er:
(a) is likely to have an impact on trade between Member States and tends to:
1° define a relevant market that differs from those identified by the European Commission, or
2° designate or not a network operator as having, individually or jointly with others, significant power in a relevant market;
(b) and that the European Commission has indicated to the Institute within one month of the date of its notification in accordance with Article 61, that the draft decision would impede the Single Market or if it has serious doubts as to its compatibility with Community law.
§ 2. Where within two months referred to in paragraph 1^er, the European Commission adopts a decision requiring the withdrawal of the draft decision, the Institute amends or withdraws its draft decision within six months of the date of the decision of the European Commission.
Art. 64. § 1^er. If, within one month of the date of notification of the Institute's draft decision in accordance with Article 61, the European Commission shall notify the Institute that its draft decision, which tends to impose, modify or withdraw an obligation for a network operator with significant power on a relevant market, constitutes a barrier to the single market or raises serious doubts as to its compatibility with Community legislation, the Institute shall delay its decision by the European Commission.
§ 2. Within the three-month period referred to in paragraph 1^er, the European Commission, ORECE and the Institute cooperate closely to identify the most effective and appropriate measure in relation to the objectives set out in sections 34 to 37, while taking duly into account the opinions of economic actors and the need to ensure consistent regulatory practices.
§ 3. When within six weeks from the beginning of the three-month period referred to in paragraph 1^er, ORECE issues a notice on the notification of the European Commission referred to in paragraph 1^er indicating that it shares the serious doubts of the European Commission, the Institute may, before the end of the three-month period referred to in paragraph 1^er:
1o amend or withdraw its draft decision taking into account as much as possible the notification of the Commission referred to in paragraph 1^er and the advice and advice of the ORECE;
2° maintain its draft decision.
§ 4. Where the ORECE does not share the serious doubts of the European Commission or does not issue a notice, or when the Institute amends or maintains its draft decision in accordance with paragraph 3, the European Commission may, within one month after the end of the three-month period referred to in paragraph 1^er:
1st issue a reasoned recommendation that the Institute amend or withdraw the draft decision;
2° decide to withdraw its reservations issued in accordance with paragraph 1^er.
Within one month of the issuance of the recommendation of the European Commission pursuant to paragraph 1^er, 1°, or the lifting of reservations in accordance with paragraph 1^er, 2°, the Institute communicates to the European Commission and to the ORECE the final decision adopted. This period can be extended to allow the Institute to hold a public consultation on the amended project.
When the Institute decides not to amend or withdraw the draft decision on the basis of the recommendation referred to in paragraph 4, paragraph 1^er, 1°, it provides a reasoned justification.
§ 5. The Institute may withdraw the draft decision at any stage of the proceedings.
Art. 65. The Institute shall make public, in accordance with the terms established by the King, after the advice of the Institute, the decisions rendered by the European Commission under Article 64.
CHAPTER 5. - Modificative and final provisions
Art. 66. Article 14, § 1^erthe following amendments are made to the statute of the regulator of the Belgian postal and telecommunications sectors:
(a) at 3°, the words "of the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital" are replaced by the words "of the Act of 5 May 2017 on audiovisual media services in the bilingual region of Brussels-Capital";
(b) at 4°, the words "of broadcasting organizations covered by the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital" are replaced by the words "of audiovisual media service providers covered by the Act of 5 May 2017 on audiovisual media services in the bilingual region of Brussels-Capital";
c) at 4/1°, the words "of broadcasting organizations covered by the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital" are replaced by the words "of audiovisual media service providers covered by the Act of 5 May 2017 on audiovisual media services in the bilingual region of Brussels-Capital".
Art. 67. In Article 20, § 1^erParagraph 1^er, of the same law, as amended by the Act of 10 July 2013, the words "as well as sections 45, 46 and 53 of the Act of 5 May 2017 on 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".
Art. 68. Article 21, § 5, 2°, of the same law, as amended by the law of 4 March 2016, is supplemented by the following sentence: "For offences under Chapter 2 of the Act of 5 May 2017 on audiovisual media services in the bilingual region of Brussels-Capital, the amount of the administrative fine is not more than 5% of the offender's turnover in the sector in question during the most recent full fiscal year, which is set at 125,000 euros".
Art. 69. The Act of 30 March 1995 concerning electronic communications networks and services and audio-visual media services in the bilingual region of Brussels-Capital is repealed.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 5 May 2017.
PHILIPPE
By the King:
Minister of Digital Agenda, Telecommunications,
A. DE CROO
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives (www.lachambre.be):
House of Representatives documents: 54-2242.
Full report: 20 April 2017.