belgiquelex.be - Carrefour Bank of Legislation

26 MARCH 2010. - Services Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Preliminary provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It partially implements the provisions of Directive 2006/123/EC of the European Parliament and the Council of 12 December 2006 on services in the domestic market.
Art. 2. For the purposes of this Act and its enforcement orders, the following means:
1° "service": any non-employed economic activity normally exercised against remuneration, referred to in Article 50 of the EC Treaty;
2° "provider": any natural person from a Member State of the European Union or legal person referred to in Article 48 of the EC Treaty and established in a Member State of the European Union that offers or provides a service;
3° "establishment": the effective exercise of an economic activity referred to in Article 43 of the EC Treaty by the provider for an indefinite period and by means of a stable infrastructure from which the provision of service is actually insured;
4° "recipient": any natural person who is a citizen of a Member State of the European Union or who enjoys rights conferred upon him by community acts or legal person referred to in Article 48 of the EC Treaty established in a Member State of the European Union which, for professional or non-occupational purposes, uses or wishes to use a service;
5° "regulated profession": an activity or a set of professional activities whose access, exercise or a method of exercise is subordinate directly or indirectly, under legislative, regulatory or administrative provisions, to the possession of specific professional qualifications; the use of a professional title limited by statutory, regulatory or administrative provisions to the holders of a particular professional qualification constitutes an exercise modality;
6° "free profession holder": any business that is not a merchant within the meaning of Article 1^er the Code of Commerce and is subject to a control body established by law;
7° "authorization regime": any procedure that requires a service provider or recipient to take an approach with a competent authority to obtain a formal act or an implicit decision on access to a service activity or its exercise;
8° "requirement": any obligation, prohibition, condition or limitation provided by law, regulation or administrative provisions or arising out of jurisprudence, administrative practices, rules of professional orders or collective rules of professional associations or other professional organizations adopted in the exercise of their legal autonomy;
9° "Imperial reasons of general interest": reasons such as public order, public safety, public health, the preservation of the financial balance of the social security system, the protection of consumers, recipients of services and workers, the loyalty of commercial transactions, the fight against fraud, the protection of the environment and the urban environment, the health of animals, the intellectual property, the conservation of the historical and cultural heritage
10° "professional liability insurance": an insurance contracted by a provider to cover, in respect of the recipients and, where applicable, third parties' liability for damage resulting from the service provision;
11° "Labour Law": all legal, regulatory or treaty provisions relating to working and employment conditions, including the welfare of workers in the performance of their work and the organizational structures related to them, as well as the control activities and the penalties related to them, and also the relations between social partners, such as the right to negotiate and conclude collective labour agreements and to apply them, the right to strike and strike
12° "Social Security Law": all legal, regulatory and sectoral provisions relating to the collection of contributions and to the organization and award of social benefits to which social insured persons are entitled, with the aim of granting, replacing or supplementing a professional or non-occupational income, in order to protect them from the consequences of the social risks covered by the regulations relating to the subjugation of workers with disabilities, to the care of workers
13° "geographical address": the physical location where a company is present or can be physically contacted;
14° "competent authority": any authority or body having a role to control or regulate the activities of services, including administrative authorities, including the courts acting as such, professional orders and professional associations or other professional bodies that, within the framework of their legal autonomy, collectively regulate access to or exercise of services;
15° "Member State": a Member State of the European Union;
16° "Member State of establishment": the Member State in whose territory the provider concerned has its establishment;
17° "working day": any calendar day, excluding Sundays and legal holidays. If the period expires on Saturday, it is extended to the next business day;
18° "personal data": information concerning an identified or identifiable natural person, in accordance with the definition provided for in Article 1^er§ 1^erthe Act of 8 December 1992 on the protection of privacy with respect to personal data processing;
19° "treatment person": natural or legal person, de facto association or public administration who, alone or jointly with others, determines the purposes and means of processing personal data;
20° "processing": any operation or set of operations carried out or not using automated processes and applied to personal data, such as collection, recording, organization, preservation, adaptation or modification, extraction, consultation, use, communication by transmission, dissemination or any other form of disposal, reconciliation or interconnection, as well as the face-off
21° "federal coordinator": the physical person designated within the Federal Public Service Economics, to be, within the framework of the administrative cooperation provided for in Chapter 7, the point of contact between the European Commission and the competent Belgian authorities;
22° " Alert Coordinator": the person or natural persons designated at the federal level who are responsible for ensuring the information of the Member States and the European Commission of grave and precise circumstances or facts in relation to a service activity that may cause serious harm to the health or safety of persons or the environment.
Art. 3. § 1^er. Without prejudice to the competences of the Communities and Regions, this Act applies to services that fall within the jurisdiction of the federal authority and with the exception of:
1° of non-economic general interest services, including social services that may be qualified as such and not covered by item 11 of this article;
2° of financial services;
3° of electronic communications services and networks and associated resources and services for matters governed by the Act of 13 June 2005 on electronic communications;
4° services in the field of transport including port services, which enter the field of application of title V of the EC Treaty;
5° of the services of notaries appointed by a decision of the public authority;
6° of the services of judicial officers appointed by a decision of the public authority;
7° services of interim work agencies;
8° health care services, whether or not they are insured in the care setting and regardless of how they are organized and funded or their public or private nature;
9° of money game activities involving bets with a monetary value in random games, including lotteries, casinos and bets conventions;
10° of activities participating in the exercise of the public authority in accordance with Article 45 of the EC Treaty;
11° without prejudice to their qualification in non-economic general interest services referred to in 1° of this article or their qualification in services of general economic interest, social services relating to social housing, child assistance and assistance to families and persons permanently or temporarily in a situation of need that are provided directly or indirectly by the federal State;
12° of private security services.
§ 2. This Act does not apply:
1° in the area of taxation;
2° to the right to work;
3° to the right to social security.
§ 3. If the provisions of this Act are in conflict with legal or regulatory provisions governing the specific aspects of access to a service activity or its exercise in specific sectors or for specific professions, transposing community law, these latter provisions prevail. These include:
1° the Act of 5 March 2002 transposing the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the detachment of workers carried out in the framework of a service provision and establishing a simplified regime for the holding of social documents by companies that detach workers in Belgium;
2° the Act of 30 March 1995 concerning electronic communications networks and electronic communications services and the exercise of broadcasting activities in the bilingual region of Brussels-Capital, in that it transposes Council Directive 89/552/EEC of 3 October 1989 to coordinate certain legislative, regulatory and administrative provisions of the Member States relating to the exercise of television broadcasting activities;
3° the law of 12 February 2008 establishing a new general framework for recognition of CE professional qualifications.
§ 4. This Act does not deal with rules of private international law, in particular the rules governing the law applicable to contractual and non-contractual obligations, including those guaranteeing that the consumer enjoys the protection afforded to it by the rules of consumer protection contained in the consumer law in force in their Member State.
§ 5. This Act and, in particular, its provisions relating to the control of the rules relating to the protection of personal data are implemented and apply without prejudice to the rules set out in Directive 95/46/EC, in Directive 2002/58/EC, of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing and the rules for the protection of personal data in the Act of 13 June 2005 on communications
CHAPTER 2. - Freedom of establishment
Art. 4. Where an authorization is required for access to and exercise of a service activity, the service must meet the following conditions:
1° the authorization regime is not discriminatory with respect to the intended provider;
2° the need for an authorization regime is justified by a compelling reason of general interest;
3° the objective pursued cannot be achieved by a less restrictive measure, especially because a posteriori control would intervene too late to have real efficiency.
Paragraph 1^er does not apply to licensing regimes that are governed, directly or indirectly, by community law, among other things, the licensing regimes that provide for access to a regulated profession or exercise to the possession of specific professional qualifications and specific provisions prescribing requirements for an activity to a particular profession.
Art. 5. Authorization regimes must be based on criteria that govern the exercise of the discretionary power of the competent authorities so that it is not used arbitrarily.
These criteria are:
1° non-discriminatory;
2° justified by a compelling reason of general interest;
3° proportional to this general interest objective;
4° clear and unambiguous;
5° objectives;
6° made public in advance;
7° transparent and accessible.
Art. 6. Procedures and formalities must be readily accessible and the charges that may arise for applicants must be reasonable and proportionate to the costs of the authorization procedures.
Art. 7. The conditions for the granting of authorization for a new establishment cannot duplicate the equivalent or essentially comparable requirements and controls because of their purpose, to which the service provider is already subjected in Belgium or another Member State of the European Union. The Federal Coordinator and the Provider assist the competent authority by providing the necessary information on these requirements.
Art. 8. When a service provider is established in Belgium, a professional liability insurance or a guarantee cannot be required when the service provider is already covered in another EU Member State in which it is already established, by an equivalent or substantially comparable guarantee in respect of its purpose and the coverage it offers in respect of the insured risk, the insured sum or the ceiling of the guarantee as well as activities which may be excluded from the coverage.
In the event that coverage is only partial, a supplementary guarantee to cover items that are not already covered may be required.
Where professional liability insurance or the provision of another form of guarantee is imposed on a provider established in Belgium, certificates of coverage issued by credit institutions or insurers whose head office is established in a Member State of the European Union are admitted as evidence.
Art. 9. The authorization allows the service provider to have access to the service activity or to exercise it throughout Belgian territory, including through the creation of agencies, branches, subsidiaries or offices.
The previous paragraph does not apply:
1. where an authorization specific to each location or a limitation of authorization to a specific part of the national territory is justified by a compelling reason of general interest;
2. authorities issued by regional, community, provincial or municipal authorities.
Art. 10. Any request for authorization is the subject of an acknowledgement of receipt within 10 business days.
The acknowledgement of receipt indicates:
- the date on which the application was received;
- the time limit within which the decision is to intervene;
- the remedies, the competent authorities to know about them and the forms and deadlines to be respected;
where applicable, the reference that in the absence of a response within the time limit, the authorization is considered to be granted.
In the event of an incomplete application, the applicant is informed as soon as possible of the need to provide additional documents, the time available to the applicant to do so, and the consequences for the period referred to in paragraph 2.
In the event of a rejection of an application on the ground that it does not comply with the necessary procedures or formalities, the applicant shall be informed as soon as possible.
Art. 11. The competent authority shall grant authorization after an appropriate examination has established that the conditions for its grant are met.
If no time limit is provided by the regulations for the period after which the decision on the application for authorization must be rendered, the decision shall be made no later than thirty working days from the date of the acknowledgement of receipt or, if the file is incomplete, from the date on which the applicant provided the required additional documentation.
When the complexity of the file justifies it, the deadline may be extended once and for a limited period of time. The extension and its duration must be notified to the applicant prior to the expiry of the initial period.
Without prejudice to specific legal or regulatory regimes justified by a compelling cause of general interest, in the absence of a response within the time limit provided by law or by regulation, the authorization is considered to be granted.
Art. 12. § 1^er. The authorization granted to a provider has an unlimited duration, with the exception of:
1° the authorization is subject to automatic renewal;
2° the authorization is only subordinate to the continuous fulfilment of requirements;
3° the number of authorizations available is limited by a compelling reason of general interest;
4° a limited period of authorization is justified by a compelling reason of general interest.
§ 2. § 1^er is without prejudice to the possibility of withdrawing an authorization when the conditions of granting cease to be met.
§ 3. § 1^er does not apply to the maximum period before the end of which the provider must actually commence its activity after being authorized to do so.
Art. 13. When the number of authorizations available for a given activity is limited due to the scarcity of natural resources or the technical capabilities to be used, a selection procedure between potential candidates is applied. This procedure provides for all guarantees of impartiality and transparency, including adequate publicity of the opening of the proceedings, its conduct and its closure.
In cases referred to in paragraph 1^er, the authorization is granted for an appropriate limited time and shall not be subject to an automatic renewal procedure, nor shall any other benefit in favour of the provider whose authorization has just expired or persons with special ties with that service provider.
The rules for the selection procedure may take into account considerations related to public health, social policy objectives, health and safety of employees or independent persons, environmental protection, preservation of cultural heritage and other compelling reasons of general interest.
Art. 14. § 1^er. Access to a service activity or exercise in Belgium cannot be subject to any of the following requirements:
1. discriminatory requirements based directly or indirectly on nationality or, with regard to societies, the location of the statutory seat, in particular:
(a) the requirement of nationality for the provider, its staff, persons holding social capital or members of the provider's management or monitoring bodies;
(b) the requirement to be resident in Belgian territory for the provider, its staff, persons holding social capital or members of the provider's management or monitoring bodies;
2. the prohibition of having an establishment in more than one Member State or being registered in the registers or in the orders or professional associations of more than one Member State;
3. the limitations on the provider's freedom to choose between a primary or secondary institution, in particular the obligation of the provider to have its principal place of business in their territory, or the limitations on the freedom to choose between the establishment in the form of an agency, branch or subsidiary;
4. conditions of reciprocity with the Member State where the provider already has an establishment, except those provided for in community energy instruments;
5. the application on a case-by-case basis of an economic test consisting of subordinating the granting of authorization to evidence of an economic need or market demand, to assess the potential or current economic effects of the activity or to assess the adequacy of the activity with the economic programming objectives set by the competent authority;
6. direct or indirect intervention of competing operators, including in advisory bodies, in the granting of authorizations or in the adoption of other decisions of the competent authorities, with the exception of professional orders and associations or other organizations acting as the competent authority; This prohibition does not apply to consultation with organizations such as chambers of commerce or social partners on matters other than requests for individual authorization or public consultation;
7. the obligation to form or participate in a financial guarantee or to provide insurance from a provider or agency established in Belgian territory. This does not affect the possibility of requiring insurance coverage or financial guarantees as such and does not affect the requirements for participation in a collective compensation fund, for example for members of professional orders or organizations;
8. the obligation to have been previously registered for a given period in the registers held in Belgium or to have previously exercised the activity for a given period in Belgium.
§ 2. The prohibition imposed by § 1^er, 5), does not relate to programming requirements that do not pursue objectives of an economic nature but are subject to compelling reasons of general interest.
CHAPTER 3. - Freedom of service delivery
Art. 15. § 1^er. The service delivery cannot be subject to requirements that:
1° are discriminatory, and are directly or indirectly based on nationality or, with regard to societies, the location of the registered office;
2° are not justified by reasons of public order, public safety, public health or environmental protection;
3° are not proper to guarantee the realization of the objective pursued and go beyond what is necessary to achieve this objective.
§ 2. The free provision of services provided by a provider established in another EU Member State cannot be restricted by one of the following requirements:
(a) the obligation of the provider to have an establishment in Belgium;
(b) the obligation of the provider to obtain authorization from the competent Belgian authority, including registration in a register or with a professional order or association existing in Belgium, except in the cases covered by this Act or governed by Community law;
(c) the supplier's prohibition to establish a certain form or type of infrastructure in Belgium, including an office or law firm, which the provider needs to provide the services in question;
(d) the application of a particular contractual regime between the service provider and the recipient that prevents or limits the service delivery on an independent basis;
(e) the obligation, for the provider, to possess an identity document specific to the exercise of a service activity issued by the competent Belgian authority;
(f) requirements affecting the use of equipment and equipment that are an integral part of the service delivery, with the exception of those required for occupational health and safety;
(g) restrictions on the free provision of services referred to in section 23.
Art. 16. Section 15 does not apply:
1° to services of general economic interest;
2° to the materials covered by the Act of 5 March 2002 transposing Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the detachment of workers carried out in the context of a service provision and establishing a simplified regime for the holding of social documents, by companies that detach workers in Belgium, and according to the rules that the Act of 5 March 2002 determines;
3° to substances covered by Part II, Book III, Title Ierbis, Chapter I^er the Judiciary Code;
4° to debt collection activities;
5° to substances covered by the Act of 12 February 2008 establishing a new general framework for the recognition of CE professional qualifications and specific provisions prescribing requirements for an activity to a particular profession;
6° to the substances covered by Regulation (EEC) No 1408/71 of 14 June 1971 of the Council of the European Communities concerning the application of social security schemes to wage workers, non-workers and members of their families moving within the Community;
7° to the administrative formalities provided for in sections 40 to 47 of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens, and sections 43 to 57 of the Royal Decree of 8 October 1981 concerning access to territory, residence, establishment and removal of aliens;
8° with respect to third-country nationals who travel to Belgium as part of a service delivery, at the faculty of the competent authorities to request a visa or residence permit for third-country nationals who are not covered by the mutual recognition regime provided for in Article 21 of the Schengen Agreement Implementation Agreement of 14 June 1985 relating to the gradual removal of the controls at the common borders, or at the time of the mandatory removal of the nationals
9° with respect to waste transfers, to substances covered by Council Regulation (EEC) No. 259/93 of 1^er February 1993 concerning the monitoring and control of waste transfers at the entrance and exit of the European Community;
10° in respect of copyright and neighbouring rights, rights on topography of semiconductor products, sui generis rights on databases, industrial property rights;
11° to acts for which the law requires the intervention of a notary;
12° to the substances covered by the Royal Decree of 21 April 2007 on the transposition of provisions of Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on the legal controls of the annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC;
13° to substances covered by articles 132, 133 and 134 of the Corporate Code;
14° to the registration of vehicles taken in leasing in another Member State of the European Union.
Art. 17. § 1^er. By derogation from section 15, and only in exceptional circumstances, the competent minister or his delegate may take, against a provider who has his or her place of business in another Member State, measures relating to the security of services, in accordance with the conditions and procedures that are applicable for the taking of similar measures against providers who have their place of business in Belgium. These measures may be taken only in accordance with the mutual assistance procedure provided for in Article 39 and if the following conditions are met:
1° the provisions under which the measures are taken have not been subject to community harmonization in the area of service safety;
2° the measures are more protective for the recipient than the measures taken by the Member State of establishment under its national provisions;
3° the member state of establishment has not taken any measures or has taken insufficient measures against those referred to in Article 39;
4° the measurements are proportioned.
§ 2. § 1^er does not affect provisions that, under or under Community law, guarantee the free movement of services or permit exemptions from services.
CHAPTER 4. - Quality of services, information and transparency
Art. 18. § 1^er. Any provider shall, in the manner referred to in Article 19, provide the following information to the recipients:
1° its name or its name;
2° its legal form;
3° the geographical address where the provider is established;
4° its contact information, including its possible e-mail address, allowing for rapid contact and direct and effective contact with it;
5° the company number;
6° its head office;
7° in the event that the activity is subject to an authorization regime, an authorization or declaration obligation, in accordance with section 17 of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing, the contact information of the competent authority or the business window;
8° with respect to regulated professions:
(a) the professional association or professional organization to which the provider is registered;
(b) the professional title and the Member State in which it was granted;
9° the general conditions and general clauses in case the provider uses them;
10° the existence, in the case where the provider uses it, of contractual clauses concerning the law applicable to the contract and/or the competent court;
11° the existence of any possible after-sales contractual guarantee, not imposed by law;
12° the price of the service, when the price is first determined by the provider for a particular type of service;
13° the main characteristics of the service;
14° the insurance or guarantees referred to in Article 8, including the coordinates of the insurer or the guarantor and the geographic coverage.
§ 2. When service providers submit their services in a detailed information document, they include information on their multidisciplinary activities and partnerships that are directly related to the service concerned and on measures taken to avoid conflicts of interest.
Art. 19. At the initiative of the provider, the information referred to in Article 18, § 1^er :
1° shall be communicated to the consignee;
2° is made easily accessible to the recipient in the place of the performance or conclusion of the contract;
3° is made easily accessible to the recipient electronically by means of an address communicated by the provider;
4° is included in any information document of the provider detailing their services.
Art. 20. At the request of the recipient, the provider shall provide the following additional information:
1° where the price is not previously determined by the supplier for a particular type of service, the price of the service or, where an exact price cannot be indicated, the method of calculating the price allowing the recipient to verify the service, or a sufficiently detailed estimate;
2° with respect to regulated professions, a reference to applicable professional rules and means of access;
3° information on its multidisciplinary activities and partnerships that are directly linked to the service concerned and on measures taken to avoid conflicts of interest;
4° the codes of conduct to which the provider is subjected and the address to which these codes can be accessed electronically, specifying the available language versions.
Art. 21. The information referred to in Article 18 and 20 shall be made available or communicated in a clear and unambiguous manner, and in a timely manner before the contract is entered into, or before the service is provided where there is no written contract.
Art. 22. The provisions of this chapter shall not prejudice the additional information requirements applicable to providers with their establishment in Belgium.
CHAPTER 5. - Prohibited requirements for recipients
Art. 23. Recipients are not subject to requirements restricting their right to use a service provided by a service provider in another Member State. These requirements include:
1° the obligation to obtain authorization from the competent authorities or to make a declaration with the competent authorities;
2° the discriminatory limits on the provision of financial assistance on the basis that the provider is established in another Member State or for reasons related to the location of the place where the service is provided.
Paragraph 1^er does not apply to licensing regimes that also apply to the use of a service provided by a provider established in Belgium.
Art. 24. Recipients are not subject to discriminatory requirements based on nationality or place of residence.
The general terms and conditions of access to a service, which are made available to the public by the provider, do not contain discriminatory conditions due to the nationality or place of residence of the recipient, without prejudice to the possibility of foreseeing differences in terms of access where these conditions are directly justified by objective criteria.
CHAPTER 6. - Settlement of disputes
Art. 25. Providers provide their contact information, including a postal address, a fax number or an e-mail address, and a telephone number, where all recipients, including those residing in another EU Member State, may direct a claim or request information on the service provided.
Providers provide the address of their home or head office if it does not correspond to their usual address for correspondence.
Art. 26. Providers respond to Article 25 claims as soon as possible and are diligent in finding a satisfactory solution.
Art. 27. When a code of conduct, an association or a professional body provides for the use of alternative dispute resolution means, providers subject to such a code or member of such an association, such an organization shall be required to inform the recipient of the code and to mention it in any document detailing their services, indicating how to access detailed information on the characteristics and conditions of use of such means.
Art. 28. Providers are required to demonstrate compliance with the requirements set out in sections 18 to 21 and 25 to 27 and the accuracy of the information provided.
CHAPTER 7. - Administrative cooperation
Art. 29. § 1^er. The competent Belgian authority shall, within the limits of its competence, communicate to the competent authority of another member State, upon request, any relevant information available to it regarding a provider and/or its services.
It communicates the information requested regarding, inter alia, the establishment and legality of the proposed activities.
§ 2. The competent Belgian authority shall conduct, within the limits of its competence, audits, inspections, investigations concerning a service provider or its services, which are requested by the competent authority of another member State through a reasoned request.
It may decide the most appropriate measures to be taken in each case of a species to meet the request of a competent authority of another Member State.
Art. 30. § 1^er. The competent Belgian authority shall, within the limits of its competence, communicate to the competent authority of another Member State, which shall so request, the final decisions relating to disciplinary or administrative sanctions of a professional nature, in accordance with the rules established by the particular legislation or regulations for such transmission.
It also communicates, within the limits of its competence and in accordance with Book II, Part VII, Chapter I^er the Code of Criminal Investigation, information relating to definitive criminal penalties of a professional nature, and any final judgement concerning insolvency within the meaning of Schedule A to Regulation EC 1346/2000, or fraudulent bankruptcy of a provider.
The communication mentions the legal or regulatory provisions that are breached.
§ 2. This communication is carried out in accordance with the provisions for the protection of personal data and the rights of persons punished or convicted, including those established by a professional order.
§ 3. The competent Belgian authority which communicates such decisions shall inform the provider.
Art. 31. The information requested under sections 29 and 30 or the results of the audits, inspections or investigations are communicated, as soon as possible and via the electronic information exchange system.
Art. 32. The competent Belgian authority, which, for legal or practical reasons, cannot comply with the request for information or verifications, inspections or investigations, shall inform the competent authority of the other Member State as soon as possible by indicating the reasons that oppose the request. If, after notification of this refusal, the latter cannot reach the point of view of the competent Belgian authority and that no solution can be found, this finding is communicated for information to the Federal Coordinator.
Art. 33. The competent authority of another Member State may obtain access to registers accessible to the competent Belgian authorities and according to the same conditions.
Art. 34. § 1^er. The competent Belgian authority who wishes a competent authority of another Member State to provide information or conduct verifications, inspections or investigations concerning a service provider or its services, shall submit a reasoned request to the competent Belgian authority through the electronic information exchange system.
§ 2. If the competent authority of the other Member State does not satisfy the request and no solution can be found, the competent Belgian authority shall inform the Federal Coordinator of the request.
Art. 35. The information exchanged can only be used for the purpose for which it has been requested.
Art. 36. § 1^er. The competent Belgian authority carries out its monitoring missions to the providers established in Belgium, including when the service is taken in another Member State or caused damage in that other Member State.
§ 2. This obligation does not extend:
1° to the monitoring of the specific requirements imposed on any provider by the Member State where the service is provided, regardless of the place of establishment of the provider;
2° to the exercise of controls in the territory of the Member State where the service is preceded.
These controls are carried out by the authorities of the Member State in which the provider operates temporarily, at the request of the competent Belgian authority, in accordance with Article 34.
Art. 37. A competent Belgian authority may not, in respect of an unestablished provider in Belgium, initiate verifications, inspections and investigations in Belgium unless these are non-discriminatory, are not motivated by the fact that it is a provider with its establishment in another Member State and are proportionate.
Art. 38. § 1^er. When the competent Belgian authority becomes aware of any behaviour, serious and specific facts or circumstances related to a service provider or activity, which may cause serious harm to the health or safety of persons or to the environment, it informs, through an alert coordinator, the Member States and the European Commission via the electronic information exchange system and the Federal Coordinator.
§ 2. When an alert has to be modified or no longer justified, the competent Belgian authority shall inform it through an alert coordinator, the European Commission and the Member States via the electronic information exchange system and the federal coordinator.
§ 3. The procedure described above applies without prejudice to judicial proceedings.
Art. 39. § 1^er. The competent Belgian authority which envisages adopting measures to ensure the security of the services presumed in Belgium pursuant to Article 17, § 1^er, shall apply to the competent authority of the establishment member State by providing all relevant information on the service in question and the circumstances of the case through the electronic information exchange system.
§ 2. Upon receipt of the response from the Member State of establishment or in the absence of a response within a reasonable period of time, the competent Belgian authority shall communicate, as appropriate, its intention to adopt measures to the European Commission and the Member State of Settlement via the electronic information exchange system and to the Federal Coordinator.
The communication states:
1° the reasons why the competent authority considers that the measures proposed or adopted by the Member State of establishment are insufficient;
2° the reasons for which it considers that the measures envisaged comply with the conditions laid down in Article 17, § 1^er.
§ 3. The measures may be adopted only fifteen working days after a notification, in accordance with § 2, has been addressed to the Member State and the European Commission.
§ 4. In the event of an emergency, the competent Belgian authority may waive paragraphs 1^er, 2 and 3. In this case, the measures adopted are notified to the European Commission and the Member State of Settlement, indicating why the authority considers that there is an emergency.
§ 5. The procedure described above applies without prejudice to judicial proceedings.
Art. 40. This chapter does not prejudice the cooperation in information resulting from the implementation of Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the detachment of workers carried out as part of a service delivery.
CHAPTER 8. - Protection of personal data
Art. 41. The purpose of the exchange of data referred to in Chapter 7 of this Law is good administrative cooperation between Member States, the control of service providers and their services, and the application of regulations relating to service activities.
Art. 42. § 1^er. For the exchange of personal data, each competent Belgian authority is a controller.
§ 2. The processing officer shall provide the data subject, upon registration of the data or, if a data communication to a competent authority of another Member State is considered, at the latest at the time of the first communication of the data, the following information, unless the person is already informed:
1° the name and address of the person responsible for the treatment and, where applicable, his representative;
2° the purposes of the treatment;
3° more additional information, including:
(a) the relevant data categories;
(b) recipients or categories of recipients;
(c) the existence of a right of access and rectification of the data concerning it.
§ 3. The person responsible for the treatment or, where appropriate, his or her representative shall:
1st make every effort to keep the data up to date, to correct or delete inaccurate, incomplete or not relevant data;
2° ensure that, for persons acting under its authority, access to data and treatment opportunities are limited to what these people need for the performance of their duties;
3° to inform persons acting under its authority of the provisions of this Act, as well as any relevant limitation relating to the protection of privacy with respect to the treatment of personal data.
Art. 43. § 1^er. The personal data are:
1° treated loyally and lawfully;
2° collected for the purpose referred to in section 41 of this Act and are not subsequently treated in a manner inconsistent with this purpose;
3° adequate, relevant and not excessive in relation to the purpose referred to in section 41 of this Act.
4° accurate and, if necessary, updated.
§ 2. It is the responsibility of the controller to ensure compliance with § 1^er.
Art. 44. The data processed are:
1° the personal data required for the identification of the provider;
2° data on disciplinary sanctions of a provider;
3° data on administrative sanctions of a provider;
4° data on the criminal sanctions of a provider;
5° the data of any final judgment concerning insolvency within the meaning of Schedule A to EC Regulation 1346/2000, or the fraudulent bankruptcy of a provider.
Art. 45. The competent Belgian authorities have only access to the personal data referred to in Article 44 of this Act.
They are subject to confidentiality and subject to professional confidentiality.
Art. 46. § 1^er. The personal data referred to in Article 44 of this Law shall be communicated only to the competent authorities of other Member States.
§ 2. If it turns out that inaccurate personal data has been transmitted or that personal data has been transmitted unlawfully, the recipient is informed immediately.
Data of an inaccurate or unlawfully transmitted personal character shall be corrected, deleted or locked without delay in accordance with Article 4, § 1^er4° of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing.
Art. 47. § 1^er. The personal data processed by the competent Belgian authority are retained:
1° the time necessary to achieve the purposes referred to in section 41 of this Act;
2° as long as the specific legislation of the competent Belgian authorities provides.
The personal data exchanged between the competent authorities of the Member States are deleted by the competent Belgian authority receiving data six months after the official closure of an exchange of information.
§ 2. Personal data and information exchange may be retained for statistical purposes for longer periods provided that all personal data are made anonymous.
The King determines the modalities of anonymization.
Art. 48. Measures are taken by each competent Belgian authority to ensure safety:
1° at the entrance of the premises where the data processing facilities are located;
2° memory of computers processing data;
3° of the materials on which the data is stored;
4° of the introduction of data;
5° availability of data processing;
6° of data communication;
7° access to data processing;
8° data archiving mechanisms;
9° as to the choice of technical standards used for data backup and communication.
Art. 49. In accordance with sections 10 and 12 of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing, the persons concerned have the following rights:
1° The person concerned who demonstrates his or her identity has the right to obtain from the controller:
(a) Confirmation that data relating to it is or are not processed, as well as information relating at least to the purposes of the processing, the categories of data on which it bears and the categories of recipients to which the data are communicated;
(b) the communication, in an intelligible form, of data subject to the processing, as well as any information available on the origin of the data;
(c) a warning of the ability to exercise the remedies provided for in sections 12 and 14 of the Privacy Act of 8 December 1992 with respect to personal data processing.
To this end, the person concerned shall send an application dated and signed to the controller.
The information shall be communicated without delay and no later than forty-five days after receipt of the request.
2° Any person has the right to obtain without charge the rectification of any inaccurate personal data concerning him or her.
3° Any person also has the right to obtain without charge the deletion or prohibition of the use of any personal data concerning him or her that, in the light of the purpose of the processing, is incomplete or non-relevant or whose registration, communication or retention is prohibited or that has been retained beyond the authorized period.
To exercise the rights referred to in 2° and 3°, the person concerned shall apply to the person responsible for the treatment.
The person responsible for processing shall communicate to the person concerned any corrections or deletion of the data within the month following the introduction of the request.
CHAPTER 9. - From the warning procedure
Art. 50. Where it is found that an act constitutes an offence to this Act or that it may give rise to a cessation action in accordance with Article 2 of the Act of 26 March 2010 on services on certain legal aspects referred to in Article 77 of the Constitution, the agent commissioned by the Minister who has the Economy in his or her powers, pursuant to Article 52, may send a warning to the offender to put an end to the act.
The warning shall be notified to the offender within three weeks of the date of the finding of the facts, by registered letter to the position with acknowledgement of receipt or by a copy of the notice of the facts.
The warning mentions:
1° the facts charged and the legal provisions infringed;
2° the period in which it must be terminated;
3° that, in the event that the notice is not followed, either an action on termination shall be constituted in accordance with section 2 of the Act of 26 March 2010 on services on certain legal aspects referred to in article 77 of the Constitution, or the agents commissioned under section 52, may notify the Crown Prosecutor or apply the settlement by way of a transaction under section 53;
4° that the offender's commitment to ending the offence may be made public.
This article is not applicable to holders of a liberal profession.
CHAPTER 10. - Criminal sanctions
Art. 51. A fine of 250 to 10,000 euros shall be punished, those who commit an offence under article 18 to 21 and 24 to 27.
A fine of 500 to 20,000 euros is punishable, those who in bad faith commit an offence to the provisions of articles 18 to 21 and 24 to 27.
Art. 52. § 1^er. Without prejudice to the powers of judicial police officers, officials commissioned by the Minister of Economy in his or her powers are competent to search for and observe the offences referred to in articles 18 to 21 and 24 to 27. The minutes issued by these officers are held to prove the contrary. A copy is sent to the offender, by registered letter to the position with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the exercise of their function, the agents referred to in § 1^er may:
1° enter, during the usual hours of opening or working, in the premises and rooms whose access is necessary for the fulfilment of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° seize, against receipt, the documents, documents or books that are necessary to prove an offence or to search for co-authors or accomplices of offenders; the seizure is waived in full right without confirmation by the Public Prosecutor ' s Office within fifteen days;
4° if they have reason to believe that an offence exists, enter the inhabited premises, with the prior authorization of the judge of the police court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
§ 3. In the exercise of their function, the agents referred to in § 1^er may require police assistance.
§ 4. Without prejudice to their subordination to their superiors in the administration, the commissioned officers shall exercise the powers granted to them by this section under the supervision of the Attorney General with regard to the tasks of investigating and apprehending the offences referred to in this Act.
§ 5. In case of application of Article 50, the minutes referred to in § 1^er is transmitted to the King's Prosecutor only when it has not been given following the warning.
In the event of the application of section 53, the minutes are transmitted to the King's Prosecutor only when the offender has not accepted the proposed transaction.
Art. 53. The officers commissioned for this purpose by the Minister with the Economy in his or her powers may, in the light of the minutes which found an offence under articles 18 to 21 and 24 to 27, and drawn up by the agents referred to in section 52, propose to the offenders the payment of an amount that extinguishes the public action.
The rates as well as the payment and collection modalities are fixed by the King.
The amount set out in paragraph 1^er shall not exceed the maximum of the fine provided for in section 51, paragraph 1^er of this Act, plus additional decimals.
The payment made within the specified time limit extinguishes the public action unless previously, a complaint has been sent to the King's Prosecutor, the investigating judge has been required to instruct or the court has been seized of the fact. In these cases, the amounts paid are returned to the offender.
CHAPTER 11. - Entry into force
Art. 54. This Act comes into force on December 28, 2009.
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 26 March 2010.
ALBERT
By the King:
Minister for Business and Simplification,
VAN QUICKENBORNE
Minister of P.M.E., Independents, Agriculture and Science Policy,
Mrs. S. LARUELLE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) Documents of the House of Representatives:
52-2338 - 2009/2010:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted in plenary and transmitted to the Senate.
Full report: 4 February 2010.
Documents of the Senate:
4-1643 - 2009/2010:
Number 1: Project referred to by the Senate.
Number two: Report.
No. 3: Decision not to amend.
Annales of the Senate: March 4 and 11, 2010.