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Miscellaneous Provisions Act On Electronic Communications (1)

Original Language Title: Loi portant des dispositions diverses en matière de communications électroniques (1)

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belgiquelex.be - Carrefour Bank of Legislation

18 MAI 2009. - Miscellaneous Electronic Communications Act (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
This Act provides for the partial transfer 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 (Directive " Framework") (JOCE 24 April 2002, L 108/33);
- 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") (JOCE 24 April 2002, L 108/21);
- Directive 2002/19/EC of the European Parliament and the Council of 7 March 2002 on access to electronic communications networks and associated resources (Directive Access) (JOCE 24 April 2002, L 108/7);
- 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") (JOCE 24 April 2002, L 108/51);
- Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications sector (directive privacy and electronic communications) (JOCE, 31 July 2002, L 201/37);
- Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on hertz equipment and telecommunications terminal equipment and mutual recognition of their compliance (JOCE L 91 of 7 April 1999, L 91/10).
CHAPTER 1er. - Amendments to the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors
Art. 2. Article 14, § 2, of the Law of 17 January 2003 on the Status of the Regulator of the Belgian Post and Telecommunications Sectors, as amended by the Laws of 22 December 2003, of 13 June 2005, of 20 July 2005, of 20 July 2006, of 21 December 2006, of 16 March 2007, and of 25 April 2007 is supplemented by a 6°, as follows:
"6° may, in accordance with the reasons for the cancellation and without altering the scope of its application, make the remediation of a decision cancelled by a juridicitional authority when, as a result of this cancellation, one or more of the objectives referred to in sections 6 to 8 of the law of June 13, 2005 on electronic communications are no longer realized. »
Art. 3. In Article 17, § 3, paragraph 2, of the Act, the words "two years" are replaced by the words "one year".
Art. 4. In Article 20, § 1er, of the same law, the words "without the latter being able to exceed two months" are replaced by the words "without the latter being able to initially exceed two months. The total duration of the interim measures may be extended to a maximum of four months, with the Commission ' s motivation to extend the initial period. »
Art. 5. Section 21 of the Act, as amended by the Act of 25 April 2007, is replaced by the following:
« § 1er. Subject to section 21/1, in the event of a violation of the legislation or regulations under which the Institute monitors compliance, the Council shall notify the offender of his or her grievances and the amount of the administrative fine for the benefit of the public treasury of a maximum amount of 5,000 euros for natural persons or of not more than 5% of the turnover of the offender during the full year of reference most recent in the field of electronic communications in Belgium.
§ 2. The Commission determines the time available to the offender to consult the file and to submit its written comments. This period may not be less than 10 working days.
§ 3. The offender is invited to appear on the date fixed by the Commission and communicated by registered letter. He can be represented by the council of his choice.
§ 4. The Commission may hear any person who may make a valuable contribution to its information, either on its own or at the request of the offender.
§ 5. The Council shall render a decision within sixty days of the closure of the proceedings.
This decision is notified to the individual by registered letter and to the Minister and published on the Institute's website. »
Art. 6. In the same Act, an article 21/1 is inserted, as follows:
"Art. 21/1. § 1er. By derogation from Article 21, where the Council finds an offence to the obligations imposed by or under Articles 9, §§ 1er and 3, 11, § 3, 18, § 1er51, § 2, paragraph 1er, 56, § 2, and 57 to 65, of the Act of 13 June 2005 on electronic communications, it shall send to the offender a draft decision on administrative fine by inviting him to terminate the offence within a time limit set by the Council. This period may not be less than one month from the date of notification of the draft decision unless the offender agrees.
§ 2. The offender has at least twenty days to consult the file and submit his written submissions. The Commission may extend this period.
In the event of repeated offences, the Institute may set a shorter time limit.
§ 3. If, at the end of the period referred to in § 1er the offender has not terminated the offence, the Council may impose the administrative fine referred to in Article 21, § 1er.
Article 21, §§ 3 and 4, applies to the decision referred to in paragraph 1er.
§ 4. When the offences are serious or repeated and the measures taken in accordance with § 1er and 3 could not remedy this, the Commission may, after hearing the offender, order the suspension of all or part of the operation of the network or the provision of the telecommunications service and the marketing or use of any service or product concerned. »
§ 5. The decision referred to in § 4 shall be communicated to the offender within one week of its adoption.
The Commission sets the offender a reasonable time to comply. »
Art. 7. Article 23, § 3, of the same law is supplemented by the following paragraphs:
"When the confidential nature of the data provided by the company or some of them appears doubtful, the Institute asks the company to motivate its view of considering the information concerned as confidential within the meaning of Article 6, § 1er, 7°, of the Act of 11 April 1994 on the advertising of the administration.
If the company fails to communicate the requested motivation, or when the company considers the information determined to be confidential within the meaning of Article 6, § 1, 7°, of the Act of 11 April 1994, the Institute may, in a reasoned manner and after hearing the company concerned, disclose such information, provided that it is not confidential by nature or under the law. »
CHAPTER 2. - Amendments to the Electronic Communications Act of 13 June 2005
Art. 8. Section 2 of the Electronic Communications Act of 13 June 2005, as amended by the Acts of 20 July 2005, 27 December 2005, 20 July 2006, 21 December 2006 and 25 April 2007, are amended as follows:
1° the 58° is replaced as follows:
"58° "emergency service": any public service or public interest referred to in Article 107, § 1erParagraph 1eror fixed by the King in accordance with Article 107, § 1erparagraph 2, 1°;
2° in 59° the words "107, § 1er, 2°" are replaced by the words "107, § 1er2°;
3° in 65° the word "primary" is inserted between the words "any educational institution" and "secondary".
Art. 9. Article 26, § 1er, paragraph 1 of the same law, the words "substantial in terms of shared use" are inserted between the words "part" and "site".
Art. 10. Section 29 of the Act is added to a paragraph 3, which reads as follows:
Ҥ3. The Institute publishes annually a detailed overview of the Institute's administrative costs and the total amount of royalties collected.
The terms of this summary will be specified by a royal decree deliberated in the Council of Ministers. »
Art. 11. Article 33, § 1erthe following sentence is added in fine:
"If the Institute imposes a ban or limitation until the market is put on the market, it immediately informs the European Commission. »
Art. 12. The following amendments are made to section 51 of the Act:
1° to paragraph 1 of paragraph 1erthe words "in order to promote appropriate access in accordance with what is stipulated in this title and" are inserted between the word "heard" and the words "in order to guarantee";
2° in paragraph 1, the words "always and its own initiative" are inserted between the words "the Institute can" and the words "impose";
3° the second paragraph of paragraph 2 is supplemented by the words "or to ensure that persons referred to in Article 115, as well as public administrations, police services and international institutions are or remain accessible. »
Art. 13. In section 52, paragraph two, of the same law, the word "access" is replaced by the word "interconnection".
Art. 14. The following amendments are made to section 53 of the Act:
1° paragraph 1 is supplemented by the words "or an access agreement";
2° to paragraph two, the words "and any access agreement" are inserted between the words "Any interconnection agreement" and the word "is".
Art. 15. The following amendments are made to section 55 of the Act:
Paragraph 4/1, to read:
§ 4/1. The Institute sends its decisions referring to this paragraph, prior to the Conseil de la concurrence, which, within thirty days of the submission of the draft decision by the Institute, issues an opinion on whether the decisions proposed by the Institute are consistent with the objectives of competition law. After this period, the silence of the Conseil de la concurrence is equivalent to approval of the above-mentioned draft decision. »;
2° the following modifications are made to paragraph 5:
(a) the words "from the sending of the draft decisions by the Institute", preceded and followed by a comma, are inserted between the words "30 calendar days" and the words "issue a binding opinion";
(b) the word "projected" is inserted between the words "decisions" and the words "of the Institute";
(c) the word "decision" is replaced by the word "decision draft".
Art. 16. The following amendments are made to section 56 of the Act:
1° in paragraph 1er, the 3° provision is replaced as follows:
"3° ensure compliance with the access requirements of end-users of other Member States with non-geographical Belgian numbers, portability of numbers as well as European access codes and call processing for the European telephone space; »;
2° in paragraph 2, the words "the King, after the opinion of the Institute", are replaced by the words "the Institute".
Art. 17. In section 58 of the Act, the number "4" is replaced by the number "4/1".
Art. 18. In section 59 of the Act the number "4" is replaced by the number "4/1".
Art. 19. Article 60, § 1erthe following amendments are made:
1° in paragraph 1, the words "in accordance with the terms fixed by the King, and" are deleted and the number "4" is replaced by the number "4/1";
Paragraph 2 is replaced as follows: "The Institute specifies the accounting model and methodology to be used by the operator referred to in paragraph 1";
3° in the second sentence of paragraph 4, the words "on the basis of the conclusions of" are replaced by the words "after".
Art. 20. Article 61, § 1er, paragraph 1 of the Act, the number "4" is replaced by the number "4/1".
Art. 21. The following amendments are made to section 62 of the Act:
1° in paragraph 1erin paragraph 1 the number "4" is replaced by the number "4/1";
2° in paragraph 4, the words "on the basis of the conclusions of" are replaced by the words "after".
Art. 22. Article 63, paragraph 2, is supplemented by the following sentence:
"When the Institute plans to impose the offer of these functions, it takes into account the elements referred to in Article 61, §2. »;
Art. 23. In section 64 of the Act, paragraph 2, paragraph 2, is deleted.
Art. 24. In section 65, paragraph 1 of the Act, the number "4" is replaced by the number "4/1".
Art. 25. The following amendments are made to section 107 of the Act:
1° Paragraph 1er a. 1er new text is inserted as follows:
"For the purposes of this Act, the following services are considered emergency services:
a. emergency services providing on-site assistance:
1° emergency medical service;
2° fire services;
3° police services;
4° Civil protection;
b. emergency services offering remote assistance:
1° the poison centre;
2° suicide prevention;
3° reception centres;
4° childcare services;
5° the European Centre for Missing and Sexually Exploited Children. »;
2° In paragraph 1er, in part 1 of old paragraph 1 which becomes paragraph 2, is inserted between the word "the" and the word "public services" the word "others";
3° § 2 is replaced as follows:
Ҥ2. Emergency service management stations offering on-site assistance are free to obtain the identification data of the caller of the relevant operators as it is technically feasible.
This obligation is also enforceable when emergency service management stations offering on-site assistance are operated by an organization that is responsible for this task by the public authorities.
The identification of the appellant may be used by emergency services providing on-site assistance or by the organization that is responsible for the operation of emergency service management facilities by the public authorities, using administrative and technical measures approved by the Minister on the advice of the Institute and the Commission for the Protection of Privacy, in order to combat malicious calls or the misuse of emergency numbers. These measures may not, however, result in an unavailability of the emergency service's emergency number from a specific connection for an uninterrupted period exceeding twenty-four hours.
Emergency service management stations offering remote assistance are free of charge from the operators concerned to identify the calling line available on the operator's network, in order to be able to process emergency calls and combat malicious calls, even if the user has undertaken steps to prevent the sending of the identification. The format for identifying the caller line provided must conform to applicable ETSI standards and is defined by the Institute in consultation with emergency services and operators.
The identification of the caller line may be used by remote emergency services, using administrative and technical measures approved by the Minister on the advice of the Institute and the Privacy Commission, in order to combat malicious calls. These measures may not, however, result in an unavailability of the emergency service's emergency number from a specific connection for an uninterrupted period exceeding twenty-four hours. »;
4° the article is supplemented by paragraphs 4 and 5, as follows:
Ҥ4. When operators apply new technologies or technologies on their networks, thus requiring technical adaptations to emergency service management stations in order to be able to process the data that must be provided by the operators in accordance with the obligation provided for in paragraph 2, the costs of these adaptations are borne by the operators. The costs to be borne by the operators bear, in addition to the costs of adaptation within their own network, only on the costs of investment, operation and maintenance that can be directly attributed to the development of central interfaces in the emergency services management plants that are used as part of the compliance requirement set out in the second paragraph.
The investment, operation and maintenance costs related to the database with the identification data of subscribers to the fixed telephone service and the access lines used to view this database are included in the costs referred to in the preceding paragraph.
If an operator offers its own commercial services for the provision of location data to subscribers, then the accuracy of the location data that are part of the caller's identification during an emergency call and that must be provided on-site to emergency services in accordance with paragraph two and the speed at which they are transmitted to the emergency service concerned must be at least equal to the best quality offered at the commercial level by that operator.
The obligations contained in this paragraph are also applicable when emergency service management stations providing on-site assistance are operated by an organization that is responsible for this task by the public authorities.
§ 5. An emergency services fund is created to manage and reimburse the costs referred to in § 4 for emergency services. This fund has legal personality and is managed by the Institute.
The costs for the adaptation of the management stations and the necessary systems related to the execution of their missions resulting from the introduction of a new technology or technology are distributed among the stationary operators concerned proportionally to the number of termination points of the network by which services were offered by each of these operators as of 1er September of the previous year, and the mobile operators concerned proportionally to the number of active users to whom these same services were offered on the same date. The network termination point for the application of this paragraph means the physical point by which a end user obtains access to a public electronic communications network; in the case of networks using switching and routing, the network termination point is determined by a specific network address. The first year in which the operators concerned must make a contribution for a given new technology or technology, the contribution in question is distributed among the fixed operators concerned proportionally to the number of termination points of the network by which services were offered by each of these operators as of 1er September of the same year, and the mobile operators concerned proportionally to the number of active users to whom these same services were offered on the same date.
Operators who are required to contribute, impact their participation in costs on operators who observe in whole or in part via the operator in question their legal obligations in relation to collaboration with emergency services.
The costs of managing the emergency services fund are borne by the operators who contribute to the fund in proportion to their contribution set out in the previous paragraph.
The King sets out by royal decree deliberated in the Council of Ministers, on the proposal of the Minister in charge of emergency services providing on-site assistance and the Minister in charge of electronic communications, after the Institute's opinion, the modalities for the operation of this fund. The King predetermined by a royal decree deliberated in the Council of Ministers in an objective and transparent manner the parameters on which costs are determined. The calculation and the amount of costs are verified and approved by the Institute on the basis of the principles established by the King. The total amount of contributions from operators to the fund can never exceed the amount of approved costs. The King sets out by royal decree deliberated in the Council of Ministers of Rules in order to avoid overcompensation and, if necessary, the reimbursement of it. »
Art. 26. Article 110, § 1erin the same law, the words "with a maximum of five numbers" are inserted between the words "to subscribers" and the words "a detailed invoice".
Art. 27. The following amendments are made to Article 123, § 5 of the Act:
1° The words "emergency medical services and police services" are replaced by the words "emergency services providing on-site assistance";
2° The words "at the request of the relevant management stations and to allow the handling of the emergency call" are replaced by the words "to allow the processing of the emergency call by the relevant management stations".
Art. 28. In article 130, § 3, of the same law, the word "final" is inserted between the words "cancelled by the user" and the words "or the calling subscriber".
Art. 29. The following amendments are made to section 130, § 7, of the Act:
1° The first paragraph is repealed;
2° In the second paragraph, the words "in order to respond to emergency calls" are replaced by the words "in order to allow emergency calls to be processed by the relevant emergency management stations".
Art. 30. In section 134, § 2, of the Act, the following amendments are made:
1° paragraph 2 is supplemented by the following sentence:
"The Code of Ethics for Telecommunications also sets out the terms and conditions under which operators cooperate in the investigation of an alleged offence committed by a person who provides a pay service via an electronic communications network and the execution of the decisions of the Commission of Ethics for Telecommunications. »;
2° Paragraph three is replaced as follows:
"People who offer pay services through electronic communications networks and operators, for the collaboration referred to in paragraph two, are required to comply with the provisions of the Code of Ethics for Telecommunications. »
Art. 31. Article 141, paragraph 1er, 7°, of the same law, the number "52", preceded by a comma, is inserted between the number "51" and the word "and".
Art. 32. Section 24 of the Schedule to the Act of June 13, 2005 on electronic communications is replaced by the following: "The King may by royal decree deliberated in the Council of Ministers, following the advice of the Institute, establish the modalities for the geographical distribution of the number of public telephone stations. Otherwise, the provider freely determines the distribution of public telephone stations in accordance with section 23. »
CHAPTER 3. - Miscellaneous provisions
Art. 33. Section 93 of the Act of 20 July 2006 on various provisions is repealed.
CHAPTER 4. - Transitional provisions and provisions relating to entry into force
Art. 34. § 1er. Until the time when Article 107, § 5, paragraph 1, of the law of 13 June 2005 on electronic communications, introduced by Article 25, 4°, comes into force, the costs of which are referred to in Article 107, § 4, of the law of 13 June 2005 on electronic communications which relate to the respect by mobile operators of their obligations as described in Article 107, § 2, of that same law, are borne by these mobile operators.
The initial distribution of costs between mobile operators is therefore made to the pro rata of the number of active users of each of these mobile operators at 1er September 2008. For the purposes of this paragraph by active user, a user who has used one or more basic services of the mobile network over the past three months.
§ 2. Until the time that Article 107, § 5, paragraph 1, of the Act of 13 June 2005 on electronic communications, inserted by Article 25, 4°, comes into force, the costs of which are referred to in Article 107, § 4, of the Act of 13 June 2005 on electronic communications which relate to the respect by fixed operators of their obligations as described in Article 107, § 2, of that same law, are borne directly by fixed operators.
The initial distribution of costs among fixed operators referred to in the preceding paragraph is prorated to the number of termination points of the network by which services were offered by each of these operators on 1er September 2008. The network termination point for the application of this paragraph means the physical point by which a end user obtains access to a public electronic communications network; in the case of networks using switching and routing, the network termination point is determined by a specific network address.
Operators who, on the basis of this paragraph, are required to contribute, will impact their participation in the costs on operators who observe in whole or in part via the operator in question their legal obligations with respect to collaboration with emergency services.
§ 3. Until the time that Article 107, § 5, paragraph 1, of the Act of 13 June 2005 on electronic communications, inserted by Article 25, 4°, comes into force, the costs of which questioned in Article 107, § 4, of the Act of 13 June 2005 on electronic communications that relate to the compliance by mobile operators of their obligations as described in Article 107, § 2, of the same Law, are borne together by fixed operators
Art. 35. Article 107, § 5, paragraph 1, of the Act of 13 June 2005 on electronic communications, which is inserted by Article 25, comes into force on the first day of the fifth month following the publication of the Act to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, May 18, 2009.
ALBERT
By the King:
Minister for Business and Simplification,
VAN QUICKENBORNE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
Note
(1) Regular session 2008-2009.
House of Representatives.
Parliamentary documents. - Bill No. 1813/1. - Amendments, no. 1813/2. - Report made on behalf of the commission, no. 1813/3. - Text adopted in Commission No. 1813/4. - Text adopted in plenary and transmitted to the Senate, No. 1813/5.
Full report: 19 March 2009.
Senate.
Parliamentary documents. - Project not referred to by the Senate, No. 2-1248/1.