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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Posted the: 2009-06-04 Numac: 2009011237 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES average and energy may 18, 2009. -Miscellaneous Provisions Act on electronic communications (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
This Act provides for the partial transposition of:-Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications services and networks (framework directive) (OJ 24 April 2002, L 108/33);
-Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of networks and electronic communications services (authorisation directive) (OJ 24 April 2002, L 108/21);
-Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to electronic communications networks and associated facilities (access directive) (OJ 24 April 2002, L 108/7);
-Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and the rights of users with regard to networks and electronic communications services ('Universal Service' directive) (OJ 24 April 2002, L 108/51);
-Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the sector of electronic communications (directive on privacy and electronic communications) (OJEC, 31 July 2002, L 201/37);
-Directive 1999/5 / EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (OJ L 91 of 7 April 1999, L 91/10).
Chapter 1. -Amendments to the Act of 17 January 2003 relating to the status of the regulator of the sectors of posts and the Belgian telecommunications s.
2. article 14, § 2, of the Act of 17 January 2003 on the status of both positions and the Belgian telecommunications regulator, as amended by the laws of 22 December 2003, on 13 June 2005, July 20, 2005, July 20, 2006, December 21, 2006, March 16, 2007, and on April 25, 2007 is supplemented by a 6 ° as follows: "6 ° may proceed in accordance with the reasons for the cancellation and without changing the extent of its scope, to the rehabilitation of a decision set aside by a juridicitionnelle authority where, because of this cancellation, one or more of the objectives referred to in articles 6 to 8 of the Act of 13 June 2005 on communications electronic are more made. ''
» Art. 3. in article 17, § 3, paragraph 2, of the Act, 'two years' shall be replaced by the words "one year".
S. 4. in article 20, § 1, of the Act, the words "without that it does not exceed two months' are are replaced by the words"without that originally, it cannot exceed two months. The total duration of the provisional measures may be extended to a maximum of four months, subject motivation by the Council of the need to extend the initial time limit. » Art. 5. article 21 of the Act, as amended by the Act of April 25, 2007, is replaced by the following: "§ 1.» Subject to article 21/1, in the event of infringement to legislation or regulation including the Institute monitors compliance, the Council shall notify its grievances to the offender as well as the amount proposed by the administrative fine for the benefit of the public purse to a maximum of 5,000 euros for natural persons or 5% of the turnover of the offender during the full year of the most recent reference in Belgium for people electronic communications sector Morales.
§
2. The Council shall fix the period within which the offender to consult the file and submit its written comments. This period must not be less than ten working days.
§ 3. The offender is invited to appear on the date set by the Board and communicated by registered letter. It can be represented by counsel of his choice.
§ 4. The Board may hear any person that can meaningfully contribute to its information, or office, or at the request of the offender.
§
5. The Commission makes a decision within sixty days following the close of the debates.
This decision is notified to the person concerned by letter recommended as well as the Minister and published on the website of the Institute. » Art. 6. in the same Act, it is inserted an article 21/1, as follows: «art.» 21/1. § 1. By way of derogation from article 21, where the Council finds a contravention of obligations imposed by or by virtue of articles 9, §§ 1 and 3, 11, § 3, 18, § 1, 51, § 2, paragraph 1, 56, § 2, and 57 to 65 of Act of 13 June 2005 on electronic communications, it aimed at the offender a draft decision on administrative penalty to put an end to the infringement within a time set by the Council. This period may not be less than one month from the notification of the draft decision, except with the agreement of the offender.
§ 2.
The offender has at least 20 days to consult the file and submit its written comments. The Council may extend the time limit.
In the event of repeated infringements, the Institute can set a shorter deadline.
§ 3. If, at the end of the period referred to in the § 1 which was fixed, the offender did not end in the infringement, the Commission may impose the administrative penalty referred to in article 21, § 1.
Article 21, §§ 3 and 4 applies to the decision referred to in paragraph 1.
§ 4. Where the offences are serious or repeated and the measures taken in accordance with §§ 1 and 3 could not address them, the Council may, after hearing the offender, order the suspension of all or part of the operation of the network or the provision of the telecommunication service as well as the marketing or the use of any product or service concerned. »
§
5. The decision referred to in § 4 is communicated to the offender in the week following its adoption.
To the offender the Commission fixes a reasonable time to comply. » Art. 7. article 23, paragraph 3 of the same Act is supplemented by the following paragraphs: "when the confidentiality of the data provided by the company, or some of them, appears doubtful, the Institute asked the company to motivate his point of view to consider relevant information as confidential within the meaning of article 6, § 1, 7 ° of the advertising administration Act of 11 April 1994."
If the company fails to communicate motivation requested, or when the enterprise considers the specified as confidential information within the meaning of article 6, § 1, 7 ° of the law of 11 April 1994, the Institute may, reasons and after having heard the undertaking concerned, disclose such information, provided they are not confidential in nature or under the Act. "CHAPTER 2. -Amendments to act of 13 June 2005 on electronic communications arts. 8A article 2 of the Act of 13 June 2005 on electronic communications, as amended by the laws of July 20, 2005, December 27, 2005, 20 July 2006, December 21, 2006 and on April 25, 2007, the following changes are made: 1 ° the 58 is replaced by the following: ' 58 ° "emergency service": any public service or public interest referred to in article 107. «, § 1, paragraph 1, or fixed by the King in accordance with article 107, § 1, paragraph 2, 1 ° ";
2 ° in the 59 ° the words ' 107, § 1, 2 °» are replaced by the words "107, § 1, paragraph 2, 2 °";
3 ° in the 65 ° the word 'primary' is inserted between the words 'any institution of education' and 'secondary '.
S. 9A article 26, § 1, paragraph 1, of the Act "substantial shared utilization" is inserted between the words "a party" and "site".
S. 10. it is added to article 29 of the same Act § 3, as follows: "§ § 3 3» The Institute publishes every year a detailed overview of the administrative costs of the Institute and the total amount of collected royalties.
The terms of this overview will be provided by royal decree deliberated in the Council of Ministers. » Art. 11A article 33, § 1, of the Act, the following sentence is added in fine: «If the Institute imposed a ban or limitation to the placing on the market, it shall inform immediately the Commission.»
S.
12A section 51 of the Act, the following changes are made: 1 °-paragraph first of paragraph 1, the words "to promote appropriate access in accordance with what is stipulated in this title and" are inserted between the word "heard" and the words "to ensure";
2 ° to the first subparagraph of paragraph 2, the words always and on its own initiative"are inserted between the words ' Institute ' and the words 'require '.
3 ° the second subparagraph of paragraph 2 is supplemented by the words 'or to guarantee that the persons referred to in section 115, as well as public administrations, the police and international institutions are or remain accessible.'
S. 13 in article 52, paragraph two, of the same Act the word "access" is replaced by the word 'interconnection '.
S. 14 in article 53 of the same Act the following changes are made: 1 ° the first paragraph is supplemented by the words "or an agreement relating to access ';

2 ° to two paragraph, the words "and any access agreement" shall be inserted between the words "Any agreement relating to interconnection" and the word "is".
S.
15A section 55 of the Act, the following changes are made: 1 ° there shall be inserted a paragraph 4/1, as follows: § 4/1. The Institute sends its decisions referring to this paragraph, prior to the competition Council, which, within thirty days from the sending of the draft decision by the Institute shall issue an opinion on the question of whether the decisions planned by the Institute are consistent with the objectives of the competition law. After this time, the silence of the competition Council is equivalent to an approval of the above-mentioned draft decision.
»;
2 ° the following changes are made to the paragraph 5: has) the words ' as from the sending of the draft decisions by the Institute', preceded and followed by a comma, are inserted between the words "30 days calendar ' and the words 'deliver 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 'draft decision '.
S. 16A section 56 of the Act, the following changes are made: 1 ° to paragraph 1, the provision at 3 ° is replaced as follows: «3 ° to ensure compliance with the requirements relating to the access of end-users from other Member States to non-geographic numbers Belgian, portability of numbers as well as the codes of European access and processing intended for the European telephone area calls;»;
2 ° in paragraph 2, the words 'the King, after opinion of the Institute', are replaced by the words 'Institute '.
S. 17 section 58 of the Act, the number '4' is replaced by the number "4/1".
S. 18 section 59 of the Act the number '4' is replaced by the number "4/1".
S. 19A article 60, § 1, of the same law the following changes are made: 1 ° in the first paragraph, the words "in accordance with the procedures laid down by the King, and" are deleted and the number '4' is replaced by the number "4/1";
2 ° the two paragraph is replaced by the following: 'Institute specifies the model and methodology accounting to be used by the operator referred to in the first subparagraph. ";
3 ° in the second sentence of paragraph 4, the words "on the basis of the conclusions of" shall be replaced by the words "following the.
S. 20A article 61, § 1, paragraph 1, of the Act, '4' is replaced by the number "4/1".
S. 21A article 62 of the same Act the following changes are made: 1 ° in paragraph 1 to paragraph first, '4' is replaced by the number "4/1";
2 ° to operative paragraph 4, the words "on the basis of the conclusions of" shall be replaced by the words "following the.
S. 22. article 63, paragraph two, is supplemented by the following sentence: "When the Institute intends to apply these functions on offer, it takes including the elements referred to in article 61, § 2, into account.";
S. 23 A section 64 of the Act, paragraph 2, paragraph two, is deleted.
S. 24A article 65, paragraph 1, of the Act, the number '4' is replaced by the number "4/1".
S. 25A article 107 of the Act, the following changes are made: 1 °-paragraph 1 a new 1st paragraph worded as follows is inserted: ' for the purposes of this Act, the following services are considered to be emergency services: a. emergency services providing assistance on the spot: 1 ° the emergency medical service;
2 ° the fire service;

3 ° the police services;
(4) civil protection;
b. emergency services providing assistance remotely: 1 ° the poison control centre;
2 ° the prevention of suicide;

3 ° centres helplines;
4 ° child-listen services.
(5) the European Centre for missing and sexually exploited children. »;
2 ° in the paragraph 1, part 1 ° of former first paragraph which became paragraph two, is inserted between the word "the" and the word "public services" the word "other";
3 ° § 2 is replaced as follows: ' ' § § 2 2 Central management of emergency services providing assistance on the spot get free data for the identification of the appellant by the operators concerned insofar as this is technically feasible.
This obligation also apply when plants management of emergency services providing assistance on the spot are exploited by an organization that is responsible for this task by the public authorities.
The identification of the appellant can be used by emergency services providing assistance on the spot or by the organization which is responsible for the operation of the central management of emergency services by 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. However, these measures cannot lead to inaccessibility of the emergency number of the emergency in question from a specific connection for a continuous period exceeding 24 hours.
Central management of emergency services providing assistance remotely get free the operators concerned the identification of the calling line available on the network of the operators, in order to deal with emergency calls and to fight against malware, although calls the user has taken steps to prevent the sending of identification. The format of the provided calling line identification must comply with the relevant ETSI standards and is defined by the Institute in consultation with emergency services and operators.
Calling line identification can be used by emergency services providing assistance remotely, 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. However, these measures cannot lead to inaccessibility of the emergency number of the emergency in question from a specific connection for a continuous period exceeding 24 hours. »;
4 ° article is supplemented by paragraphs 4 and 5, to read as follows: "§ § 4 4» When operators apply new techniques or technologies on their networks, thus requiring technical adjustments to management of emergency services stations in order to process the data that must be provided by the operators in accordance with the obligation laid down in paragraph 2, the costs of these adaptations are borne by operators. The costs to be borne by the operators shall bear in addition to the costs of adaptations within their own network, only on the investment, operating and maintenance costs which can be directly attributed to the development of Central interfaces in emergency management plants that are used in compliance with the obligation set out in paragraph 2.
The investment, operating and maintenance costs relating to the database with the identification data of subscribers to fixed telephone service and access lines used to consult 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 location data which are part of the caller ID when calling emergency and which must be provided on-site to the emergency in accordance with paragraph two and the speed at which are passed on to the relevant emergency service must be at least equal to the best quality available at the commercial level by this operator.
The obligations contained in this paragraph shall also apply when plants management of emergency services providing assistance on the spot are exploited by an organization that is responsible for this task by the public authorities.
§ 5. An emergency fund is established to manage and repay the costs referred to in § 4 for emergency services. The Fund has legal personality and is managed by the Institute.
The costs for the adaptation of management stations and necessary systems related to the performance of their tasks resulting from the introduction of a new technique or technology are divided between the fixed operators concerned proportionally number of endpoints of the network by which the services have been offered by each of these operators as of 1 September of the previous year , and mobile operators concerned proportionally number of active users that these services were offered on the same date. Is meant by endpoint from the network for the purposes of this paragraph the physical point by which an end user gets access to a public electronic communications network; in the case of networks using switching and routing, network termination point is determined by a specific network address. The first year where the operators concerned must make a contribution for a new technique or specific technology, the contribution in question is distributed between fixed operators proportionally with the number of points

the network by which termination services have been offered by each of these operators as of 1 September of the same year, and the mobile operators concerned proportionally number of active users on which these services have been offered at the same date.
Operators who are required to contribute, affect their participation in costs on operators who observe their legal obligations in collaboration with emergency services in whole or in part via the operator in question.
Emergency services fund management fees are borne by operators who contribute to the Fund, proportionally to their contribution laid down in the preceding paragraph.
The King fixed by royal decree deliberated in Council of Ministers, on a proposal from the Minister in charge of emergency services providing assistance on the spot and the Minister in charge of electronic communications, after the opinion of the Institute, the modalities of operation of the Fund.
The King determines beforehand by royal decree deliberated in the Council of Ministers in an objective and transparent parameters on the basis of which the costs are determined. The calculation and the amount of the costs are verified and approved by the Institute based on the principles laid down by the King. The total amount of contributions from the Fund operators can never exceed the amount of the approved costs.
The King fixed by royal decree deliberated in the Council of Ministers rules in order to avoid overcompensation and, where applicable, the refund thereof. » Art. 26A section 110, § 1, of the Act, the words "with up to five numbers" are inserted between the words "Subscribers" and the words "a detailed invoice.
S. 27A article 123, § 5, of the Act, the following changes are made: 1 ° "medical emergency and policing services" shall be replaced by the words "emergency services providing assistance on the spot";
2 ° "at the request of the central management concerned and in order to allow processing of the emergency call' shall be replaced by the words" to allow processing of the emergency by management stations concerned.
S. 28 article 130, paragraph 3, of the Act, the word "final" is inserted between the words "user cancelled" and the words "or the subscriber calling".
S. 29A article 130, § 7, of the Act, the following changes are made: 1 ° the first paragraph is repealed;
2 ° in the second paragraph, the words «for the purpose of answering emergency calls» are replaced by the words "in order to enable the processing of emergency calls by the central management concerned of the emergency services".
S.
30A article 134, § 2, of the Act, the following changes are made: 1 ° two paragraph is supplemented by the following sentence: 'The Code of ethics for telecommunications fixed also the terms under which operators are collaborating in the investigation of an alleged offence committed by a person who provides a service paying via an electronic communications network and the implementation of the decisions of the Ethics Commission for telecommunications.';
2 ° three paragraph is replaced by the following: ' people who offer pay services via electronic communications networks and operators, for what concerns the collaboration referred to in paragraph two, are required to comply with the provisions of the Code of ethics for telecommunications. ''
» Art. 31. at article 141, paragraph 1, 7 ° of the Act, the number "52", with a comma is inserted between the "51" number and the word 'and '.
S. 32. article 24 of the annex to the law of 13 June 2005 on electronic communications is replaced by the following "the King may by royal decree deliberated in the Council of Ministers, after consultation with the Institute, establish the terms of the geographical distribution of the number of public telephones. Otherwise, the claimant freely determines the distribution of public telephone stations in respect of article 23. "CHAPTER 3. -Provisions various arts. 33. article 93 of the Act of 20 July 2006 on various provisions is hereby repealed.
CHAPTER 4. -Transitional provisions and provisions relating to the entry into force art. 34 § 1.
Until the moment where article 107, § 5, first paragraph, of the Act of 13 June 2005 on electronic communications, introduced by article 25 4 °, enters into force, the costs referred to in article 107, § 4, of the Act of 13 June 2005 on electronic communications that relate to compliance by the mobile operators of their obligations as described by section 107 , § 2, of the same Act, shall be borne by these mobile operators.
The initial allocation of costs between mobile operators is thus done on a pro rata basis of the number of active users of each of these mobile operators to September 1, 2008. For the purposes of this paragraph by active user means a user who has exercised during the last three months of one or several services of the mobile network database.
§ 2. Until the moment where article 107, § 5, first paragraph, of the Act of 13 June 2005 on electronic communications, inserted by article 25 4 °, enters into force, the costs referred to in article 107, § 4, of the Act of 13 June 2005 on electronic communications that relate to compliance by the fixed operators of their obligations as described by section 107 , § 2, of the same Act, are supported by fixed operators, which provide data directly to emergency services.
The initial allocation of costs between fixed operators referred to in the preceding paragraph is in proportion to the number of network termination points through which services were offered by each of these operators on September 1, 2008. Is meant by endpoint from the network for the purposes of this paragraph the physical point by which an end user gets access to a public electronic communications network; in the case of networks using switching and routing, network termination point is determined by a specific network address.
Operators that are based on this paragraph, obliged to contribute, affect their participation in costs on operators who observe their legal obligations in collaboration with emergency services in whole or in part via the operator in question.
§ 3. Until the moment where article 107, § 5, first paragraph, of the Act of 13 June 2005 on electronic communications, inserted by article 25 4 °, enters into force, the costs referred to in article 107, § 4, of the Act of 13 June 2005 on electronic communications that relate to compliance by the mobile operators of their obligations as described by section 107 , § 2, of the same Act, are supported on all fixed and mobile operators to the pro rata of their participation fixed and mobile respectively in the total costs.
S. 35. article 107, § 5, paragraph 1, Act of 13 June 2005 on electronic communications, which is inserted by article 25, comes into force the first day of the fifth month following the publication of this law in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given at Brussels, may 18, 2009.
ALBERT by the King: the Minister for enterprise and Simplification, V. VAN QUICKENBORNE sealed with the seal of the State: the Minister of Justice, S. DE CLERCK Note (1) 2008-2009 regular Session.
House of representatives.
Parliamentary papers. -Bill, no. 1813/1. -Amendments, no. 1813/2. -Report on behalf of the Committee, no. 1813/3.
-Text adopted in Committee, no. 1813/4. -Text adopted in plenary meeting and transmitted to the Senate, no. 1813/5.
Full report: March 19, 2009.
Senate.
Parliamentary papers. -Project not referred by the Senate, no. 2-1248/1.