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16 MARS 2007. - Act respecting the amendment of the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital and the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. The words "broadcast program distribution networks" in the title of the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital as amended by the Act of 8 July 2001, the Act of 12 May 2003 and the Act of 22 December 2003 are replaced by the words "electronic communications networks and electronic communications services".
Art. 3. In the title of chapter I of the same law, the word "application fields" is replaced by the word "application field".
Art. 4. Article 1^er the following amendments are made:
1° the provision of point 2. is replaced as follows:
“2. "electronic communications network": transmission systems, active or passive, and, where applicable, switching or routing equipment and other resources that permit the delivery of cable, microwave, optical or other electromagnetic signals, to the extent that they are used for the transmission of broadcasting and television signals; »;
2° the provision of point 3. is replaced as follows:
“3. "electronic communications service": the service normally provided against remuneration that consists entirely or principally in the transmission of signals of audio or television programs on electronic communications networks; it does not include the services of the information society as defined in section 2 of the Act of 11 March 2003 on certain legal aspects of the services of the information society that do not consist entirely or principally of the transmission of signals on electronic communications networks; »;
3° the words "sound programs" are replaced by "sound broadcasting program", the words "radio programs" are replaced by the words "radio programs" and the words "that are broadcast through a single channel" are deleted in the provision of point 4.
4° the words "TV programs" are replaced by "TV broadcast programs", the words "TV programs" are replaced by the words "TV programs" and the words "that are broadcast through a single channel" are deleted" in the provision of item 5.;
5° the provision of point 6. is replaced as follows:
"6" operator: any person who, in accordance with Article 4, has introduced a notification; »;
6° it is inserted a point 6bis, written as follows:
"6bis. "Broadcasting Organization": any person who assumes the editorial responsibility for the provision of sound or television broadcasting programs with a view to broadcasting or broadcasting them. The provision of sound or television programming means the production, production or acquisition of radio or television programs, as well as programming; »;
7° at point 7°, the words "TV broadcasting service" are replaced by "TV broadcasting program" and in the Dutch version, the word "onverstaanbaar" is replaced by the word "onbegrijpelijk";
8° in point 8 the words "broadcast services" are replaced by the words "broadcast or television programming";
9° to point 9. the words "broadcast service" are replaced by the words "TV broadcasting program";
10° in point 11. of the Dutch version, the word "omroep" is replaced by the word "omroep organisatia";
11° to point 12. the words "TV programmes" are replaced by the words "TV programmes";
12° to point 14. the words "sound or television broadcasting" are replaced by the words "of the broadcasting organization";
13° provision 16. is deleted;
14° in the provision of point 17., the word "dispositives" is replaced by the word "systems";
15° in the provision of point 18., the words "allowing access to a protected service" are replaced by the words "keep and listen to protected programs";
16° the following definitions are added to the list:
19. "access": the provision of network elements, associated resources or electronic communications services to an operator for the provision by the operator of electronic communications networks or services;
20. "wide-format television program": a television program produced and edited to be broadcast in broad format (16-9);
21. "associated resources": resources associated with an electronic communications network and/or an electronic communications service, which allow or support the provision of services via this network or service, including conditional access systems and electronic program guides;
22. "Institute": the Belgian Institute of Postal Services and Telecommunications as referred to in Article 13 of the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors, IBPT shortened;
23. "user": a natural or legal person who uses or requests an electronic communications service;
24. "consumer": any natural person who uses or requests an electronic communications service for non-professional purposes;
25. "subscribed": any natural or legal person who uses an electronic communications service pursuant to a contract with a broadcasting operator or organization;
26. "provision of an electronic communications network": the establishment, operation, monitoring or provision of such a network;
27. "final user": a user who does not provide an electronic communications network or electronic communications services;
28. "Advanced digital television equipment": devices equipped with a converter and decoder or integrated digital television stations for the reception of interactive digital television programs;
29. "Implementation Program Interface (PIA)": the software interface between external applications, provided by broadcasting organizations or service providers, and the digital television and audio broadcasting resources of terminal equipment;
30. "Electronic Program Guide (PEG): a service that consists of reproducing the offer of programs of broadcasting organizations that differ from the supplier of the electronic program guide, and providing total or partial access to sound or television broadcasting programs or services established in the form of a list;
31. "terminal equipment": a product or a significant part of it that allows communication and is intended for direct or indirect connection to interfaces of an electronic communications network. »
Art. 5. Section 2 of the Act is replaced as follows:
“Chapters I^er, II, III section 3, IIIbis and IV are applicable to operators, as defined in article 1^er, 6°, which are established in the bilingual region of Brussels-Capital and whose activities cannot be considered to belong exclusively to one or the other community, within the meaning of Article 127, § 2 of the Constitution.
Chapters I^er, III, IIIbis and IV are applicable to broadcasting organizations as defined in section 1^er6bis, which are established in the bilingual region of Brussels-Capital and provided that their audio and television broadcasting programs cannot be considered to be wholly owned by one or the other community, within the meaning of Article 127, § 2 of the Constitution.
Chapter III, section 4, is applicable, as the case may be, to operators and broadcasting organizations that are established in the bilingual region of Brussels-Capital, as well as to manufacturers, distributors and vendors of devices for the general public and terminal equipment distributed, sold, marketed or made available in the bilingual region of Brussels-Capital.
Chapter IIIter applies to any person who, in the bilingual region of Brussels-Capital, owns, markets or uses transmission or transportation equipment.
Section 41 applies to any person who commits the offences referred to in this section. »
Art. 6. Section 3 of the Act is replaced by the following provision:
“Article 3. This Act transposes the following guidelines:
1° Directive 2002/19/EC of the European Parliament and the Council of 7 March 2002 on access to electronic communications networks and associated resources, as well as their interconnection (Directive "access");
2° Directive 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorization of electronic communications networks and services (Directive "authorisation");
3° Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Directive "cadre");
4° 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 (Universal Service Directive);
5° Commission Directive 2002/77/EC of 16 September 2002 on competition in networks and electronic communications markets. »
CHAPTER II. - Market penetration conditions
Art. 7. The title of Chapter II of this Act is replaced as follows:
"Electronic communications networks and electronic communications services."
Art. 8. Section I of Chapter II of the Act is replaced as follows: "Notification".
Art. 9. Section 4 of the Act is replaced as follows:
“Art. 4. The provision or resale in its own name and for its own account of electronic communications services or networks, including associated resources, may only begin after notification to the Institute containing the following:
1° the name, address, T.V.A. number and provider's trade register or a similar identification number validly comprising these data;
2° the contact person with the Institute;
3° a description of its service or network as well as, where applicable, a list of the broadcast and broadcast programs transmitted;
4° the date the activities should begin.
The notification is made by registered mail.
Legal persons may validly submit a notification as long as their headquarters and headquarters are established in a Member State of the European Union. »
Art. 10. Section 5 of the Act is replaced by the following provision:
“Art. 5. Following the notification, the operator in question may, in accordance with the conditions set out in this Act, provide electronic communications services or networks and may, in accordance with existing legislation, apply for the installation of resources. »
Art. 11. Section 6 of the Act is replaced by the following provision:
“Art. 6. Each operator informs the Institute of:
1° any amendment to the elements referred to in Article 4, except in cases where an identification number, validly consolidating the data, has been communicated;
2° the planned stop of its activities. »
Art. 12. Section 7 of the Act is replaced by the following provision:
“Article 7. § 1^er Administrative fees that are imposed on operators are used to cover related costs:
1° to the establishment, management, control and enforcement of legislation and rights of use;
2° to the Institute's specific access missions;
3° to international cooperation, harmonization and standardization, market analysis, conformity control and other market controls;
4° to advice and application of secondary legislation as well as to administrative decision-making.
The Institute recovers administrative fees.
§ 2. The King, by a deliberate decree in the Council of Ministers and after the advice of the Institute, sets out the amount and terms of administrative royalty for an objective, transparent and proportional distribution.
§ 3. The Institute publishes and updates on its website all relevant information concerning rights, conditions, procedures, royalties and decisions relating to notifications and rights of use. »
Art. 13. Section 8 of the Act is replaced by the following provision:
“Art. 8. Upon receipt of the notification, the Institute shall give the operator a standardized statement confirming that it has made a notification regarding the provision of electronic communications services or networks and that the operator may, if any:
1° to apply for the installation of resources;
2° negotiate access;
3° get access. »
Art. 14. The following amendments are made to section 8bis of the Act:
1° the word "distributor" is replaced each time by the word "operator";
2° in § 2 the third, fourth and fifth paragraphs are replaced as follows:
"The owner or debtor of the servitude retains the right to perform any other work on private property, provided that it does not take any action that would only alter or move cables, airlines and related equipment.
It shall notify any operator of a public electronic communications network concerned by registered letter to the station, at least two months before the start of the work that involves the modification or movement of cables, airlines and related equipment.
The costs of altering or moving cables, airlines and related equipment are borne by any operator of a public electronic communications network concerned.
Except in the event of force majeure, where the work envisaged has not commenced within one year of the date of this warning, any operator of a public electronic communications network concerned may charge the costs caused by the modification of the cables, airlines and related equipment to the owner or the owner's right and also restore the original situation at the expense of the owner, if necessary. »
Art. 15. Section 9 of the Act is replaced by the following provision:
“Art. 9. Each operator sends each year to the Institute before June 30 a report of activities, mentioning the number of subscribers, the audio and television broadcast programs transmitted and the price of them for the end user.
The operator indicates which parts of the content of the report are confidential. »
Art. 16. In section 12 of the same law, the word "authorisation" is replaced by the word "notification".
CHAPTER III. - Distribution of sound or television broadcasting programs
Art. 17. The title of Chapter II, section 2, of the Act is replaced by the following title:
"Audio or television broadcasting programs. »
Art. 18. In the title of subsection I^re in section 1 of chapter II of the Act, the words "TV broadcasting programs" were replaced by the words "TV broadcast programs".
Art. 19. The following amendments are made to section 13 of the Act:
1° the words "the distributor who is authorized to operate a cable network in the bilingual region of Brussels-Capital" are replaced by the words "the operator";
2° the word "programs" and the words "TV programs" are replaced by the words "TV broadcast programs";
3° are inserted between the words "doit" and "transmit", the words "to guarantee pluralism and cultural diversity";
4° in the second dash, the words "that the competent minister designates" are replaced by the words "that the King designates in a deliberate order in the Council of Ministers".
5° the article is supplemented by the following:
" - the television broadcasting programs broadcast by the public service broadcasting organization under the German-speaking Community, which are designated by the King in a deliberate order in the Council of Ministers. The competent minister for this Act shall determine, after the Institute has heard, the terms and conditions for such dissemination (if any via a shared channel);
- the television broadcasting programmes focused on Brussels-Capital, which are broadcast by the regional broadcasting organizations authorized by the French Community and the Flemish Community, taking into account their broadcasting field.
The need for the obligations referred to in the previous paragraph is periodically verified by the Institute. If the Institute considers that the maintenance of these obligations is no longer necessary, it clearly mentions this in the annual report referred to in section 34 of the Act of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors.
The Minister may, on the advice of the Institute, provide that an operator will be exempted from this section.
The operator who wishes to benefit from this exemption addresses a reasoned request to the Institute proving the existence of at least one of the following:
(a) it is technically impossible for the operator;
(b) there are not enough end-users on the network using it as the primary resource to capture television programming so that the investments necessary to remove technical impossibility are unreasonable.
The Institute shall notify the Minister no later than six weeks after the receipt of this application. This period is suspended if the Institute considers that additional information from the applicant is required.
If, upon expiry of the time limit, the Institute did not give notice to the Minister, the Institute is deemed to have provided a favourable notice. »
Art. 20. The following amendments are made to section 14 of the Act:
1° the word "distributor" is replaced twice by the word "operator";
2° the words "at the time of their broadcasting and" are deleted.
3° the word "programs" is replaced three times by the words "TV broadcast programs", the words "TV programs" are replaced three times by the words "TV broadcast programs";
4° The Dutch version replaces the word "televisieomroep" with the word "omroeporganisatie", .
Art. 21. Section 15 of the Act is replaced by the following provision:
"The King may, by a deliberate decree in the Council of Ministers, after the advice of the Institute and after public consultation, in accordance with Article 40/14, § 1^er of this Act, the date on which the transmission of audio and television programming must be entirely digital. »
Art. 22. In the title of subsection 2 of section 1 of chapter II of the Act, the words "sound broadcasting programs" were replaced by the words "sound broadcasting programs".
Art. 23. The following amendments are made to section 16 of the Act:
1° the words "the distributor who is authorized to operate a radio network in the bilingual region of Brussels-Capital" are replaced by the words "the operator";
2° the words "sound programs" are replaced by the words "sound broadcasting programs";
3° are inserted between the words "doit" and "transmit", the words "to guarantee pluralism and cultural diversity";
4° the article is completed as follows:
"The need for the obligations referred to in the previous paragraph is periodically verified by the Institute. If the Institute considers that the maintenance of these obligations is no longer necessary, it clearly mentions this in the annual report referred to in section 34 of the Act of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors.
The Minister may, on the advice of the Institute, provide that an operator will be exempted from this section.
The operator who wishes to benefit from this exemption addresses a reasoned request to the Institute proving at least one of the following:
(a) it is technically impossible for the operator;
(b) there are not enough end-users on the network using it as the main resource to capture sound broadcasting programs so that the necessary investments to remove technical impossibility are unreasonable.
The Institute shall notify the Minister no later than one month after the receipt of this application. This period is suspended if the Institute considers that additional information from the applicant is required.
If, upon expiry of the time limit, the Institute did not give notice to the Minister, the Institute is deemed to have provided a favourable notice. »
Art. 24. In section 17 of the Act, the following amendments are made:
1° the word "distributor" is replaced by the word "operator";
2° the words "at the time of their diffusion and" are deleted.
3° the words "sound programs" are twice replaced by the words "sound broadcasting programs".
CHAPTER IV. - Authority for the exercise of television and audio broadcasting activities
Art. 25. The title of Chapter III, which includes sections 28 to 40/13, of the Act is replaced by the title "Exercisement of television and audio broadcasting activities".
Art. 26. Is inserted in chapter III of the Act, in a new first section entitled "Authorization for the exercise of television and audio broadcasting activities" section 28/1, as follows:
"Art. 28/1. Under the conditions set out in this chapter, broadcasting organizations may obtain an authorization from the Institute for a broadcasting program. »
Art. 27. In the same section 1 of the Act, an article 28/2 is inserted, as follows:
"Art. 28/2. Broadcasting organizations that offer their audio or television programming exclusively via a website are exempt from an authorization. They make a notification as referred to in Article 4. »
Art. 28. In the same section 1 of the Act, an article 28/3 is inserted, as follows:
"Art. 28/3. § 1^er. To obtain an authorization, the broadcasting organizations provide by registered mail the following information to the Institute:
1st name and address of the broadcasting organization;
2° all data that may be used to determine whether the Institute is competent for the audio or television broadcasting program in question;
3° the statutes;
4° the programming;
5° the diffusion scheme;
6° a precise description of the mode of distribution of emissions;
7° the date on which authorized emissions begin.
§ 2. The Institute has a period of two months upon receipt of the complete file to decide whether the broadcasting organization obtains the authorization. This period is suspended when the Institute considers that additional information is necessary or when it wishes to hear the broadcast agency concerned.
§ 3. The Institute shall forward, within 10 business days from the receipt of the complete record as filed by the broadcasting organization, the file to the Communities. The Communities have a period of twenty working days to prove that the sound or television broadcasting program for which the broadcasting organization requests an authorization is within their jurisdiction. In this case, all concerned parties agree on the file. The federal authority and the communities will develop the conditions of cooperation in a cooperation agreement.
§ 4. If a broadcasting organization changes the data mentioned in the preceding paragraphs, it is required to inform the Institute within one month. If the changes relate to programming, the Institute shall report this information to the Communities within one month of receipt of the amendments. From this notification, a new twenty working days period begins in which the Communities must demonstrate that the modified audio or television program falls within their jurisdiction. In this case, a dialogue as referred to in § 3 is carried out between all parties concerned.
§ 5. The authorization is valid for a renewable period of nine years. She is personal and intransmissible. »
Art. 29. In the same section 1 of the Act, an article 28/4 reads as follows:
"Art. 28/4. Broadcasting organizations may not broadcast:
1° programs contrary to the laws or the general interest, which infringe upon respect for human dignity or contain incitements to discrimination, hatred or violence, in particular for reasons of race, sex, nationality, religion or philosophical conception, or for negation, minimization, justification, approval of the genocide committed by the German Nazi regime during the Second World War and any other form
2° programs that could seriously affect the physical, mental or moral development of minors, including programmes that include scenes of pornography or free violence. The latter prohibition extends to other programs or sequences of programs, including advert tapes, which may affect the physical, mental or moral development of minors, unless it is ensured, in particular, by the choice of the broadcast time of the program that minors in the broadcast field do not normally see or listen to these programs and provided that this program is preceded by an acoustic warning or identified by the presence of a visual symbol at all. The King shall determine the mode of warning of such sound or television broadcasting programs, elements of sound or television broadcasting programs or advertisement bands;
3° programs that promote a current of thought, belief or opinion that poses a threat to fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights or intended to abuse the credulity of the public. »
Art. 30. In the same section 1 of the Act, an article 28/5, which reads as follows:
"Art. 28/5. Radio or information television programs are provided in a spirit of strict impartiality and according to the rules of journalistic ethics by guaranteeing editorial independence. »
Art. 31. In the same section 1st of the Act, an article 28/6 is inserted, as follows:
"Art. 28/6. Collaboration between broadcasting organizations does not lead to a structured uniformity of the programming policy. »
Art. 32. In the same section 1 of the Act, an article 28/7 is inserted, as follows:
"Art. 28/7. A chief editor is responsible for the TV news. »
Art. 33. In the same section 1 of the Act, an article 28/8 is inserted, as follows:
"Art. 28/8. § 1^er. If the Institute finds an offence under sections 28/1 to 28/3, 28/5 to 28/7 and 28/9, it shall mean the broadcast agency concerned. Where applicable, the Institute sets a maximum period of three months to end the offence.
If the offence is not terminated within the specified time limit, the Institute may, after hearing the broadcasting organization concerned, suspend the licence granted for the audio or television broadcasting program in question.
The imposed suspension is up to two months.
If, at the end of this period, the Institute finds that it has not been remedied to the offence in question, it may, after hearing the broadcasting organization, remove the licence from the broadcasting program in question.
§ 2. If the Institute finds that, pursuant to section 40 of this Act, the suspension of the broadcast of an audio or television broadcasting program has been ordered, it may, after hearing the broadcasting organization concerned, withdraw the authorization for the audio or television broadcasting program of which the audio or television broadcasting program was a part. »
Art. 34. The existing section of the Act is renumbered in section 1bis and section 28bis is renumbered in section 28/9.
Art. 35. In section 28bis of the Act, inserted by the Act of 8 July 2001, which becomes section 28/9, the following amendments are made:
1° to § 1^erParagraph 1^er, the words ", taking any notice from one or more instances of his choice" are deleted;
2° to § 1^erParagraph 1^er, the word "to this effect" is inserted before the words "These events";
3° to § 1^erParagraph 1^er, the words "in such a way that a large part of the public is deprived of access" after the comma are replaced by the words "priving an important part of the public of access";
4° to § 1^erParagraph 1^er, the words "through television programs broadcast on a free-access TV" are replaced by the words "through a free-access program service".
5° § 2 is replaced by the following provision:
“§2. Television broadcasting organizations refrain from exercising exclusive rights if they were to lead to a large part of the public in another Member State not being able to follow on the free television of the events designated by another Member State through a full or partially live broadcast or, where it is necessary or appropriate for objective reasons of general interest, by means of a deferred member state or by means of a deferred broadcast »;
6° it is inserted a § 3, written as follows:
“§3. At the request of the competent authority, each broadcasting organization shall broadcast any urgent message of general interest in the event of aerial disaster, nuclear risk, earthquake, major virus attacks, severe pollution or similar events. These messages are clearly recognizable and are preceded and followed by adequate notice indicating that this is an urgent message of general interest. »
Art. 36. In Article 31, § 1^er, paragraph 2, of the same law the word "member states" is replaced by the word "Member States". »
Art. 37. Section III of Chapter III of the Act is replaced as follows: "Section III. Protection of human dignity".
Art. 38. Section 40 of the Act is replaced by a new section 40 as follows:
« § 1^er. The King may, either on his own initiative or on the Institute's proposal, suspend the transmission:
1° of an audio or television broadcasting program referred to in section 28/4, 1° or 3°;
The King may initiate the suspension of the radio or television program at the time he is informed of the radio or television program.
2° (a) a radio or television program referred to in section 28/4, 2°, where the choice of the broadcast time does not ensure that minors in the broadcast field do not normally see or listen to these programs or when these audio or television broadcast programs, elements of audio or television broadcast programs or advertisement bands are not clearly identified, and are not clearly identified by the notices,
(b) the broadcasting organization in question has already violated at least twice the same provisions in the past 12 months.
To this end, the King will notify the broadcasting organization in writing in advance, and the European Commission in the case of a broadcasting organization from a Member State of the European Union, of the offences in question and of the intention to impose restrictions on transmission if such an offence is committed again.
If, in the case of a foreign broadcasting organization, within fifteen days of the date of this notification, the consultation with the Commission and the Member State of the European Union, from which the program is made, has not resulted in an amicable arrangement and the incriminated offence continues, the provisional suspension will become effective.
§ 2. A radio or television program that gave rise to the King's suspension in accordance with § 1^er, 1°, is not broadcast by any operator.
§ 3. The Institute immediately publishes suspension decisions on its website, including the reasons for the suspension and, where applicable, the applicability of § 2. »
CHAPTER V. - Sound or television broadcasting programs
Art. 39. Section 40bis of the Act becomes section 40/1 and is replaced by the following provision:
"Art. 40/1. Each television broadcasting organization:
1° ensures its emissions by a 16-9 system fully compatible with PAL; if it is broadcast on a wide screen and 625 lines that are not entirely digital;
2° ensures its emissions by a transmission system standardized by an approved European standardization body, if its emissions are entirely digital. »
Art. 40. Section 40ter of the Act becomes section 40/2 and is replaced by the following provision:
"Art. 40/2. Electronic communications networks, installed for the distribution of digital television programs, are able to transmit broad-based television programs.
After the Institute's advice and only in the context of technical restrictions, the King may exempt certain electronic communications networks from the obligation set out in paragraph 1^er.
Operators who capture and broadcast large-format television services or programs maintain this form of image. »
Art. 41. Section 40quater of the Act becomes section 40/3 and is replaced by the following provision:
"Art. 40/3. All terminal equipment intended for the reception of digital television signals, which are sold, leased or otherwise made available and which are capable of unpacking digital television signals allows:
1° to unpack these signals according to the common European interference algorithm administered by a recognized European standardization body;
2° to reproduce signals that have been transmitted in clear, provided that, in the case of leased equipment, the tenant complies with the applicable rental contract. »
Art. 42. Section 40quinquies of the Act becomes section 40/4 and is replaced by the following provision:
"Art. 40/4. Any analog television receiver equipped with a full display of a visible diagonal greater than 42 centimetres and which is put on the market for sale or rental purposes has at least an open interface socket, standardized by a recognized European standardization body, allowing simple connection of terminal equipment, including additional decoders and digital receivers.
Any digital television receiver equipped with a full display of a visible diagonal greater than 30 centimetres and which is placed on the market for sale or rental purposes is equipped with at least an open interface socket (standardized by a recognized European standarding body or in accordance with a standard adopted by such an organization, or conforming to a specification accepted by the entire industrial sector concerned) allowing the simple connection of »
Art. 43. Section 40sexies of the Act becomes section 40/5 and is replaced by the following provision:
"Art. 40/5. § 1^er. The exploited conditional access systems offer the necessary technical options to ensure an affordable transfer of control to the main stations.
§ 2. All conditional access service providers must, regardless of the mode of transmission that broadcasters rely on to reach viewers or listeners:
1° to provide all broadcasting organizations in an honest, reasonable and non-discriminatory manner with the technical services that enable authorized viewers and listeners to receive digital programming through a decoder managed by the service provider;
2° have separate accounting for their activities as conditional access providers, provided they carry out other activities.
Art. 44. Section 40s of the Act becomes section 40/6 and is replaced by the following provision:
“Article 40/6. § 1^er. When industrial ownership rights holders of conditional access systems and products grant licences to manufacturers for devices intended for the general public, they do so in an honest, reasonable and non-discriminatory manner. The rights holders do not rely on the granting of licences, which takes into account technical and commercial factors, conditions where it would be prohibited, discouraged or uninterested that the product concerned:
1° or, either integrated into a common interface that allows to connect to other access systems;
2° or, be integrated into characteristic functions belonging to another access system, provided that the licensee complies with reasonable and appropriate conditions for the protection of the transactions of operators and conditional access systems.
§ 2. Electronic communications network operators publish the exact technical specifications of the interfaces before they are accessible to the public. The specifications are accurate enough to design terminal equipment with which all services provided via the interface can be used. They are regularly updated. »
Art. 45. An article 40/7 is inserted in the same law as follows:
"Art. 40/7. Without prejudice to the obligations of Article 14 and 16, an operator may request the Institute to be exempted from the conditions of Article 40/5, § 2, 1°, if he considers that he cannot meet them for technical reasons.
For this purpose, he submits a reasoned request to the Institute. The Institute has thirty working days to decide on the application. If the Institute does not decide on the application within this period, its silence is equivalent to approval.
However, the Institute may withdraw the agreement granted where the technical reasons on which the exemption from Article 40/5, § 2, 1°, has been granted are no longer relevant due to technical developments. »
Art. 46. In the same Act, an article 40/8 reads as follows:
"Art. 40/8. To the extent necessary to ensure access to digital audio and television programs specific to end-users, the Institute may require API or GPE providers to provide access to these services on fair, reasonable and non-discriminatory terms. »
CHAPTER VI. - Guarantee fair competition
Art. 47. In the same law there is a new chapter IIIbis entitled "Chapter IIIbis. - Provisions to guarantee fair competition".
Art. 48. In the same Act, article 40/9 reads as follows:
"Art. 40/9. § 1^er. As part of the exercise of its competence, the Institute takes all appropriate measures to achieve the objectives defined in paragraphs 2 to 4. These measures are based on the nature of the problems identified, are applied proportionally and justified. They must be proportionate to these objectives, respect the principles of objectivity, transparency, non-discrimination and technological neutrality, and contribute to promoting cultural and linguistic diversity and media pluralism.
§ 2. In carrying out its tasks under this Act, the Institute promotes competition in the provision of electronic communications networks, electronic communications services and associated resources:
1° ensuring that users withdraw maximum benefit in terms of choice, price and quality;
2° ensuring that competition is not distorted or hindered in the electronic communications sector;
3° by promoting effective infrastructure investments, and supporting innovation.
§ 3. In carrying out its tasks under this Act, the Institute contributes to the development of an internal market for electronic communications networks and services:
1° by encouraging the provision of electronic communications networks and services at the European level;
2° by encouraging the establishment and development of trans-European networks and the interoperability of pan-European services;
3° ensuring that there is no discrimination in the treatment of operators providing electronic communications networks and services in similar circumstances;
4° cooperating with other national regulatory authorities and with the European Commission in a transparent manner to ensure the development of consistent regulatory practices at the Belgian and European level;
§ 4. In carrying out its duties under this Act, the Institute shall ensure the interests of users:
1° ensuring a high level of consumer protection in their relationships with suppliers;
2° by promoting the provision of clear information, including by requiring transparency of rates and conditions of use of electronic communications services;
3° taking into account the needs of specific social groups, including end users with disabilities;
4° ensuring the integrity and security of electronic communications networks;
5° by contributing to a high level of protection of personal data and privacy. »
Art. 49. In the same Act, section 40/10 reads as follows:
"Art. 40/10. § 1^er. Every operator negotiates in good faith, with any operator who makes the request, an access agreement for the provision of electronic communications services.
Any information provided from an operator to another operator in the process of negotiating an access agreement is confidential, without prejudice to the right of any interested person to disclose this confidential information to the Institute or any other administrative or judicial proceeding. The information obtained is not transmitted to another party, in particular to another division of the operators concerned, to subsidiaries or partners, which could benefit from a competitive advantage through this information.
This provision may not be invoked in order not to communicate to the Institute or to another administrative or judicial body certain information necessary to carry out its duties as a regulator.
§ 2. If the parties fail to agree during the access negotiations, the Institute may, either on its own initiative or at the request of one of the parties, after hearing the parties concerned, intervene to ensure the basic objectives set out in Article 40/9. »
Art. 50. In the same Act, section 40/11 reads as follows:
"Art. 40/11. § 1^er. After each publication by the European Commission of its "Recommendation concerning the relevant markets of products and services in the electronic communications sector", also known as the "Recom- Mandation", and at regular intervals, the Institute determines the relevant markets for electronic communications networks and services, as well as their respective geographical scope.
§ 2. In accordance with § 5, the Institute shall conduct at least as soon as possible after the adoption of the Recommendation or a revision thereof, an analysis of these relevant markets in order to determine whether they are actually competitive. The exchange of information necessary for this analysis is done in accordance with § 13 of this article.
§ 3. If the Institute concludes in accordance with § 5 that a relevant market is actually competitive, it does not impose or maintain any of the obligations referred to in §§ 7 to 12.
When the Institute decides not to maintain an obligation under paragraph 1^erthe Committee shall inform the parties concerned within one month of its decision.
§ 4. If the Institute concludes that a relevant market is not effectively competitive, it identifies in accordance with § 5, any operator with significant power in this market and imposes on it those obligations under §§ 7 to 12 that it considers appropriate. In order to ensure compliance with these obligations, the Institute may impose changes to existing access agreements.
An operator is considered to have significant power in a relevant market if, individually or jointly with others, it is in a position equivalent to a dominant position, that is, it is able to behave, to a significant extent, independently of its competitors, customers or consumers.
When an operator is considered to have significant power in a relevant market, it can also be considered to have significant power in a closely linked market, where the links between the two markets are such that they allow the operator to use on one of the two markets, by leverage, the power held on the other market.
In this case, the Institute imposes on the market that or those of the obligations referred to in §§ 7 to 12 that it considers appropriate.
For each relevant market, the Institute publishes to the Belgian Monitor and on its website the list of operators with significant power and, where applicable, operators with significant power on a closely linked market, as well as the list of obligations imposed on each of these operators.
§ 5. The Institute submits its decisions referring to this paragraph to prior consultation with the Council of Competition.
The Conseil de la Concurrence issues its opinion within thirty calendar days of the submission of the draft decision by the Institute. After this period, the silence of the Council of Competition is equivalent to approval of the above-mentioned draft decision.
§ 6. Without prejudice to the need:
1° to comply with international commitments;
2° ensure compliance with co-location and resource sharing provisions;
3° to ensure compliance with the provisions of Article 40/12;
4° to enforce commitments made by operators who have obtained the right to use radio frequencies during a comparative or competitive selection procedure;
5° to enforce the provisions relating to the processing of personal data and the protection of privacy
the Institute does not impose any of the obligations set out in paragraphs 7 to 11 to operators who have not been designated as having significant power in a relevant market.
If exceptional circumstances warrant, the King may, on the advice of the Institute, impose on operators who have significant power on a relevant market access obligations other than those set out in paragraphs 7 to 11. In this case, the authorization of the European Commission is required.
§ 7. With regard to access, the Institute may, in accordance with paragraphs 4 and 5, impose non-discrimination obligations.
§ 8. The Institute may, in accordance with §§ 4 and 5, define the transparency obligations regarding access, under which operators must make certain information publicly available, as defined by the Institute. The Institute specifies the information to be provided, the level of detail required and the terms of publication.
When an operator is subject to non-discrimination obligations, the Institute may require it to publish a reference offer that is sufficiently detailed to ensure that operators are not required to pay for resources that are not necessary for the requested service. It includes a description of the relevant offers distributed in various elements as required by the market, along with the corresponding terms and conditions, including rates.
The Institute may require that the reference offer be subject to the amendments it considers necessary to impose the measures provided for in this Act.
Any reference offer is, prior to its publication, approved by the Institute, and is available free of charge, in electronic form, on a freely accessible website.
The issuance of a reference offer does not impede reasonable access requests not provided for in this offer.
§ 9. The Institute may in accordance with the terms and conditions established by the King, and in accordance with §§ 4 and 5 impose obligations of accounting separation with respect to activities in the field of access.
The King specifies, after the Institute's opinion, the accounting model and methodology to be used.
The Institute may require a vertically integrated operator to receive these accounting documents in order to verify compliance with the non-discrimination requirement set out in § 7.
A registered company reviewer designated by the operator shall verify, at the operator's expense, compliance with the order referred to in paragraph 2. The Institute publishes an annual statement on system compliance based on the findings of the corporate reviewer's report.
Where the Institute deems it necessary, it may request, in a reasoned manner, to submit all accounting documents, including data on third-party revenue. The Institute sets the time limit for the documents to be provided.
The Institute may publish this information to the extent that it contributes to the establishment of an open and competitive market, in accordance with the privacy rules of business data.
§ 10. The Institute may, in accordance with §§ 4 and 5, impose the obligation to satisfy reasonable requests for access to specific network elements and associated resources and to impose their use, inter alia, where the Institute considers that the refusal of access or the imposition of unreasonable conditions with the same effect could hinder the development of a retail market characterized by sustainable competition or would not be in the interest of the end user.
Operators can be imposed:
1° grant third parties access to certain network elements and/or resources;
2° to negotiate in good faith with operators who request access;
3° not to withdraw access to resources when it has already been granted;
4° to offer special services wholesale for resale to third parties;
5° to provide open access to technical interfaces, protocols or other key technologies that are critical to the interoperability of services;
6° to provide a possibility of co-location or other forms of resource sharing, including the sharing of ducts, buildings or pylons;
7° to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services.
The Institute may associate with these obligations conditions relating to fairness, reasonableness and opportunity.
When the Institute examines whether the obligations referred to in paragraph 2 should be imposed, it shall consider, inter alia, the following:
1° the technical and economic viability of the use or establishment of competing resources, taking into account the pace at which the market is evolving and the type of access involved;
2° the degree of feasibility of the proposed access supply, taking into account the available capacity;
3° the initial investment made by the resource owner, without neglecting the risks inherent in the investment;
4° the need to preserve long-term competition;
5°, if applicable, any intellectual property rights;
6° the provision of pan-European services.
As long as it is necessary to implement the Institute's obligations, the operators negotiate with each other appropriate access agreements.
If the parties fail to reach agreement during the access negotiations, the Institute sets, either on its own initiative or at the request of one of the parties, after hearing the parties concerned, the access obligations to be provided.
§ 11. In terms of access, the Institute may, in accordance with §§ 4 and 5 and, in addition to a market analysis, that the operator concerned may, due to the lack of real competition, maintain prices at an exaggerated level or reduce margins to the detriment of end-users, impose obligations related to cost recovery and price control, including obligations relating to cost-based pricing guidance and cost-effectiveness
In this context, the Institute takes into account the investments made by the operator and allows it to withdraw a reasonable profit from its capital intake, taking into account the risks involved.
In terms of access, the Institute may also, in accordance with §§ 4 and 5, impose price control obligations.
Any operator subject to the obligation to direct its tariffs on a cost basis shall provide the Institute, at the request of the Institute, with proof of compliance with that obligation.
When an obligation to focus on costs is imposed on an operator, the costs taken into account are the costs associated with the provision of an effective benefit, including a reasonable return on investment.
In order to determine the costs associated with the provision of an effective benefit, the Institute may use accounting and cost calculation methods distinct from those applied by the operator.
When the introduction of a cost-accounting system is made mandatory in the context of price control, the Institute publishes a description of the cost-accounting system that shows at least the main categories in which costs are grouped and the cost-sharing rules apply.
When the cost accounting system applied by the Institute makes it necessary, compliance with the cost accounting system is verified, at the operator's expense, by an approved company reviewer designated by that operator.
The Institute publishes an annual statement on system compliance based on the findings of the corporate reviewer's report.
§ 12. If the Institute finds that the obligations imposed under §§ 7 to 11 would not achieve the objectives set out in Article 40/9, it may impose, in accordance with §§ 4 and 5, one or more of the obligations referred to in the second paragraph to the operators designated as operators with significant power on a given retail market.
The Institute's obligations relate to the prohibition:
1° to use abnormally high prices;
2° to obstruct market access;
3° to use awards restricting competition;
4° to apply unwarranted preferences for certain end-users;
5° to unjustify services.
If the Institute wishes to control end-user rates in accordance with paragraphs 1 and 2, it may determine the necessary and appropriate cost accounting systems that the target operator applies.
In no case, the competences assigned to the Institute in the preceding paragraph cannot imply the obligation for a powerful operator on a specified market, to submit its tariffs to end users for prior approval by the Institute.
A registered company reviewer designated by the operator shall verify, at the expense of the operator, compliance with cost accounting systems.
The Institute publishes an annual certificate of compliance with these systems.
§ 13. As part of its competence, the Institute may require each broadcaster or organization concerned, by reason of request, any useful information to ensure compliance with this Act. In order to facilitate the monitoring of transparency and non-discrimination obligations, the Institute may impose the presentation of accounting records, including income data collected by third parties.
The Institute sets the deadline for providing the requested information.
Pre-release of information to the Institute cannot constitute one of the market access conditions mentioned.
The information requested by the Institute must be proportional to the execution of the jurisdiction in question. The Institute gives reasons for its request for information.
Article 137, § 2, of the law of June 13, 2005 on electronic communications sets out the terms for the exchange of information. » .
Art. 51. In the same Act, an article 40/12 reads as follows:
"Art. 40/12. § 1^er. Any operator who offers electronic communications networks or services and has exclusive or special rights for other activities is obliged to:
1° to maintain a separate accounting for the provision of electronic communications networks or services, in the same way as if these activities were carried out by legally independent companies, in order to identify, on the basis of their calculations and the details of the applied imputation methods, all the expenses and revenues related to their activities in the provision of electronic communications networks or services, including a breakdown by post of capital assets and expenses
2° to establish a structural separation for activities related to the provision of electronic communications networks or services.
§ 2. Transfers of resources, including transfers of capital and equipment from activities subject to exclusive or special rights to networks or electronic communications services, are based on market conditions.
§ 3. The King shall, after the advice of the Institute, set out the model and accounting methodologies to be used to meet the obligations of this section.
Separate accounting, referred to in § 1^er, 1°, is subject to a control carried out by a registered company reviewer designated by and at the operator's expense.
The Institute determines how the financial report on separate accounting is published.
§ 4. In order to ensure compliance with this article, the Institute or its delegates may hear any person whom the Institute wishes.
The Institute or its delegates may consult all documents and request any information they consider necessary to verify whether this article is being complied with. »
Art. 52. In the same Act, section 40/13 reads as follows:
"Art. 40/13. § 1^er. The Institute may, for the purposes of this Act, organize a public consultation in accordance with Article 14 of the Act of 17 January 2003 relating to the status of the regulator of the Belgian postal and telecommunications sectors.
§ 2. As long as a draft decision of the Institute is likely to have significant impacts on a relevant market, the Institute organizes a pre-public consultation of up to two months, in accordance with the privacy rules of business information.
A public consultation is in any case organized prior to the determination and analysis of a relevant market as well as the designation of an operator with significant market power.
All information on current public consultations is centralized at the Institute.
The results of the public consultation are made public, in accordance with the rules regarding the confidentiality of business information.
The King, on the advice of the Institute, specifies the modalities of public consultation and publicity of its results.
§ 3. As long as a draft decision of the Institute may have an impact on the exchanges between the Member States and tends to:
1° define a relevant market pursuant to Article 40/11, § 1^er, or
2° conclude that a relevant market is or is not competitive, pursuant to Article 40/11, §§ 2, 3 and 4, or
3° imposing or modifying obligations to an operator with significant power on a relevant market, pursuant to Article 40/11, § 4, or
4° imposing obligations on operators who have not been designated as having significant power in a relevant market, pursuant to Article 40/11, § 6, or
5° impose the amendment of access agreements already entered into, pursuant to Article 40/11, § 4, or
6° impose the modification of the reference offer, pursuant to Article 40/11, § 8, or
7° determine the conditions of access to be provided pursuant to Articles 40/11, § 10, 6^e paragraph, and 40/10, § 2, the Institute shall consult without delay the European Commission and the national regulatory authorities of the Member States.
The Institute takes into consideration the comments made by the European Commission and the regulatory authorities of the Member States within the time limit set by the King.
Final decisions, whose projects are referred to in paragraph 1^erare notified to the European Commission and the national regulatory authorities of the Member States.
The King shall specify, on the advice of the Institute, the terms and conditions of the consultation referred to in paragraph 1^er and notification of the final decision referred to in paragraph 3.
§ 4. The interim measures within the meaning of Article 20 of the Law of 17 January 2003 relating to the status of the regulator of the sectors of Belgian posts and telecommunications taken to ensure compliance with this Law are exempted from the consultations provided for in §§ 2 and 3 of this Article. However, they are notified promptly to the European Commission and the national regulatory authorities of the Member States.
§ 5. When its draft decision referred to in § 3, paragraph 1^er tends to:
1° define a relevant market that differs from those identified by the European Commission, or
2° to designate or not to designate an operator as having, individually or jointly with others, a significant power in a relevant market, the Institute, by a decision of the European Commission made within the period referred to in § 3, paragraph 2, extends the latter two additional months.
In the period as extended in paragraph 1^er, the European Commission may, by decision reasoned in a narrow and objective manner by formulating specific proposals for amendments, require the Institute to withdraw the draft decision referred to in paragraph 1^er.
§ 6. The Institute shall make public, in accordance with the terms established by the King, on the advice of the Institute, the decisions rendered by the European Commission under § 5. »
CHAPTER VII. - Authorizations for emissions and transportation
Art. 53. It is inserted in the same law a new chapter entitled "Chapter IIIter. Emission and transport authorities" and in this chapter an article 40/14, which reads as follows:
"Art. 40/14. Sections 39 to 44 of the Act of June 13, 2005 on electronic communications are applicable to broadcasting and transportation equipment that are held, marketed or used in the bilingual region of Brussels-Capital. »
CHAPTER VIII. - Criminal provisions, transitional provisions and final provisions
Art. 54. The following amendments are made to section 41 of the Act:
1° Paragraph 1 is replaced as follows: "Without prejudice to the suspension referred to in Article 40, § 2, any violation of this Act or its enforcement orders shall be punished by a fine of 25 to 12.500 euros. »;
2° between the first and the second paragraph is inserted the following paragraph:
"It is punishable by imprisonment from eight days to five years and a fine of 25 to 2,500 euros or one of these penalties only, who:
1° manufactures equipment or software, including chip cards, offers sale or rental, sells, leases, imports, distributes, in fact promotion, installs, maintains or replaces it, which are, without the authorization of the service provider, intended to:
(a) capture radio or television programs transmitted through an electronic communications network;
(b) allow access in an intelligible form to radio or television programs and/or services that are only available to the public through additional payment and conditional access;
2° buys, leases or has in its possession such equipment or software, including chip cards, for use or for commercial purposes;
3° fully or partially decodes and/or uses, in any way, radio or television programs and/or services coded without the permission of the owner of the coding technology or of the third party designated by the owner referred to above to assign this authorization;
4° uses commercial communication to boast this illegal equipment or software.
5° in the second paragraph, which becomes the third paragraph, the words "previous paragraph" are replaced by the words "this article".
Art. 55. Section 42 of the Act is replaced by the following provision:
“Art. 42. § 1^er. The King may, by a deliberate order in the Council of Ministers, by 31 December 2008, repeal, supplement, amend or replace the provisions of this Act, in order to take all necessary measures to fulfil the obligations arising from the directives in force of the European Union.
§ 2. The Royal Decree taken in execution of § 1^er of this article is repealed when it has not been confirmed by law within fifteen months of its publication in the Belgian Monitor. »
Art. 56. Sections 10, 11, 12 bis, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 35 bis, 35ter and 36 of the Act are repealed. The fourth paragraph of section 38 is also repealed.
Art. 57. The holders of a valid authorization for the operation of electronic communications networks upon the entry into force of this Amending Law shall transmit to the Institute within six months of the entry into force of this Amending Law a copy of their authorization and the related record.
Art. 58. A new article "42ter" is inserted in chapter IV and read as follows:
"The ministerial order of January 17, 2001 appointing the broadcasting organizations referred to in section 13, 2nd of the Act of March 30, 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital remains applicable until the Royal Decree of Parliament in Council of Ministers comes into force pursuant to section 13, 2^e Shoot. »
CHAPTER IX. - Regulatory authority
Art. 59. ÷ article 14, § 1^er of the Act of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors, the following amendments are made:
1° to 3°, the words ", of the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital" are inserted between the words "21 March 1991" and "and their enforcement orders";
2° to 4°, the words "or in case of a dispute between service providers or electronic communications networks or broadcasting organizations referred to in the Act of 30 March 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital," are inserted between the words "postal operators," and "the formulation".
Art. 60. In section 24 of the Act, the words "and the Act of 21 March 1991" are replaced by ", in the Act of 21 March 1991 and in the Act of 30 March 1995 concerning broadcasting distribution networks and in the exercise of broadcasting activities in the bilingual region of Brussels-Capital".
Art. 61. In section 30, 4°, of the same Act, the words "as well as all royalties collected on the basis of the Act of June 13, 2005 on electronic communications and the Act of March 30, 1995 concerning broadcasting distribution networks and the exercise of broadcasting activities in the bilingual region of Brussels-Capital. »
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 16 March 2007.
ALBERT
By the King:
Minister of Economy, Energy,
International Trade and Science Policy,
Mr. VERWILGHEN
Deputy Prime Minister
and Minister of Budget and Protection of Consumer Affairs,
Ms. F. VAN DEN BOSSCHE
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
L. ONKELINX
____
Note
(1) 2006-2007 session.
Parliamentary documents. - Bill No. 51-2763/1. - Report, no. 51-2763/2. - Text corrected by the commission, no. 51-2763/3.
Full report: 21 December 2006.