Communications: regulation and outsourcing in Belgium: overview

Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 1 Communications: regulation and outsourcing in Belgium: overview by Anne Vallery and Itsiq Benizri, WilmerHale Country Q&A | Law stated as at 01-Jan-2019 | Belgium A Q&A guide to communications regulation and outsourcing law in Belgium. The Q&A gives a high level overview of communications law, including authorisation and licensing, universal service obligations, spectrum use, access and interconnection, data protection and security, price regulation, subscriber management, and outsourcing and telecommunications. To compare answers across multiple jurisdictions, visit the Communications: Regulation and Outsourcing Country Q&A tool. This Q&A is part of the Communications: Regulation and Outsourcing Global Guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/communications-guide. The telecommunications market 1. Give a brief overview of the structure of the telecommunications market in your jurisdiction. Briefly set out any major recent developments, such as mergers and acquisitions, restructurings and insolvencies. Market structure The fixed telecommunications market in Belgium benefits from comprehensive DSL and cable networks. The major operators in the market are Proximus (previously Belgacom) which operates via a copper network (DSL) and Telenet and VOO, the Flemish and Walloon cable network operators. Telenet, which belongs to Liberty Global, has expanded in South Belgium since its acquisition of Base in February 2016 and of SFR Belgium (formerly Numericable) in June 2017. Alternative operators have a limited presence in the fixed markets (collectively only 12% of DSL subscriptions), despite the presence of several of them including Orange (which recently re-entered the fixed telecommunications market and expanded its offer). As the owner of the historical copper network, Proximus has national coverage. The cable networks are generally fragmented according to the linguistic regions of the country, with each network owned by a separate operator. Cable TV (cable operators) and IP TV (Proximus) are the only significant platforms for TV services in Belgium. The penetration rate of TV via cable represents 85% of households in Belgium. Other platforms such as satellite TV and digital terrestrial TV have a negligible presence in Belgium. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 2 In addition to the communications channels provided by network operators, new market players are growing in importance and are now providing communications, content and value-added services. Traditional voice services are being replaced by voice applications provided by over-the-top players (OTTs) such as Skype or Google Hangouts. The major players on the mobile telecommunications market are Proximus, Orange (previously Mobistar) and Base Company (now owned by Telenet/Liberty Global). Lyca Mobile is also a growing player on the mobile telecommunications market from 2% market share in 2011 to 5% in 2017. In Belgium, a great number of residential customers seek to buy several services from the same provider (one-stop shop). This trend, which is stronger and started earlier in Belgium than in other EU countries, involves offers of bundles of fixed services (for example, a package including TV, internet and fixed telephony) and, more recently, bundles of both fixed and mobile services, from a single provider. The market for bundled services is covered by Proximus (nationwide) and the cable operators, notably Telenet and VOO, with alternative operators (including Orange) also offering some of these bundled services. Recent developments For many years, the incumbent Proximus has been required to give alternative operators access to its copper networks (DSL) via wholesale offers. However, in 2011 the Conference of Regulators of the electronic communications sector (CRC) extended these regulatory access obligations, including an obligation on Proximus to provide a wholesale multicast function that will enable alternative operators to offer television services (see Question 3, Regulatory authorities). In 2011, the CRC imposed on the cable operators Brutélé, Coditel (Numericable), Tecteo and Telenet the obligation to open up their networks to alternative operators wishing to provide television and broadband services over cable. The CRC then determined the tariffs cable operators could charge alternative operators. In February 2016, the CRC approved revised pricing for access to wholesale cable services. The tariff decision came into force in May 2016 and allowed Orange to become a new player on the fixed market by providing bundled services with an internet and TV offer. In June 2016, the Brussels Court of Appeal annulled the CRC's renewal decision of 2014 giving alternative operators broader access to Proximus' broadband network on the ground of procedural shortcomings. The Court thus held that, even though the renewal decision was notified to the Belgian competition authority and to the European Commission (Commission) in advance, the CRC should have submitted a new notification to these bodies before adopting the decision. Due to this annulment, the conditions for regulated access to Proximus' broadband network that were imposed in 2009 remain in force. In March 2017, the Brussels Court of Appeal annulled the decision of August 2016 by the Belgian Institute for Postal Services and Telecommunications (BIPT) (see Question 3, Regulatory authorities) regarding wholesale rates for call termination services. According to the Court, the BIPT should have consulted the Belgian competition authority on the new method used to calculate rates. In October 2017, the Brussels Court of Appeal annulled the decisions of the CRC from 2013 regarding the wholesale tariffs for access services to cable networks and its decisions from 2016 regarding the revision of these tariffs. In order to avoid legal insecurity and disturbance on the telecom market, the Court decided that the annulment of the decisions takes effect in April 2018. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 3 So far alternative operators have generally been unable to effectively enter the market and competition on the fixed markets is still very limited. In February 2016, the Commission cleared the acquisition of Base, the third largest mobile telecommunications operator in Belgium, by Liberty Global. To maintain competition on the Belgian mobile telecommunications market, Liberty Global has committed to sell Base's shares in Mobile Viking, a mobile virtual network operator that uses Base's network, to Belgian broadcaster Medialaan. Liberty Global has further committed to transfer part of Base's customer base to Medialaan. Liberty Global has also concluded an agreement with Medialaan, giving the latter access to Base's mobile network at conditions that will allow Medialaan to compete effectively as a full mobile virtual network operator. In June 2017, the Belgian Competition Authority approved the acquisition by Telenet of SFR Belgium (formerly Numericable) for EUR400 million. SFR has committed to allow Orange to use its cable network in order for Orange to be able to offer a bundled offer (Internet and TV) at a reasonable price. In July 2018, the Belgian government issued a draft law and five corresponding draft Royal Decrees to amend the federal Electronic Communications Act of 13 June 2005 and prepare the new spectrum auctions that will take place in 2019. These auctions will provide an opportunity for market players to obtain 5G frequencies. The Belgian government announced that they could also provide an opportunity for a fourth player to enter the market. According to a BIPT market study, this would lead to a fall in the prices of mobile telephony, at least in the initial phase. The market study indicates that it is difficult to predict the effect the number of players will have on investments, but one can expect more innovation from increased competition. Lower profits mean that operators may invest less in zones where there is no competition (such as in rural areas) or cut costs in quality. In September 2018, the BIPT issued a communication regarding 5G deployment in Belgium. The communication emphasises the need for Belgium to be a 5G "precursor" in Europe. It highlights the role the BIPT will play in this context and provides interesting information, including: • A discussion on 5G frequencies. • The impact of 5G on the "internet of things" and key industries such as energy, healthcare and automobile. • A roadmap for 5G deployment in Belgium. Restrictions on foreign ownership 2. Are there any restrictions on foreign companies entering the telecommunications market in your jurisdiction? There are no restrictions on foreign companies entering the telecommunications market. Many telecommunications operators active in Belgium are ultimately controlled by foreign companies and the Belgian market has benefited from foreign investment from some of the major players including: Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 4 • Liberty Global, which is the majority shareholder of Telenet and which owns Base Company since 2016. • The French company Orange, which owns Orange Belgium. Regulatory framework Legislation and regulatory authorities 3. Give a brief overview of the regulatory framework for telecommunications in your jurisdiction. Which authorities regulate telecommunications services in your jurisdiction? Is there a separate regulator for competition law issues in this sector? Regulatory framework The basic law regulating telecommunications in Belgium is the federal Electronic Communications Act of 13 June 2005 (Electronic Communications Act), which replaces most but not all of the provisions of the federal law of 21 March 1991. The Electronic Communications Act covers all essential fields of electronic communications, including: • Defining the objectives and powers of the national telecommunications regulator, the Belgian Institute for Postal Services and Telecommunications (BIPT). • Establishing specific regulations for telecommunication operators in relation to the notification requirements for the provision of electronic communications services and networks, the use of numbers and radio frequencies, shared use of sites and infrastructure, administrative fees, terminal equipment, directories and enquiry services and cryptography. • Protecting fair market competition (for example, market analysis and the determination of significant market power (dominance), the imposition of regulatory obligations and so on). • Protecting public interest, society and consumers (for example, universal service obligations, services of public interest and the protection of final users (including information of end users, quality and security of services, the provision of supplementary services, secrecy of communications, and the processing of personal data)). The Electronic Communications Act was amended in 2012, 2014 and 2017, notably to implement the amended EU regulatory framework for telecommunications. A great number of Royal Decrees implement the various aspects covered by this Act. The two other relevant federal Acts are the: • Act of 17 January 2003 regarding the statute of the regulator BIPT. • Act of 17 January 2003 on the appeals and dispute settlement arising from the law of 17 January 2003 on the statute of the regulator of the Belgian postal and telecommunications sectors. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 5 Both acts have also been amended a few times, the last one by the federal law of 16 March 2015 to further ensure the independence of the BIPT following the intervention of the European Commission. Regulatory authorities The federal minister responsible for telecommunications and the digital agenda and BIPT are together in charge of telecommunications policy. BIPT has the power to adopt individual decisions. However, responsibility for the regulation of media and content falls to the non-federal level (that is, the French, the Dutch and the German speaking Communities). Each of the three linguistic communities has its own media regulator and its own minister in charge of media. In light of the convergence between telecommunications and the media, the Federal State and the three Communities concluded the Co-operation Agreement of 17 November 2006 (Co-operation Agreement). The Cooperation Agreement requires the mutual consultation of both the federal government and the Communities when drafting legislation relating to electronic telecommunications networks and exchanging information. The Cooperation Agreement also requires co-operation between the telecom and media regulators in the exercise of their competences. For this purpose, the Co-operation Agreement instituted the Conference of Regulators of the electronic communications sector (CRC). The CRC regroups the relevant federal and community regulators to make decisions and establish rules relating to electronic communication issues (federal competence) which relate to media and content (communities' competence). For example, the opening of cable networks was decided by the CRC, as it covered both elements of telecommunications (the transmission of signals) and media/content (see Question 1, Recent developments). There is no separate regulator for competition law issues in the telecommunications sector. Competition matters in telecommunications are dealt with by the Belgian Competition Authority. Since 25 May 2018, compliance with Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation (GDPR)) as implemented by the 30 July 2018 Data Protection Act is under the control of the Data Protection Authority (DPA). The DPA replaces the Commission for the protection of privacy, which was created in 1992 under the previous Belgian privacy framework (see Question 15). Authorisation and licences 4. What notification, authorisation and licences are required to provide telecommunications services? What is the licence application procedure and fee? The provision or resale of electronic communications networks or electronic communications services is subject to prior notification of the Belgian Institute for Postal Services and Telecommunications (BIPT) (section 1, Article 9, Electronic Communications Act). Each person subject to the notification requirement is considered to be an "operator". Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 6 An electronic communications service should generally (Article 2, paragraph 5, Electronic Communications Act): • Be provided for remuneration. • Consist wholly or mainly of the conveyance of signals on electronic communications networks (this could include, for example, the provision of a telephone or internet service). • Not exist for the purpose of providing (or exercising editorial control over) content, an information society service or a radio and television broadcasting service. The BIPT has provided further guidance on the notification requirements (for example, in relation to what is considered an "operator" and an "electronic communication service") in a communication dated 27 February 2015. A Royal Decree of 2 September 2018 further specifies the information notifications should include and how they should be communicated to the BIPT. Only electronic communications services provided or resold in Belgium must be notified with the BIPT. Additionally, there is no requirement to notify the BIPT where the (Article 9, sections 5 to 6, Electronic Communications Act): • Provision of electronic communications services does not occur in the public domain. • Service provider or reseller provides or resells the service exclusively to a legal person (its client) in which the provider has a majority share. • Service is provided or resold within the framework of a convention under which the service is made available secondarily and only by way of assistance. Notification is made by completing the relevant form, which is available on BIPT's website (www.bipt.be). Notification enters into force on the day the notification is sent to the BIPT. The following fees are due from notification, evidence of which must be provided with the relevant form: • Single registration fee of EUR680. • Annual administrative fee, calculated on the basis of the operator's turnover (between EUR636 and EUR186,810). There are no special rules for foreign operators, regardless of whether they are located in or outside the EU. Apart from the obligation to notify the BIPT, the provision of electronic communications services does not in itself require an authorisation or licence from the BIPT. For fixed services, a notice must be filed with the BIPT and the above fees must be paid. For mobile telecommunications services, 2G, 3G and 4G licences are granted after auction. In addition to the licence fee to obtain the right to use the frequencies, an annual fee per MHz of bandwidth the licensee uses is due (Royal Decree of 22 December 2010 on radio access to the 2500-2690 MHz frequency bands; Royal Decree of 18 January 2001 regarding the granting of licences for the third generation). Authorisation and the payment of a fee are also required when offering mobile satellite services. An annual fee is also due for the use of frequencies. In addition, the use of complementary ground components is subject to a special licensing regime. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 7 Finally, the use of numbers is also subject to obtaining a licence from the BIPT. 5. How long does a telecommunications licence typically last and what are the usual conditions attached to it? Can conditions be varied? Are licences available for public inspection? In general, mobile telecommunications licences are granted for periods of between 15 and 20 years. 2G licences were originally granted for 15 years. However, the Royal Decree of 22 December 2010 extended this period for an additional five years and after this extension, allowed for tacit renewal until 15 March 2021. In 2001, 3G licences were granted for a maximum period of 20 years with the same end date as the 2G licences (that is, until 15 March 2021). For 4G licences, Royal Decree of 22 December 2010 provides that they will remain valid for 15 years after notification and can be renewed for periods of up to five years. In July 2018, the Belgian government announced that it would conduct new spectrum auctions for 5G frequencies. Licenses would be valid for 20 years (see Question 1, Recent developments). Numerous conditions are attached to the grant of a mobile telecommunications licence, including the obligation to: • Cover a certain percentage of the population within a certain period of time. • Use the licence for commercial purposes within a limited period after the notification. • Conclude a national roaming agreement. • Ensure access to emergency services. If there are sufficiently serious reasons, the conditions attached to a telecommunications licence can be modified by Royal Decree at any time. The Belgian Institute for Postal Services and Telecommunications monitors compliance with the conditions (see Question 6). Penalties for non-compliance 6. What are the consequences of non-compliance with the telecommunications regulations? Non-compliance with the provisions of the Electronic Communications Act or the conditions attached to a licence can lead the Belgian Institute for Postal Services and Telecommunications (BIPT) to adopt interim measures and/ or to order the immediate termination of the infringement. The BIPT can also impose administrative fines of up to: Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 8 • 5% of the telecom turnover of the company concerned. • EUR5,000 in the absence of a turnover. The fine can be doubled if the non-compliance continues. If the company repeatedly infringes the Electronic Communications Act, the BIPT can order the partial or total termination of the exploitation of the network or service concerned, including the sale or use of the services or products concerned or the suspension or withdrawal of the user rights. In July 2016, the BIPT imposed an administrative fine of EUR223,454 on Skype as it did not notify itself to the BIPT as a provider of electronic communications services for its SkypeOut service. SkypeOut is a service that can be used to call landlines and mobile numbers from a computer. The BIPT assessed that Skype should be considered a provider of electronic communications services as SkypeOut is provided against payment and consists completely or mainly of signal transmission. As Skype did not notify itself as an operator, it infringed the Electronic Communications Act. According to the BIPT, the absence of notification allowed Skype to escape the rules set by the Electronic Communications Act relating to network security, data protection, access to emergency services or the possibility for users to appeal to the office of the Ombudsman for Telecommunications. Skype has appealed the BIPT's decision. In a judgment dated 7 February 2018, the Brussels Court of Appeal has submitted a preliminary ruling to the Court of Justice of the European Union (CJEU) on the definition of electronic communications services within the meaning of the EU framework applicable at the time. In August 2016, the BIPT imposed an administrative fine of EUR10,000 on EDPnet for preventing its clients from ending their contract at the moment of their choosing and for charging its clients termination fees. Since July 2017, the "Easy Switch" procedure has been introduced, which was implemented by Royal Decree of September 2016. This procedure simplifies the possibility for consumers to change their operator and to terminate contracts free of charge. In September 2016, the BIPT imposed an administrative fine of EUR15,000 on Scarlet for an infringement of section 2 of Article 108 of the Electronic Communications Act as the company did not properly inform its clients regarding modifications of its rates. In April 2017, the BIPT imposed an administrative fine of EUR96,800 on VOO since the company did not specify on its monthly bills the volume of Internet data consumed on its broadband network, infringing the Electronic Communications Act. In October 2017, the BIPT imposed fines of EUR25,000 and EUR10,000 respectively on SFR and Orange for the same infringement. In November 2017, the BIPT council adopted a decision imposing an administrative penalty upon Lycamobile for failure to duly co-operate with the Office of the Telecommunications Ombudsman. In June 2018, the BIPT imposed a fine of EUR225,183 on Lycamobile for non-compliance with the prohibition to sell pre-paid anonymous SIM cards. Appeals Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 9 7. Can decisions of the regulators be appealed and on what grounds? The addressees of a decision by the Belgian Institute for Postal Services and Telecommunications (BIPT) or Conference of Regulators of the electronic communications sector (CRC) can file an appeal with the Brussels Court of Appeal (Act of 17 January 2003). When deciding on the merits, the Court of Appeal will examine whether the decision: • Complies with substantive and procedural provisions. • Was adequately reasoned (legality review). The applicant can also request the partial or full suspension of the decision by way of preliminary measure. For suspension to be granted, the applicant must demonstrate that: • Serious means can be invoked, which justify the annulment of the contested decision. • The immediate execution of the decision would have serious consequences for the applicant which could not be easily be reparable afterwards. The Court of Appeal of Brussels, for instance, annulled several decisions by the CRC and the BIPT in 2016 and 2017 on the ground of procedural shortcomings (see Question 1). Universal service obligations 8. Is the incumbent provider or other large providers with significant market power subject to specific regulations? Do universal service obligations apply? Are there provisions for the structural separation of a network? Incumbent/large providers According to market analyses carried out by the Belgian Institute for Postal Services and Telecommunications (BIPT), the BIPT found that the incumbent Proximus, as well as cable network operators have significant market power (dominance) in a number of markets. The BIPT also regularly examined the markets for call termination on individual mobile networks and on the public telephone network provided at a fixed location and found that in addition to the incumbent operator Proximus, other alternative fixed and mobile public telephone network operators are companies with significant market power. These providers are therefore subject to specific regulatory obligations (see Question 13). Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 10 Universal service obligations Universal service obligations apply. The objective of these obligations is for operators to provide a minimum set of telecommunications services to all end-users at an affordable price. These include the obligation to: • Provide throughout the territory (and to any person requesting it) a basic voice telephony service and access to a basic fixed public network which allows calls, fax, data transmission and functional internet access with a download speed of at least 1 Mbps. • Provide access to a subscriber help desk. • In case of non-payment of bills, continually provide the minimum basic elements of a voice telephony service, such as: • the possibility to be called by another subscriber (with the exclusion of reversed charge calls); and • the possibility to make emergency calls. When the voice telephony market was liberalised, Proximus (as the incumbent operator) was the first telecommunications company required to carry out universal service obligations. To the extent that the provision of universal service constitutes an unfair burden, Proximus is entitled to cost-based compensation. This compensation is paid out of a "universal service fund", which is financed by the other telecommunications providers in proportion to the value of their turnover attributable to the fixed telephony market in Belgium. Since 2012, fixed and mobile operators with an annual telecom turnover of more than EUR50 million must offer social tariffs for all tariff plans. The social tariffs should facilitate access to services for people who: • Are on a low income. • Have reached the age of 65. • Are disabled. • Benefit from a social integration income. On declaration with the BIPT, operators with a lower turnover can also offer social tariffs if they wish. Operators can request compensation if the provision of social tariffs entails an unfair burden. Compensation is paid by the universal service fund relating to social tariffs which is financed by the other providers contributing on the basis of their telecom turnover. At the request of the Belgian Constitutional Court, the Court of Justice of the European Union recently clarified, in a judgment of 11 June 2015 (case C-1/14), that the special tariffs and the financing mechanism apply to internet subscription services requiring a connection to the internet at a fixed location, but not to mobile communication services, including internet subscription services provided by means of those mobile communication services. The Belgian Constitutional Court in case 15/2016 from February 2016 consequently annulled Article 51 of the Belgian law from 10 July 2012 (which modified the Electronic Communications Act, among others) as far as it obliged providers of mobile communications services and mobile internet subscriptions to participate in the Belgium compensation regime. General conditions Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 11 9. What general conditions apply to telecommunications services? Which other regulations must be complied with? The relevant legislation that must be complied with to provide telecommunications services in Belgium is provided in the: • Electronic Communications Act. • Implementing decrees of the Electronic Communications Act. • Decisions adopted by the Belgian Institute for Postal Services and Telecommunications. There are no other requirements specifically addressing telecom operators and/or providers. Most of the requirements for telecom operators are addressed in this article and concern (among others): • Quality of service. • Customer terms and conditions. • Technical standards. • Data protection. • Spectrum use. Spectrum use 10. Which authorities allocate spectrum use and how is it managed? Spectrum use and allocation is managed by the Belgian Institute for Postal Services and Telecommunications (BIPT) (Article 13, Electronic Communications Act). The BIPT determines strategic planning, co-ordination and harmonisation of the use of spectrum in collaboration with the Regions of Belgium, the authorities of other EU member states and the Commission to optimise the use of spectrum and avoid harmful interference. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 12 The BIPT also takes into account the relevant international agreements, including the International Telecommunication Union. The BIPT can also take into account public interest considerations. The BIPT ensures that the allocation of spectrum is made on the basis of transparent, non-discriminatory and proportionate criteria. 11. Can spectrum use be traded or sublicensed? Operators can transfer or sublicense frequency spectrum used entirely or partially for public electronic communications services, provided the: • Transfer or lease conforms to the requirements of efficient spectrum management. • Belgian Institute for Postal Services and Telecommunications (BIPT) has been informed and has approved the transfer/lease. However, the BIPT can refuse the transfer or sublease if the operator which transfers the spectrum initially acquired the right to use the frequencies free of charge (Article 19, Electronic Communications Act). Additionally, Royal Decree of 26 February 2010, as amended in 2014, contains further specific conditions for the transferring/leasing of frequency spectrum use, such as the obligation for the: • Acquirer or lessee to continue to fulfil the licence conditions. • Operator to pay a fee to cover the BIPT's costs of investigating the transfer or lease. Infrastructure and network management 12. Do communications providers have any powers to place their equipment on third party sites? Operators that own antenna sites must authorise (in a reasonable and non-discriminatory manner) third party operators to share the use of the sites (Article 25, Electronic Communications Law). Operators can request third parties to pay a user fee for using their sites. However, the fee must be approved in advance by the Belgian Institute for Postal Services and Telecommunications (BIPT). Furthermore, operators must take the necessary measures to ensure that the stability and height of the pylons of the antenna sites constructed by them are appropriate to allow them to be shared with other operators, unless this is Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 13 impossible for reasons that are recognised by the BIPT. The regulator can impose the shared use, taking into account the principle of proportionality. The BIPT can require operators to grant access to areas other than antenna sites (for example, buildings that are not antenna sites, cabling, supporting constructions or street cabinets) (Article 28, Electronic Communications Law). Furthermore, the BIPT can impose an obligation on any owner or operator of electronic network cabling located within a building to give access to this cabling where replication would be economically inefficient or physically impossible. Access and interconnection 13. Does access to infrastructure and a network have to be given to other providers? Operators satisfying the obligations for providing public electronic communications services or networks can negotiate access with authorised third-party suppliers of public electronic services or networks (Article 10, Electronic Communications Act). Furthermore, the Belgian Institute for Postal Services and Telecommunications (BIPT) has (based on its own market analysis) imposed regulatory access obligations on operators found to have significant market power in certain markets. Many of these markets are no longer listed in the 2014 European Commission Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation but were included in the 2007 version (the numbering refers to the 2007 version of the Commission Recommendation). Regulatory obligations on the incumbent (Proximus) In this respect, the incumbent telecommunications operator, Proximus, is subject to specific obligations. The BIPT has imposed obligations on Proximus (the BIPT is currently reviewing these markets and proposes to deregulate them, pursuant to the 2014 Commission Recommendation) in relation to: • Access and interconnection on the public telephone network at a fixed location. • Call origination on the public telephone network at a fixed location. Furthermore, Proximus has access obligations in relation to: • Wholesale network infrastructure access at a fixed location. Unbundled local loops. • Wholesale broadband access. Bitstream services, including multicast functionalities (allowing the transmission of TV signals). Finally, the BIPT has imposed obligations on Proximus in relation to access to terminating segments of leased lines (wholesale terminating segments of leased lines). These access obligations are accompanied by general obligations in relation to non-discrimination, transparency, accounting separation and price and cost accounting control. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 14 Regulatory obligations on Proximus and other operators for fixed and mobile call termination The BIPT imposed on fixed and mobile network operators access and interconnection obligations to terminate calls on individual fixed and mobile networks (fixed and mobile call termination). These obligations are accompanied by general obligations in relation to non-discrimination, transparency, publication of a reference offer and price and cost accounting control. Regulatory obligation on cable network operators The Conference of Regulators of the electronic communications sector requires cable network operators to give alternative operators wholesale access to their networks. Cable operators must: • Provide resale offers for analogue television. • Give access to digital television platforms. • Provide a resale offer for broadband internet if access to digital television platforms is purchased. 14. Is the interconnection of networks required? Are interconnection prices regulated and how are interconnection disputes resolved? If a third-party operator requests interconnection with the operator of a public network in order to provide services to the public, the public operator must negotiate the interconnection agreement in good faith (Article 52, Electronic Communications Act). The Belgian Institute for Postal Services and Telecommunication (BIPT) (acting ex officio or on request of an operator) can also impose obligations on operators in relation to interconnection (Article 51, Electronic Communications Act). The BIPT's analysis of the market for "Call termination on individual public telephone networks provided at a fixed location" (Market 3) has resulted in the imposition of maximum fixed charges by fixed telecom operators for when another operator terminates calls on their networks. The same applies for mobile termination rates (Market 7). Disputes between operators or telecommunication service providers regarding interconnection must be brought before the Belgian Competition Authority (BCA) (Article 4, Act of 17 January 2003). The BCA will deliver a decision within four months. During the examination of the dispute by the BCA, the BIPT designates a representative who will investigate the file in co-operation with the BCA. However, the procedure before the BCA is suspended if the parties resort to the conciliation procedure before the BIPT (see below). This conciliation procedure takes place on a voluntary basis (Article 14, section 1, paragraph 4, Act of 17 January 2003; Royal Decree of 5 May 2006). The parties can also mutually agree to resort to the administrative procedure before the BIPT (Article 14, section 1, paragraph 4(1), Act of 17 January 2003). In this case, the parties are deemed to have waived the possibility of bringing their dispute before the BCA. Data protection and security Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 15 15. What data protection regulations apply to the telecommunications sector? Are communications providers required to retain communications data? If yes, which data and for how long? Since 25 May 2018, the GDPR replaced Directive 95/46/EC on data protection (Data Protection Directive) and the 1992 Belgian Privacy Act. Belgium adopted a new Data Protection Act on 30 July 2018 to implement specific rules under the GDPR. Directive (EU) 2016/1148 on measures for a high common level of security of network and information systems (NISD), which regulates cybersecurity standards for essential infrastructure at EU level for the first time, also took effect in May 2018. However, at the time of writing, its transposition in Belgium is still in progress. Directive (EU) 2016/680 on the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data (Law Enforcement Processing Directive) sets out the data protection rules that apply to public authorities that process personal data in the context of criminal law. Belgium transposed this Directive in the Data Protection Act on 30 July 2018. The GDPR grants regulatory authorities stronger investigative and enforcement powers and the ability to impose high fines for infringements of the legal framework regarding data protection. The exiting Belgian Commission for the Protection of Privacy was not authorised to impose fines and had to refer cases to the public prosecutor's office. Under the Law of 3 December 2017, the Belgian Data Protection Authority will have increased investigative and enforcement powers, such as the power to conduct on-site reviews and to impose administrative fines. The GDPR also requires all companies that process personal data to implement appropriate technical and organisational measures, such as pseudonymisation and encryption, to ensure a level of security that is appropriate to the risk. The Belgian DPA already published several guidelines, including on the right to data portability, identification of the lead authority, the requirement to appoint a data protection officer and the requirement to maintain internal records of processing activities. The Electronic Communications Act also creates a specific regime for operators (providers of electronic communications services) (based on the e-privacy directive also under revision by the EU institutions) in relation to the: • Processing of data. • Secrecy of communications. • Protection of privacy. Firstly, under the Electronic Communications Act operators must destroy all data traffic from subscribers or final users, or make such data anonymous, as soon as the information is no longer necessary for the transmission of the communication (Article 122, section 1, Electronic Communications Act) (although this is subject to the obligation to co-operate with the judicial authorities). However, an exception to this general rule applies in relation to limited data for the purposes of billing, marketing and investigating fraud (Article 122, sections 2 to 4, Electronic Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 16 Communications Act). In this context, data can only be processed by the person responsible for billing, traffic management, the processing of client inquiries, fraud detection, marketing, and (under certain conditions relating to the end-user's consent) the provision of services with traffic and location data (Article 122, section 5, Electronic Communications Act). The processing of data must also be strictly limited to what is necessary for the exercise of these activities. Secondly, the Electronic Communications Act protects the secrecy of communications (Article 124, Electronic Communications Act). This includes clear prohibitions on intentionally doing the following: • Gain knowledge of the existence of information transmitted through electronic communications. • Identify persons concerned by the transmission of information and its contents. • Gain knowledge of electronic communications data regarding another person. • Process or use any information, identification or data obtained. A number of very limited exceptions to the principle of secrecy of communications are provided for in Article 125. Operators must notably co-operate with judicial authorities and therefore retain traffic data and make them available to the authorities. The Belgian Police is currently in the process of developing a project called "Tank" in co-operation with the BIPT. This project should lead to the development of an automated exchange of questions and answers between the police and intelligence services on the one hand, and operators and service providers on the other hand. The BIPT published an information brochure drafted by the Belgian Central Technical Interception Facility to provide an overview of this project on 17 May 2017. In January 2017, the European Commission published a draft e-Privacy Regulation that would replace the current ePrivacy Directive. The new Regulation will also apply to new players providing electronic communications services such as WhatsApp, Facebook Messenger and Skype and will ensure that these new services guarantee the same level of confidentiality as traditional telecoms operators. Although the legislative process is still in progress, it is unclear when the final text will be adopted. Articles 126 and 126/1 of the Electronic Communications Act, which impose data retention obligation on operators, were modified in May 2016 following a judgment of the CJEU of 8 April 2014. In this judgment, the CJEU held that Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (Data Retention Directive) was invalid. The CJEU stated that by requiring the retention of data by providers of public electronic communications services or networks, and by allowing the competent national authorities to access those data, the Data Retention Directive constituted an interference with the fundamental rights guaranteed by Article 7 (right to privacy) and Article 8 (protection of personal data) of the EU Charter of Fundamental Rights. The CJEU held that the Data Retention Directive did not provide clear and precise rules circumscribing the interference with these rights to what was strictly necessary. The data retention obligation generally covered all persons and all means of electronic communications and traffic data without any differentiation, limitation or exception. Furthermore, no objective criterion determined the limits of the access of the competent national authorities to the data and their subsequent use. Regarding the period of detention, no distinction was being made between categories of data. On 11 June 2015, the Belgian Constitutional Court consequently annulled former Article 126 of the Electronic Communications Act containing the data retention obligation for operators, on the same grounds as those identified by the Court of Justice. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 17 Under the newly modified Article 126 introduced by a law from May 2016, operators must retain the following categories of data: • User and subscriber identification data (holder of the number/address). • Connection and location data (place and duration of communication). • Personal communication data excluding the content (origin and destination of the communication). The competent authorities allowed to receive the data from the operators are the judicial investigative authorities, the intelligence and security services, the public prosecutor's office, the emergency services and the Ombudsman for Telecommunications. These authorities can only access specifically defined data for the purpose of executing specific tasks entrusted to them (for example, investigation of certain types of criminal offences, the search for missing persons or the localisation of persons in need of help). Regardless of the category of data, operators must, as before, retain the data during 12 months. In December 2016, the CJEU stated in a preliminary ruling that EU member states may not impose a general and indiscriminate obligation to retain data on providers of electronic communications services. Data retention must thus be targeted for the purpose of fighting serious crime. Additionally, the ECJ held that the national authorities' access to the retained data must be subject to conditions (including prior review by an independent authority). The CJEU held that any national legislation on the retention of data must: • Be clear and precise. • Provide for sufficient guarantees on the protection of data against risks of misuse, including by laying down the substantive and procedural conditions governing the access of the competent national authorities to the retained data. In March 2017, the CJEU held in case C-536/15 opposing the Belgian company European Directory Assistance to Dutch operators Tele2, Ziggo and Vodafone-Libertal that under the Universal Service Directive the consent given by a telephone subscriber in any member states regarding the publication of its data in a public directory does not need to be renewed for the passing of the same data to an undertaking in another member states, if it is guaranteed that the data in question will not be used for purposes other than those for which the data were collected with a view to their first publication. The CJEU further held that such passing of data to another undertaking is not capable of substantively impairing the right to protection of personal data, as recognised by the EU Charter of Fundamental Rights. In an opinion published in September 2017, the Belgian Institute for Postal Services and Telecommunications (BIPT) drew the consequences of this preliminary ruling and held that phone service providers must freely provide data to publishers of public directories, irrespective of their place of establishment. On 2 August 2018, the Belgian Constitutional Court sent a request for a preliminary ruling to the CJEU. The Constitutional Court asked the CJEU: • Whether Belgian law can require operators to store subscribers' traffic and localisation data, not only for resolving serious crimes, but also for guaranteeing national security and public safety, and whether such retention would be possible in cases of sexual abuse of minors. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 18 • Whether data already retained under the current Belgian legal framework could still be used for investigations and public safety should the CJEU consider that this framework violates EU privacy and data protection rules. Regarding cybersecurity, in 2014 the Belgian Centre for Cybersecurity (BCC) was set up by Royal Decree. The NISD promotes active co-operation among cybersecurity agencies at EU level. To that end, the current draft implementing law for the NISD makes the BCC the central authority for cybersecurity in Belgium. In the electronic communication sector, the BIPT Council adopted on 14 December 2017 a decision regarding the thresholds and terms and conditions for reporting of security incidents within the electronic communications sector. This decision replaces the BIPT Council Decision of 1 April 2014 laying down the circumstances in which the operators must notify BIPT of a security incident and the terms and conditions of this notification. This decision specifies which security incidents have to be reported as well as the practical manner in which to report them. For further considerations regarding cybersecurity in Belgium, see Question 17. 16. What are the rules relating to the interception of calls? How and on what grounds can authorities require disclosure of communications data? What are the penalties for breach of these rules? Under the Belgian Code on Criminal Procedure, the public prosecutor is entitled to request operators of electronic communications networks to co-operate with them in relation to: • Providing information enabling the identification of the subscriber and the electronic service subscribed to (Article 46bis, Code on Criminal Procedure). • Demanding information from an operator regarding calls to and from a certain device (but not regarding the content of the call) (Article 88bis, Code on Criminal Procedure). • Tapping telephone conversations (Article 90ter to 90 decies, Code on Criminal Procedure). Electronic telecommunications providers must make accessible to judicial authorities, upon their simple request and without delay, data for the instruction and investigation for judiciary, security and intelligence purposes (Article 126, section 2, Electronic Communications Act). The new Article 126 of the Electronic Communications Act adds the emergency services and Ombudsman for Telecommunications to the list of competent authorities that are entitled to request access to newly defined categories of communications data. The data that can be requested from operators includes: • Traffic data. • Location data. • End-user identification data. • Service and terminal equipment data. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 19 This duty of co-operation is implemented by Royal Decrees of 9 January 2003, of 12 October 2010 and of 19 September 2013. For example, each operator must set up a "co-ordination unit" to which the competent authorities can address their requests. If the data is less than 30 days old, the data must be communicated in real time. If the data is more than 30 days old, the data must be communicated the next working day. Under new Article 126(1) of the Electronic Communications Act, not only judicial authorities but also emergency services and the Ombudsman for telecommunications are under certain conditions entitled to access communications data. 17. Are there any network security obligations imposed on communications providers? Operators must take the necessary security measures to guarantee the integrity and availability of their networks and services (Article 114, Electronic Communications Act). Operators must therefore ensure that personal data can only be accessed by authorised personnel for legally permitted purposes, and that data is protected against illegal destruction or storage, unwilling loss or modification. Operators must also ensure a security policy is introduced in relation to the processing of personal data. The Belgian Institute for Postal Services and Telecommunications (BIPT) can control the measures taken by operators and can make recommendations. Electronic communications providers must offer their customers, at no cost, adequate security services allowing them to avoid all types of unsolicited electronic communication. Operators must inform their subscribers and the BIPT of any particular risk of a breach to its network security, with an indication of the measures that can be taken to protect against this risk. Operators must notify the BIPT of any security breach or loss of integrity that has had a significant impact. On 14 December 2017, the BIPT adopted a decision regarding the thresholds and terms and conditions for reporting security incidents in order to clarify the meaning of the term "significant impact". The BIPT can inform the public, or require the providers to do so, where it determines that disclosure of the incident is in the public interest. Operators must also inform the Belgian Data Protection Authority (DPA) and subscribers of a breach of personal data, where the breach is "likely to adversely affect" subscribers’ personal data. The DPA notifies in turn the BIPT. A European Commission implementing regulation specifies that the assessment of whether a personal data breach is likely to have an adverse effect must take into account the nature and content of the data, likely consequences of the breach, and the circumstances of the breach. Subscriber notification is not required where the data was encrypted, and the encryption keys have not been compromised by a security breach. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 20 Price regulation 18. How are prices and charges regulated? Wholesale pricing At wholesale level (that is, between operators), following the necessary market analysis to assess its competitiveness pursuant to the regulatory framework, operators with significant market power can be subject to: • Price control obligations (tariffs based on cost orientation). • Access requirements, with tariffs calculated on the basis of the retail minus methodology. There are also specific prohibitions of tariffs resulting in a margin-squeeze (see Question 13). Usage fees for antenna sites are regulated under sections 4 and 5 of Article 25 of the Electronic Communications Act. The usage fee must include the global cost (that is, the direct acquisition costs of the site and actual construction) and maintenance costs, increased by a percentage equal to the operator's average capital-weighted cost allowing shared use. The financial aspects relating to the porting of numbers between telecommunication operators are set out in Article 12 of the Royal Decree of 2 July 2013. Operators must introduce portability on an efficient basis. At the request of an operator, the BIPT will decide the most efficient manner to introduce portability. Each operator bears the costs of installing the porting system. At retail level, the maximum fee for porting a number is EUR10 (Article 11, Royal Decree of 2 July 2013) The Belgian Institute for Postal Services and Telecommunications determines, on an annual basis, the administrative charges to be paid when applying for numbering and of the annual fees for the use of the numbers (Article 30, Electronic Communications Act). Retail pricing At retail level, the Royal Decree of 27 April 2007 on numbering regulates national non-geographic E.164 numbers. Article 48 sets a maximum retail tariff for the use of electronic communications networks (EUR0.30 per minute for an outgoing call). For specific premium-rate calls, Article 45 provides that the recipient of the call will bear the costs. Roaming charges are regulated under European Union Regulation (EU) 531/2012 on roaming on public mobile communications networks within the Union (Roaming Regulation). The Roaming Regulation was amended by Regulation (EU) 2017/920 which limits average wholesale charges as of June 2017. Under this agreement, the average maximum charge that the visited network operator may levy on the roaming provider for the provision of regulated roaming SMS, voice and data traffic originating on that visited network has been set. This regulation allowed for the abolishment of roaming charges. Roaming charges were abolished under Regulation (EU) 2015/2120, which stated that, as of June 2017, roaming providers must not levy any surcharge in addition to the domestic retail price on roaming customers in any member states. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 21 Telephone number and subscriber management 19. How are telephone numbers allocated and managed in your jurisdiction? The Belgian Institute for Postal Services and Telecommunications (BIPT) establishes the national numbering plans (see Royal Decree of 27 April 2007 on management of the numbering space). Operators of electronic communications networks or services can apply to reserve numbers and acquire and exercise user rights for these numbers. The BIPT must then decide whether to grant an operator's application for reservation within three weeks. Operators will only be assigned the maximum amount of available numbers applied for if they make effective use of the number capacity within the specified reservation period. Furthermore, the Royal Decree of 27 April 2007 on management of the numbering space contains rules regarding the numbering plan for national short (three digit) numbers. These numbers are reserved for emergency services, the Belgian Red Cross and so on (see Question 20). Article 127 of the Electronic Communications Act was modified in order to forbid the sale of pre-paid anonymous SIM cards in Belgium by Act of 1 September 2016. This measure entered into force in June 2017 and aims at fighting terrorism. The Belgian regulator adopted a decision to determine a numbering plan for M2M communication (see decisions of the BIPT council of 6 September 2011 and of 4 September 2012). A recent decision of the BIPT Council of 10 January 2018 relating to the determination of the numbering plan for IoT and Ecall communication replaces the last decision of 4 September 2012. This decision extends the perimeter of services using national E.164 077 phone numbers (that is, M2M services) to eCall and clarifies that it is also allowed to use 077 numbers in combination with IoT communications to establish voice communications to a limited number of predefined connections. 20. Does access have to be provided to certain services, such as the emergency services and directory enquiries? Undertakings providing telephone services accessible to the public, as well as undertakings offering to final users an electronic communications service permitting outgoing calls by dialling one or several numbers pertaining to the national numbering plan, have the obligation to ensure access to emergency call services to end-users (Article 107, Electronic Communications Act). The operator must provide the emergency call service to the consumer at no cost Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 22 and at their own expense. Operators are also obliged to provide the identification data of the caller when calls are made to emergency services. These obligations were executed by various Royal Decrees and Orders requiring (among other things): • Technical solutions for mobile phones, enabling emergency services to provide on-the-spot assistance via text message. • Measures enabling emergency services to provide remote assistance, in order to combat malicious calls. The "fund for emergency services providing on-site assistance" verifies the costs of the emergency services and is entrusted with recovering these costs from operators and refunding them to the emergency services. The fund is managed by the Belgian Institute for Postal Services and Telecommunications. If operators of telephone services make their subscribers' data available to telephone directories and enquiry services, these must be made available under technical, financial and commercial conditions that are fair, reasonable and non-discriminatory (Article 45 to 46, Electronic Communications Act). 21. Are there regulations relating to specific consumer services, such as acquiring and transferring subscribers, number portability, complaint handling, and nuisance and silent calls? Transferring subscribers/number portability Number portability is obligatory for fixed and mobile numbers and must be offered to the customer free of charge. The transfer of the number must not take longer than one day. If there are delays, customers can claim compensation. Royal Decree of 2 July 2013 sets out the underlying technical and financial requirements. Currently, a simple, predictable, fast and synchronised migration procedure only exists for changing mobile telephone operators. However, in March 2015, the Belgian Institute for Postal Services and Telecommunications (BIPT) submitted a report to the Minister of the Digital Agenda and Telecommunications proposing a procedure to smoothen the process of changing fixed telecom operators. To avoid service interruptions or double invoicing when changing fixed operators, the BIPT proposes a one-stop shopping procedure in which the consumer must only address the new operator, who will be required to complete the transfer within a given term. Complaint handling In conformity with their licence conditions (or for 3G operators, Article 21 of Royal Decree of 18 January 2001), operators must create a service responsible for handling customer complaints. This service must be created at their own expense. Operators must appoint a person to be in charge of the relations with the Office of the Telecommunications Ombudsman. Also, the operator will need to inform his clients of the possibility to appeal to the Office of the Ombudsman. Nuisance calls Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 23 Operators and providers must provide to their subscribers, at no cost, and taking into account the technical possibilities, adequate safety services that allow them to prevent all kinds of unwanted electronic communications (Article 114, section 4, Electronic Communications Act). 22. Are consumer telecommunications contracts subject to specific regulations? Articles 108 to 112 of the Electronic Communications Act contain specific provisions regarding telecommunications contracts between consumers and operators. In particular, the provisions introduce: • Transparency requirements in favour of consumers. • Rights for consumers in the event operators want to change existing contract terms. • The right for consumers to unilaterally terminate the contract. Transparency requirements Each contract between a subscriber and an operator must contain certain minimal information, including: • The name and address of the operator. • The services offered (including whether access to emergency services and information on caller location is provided). • Details of the tariffs applied. • The length of the contract and renewal and termination conditions. • The global price for a joint offer of several electronic communications services. Operators must provide a detailed invoice to subscribers. The Ministerial Decree of 12 November 2009 specifies the level of detail of invoices. At least once per year, operators must indicate on the invoice the most favourable tariff plan, taking into account the subscriber's consumption profile (Articles 108, sections 1,110, 1 and 4, Electronic Communications Act). Consumers' rights in the event of contract change by operators Where an operator alerts the subscriber to a change of a contractual clause, the subscriber is entitled to terminate the contract without penalty. The subscriber must be alerted to the envisaged contract change at least one month in advance of the change. The same applies where the operator plans a tariff increase. The subscriber is entitled to terminate the contract without penalty, at the latest, on the last day of the month following receipt of the first invoice after the tariff increase. Maximum initial contract duration and consumers' termination rights Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 24 The initial duration of the contract must not exceed 24 months. In all cases, operators must offer their clients the possibility to conclude a contract with an initial duration of 12 months. The subscriber has the right to terminate the contract at any moment. Subscribers with less than five telephone numbers are not obliged to pay a penalty when terminating a contract of indefinite duration, or in the case of early termination of a contract with a definite term, at the end of the sixth month following the entry into force of the contract. In the event of an early termination of a contract with a definite term, the penalty that an operator can claim cannot exceed the subscription charge that would still be due until the end of the sixth month if the contract had not been terminated prematurely. 23. Are there restrictions on the use of Voice over IP technology in your jurisdiction? There are no specific restrictions on the use of Voice over IP (VoIP) technology. However, the Belgian Institute for Postal Services and Telecommunications (BIPT) considers telephony and internet access to be examples of services based on the conveyance of signals and therefore to constitute "electronic communications services" that are subject to the Belgian telecommunications laws. According to the BIPT, the transmission of telephone communications, whatever their nature (including from the internet to a number in the numbering plan, or using a number from the numbering plan) is considered a signal transmission (BIPT communication of 27 February 2015 about the obligation to notify oneself as an operator to BIPT, page 9). In its decision against SkypeOut (phone calls to fixed and mobile numbers), the BIPT found that "SkypeOut allows users to make calls to numbers from a numbering plan, so that it qualifies as a transmission of signals." The Authority also found that SkypeOut operates through the PSTN and the Internet, so it requires the use of electronic communication networks (BIPT, decision against Skype, 30 May 2016). On 29 July 2016, Skype commenced an appeal against the BIPT decision, which is still pending. The BIPT has also confirmed that, under Article 107 of the Electronic Communications Act, operators of nomadic VoIP services are subject to the obligation to give access to emergency call services (BIPT public consultation dated 25 November 2014 regarding the revision of the numbering plan policy, page 8). In 2007, the Belgian telecom regulation had allowed, under certain conditions, the use of geographic national E.164 numbers for VoIP services with a nomadic component (Article 43, Royal Decree of 27 April 2007 on the management of the national numbering space). Furthermore, the Belgian regulator has included access to VoIP in the market for access services to the public telephone network at a fixed location (see Question 13). To this extent, providers of access are subject to the related imposed regulatory obligations. The regulator also considers specific types of VoIP services as publicly available national telephone services provided at a fixed location for residential and non-residential costumers (BIPT decision of 24 September 2014, paragraphs 175 to 193; 236). To this extent, the providers of these services are subject to related compliance obligations (for example, Article 126 of the Electronic Communications Act subjects providers of telephone services and telephone services via the internet to data conservation obligations). Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 25 24. Are there regulations relating to the maintenance of net neutrality in your jurisdiction? In November 2015, the first EU-wide net neutrality rules were adopted in Regulation (EU) 2015/2120 laying down measures concerning open internet access (Telecoms Single Market Regulation). These rules applied as of April 2016. The Telecoms Single Market Regulation provides that providers of internet access services must treat all traffic equally when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used. National regulatory authorities must closely monitor and ensure compliance with the provisions on an open Internet. The Electronic Communications Act provides that where the Belgian regulator takes measures within its competence to achieve the goals of promotion of competition, the development of the internal market of electronic services and networks and the protection of consumers, it must respect the principle of network neutrality (Article 5(f), Electronic Communications Act). Further, the Belgian Institute for Postal Services and Telecommunications must favour the ability of end-users to access and distribute information and run applications and services of their choice (Article 8, paragraph 7, Electronic Communications Act). Outsourcing and telecommunications 25. Are there specific regulations for the outsourcing of telecommunications services or the management of these services? There are no specific regulations in relation to the outsourcing of telecommunications services or the management of these services. Similarly, there are currently no regulatory considerations triggered by the outsourcing of the management and procurement of telecommunications services. 26. Briefly set out the current trends in outsourcing transactions in the telecommunications sector. Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 26 To date and to our knowledge, Belgian telecom providers have not yet outsourced the operation and/or management of their networks to a third party. Outsourcing of the management of telecommunications services by companies to third parties is much more common. 27. Who are the key providers of outsourced telecommunications? See Question 26. 28. What are the current technologies influencing or affecting outsourcing by telecommunications operators? See Question 26. 29. From a contractual perspective, what are the key issues in a typical telecommunications outsourcing transaction in your jurisdiction? See Question 26. Contributor profiles Anne Vallery, Special Counsel WilmerHale Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 27 T +32 2 285 49 58 F +32 2 285 49 49 E [email protected] W www.wilmerhale.com Professional qualifications. Brussels Bar, Belgium Areas of practice. TMT and electronic communications law; anti-trust and competition law; cartel investigations and litigation; abuse of dominance cases; state aid cases; private enforcement cases (damages litigation). Recent transactions • Assisting telecommunications operators in national litigation and before the European Courts, in proceedings before the European Commission and the telecommunications regulator. • Counselling on various regulatory and competition law issues, such as interconnection, roaming, call termination, mobile access, spectrum issues and other price regulation. Non-professional qualifications. LLM (European Law), summa cum laude Institut d'Etudes Européennes, Université Libre Bruxelles, 1996; JD (Law), magna cum laude, Université Libre Bruxelles, 1994 Languages. English, French, Dutch Professional associations/memberships. Officer with the Communication Committee of the International Bar Association (IBA) (Co-chair); Tutor with the Institut d'Etudes Européennes, Université Libre Bruxelles; Member of the Editorial Board of the Cahiers de droit européen (Secretary); Member of the Editorial Board of Competition; Member of the Association of Belgian Competition Law Lawyers. Publications • Polska Telefonia Cyfrowa: Pricing of number portability: cost- or demand-based?; Journal of European Competition Law & Practice, 504-506, 2010. • Base v Ministerraad and Commission v Belgium: Case-by-case assessment of the unfair burden of universal service providers; Journal of European Competition Law & Practice, 130-133, 2011. • Droit des télécommunications, in Les 25 marchés émergents du droit, Bruylant, Bruxelles, 390-441, 2006. Itsiq Benizri, Associate WilmerHale T +32 2 285 49 87 F +32 2 285 49 49 E [email protected] W www.wilmerhale.com Communications: regulation and outsourcing in Belgium:..., Practical Law Country... © 2019 Thomson Reuters. All rights reserved. 28 Professional qualifications. Brussels Bar, Belgium Areas of practice. Data protection and cybersecurity; TMT and electronic communications law; antitrust and competition law; cartel investigations; abuse of dominance cases; state aid cases; mergers. Recent transactions. Advising an electronic communications service provider on telecommunication, data protection and cybersecurity compliance in the context of the global deployment of its services. Non-professional qualifications. LLM (EU law), College of Europe, 2015; LLM (EU, international and comparative law), European University Institute, 2014; JD (Law), Université Libre Bruxelles, 2013 Languages. English and French Professional associations/memberships. Member of the International Association of Privacy Professionals (IAPP). END OF DOCUMENT