This list of obligations (which is subject to change) is not an exhaustive listing of all the obligations an operator active on the Belgian market must fulfil.
In general, an operator must fulfil all the legal obligations as defined by the Act on electronic communications (ECA) and its implementation orders.
Notification to BIPT
In accordance with Article 9, §1, of the Act on electronic communications, the person corresponding to the definition of operator must notify BIPT prior to the beginning of its activities as operator.
In the absence of a prior notification to BIPT, the person providing electronic communications services is automatically considered by the ECA as an operator (Art. 2, 11°). This simple notification aims at obtaining the most exhaustive view of the sector to guarantee an equal treatment of the different actors, regarding their rights as well as their obligations.
Paying the fees due to BIPT
In the framework of the above-mentioned notification, a unique fee of € 740 must be paid to BIPT. Moreover, an annual fee of € 691 is charged by BIPT (amount due when there is no turnover or when the turnover is lower than 1 million EUR). During the first year of notification, the amount of this fee is calculated as a pro rata of the number of the remaining months of the year, the notification month being taken into account as a full month. The unique fee and the annual fee cover management and follow-up costs.
Identification of end-users
An operator must ensure that the end-users of its electronic communications services can be identified or at the very least are identifiable (Article 127 ECA). BIPT published FAQ on this subject. The identification obligation enables to avoid an anonymous use of the electronic communications services, because this anonymity is sometimes used to commit offences (fraud, harassment, piracy, cybercrime).
Article 126 of the ECA imposes on Internet access providers the obligation to store some traffic and identification data. However, the content of the communications cannot be stored. The data to store is given in the Royal Decree of 19 September 2013 implementing Article 126 of the ECA. This data retention is essential in case of a request by the judicial authorities and the intelligence and security services.
Cooperation with the judicial authorities and the intelligence and security services
The cooperation conditions between operators, on the one hand, and the judicial authorities and the intelligence and security services, on the other hand, are laid down by the Royal Decrees of 9 January 2003 and 12 October 2010. Pursuant to these decrees, operators must organise a Justice coordination cell, in other words a point of contact available 24/7.
In addition to the ECA, two other laws are applicable:
- the Code of Criminal Procedure (obligation to cooperate with the judicial authorities, in particular Articles 46bis, 88bis and 90ter and quater);
- the Organisation Act of 30 November 1998 of the intelligence and security services (obligation to cooperate with the intelligence and security services).
Moreover, the operator also have to provide the identification and location data of the caller for free to the call centres for emergency services (Art. 107 ECA). The access to emergency numbers must be guaranteed.
Obligations regarding the authorised equipment
The equipment used to offer the (wireless) Internet access must fulfil the requirements of the ECA and the radio interfaces defined by BIPT following Articles 32-44 of the ECA.
Check if there is a CE marking on the equipment. It is a good indication of the compliance with the European standards. Moreover, some types of equipment are not authorised in Belgium because they do not fulfil the technical standards.
This service contains a minimum number of specific services for all the end-users at an affordable price. It includes the provision of tariff conditions specific to certain categories of beneficiaries (Art. 74 ECA), but this obligation only applies to operators with an annual turnover for telecommunications above 50 million EUR.
In order to remunerate the universal service offered by some operators, a fund made up of contributions of the sector has been created. The annual contribution of each operator is defined by BIPT based on the turnover.
Operators must respect specific legal prescriptions regarding consumer protection. These prescriptions can be found in Articles 1 to 11 and 108 to 136 of the ECA.
The development and management of the national numbering plan (NNP) fall under the competence of national authorities (BIPT for Belgium). BIPT reserves and grants blocks of numbers to operators. A number can contain information on the type of service (information of the brand on the proposed service), the location of the person called (geographical information), the operator used (distinction between operators) and the cost. Number portability plays a central role in the telecommunications policy: a “number portability task force” has been created under the presidency of BIPT.
As far as television broadcasting is concerned, operators have certain obligations, such as a “must carry” obligation. Regional media regulators are the contact points on this subject: Vlaamse Regulator voor de Media, le Conseil supérieur de l’audiovisuel, Medienrat der deutschprachigen Gemeinschaft Belgiens and BIPT for the Brussels-Capital Region.
Office of the Ombudsman for Telecommunications
The Act of 21 March 1991 on the reform of certain economic public companies created, beside BIPT, an Office of the Ombudsman for Telecommunications (Article 43bis, §1, of the Act of 21 March 1991) in charge of the relations between the end-user, within the framework of the applicable legislation regarding electronic communications (ECA), and any operator. The operating costs of the Office of the Ombudsman for Telecommunications are supported by BIPT. In order to remunerate the services of the Office of the Ombudsman for telecommunications, companies referred to in Article 43bis, §1, of the Act of 21 March 1991, pay an annual fee based on the financing cost of the Office of the Ombudsman for Telecommunications, called “mediation fee”. Companies, referred to in Article 43bis, §1, of this Act, communicate to BIPT, by 30 June of each year, at the latest, the turnover recorded during the previous year for each of the activities falling within the scope of the Office of the Ombudsman.