Belgium Adopts Interim Telecomm Measures

31 March 2004

Johan Vandendriessche

As European pressure builds, the Belgian national regulatory authority BIPT – IBPT (hereafter: “NRA”) has adopted interim measures to provide partial implementation of the new regulatory framework. Two circular letters provide for the interim measures[1].

Notification Regime

Contrary to article 3.2 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (hereafter: “the Authorisation Directive”), Belgian telecommunications legislation still provides that an individual licence is required for the provision of fixed and mobile voice telephony services and for the installation and operation of public telecommunications networks. The NRA has come to the conclusion that such a licence regime is not compatible with the Authorisation Directive and has provided interim measures to remedy this situation, pending implementation of the regulatory package. The licence regime is replaced by a general authorisation regime, as provided by article 3.2 of the Authorisation Directive and consequently the individual licence has been replaced by a simple notification obligation.

The interim measures do not, however, provide for a complete implementation of the new regulatory package and obligations under the current legislation will remain applicable insofar as they are compatible with the Directives (e.g. interconnection obligations and the obligation to cooperate with emergency services). Both interim regimes do however determine minimum obligations such as interconnection obligations and quality requirements.

Issues related to the vertical direct effect

The NRA has also identified some problems related to the vertical direct effect of the non-implemented Directives. Issues such as numbering, interconnection, rights of way, local loop unbundling and bitstream access also involve other telecommunications service providers and can not be enforced solely on the basis of the direct effect of a non-implemented Directive. The NRA provides a solution for these issues by interpreting the current Belgian legislation in such a way that it is compatible with the Directives.

(a) Issues for voice telephony service providers

According to the NRA, numbering is not an issue. Under article 4 of the Royal Decree of 10 December 1997 concerning the management of the numbering plan, the NRA may allocate numbering space to operators and service providers authorised to provide services. The NRA proposes to interpret the definition of “service providers” in such a way that it includes the providers under the notification regime.

The new voice telephony service providers can also invoke interconnection regulations. Under article 109ter, §2 of the Law of 21 March 1991 reforming some public economic entities (hereafter: “the Law”), providers of telecommunications services offered to the public can request interconnection.

Regarding local loop unbundling, Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop provides that the beneficiary is a third party duly authorised or entitled to provide communications services under national legislation and is eligible for unbundled access to a local loop. Again, under this definition no licence is required for a new service provider.

For bitstream access, the NRA also comes to the conclusion that the current legislation does not require voice telephony service providers to have a licence. A notification under the circular letter will allow the provider to obtain bitstream access.

(b) Issues for providers of public telecommunications networks

Article 109ter, §2 of the Law provides that the providers of public telecommunications networks can request interconnection. The Law does not require the service provider to have a licence.

The local loop unbundling and bitstream access issues are similar to the issues faced by providers of voice telephony services.

The rights of way issues are more complicated, as the rights of way only regime applies to licensed operators. If the rights of way relate to the use of the public domain, the direct effect of the Directive will ensure that the provider will be able to invoke this right of way. However, the Belgian rights of way regime also provides certain rights on private property. The new providers will not be able to invoke the rights of way regimes for private property, as they have not obtained a licence. The site-sharing regime is confronted with a similar problem.

To remedy this situation, the NRA proposes that the new providers obtain a licence. The licence shall be awarded under the condition that (i) it is requested and (ii) the provider presents all information required for a notification. In other words, upon request the notification will also result in a licence being granted.

Conclusion

With the two circular letters the NRA provides an interim solution for the telecommunications service providers pending the implementation of the new regulatory package. This transitional regime should resolve most, if not all, issues for telecommunications service providers.

The circular letters do not however, implement the new regulatory package. In October 2003, it was announced that the implementation would not be finalised before April 2004, maybe even July 2004[2]. Given the complexity of the implementation of the new regulatory package in Belgium, even the latter date may seem optimistic.



[1] Circular letter of 15 January 2004 of the Institute concerning the conditions for the provision of fixed and mobile voice telephony services.

Circular letter of 15 January 2004 of the Institute concerning the conditions for the installation and operation of public telecommunications networks.

[2]“Nieuwe telecomwet op zijn vroegst in lente”, De Financieel-Economische Tijd 1 October 2003.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.