Failure to submit a notification as an electronic communication service provider does not constitute a violation of a provision of public policy

Failure to submit a notification as an electronic communication service provider does not constitute a violation of a provision of public policy

Failure to submit a notification as an electronic communication service provider does not constitute a violation of a provision of public policy

21.12.2015 BE law

Pursuant to article 9 of the Act of 13 June 2005 on electronic communications (the “Act”), an electronic communication service provider (the “service provider”) must submit a notification to the Belgian regulator (the Belgian Institute for Postal Services and Telecommunication, the “BIPT”) before it can start offering its services.

In its decision of 6 November 2015, the Brussels Court of Appeal has ruled that this obligation does not constitute a provision of public order (“disposition d’ordre public”/”openbare order”). Consequently, its violation does not trigger the nullity of the contracts entered into by the operator who failed to submit a notification in accordance with article 9 of the Act.

This judgment was rendered after an appeal was lodged by a company (the electronic communication service provider) which was convicted to reimburse certain fees paid by another company pursuant to their contract for the provision of telephony services.  According to the first judge, failure to introduce a notification to the BIPT as an electronic communication service provider must trigger the nullity of the contract.

The Court of Appeal overruled this decision. The Court of Appeal pointed out that the Act implements in Belgian law the new European regulatory framework on electronic communication services and networks of 7 March 2002. This European regime ensures the freedom of operators to provide electronic communications networks and services. It does so by prohibiting Member States to impose an authorization obligation on those operators. Nevertheless, Member States remain entitled to set up a notification process which does not depend on any explicit decision or any other administrative act by the national regulatory authority.  In Belgium, such a possibility has been implemented in article 9 § 1 of the Act. However, the Court of Appeal noted that there is no sanction for notifications that are submitted late, i.e. after the service provider has started providing its services, neither in article 9 § 1 of the Act, nor in the Belgian Royal Decree of 7 March 2007 on the notification of electronic communication services and networks.   The Court of Appeal stressed that according to the Court of Cassation (“Belgian Supreme Court”), a rule can only be of a public order nature (“disposition d’ordre public”/”openbare order”) if it relates to essential national or collectivity’s interests or to rules establishing, in private law, the legal basis of the society’s moral or economic order.

The Court of Appeal also referred to another decision by the Court of Cassation according to which the mere fact that the violation of an obligation is subject to criminal sanctions does not mean that the agreements entered into in violation of this obligation are null and void.

Finally, the Court of Appeal clarified the ratio legis of this notification obligation and explained that it only aims at identifying new operators before their national regulatory authorities, and not at demonstrating their capacity to offer electronic communication services. Following the above, the Court of Appeal concluded that the notification obligation does not constitute a rule of public order (“disposition d’ordre public”/”openbare order”), and that its violation does not trigger the nullity of the agreements concluded by an operator which submitted such a declaration after the conclusion of agreements relating to electronic communication services.  Such a civil sanction would indeed be disproportionate in light of the recent developments in the European regulatory framework of the electronic communication sector.  


Related news

26.02.2020 BE law
18 March 2020: Erik Valgaeren sheds a light on the legal perspectives of industrial data during a Beltug conference

Speaking slot - In this era of digitisation, data is often called the 'new gold' or 'oil'.  In our aim to gain more insights that will lead us to higher revenue, new market opportunities or new regions, we are analysing data at full throttle. But it needs to be handled with care, using a data architecture that follows your general strategy while ensuring solid security, quality, etc.

Read more

18.03.2020 EU law
Stibbe: COVID-19

Short Reads - In view of the developments concerning the coronavirus, we hereby inform you of our business operations and the measures we take to ensure the continuity of our services to you.

Read more

16.01.2020 BE law
24 January 2020: Carol Evrard participates in a panel session on Global Compliance at the CPDP conference in Brussels

Speaking slot - Stibbe is a long standing partner of the International Computers, Privacy and Data Protection Conference (CPDP) which takes place in Brussels between 22 and 24 January 2020 This year's theme is “Data protection and Artificial intelligence”. Carol Evrard, associate in our TMT team, participates in a panel organised by TrustArc (a privacy compliance technology company based in San Francisco, California) on "Changing Technology and Laws: Can Accountability be a Key to Global Compliance?"

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring