IP/08/699

Brussels, 6 May 2008

Telecoms Rules: Belgium receives final warning on broadcasting “must-carry” rules

In a new round of infringement proceedings for EU Telecoms Rules, the European Commission has decided to send a reasoned opinion (the second and final stage before the case is referred to the European Court of Justice) to Belgium on “must-carry” rules imposed on broadcasters in the bilingual region of Brussels-Capital. "Must-carry rules" require network operators such as cable companies or telecom operators to carry specified radio and TV broadcast channels and services where a significant number of consumers use them as their principal means to receive radio or TV broadcasts.

"The Belgian authorities had a great opportunity to rectify the problems when they amended the Electronic Communications Act for the bilingual region of Brussels-Capital last year. Unfortunately, they have not yet addressed our concerns,” said Viviane Reding, the EU Telecoms Commissioner. "We are therefore now following up on the matter, particularly in view of the fact that the European Court of Justice has recently declared that such rules must be proportionate and transparent.”

Under the EU's Universal Service Directive, part of Europe's common Telecoms rules, Member States may set reasonable must-carry rules for legitimate public policy reasons. These oblige network operators under their jurisdiction to transmit specified broadcast channels and services. Such obligations must be:

- necessary to meet clearly defined general interest objectives,

- proportionate and transparent

- and subject to periodic review.

The reasoned opinion sent now to Belgium follows two letters of formal notice sent by the European Commission in July 2006 (IP/06/948) and June 2007 (IP/07/888). Despite the fact that the Electronic Communications Act of the bilingual region of Brussels-Capital was amended in March 2007, it did not address the Commission’s concerns on the issue of proportionality, transparency and non-discrimination. In the view of the European Commission, the procedures for designating must-carry channels lack transparency and clarity. Furthermore, the law should limit the number of channels that can be designated. At present, network operators and broadcasters are uncertain about their obligations and rights under this regime.

Background:

In December 2007, the European Court of Justice gave a preliminary ruling on the must-carry legislation of the bilingual region of Brussels-Capital, clearly stating that: these rules must be proportionate; the procedure for granting must-carry status to broadcasters must be transparent; they must be based on objective non-discriminatory criteria known in advance.

While this judgement was mainly interpreting the requirements under Article 49 of the EC Treaty (freedom of services), the ongoing infringement proceeding against Belgium is based on Article 31 of the Universal Service Directive.

A detailed overview of the state of infringement proceedings is available on the implementation and enforcement website of DG Information Society and Media: http://ec.europa.eu/information_society/policy/ecomm/implementation_enforcement/infringement/