Failure to submit a notification as an electronic communication service provider does not constitute a violation of a provisi…

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.