• Belgian Regulator Fines Telecom Operators For Breach of Consumer Transparency Obligations
  • April 3, 2013
  • Law Firm: Crowell Moring LLP - Washington Office
  • On January 31, 2013, the Belgian telecom regulator "BIPT/IBPT" fined three Belgian telecom operators for breach of certain consumer transparency obligations.

    BACKGROUND

    Article 4 of the Ministerial Decree of November 12, 2009 ("MB"), reads that operators must mention the expiry date of their contract on the subscriber's invoice if their contract is of definite duration.

    In 2011, the Belgian regulator conducted an investigation into the compliance by Belgian operators with these provisions. Eighteen operators were asked to produce at random a number of invoices.

    On the basis of these invoices, the BIPT/IBPT withheld a violation by Telenet and Mobistar of article 110 §4 AEC and a violation by Scarlet of article 4 MB. In its decisions of January 31, 2013, the regulator imposed a fine of 30,000 EUR. on Telenet and Mobistar and of 10,000 EUR. on Scarlet.

    THE REGULATOR'S APPLICATION OF ARTICLE 110 §4 AEC AND ARTICLE 4 MB

    The BIPT/IBPT's decisions of January 31, 2013, confirm that the regulator believes that article 110 §4 AEC and article 4 MB are not contrary to the European regulatory framework for the sector of electronic communications.

    Although the Belgian legislator decided to go further than the transparency obligations imposed by the European framework, and in particular by EU Directive 2002/22 (Universal Service Directive), the BIPT/IBPT refers to the principle of minimum harmonization by the Universal Service Directive as confirmed by the CJEU in cases C-522/08 and C-543/09, and in article 1.4 of the Universal Service Directive.

    Secondly, the regulator considers the transparency obligations of article 110 §4 and article 4 as "obligations of result" and applies them in a strict manner.

    In this regard, the regulator finds it insufficient that the operators included an explicit statement on their invoices referring the consumer to a specific webpage or to the customer service and/or to a specific tariff check service to obtain more information on the most advantageous tariff plan given his profile.

    Given the wording of article 110 §4, operators must provide this information to the subscriber on the invoice and the subscriber should not be required to take any particular action to access this information (such as visiting a website). The regulator refers to a similar reasoning held by the CJEU in its judgment of July 5, 2012 with respect to the information obligations in the framework of distance contracts (case C-49/11).

    The regulator's strict interpretation was also confirmed in its decision towards Scarlet, in which BIPT/IBPT imposed a fine even though only 4 out of 40 invoices did not include the reference to the expiry date required by article 4 MB.

    In accordance with article 110 §4 of the Belgian Act on Electronic Communication ("AEC"), operators are required to inform subscribers at least once a year via their invoice about the most beneficial tariff plan taking into account their personal profile.