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Electronic Communications & IT

March 1, 2009

Other sections of this issue:
Privacy & Data Protection
| ISP-Liability & Media Law | Contracts & E-Commerce |
Electronic Communications & IT

EDPS releases second opinion on e-privacy directive review

In response to the Council Common Position on the review of the Directive on Privacy and electronic communications (usually referred to as the ePrivacy Directive), the European Data Protection Supervisor (EDPS) adopted on January 9, 2009 an Opinion.

In its Opinion, EDPS makes recommendations that aim at streamlining some of the provisions of the ePrivacy Directive and ensuring an adequate level of data protection and privacy. Particular attention goes to the provisions relating to the setting up of a mandatory security breach notification system.

The Security Breach Notification System
This notification system would require companies to notify individuals when their personal data have been compromised. Companies operating on the Internet are under the scope of the obligation to notify security breaches.

While analyzing the Commission’s Amended Proposal, the European Parliament’s first reading and the Council’s Common Position, EDPS observed that these contained three different approaches to the security breach notification system. Although each of the three approaches has positive aspects, EDPS believes that there is still some room for improvement in this area. In this respect, EDPS showed to be in favor of the adoption of a security breach notification scheme pursuant to which authorities and individuals would be notified when their personal data have been compromised.

Other EDPS Recommendations
EDPS further recommends to broaden the scope of application of the ePrivacy Directive to include publicly accessible private networks in the Community. It also expresses its critical view on the processing of traffic data for security purposes and calls for an effective right of action against infringements to the ePrivacy Directive. EDPS hopes for legal entities, e.g. consumer organizations, to have such a right of action.

EDPS’ second Opinion might have its influence on the legislative process if amendments to the ePrivacy Directive would come through and can possibly serve as an indication for the future of this Directive. (to be continued)


For more information, contact: Jan Janssen.

The Brussels government is entitled to impose stricter standards for mobile phone masts

The Belgian Constitutional Court has recently confirmed the legality of a Brussels Decree imposing stricter standards for mobile telephone masts. The Court rejected an appeal for annulment filed by the federal Government and the mobile operators Belgacom Mobile, Mobistar and Base.

By Decree of March 1, 2007, scheduled to enter into force on March 14, 2009, the Brussels Region drastically tightened the radiation standards for electromagnetic antenna waves.

The Decree imposes a maximum standard of 3 Volt/meter for radiations with frequencies between 400 MHz and 2 GHz, whereas the current federal standard allows 20.6 Volt/meter for all antennas broadcasting between 10 MHz and 10 GHz. These federal standards are already more severe than those of other EU Member States.

Appeal for Annulment
The Decree is obviously a setback for the Belgian mobile operators Belgacom Mobile, Mobistar and Base, who would have to adapt their mobile telephone masts currently installed on the Brussels territory.

The operators therefore filed an appeal for annulment with the Constitutional Court. They argued that the severe emission standards would necessarily imply that the coverage obligations, set forth in the Royal Decrees of March 7, 1995, October 24, 1997 and January 18, 2001, will not be met. The federal Government also filed an appeal.

According to the mobile operators and the federal Government, the Decree should be annulled since

(i) it relates to matters of telecommunications and public health, which are both matters that fall under the federal Government’s jurisdiction;
(ii) the Decree would be discriminatory and violate the freedom of enterprise.

The Court’s Decision
The Constitutional Court rejected all of the plaintiffs’ arguments.

According to the Court, the environmental issues at hand no longer fall under the jurisdiction of the federal Government in view of the Special Act of July 16, 1993.

The Court further held that the federal Government’s jurisdiction regarding telecommunications was not violated either. In the Court’s view, the restrictions imposed by the Decree neither relate to the infrastructure of the electronic communications as such, nor to the introduction of a network or the use thereof, nor to the electronic communications’ market regulation. Even though they might have an indirect effect on the federal jurisdiction in the field of telecommunications, the Court held that it was not proven that the Decree would render impracticable or impossible the federal Government’s policy in this regard.

Finally, the Court also rejected the arguments on the basis of discrimination and freedom of enterprise. As regards the discrimination argument, the Court ruled that the Decree indeed contains exemptions for several types of radiation that are excluded from its scope, but according to the Court these exceptions are all well founded. Regarding the freedom of enterprise, the Court stated that this freedom is not absolute and that the restrictions imposed by the Brussels government are not disproportionate.

The mobile operators regret the Court’s decision and consider further legal steps. According to them, they are now forced to install considerably more mobile phone masts in order to maintain and guarantee a qualitative service.


  • Court d’Arbitrage, 15 January 2009, no 2/2009, available on:;
  • Decree of 1 March 2007 on the Protection of the Environment against the Possible Harmful Effects and Nuisance of Non-Ionizing Radiations, Belgian official Journal of 14 March 2007, available on:;
  • Special Act of 16 July 1993 Completing the Federal Structure of the State, Belgian official Journal of. 20 July 1993, available on:

For more information, contact: Karel Janssens.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Thomas De Meese
Partner – Brussels
Phone: +