Explanatory Memorandum to SEC(2010)1559 - COMPARATIVE CHART - DIRECTIVE 98/84/EC AND EUROPEAN CONVENTION ON THE LEGAL PROTECTION OF SERVICES BASED ON, OR CONSISTING OF, CONDITIONAL ACCESS Accompanying document to the Draft Council Decision on the signature of the European Convention on the Legal Protection of Services based on, or consisting of, Conditional Access

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dossier SEC(2010)1559 - COMPARATIVE CHART - DIRECTIVE 98/84/EC AND EUROPEAN CONVENTION ON THE LEGAL PROTECTION OF SERVICES BASED ON, OR CONSISTING ...
source SEC(2010)1559 EN
date 15-12-2010
EN

Contents

1.

EUROPEAN COMMISSION


Brussels, 15.12.2010

SEC(2010) 1559 final


COMMISSION STAFF WORKING PAPER

COMPARATIVE CHART
DIRECTIVE 98/84/EC AND EUROPEAN CONVENTION ON THE LEGAL PROTECTION OF SERVICES BASED ON, OR CONSISTING OF, CONDITIONAL ACCESS

Accompanying document to the

Draft Council Decision on the signature of the European Convention on the Legal Protection of Services based on, or consisting of, Conditional Access

2.

COM(2010) 753 final


COMPARATIVE CHART
DIRECTIVE 98/84/EC AND EUROPEAN CONVENTION ON THE LEGAL PROTECTION OF SERVICES BASED ON, OR CONSISTING OF, CONDITIONAL ACCESS

DIRECTIVE 98/84/EC, 'CONDITIONAL ACCESS DIRECTIVE'European Convention on the Legal Protection of Services based on,
or consisting of, Conditional Access (The convention)
REMARKS
Article 1: Scope

The objective of this Directive is to approximate provisions in the Member States concerning measures against illicit devices which give unauthorized access to protected services.
Section I: General provisions
Article 1: Object and purpose

This Convention is concerned with broadcasting and information society services offered against payment and based on, or which consist of, conditional access. The purpose of this Convention is to make illegal on the territory of the Parties a number of activities which give unauthorised access to protected services, and to approximate the legislation of Parties in this area.
Article 1 of the Convention repeats the same objectives and purposes than those stated in article 1 of directive 98/84/EC.
Article 2: Definitions

For the purposes of this Directive:

(a) protected service shall mean any of the following services, where provided against remuneration and on the basis of conditional access:

- television broadcasting, as defined in Article 1(a) of Directive 89/552/EEC,

- radio broadcasting, meaning any transmission by wire or over the air, including by satellite, of radio programs intended for reception by the public,

- information society services within the meaning of Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services (7),

or the provision of conditional access to the above services considered as a service in its own right;

(b) conditional access shall mean any technical measure and/or arrangement whereby access to the protected service in an intelligible form is made conditional upon prior individual authorization;

(c) conditional access device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form;

(d) associated service shall mean the installation, maintenance or replacement of conditional access devices, as well as the provision of commercial communication services in relation to them or to protected services;

(e) illicit device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorization of the service provider;

(f) field coordinated by this Directive shall mean any provision relating to the infringing activities specified in Article 4.
Article 2: Definitions

For the purposes of this Convention :

a) 'protected service' means any of the following services, when provided against remuneration and on the basis of conditional access:

– television programme services, as defined in Article 2 of the amended European Convention on Transfrontier Television;

– radio broadcasting services, meaning radio programmes intended for reception by the public, transmitted by wire or over the air, including by satellite;

– information society services, understood as those offered by electronic means, at a distance and at the individual request of a recipient of services;

or the provision of conditional access to the above services considered as a service in its own right;

b) 'conditional access' means any technical measure and/or arrangement permitting access in an intelligible form, and subject to prior individual authorisation, to one of the services mentioned in paragraph a. of this article;

c) 'conditional access device' means any equipment, software and/or arrangement designed or adapted to give access in an intelligible form to one of the services mentioned in paragraph a. of this article;

d) 'illicit device' means any equipment, software and/or arrangement designed or adapted to give access in an intelligible form to one of the services mentioned in paragraph a. of this article, without the authorisation of the service provider.
The two texts use common legal definitions.

Associated services are not given a definition by the directive but are listed as illicit activities when they are part of illicit devices.

Article 3: Internal market principles

1. Each Member State shall take the measures necessary to prohibit on its territory the activities listed in Article 4, and to provide for the sanctions and remedies laid down in Article 5.

2. Without prejudice to paragraph 1, Member States may not:

(a) restrict the provision of protected services, or associated services, which originate in another Member State; or

(b) restrict the free movement of conditional access devices;

for reasons falling within the field coordinated by this Directive.
Internal market provisions specific to the EU.
Article 3: Beneficiaries

This Convention shall apply to any legal or natural persons offering a protected service as defined in Article 2.a above, regardless of their nationality and whether or not they come under the jurisdiction of a Party.
Article 4: Infringing activities

Member States shall prohibit on their territory all of the following activities:

(a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;

(b) the installation, maintenance or replacement for commercial purposes of an illicit device;

(c) the use of commercial communications to promote illicit devices.
Section II: Illicit activities
Article 4: Offences

It shall be unlawful to carry out one of the following activities on the territory of a Party:

a) the manufacture or production of illicit devices for commercial purposes;

b) the importation of illicit devices for commercial purposes;

c) the distribution of illicit devices for commercial purposes;

d) the sale or rental of illicit devices for commercial purposes;

e) the possession of illicit devices for commercial purposes;

f) the installation, maintenance or replacement of illicit devices for commercial purposes;

g) the commercial promotion, marketing or advertising of illicit devices.

Each Party may, at any time, in a declaration addressed to the Secretary General of the Council of Europe, declare that it will also make unlawful other activities than those referred to in paragraph 1 of this article.
Both texts use the exact same definitions in regards with offences/illicit activities.

A very slight difference between the directive and the convention exists: art. 4 a) of the Convention renders illicit both the production and manufacture of illicit devices for commercial purposes. The Conditional Access directive only considers as an illicit activity the manufacture of illicit devices for commercial purposes.
Article 5: Sanctions and remedies

1. The sanctions shall be effective, dissuasive and proportionate to the potential impact of the infringing activity.
Section III: Sanctions and remedies
Article 5: Sanctions for unlawful activities

The Parties shall adopt measures to make the unlawful activities established in Article 4 above punishable by criminal, administrative or other sanctions. Such measures shall be effective, dissuasive and proportionate to the potential impact of the unlawful activity.
The convention gives details about sanctions for unlawful activities. They can be criminal, administrative or of any other type. This means of course that sanctions can be of any given type. Even though the directive doesn't go into such details, its silence implies the same type of sanctions than those found in the Convention.
2. Member States shall take the necessary measures to ensure that providers of protected services whose interests are affected by an infringing activity as specified in Article 4, carried out on their territory, have access to appropriate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, and where appropriate, applying for disposal outside commercial channels of illicit devices.

Article 6: Confiscation measures

The Parties shall adopt such appropriate measures as may be necessary to enable it to seize and confiscate illicit devices or the promotional, marketing or advertising material used in the commission of an offence, as well as the forfeiture of any profits or financial gains resulting from the unlawful activity.

Article 7: Civil proceedings

The Parties shall adopt the necessary measures to ensure that providers of protected services whose interests are affected by an unlawful activity established in Article 4 above have access to appropriate remedies, including bringing an action for damages and obtaining an injunction or other preventive measure, and where appropriate, applying for the elimination of illicit devices from commercial channels.
Both the Convention and the directive command that certain legal actions and proceedings be made available to providers of protected services: e.g. confiscation of illicit devices, action for damages, injunction, etc.
Article 6: Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 28 May 2000. They shall notify them to the Commission forthwith.

When Member States adopt such measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field coordinated by this Directive.

Article 7: Reports

Not later than three years after the entry into force of this Directive, and every two years thereafter, the Commission shall present a report to the European Parliament, the Council and the Economic and Social Committee concerning the implementation of this Directive accompanied, where appropriate, by proposals, in particular as regards the definitions under Article 2, for adapting it in light of technical and economic developments and of the consultations carried out by the Commission.

Article 8: Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 9: Addressees

This Directive is addressed to the Member States.
Provisions specific to the European Union: implementation, reports, entry into force.
Section IV: Implementation and amendments
Article 8: International co-operation

The Parties undertake to render each other mutual assistance in order to implement this Convention. The Parties shall afford each other, in accordance with the provisions of relevant international instruments on international co-operation in criminal or administrative matters and with their domestic law, the widest measure of co-operation in investigations and judicial proceedings relating to criminal or administrative offences established in accordance with this Convention.

Article 9: Multilateral consultations

1) The Parties shall, within two years from the entry into force of this Convention and every two years thereafter, and, in any event, whenever a Party so requests, hold multilateral consultations within the Council of Europe to examine the application of this Convention and the advisability of extending or revising any of its provisions, in particular as regards the definitions under Article 2. These consultations shall take place at meetings convened by the Secretary General of the Council of Europe.

2) Each Party may be represented at multilateral consultation meetings by one or more delegates. Each Party shall have the right to vote. Each State Party to this Convention shall have one vote. Concerning questions within its competence, the European Community shall exercise its right to vote and cast a number of votes equal to the number of its member States that are Parties to the Convention. The European Community shall not exercise its right to vote when the vote concerns a question which does not fall within its competence.

3) Any State referred to in Article 12, paragraph 1, or the European Community, which is not a Party to this Convention, may be represented in the consultation meetings by an observer.

4) After each consultation, the Parties shall forward to the Committee of Ministers of the Council of Europe a report on the consultation and on the functioning of the Convention, including, if it is considered necessary, proposals for the amendment of the Convention.

5) Subject to the provisions of this Convention, the Parties shall lay down rules of procedure for the consultation meetings.

Article 10: Amendments

1) Any Party may propose amendments to this Convention.

2) Any proposal for amendment shall be notified to the Secretary General of the Council of Europe who shall communicate it to the member States of the Council of Europe, to the other States Party to the European Cultural Convention, to the European Community and to any non-member State which has acceded to or has been invited to accede to this Convention in accordance with the provisions of Article 13.

3) Any amendment proposed in accordance with the provisions of the previous paragraph shall be examined, within six months from the date on which it is communicated by the Secretary General, at a multilateral consultation meeting, where that amendment can be adopted by a majority of two-thirds of the States which have ratified the Convention.

4) The text adopted by the multilateral consultation meeting shall be submitted to the Committee of Ministers for approval. Once it has been approved, the text of the amendment shall be forwarded to the Parties for acceptance.

5) All amendments shall enter into force on the thirtieth day after all the Parties have informed the Secretary General of their acceptance thereof.

6) On the basis of a recommendation by a multilateral consultation meeting, the Committee of Ministers may decide, by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Parties entitled to sit on the Committee, that a particular amendment shall enter into force following the expiry of a period of two years after the date on which it has been forwarded for acceptance, unless a Party has notified the Secretary General of the Council of Europe of an objection to its entry into force. Should such an objection be notified, the amendment shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

7) If an amendment has been approved by the Committee of Ministers, but has not yet entered into force in accordance with paragraphs 5 or 6 above, a State or the European Community may not express their consent to be bound by the Convention without accepting at the same time the amendment.
Provisions specific to international public law: international co-operation, multilateral consultations, amendments.
Article 11: Relationship with other conventions or agreements

1) This Convention does not affect the rights and undertakings derived from international multilateral conventions concerning special matters.

2) The Parties to the Convention may conclude bilateral or multilateral agreements with one another on the matters dealt with in this Convention, for purposes of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it.

3) If two or more Parties have already concluded an agreement or treaty in respect of a subject which is dealt with in this Convention or otherwise have established their relations in respect of that subject, they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention, if it facilitates international co-operation.

4) In their mutual relations, Parties which are members of the European Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.
§4: Disconnection clause for EU Member States
Section V: Final clauses
Article 12: Signature and entry into force

1) This Convention shall be open for signature by the member States of the Council of Europe and the other States party to the European Cultural Convention, and by the European Community. Such States and the European Community may express their consent to be bound by:

a) signature without reservation as to ratification, acceptance or approval; or

b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2) Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

3) This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three States have expressed their consent to be bound by the Convention in accordance with the provisions of the preceding paragraph.

4) In respect of any signatory State or the European Community which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Convention in accordance with the provisions of paragraph 1.
Provisions specific to international public law: signature, entry into force, territorial application, settlement of disputes.

Article 13: Accession to the Convention by non-member States

1) After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting the Parties to the Convention, may invite any State which is not referred to in Article 12, paragraph 1, to accede to this Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.

2) In respect of any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 14: Territorial application

1) Any State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.

2) Any State or the European Community may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.

3) Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

Article 15: Reservations

No reservation may be made to this Convention.

Article 16: Settlement of disputes

In case of a dispute between Parties as to the interpretation or application of this Convention, the Parties concerned shall seek to achieve a friendly settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to an arbitral tribunal whose decisions shall be binding upon the Parties.

Article 17: Denunciation

1) Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

2) Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.

Article 18: Notifications

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the other States party to the European Cultural Convention, the European Community and any other State which has acceded to this Convention of:

a) any signature in accordance with Article 12;

b) the deposit of any instrument of ratification, acceptance, approval or accession in accordance with Articles 12 or 13;

c) any date of entry into force of this Convention in accordance with Articles 12 and 13;

d) any declaration made in accordance with Article 4;

e) any proposal for amendment made under Article 10;

f) any other act, notification or communication relating to this Convention.


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