Data retention by operators of electronic communications networks has been a contentious topic for quite some time now. The European legislator tried to regulate the matter by means of the Data Retention Directive (2006/24/EC). However, in 2014, the Court of Justice of the European Union annulled the directive, stating in its landmark Digital Rights Irelandcase that such legal framework did not provide sufficient safeguards for the fundamental rights of citizens. Nevertheless, some Member States have retained data retention provisions in some form.
Belgium is one example of a Member State where a data retention obligation is still in place. And even though the Constitutional Court annulled these provisions in 2021, the federal government has expressed clear intentions to draft new and similar rules.
One of the obligations in place under this framework is that network operators and providers of electronic communications services must establish a Justice Coordination Cell. Article 126/1 of the Act of 13 June 2005 on Electronic Communications provides that every operator active on Belgian territory must cooperate with information requests from Belgian authorities via a Justice Coordination Cell. The Justice Coordination Cell must establish an internal procedure for how they will handle official information requests. Information on this procedure must be provided to the telecom regulator, the Belgian Institute for Postal Services and Telecommunications (BIPT).
All information requests and accompanying information must be kept confidential. Only members of the Justice Coordination Cell may answer official requests. They are subject to a duty of professional secrecy.
The members of the Justice Coordination Cell must have received a positive security advice in the sense of the Act of 11 December 1998 on the classification and security authorizations, security certificates, and security advices. They may also not be subject to a refusal by the Minister of Justice.
Additionally, every operator or service provider held to this obligation must designate an appointee for the protection of personal data. This position is a bit comparable – but not entirely the same – as the data protection officer (DPO) under the General Data Protection Regulation (GDPR). The appointee is not a member of the Justice Coordination Cell itself and must ensure that information requests are handled in accordance with the law, that the operator or service provider only retains the data it may retain, that only competent authorities receive access to the data, and that adequate security measures are taken.
Given that this duty to establish a Justice Coordination Cell applies to all operators of electronic communications networks and providers of electronic communications services active in Belgium, it will also apply to providers and operators that maybe do not have a physical establishment within Belgium.
For them, the Act on Electronic Communications provides that a Royal Decree will determine additional rules on the Justice Coordination Cell, “keeping in mind the situation of operators and service providers that do not receive many information requests, do not have an establishment in Belgium or mainly operate from abroad”.
Unfortunately, while such Royal Decree was adopted on 12 October 2010, it is completely silent on the position of foreign operators and service providers.
Currently, the legal framework only provides that the Justice Coordination Cell needs to be located within Belgium. This is, of course, quite an issue for operators or service providers not having a Belgian establishment. Moreover, they need to provide BIPT with the following information:
A partial solution may be to team up with a local party to provide certain services and to act as local contact point. For instance, a Belgian party could be designated as the appointee for the protection of personal data.
While members of the Justice Coordination Cell themselves may be based abroad, they would still need to receive Belgian security advice.
The law does provide that operators may establish a joint Justice Coordination Cell together. This may alleviate the burden on foreign operators without a Belgian establishment as it allows them to team up with a Belgian operator. However, this is of course subject to them finding a local partner that would be willing to do this, which is not easy to accomplish.
Are you a foreign electronic communications network operator or provider of electronic communications services seeking assistance for your Justice Coordination Cell? Timelex is experienced in this matter and glad to support you when you contact us or book a free 15-minute call with Geert at geert.lawyer.brussels (reserved for organisations).
Read also: outsourcing your Justice Coordination Cell