Belgium: Court of Appeal has cancelled the access conditions imposed on Belgacom by the regulator, because of a lack of analysis and evidence

[trends] The 18th Chamber of the Court of Appeal in Brussels has dropped the equivalent of a nuclear bomb on the regulation of telecommunications in Belgium.

In a ruling, the Court rejected most of the measures which the Belgian Institute of Postal Services and Telecommunications (BIPT) wanted to use to increase competition and to protect small ISPs against the dominance of Belgacom. BIPT lacked sufficient reasons for its actions, said the Court.

In its ruling of May 7, the Court spoke of an "almost total lack of current data about the state of potential competition when BIPT made his decision in 2008". This lack of data was, in the opinion of the Court. due to a "clear lack of research and analysis, which is unacceptable given what we can reasonably expect from an administrative authority and regulator such as BIPT".

For the Court, BIPT had accepted the fact that one or two operators could enter the Belgian market, but found that there were barriers stopping them. "This type of contradiction must be justified," said the Court. It therefore annuled, for lack of justification, the decision of the BIPT of 10 January 2008. The constraints
that had been imposed on Belgacom, were canceled with retroactive effect, namely:

- The obligation for Belgacom to grant access to its network without geographical distinction,
- The requirement for the deregulation of local sub-loops (from street cabinets),
- The prohibition to disconnect operators (e.g., late payment) unless there was prior authorization from BIPT or a court,
- To sell to operators wholesale broadband.

The removal of this last obligation could have the most serious consequences. Wholesale broadband access is by far the most popular for alternative operators in Belgium to provide Internet access and voice access to their customers.

The ruling by the Court of Appeal effectively annulled most of the protection of small operators vis-à-vis the dominance of Belgacom.

The ruling leaves Belgacom small operators completely stranded