DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

The Netherlands
The Netherlands

Subject to certain exemptions (mostly concerning the use of spectrum), communication providers have general authorisation to operate in the Netherlands and do not require a licence, permit, consent etc. There is, however, an obligation to register with the Dutch telecoms regulator; the Autoriteit Consument & Markt (ACM). Details of this obligation to register are provided under Registration/licensing.

The concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

The roles and responsibilities of ACM, as well as the obligations of communication providers that operate in the Netherlands are codified in the primary telecoms legislation in the Netherlands, known as the Telecommunicatiewet (the 'Dutch Telecommunications Act').

Last modified 5 Oct 2016
Overview
The Netherlands

Subject to certain exemptions (mostly concerning the use of spectrum), communication providers have general authorisation to operate in the Netherlands and do not require a licence, permit, consent etc. There is, however, an obligation to register with the Dutch telecoms regulator; the Autoriteit Consument & Markt (ACM). Details of this obligation to register are provided under Registration/licensing.

The concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

The roles and responsibilities of ACM, as well as the obligations of communication providers that operate in the Netherlands are codified in the primary telecoms legislation in the Netherlands, known as the Telecommunicatiewet (the 'Dutch Telecommunications Act').

Last modified 5 Oct 2016
Laws and regulations

The primary legislation governing the telecommunications sector in the Netherlands is the Dutch Telecommunications Act which came into force on 19 October 1998.  The Dutch Telecommunications Act has been amended over time in order to implement the following European Directives:

  • Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services
  • Directive 2002/20/EC on the authorisation of electronic communications networks and services
  • Directive 2002/19/EC on access to and interconnection of electronic networks and associated facilities
  • Directive 2002/22/EC on universal service and user rights

In addition to the Dutch Telecommunications Act the following legislation may also impact the provision of communication services and the operation of communication networks in the Netherlands:

  • Competition Law (both the Dutch Competition Act and EU Competition Law)
  • Data Protection Law (primarily the Dutch Personal Data Protection Act (Wet Bescherming Persoonsgegevens)) which governs the processing of personal data
  • Universal Service Decree of 13 June 2014 (Regeling Universele Dienstverlening en Eindgebruikersbelangen)

The key features of the Dutch Telecommunications Act are:

  • The obligation for communication providers to register with ACM (paragraph 2)
  • A regulatory framework for use of radio spectrum (paragraph 3)
  • The regulation and allocation of telephone numbers and the regulation of number retention (paragraph 4)
  • A regulatory framework for laying network cables in public grounds (paragraph 5)
  • An obligation for communication providers who control the connectivity to end users to negotiate in good faith with other communication providers (ie the principle of interoperability, paragraph 6)
  • The power of ACM to set specific conditions relating to universal services, access, privileged suppliers and - most notably - 'significant market power' (SMP).  In accordance with the EU directives mentioned above, ACM has a duty to periodically review the telecoms markets recommended for review by the European Commission and where it finds that one or more of the operators have SMP it must impose such a condition on the SMP operator(s) (paragraph 6)
  • An obligation to provide end users with clear contractual terms on certain topics as well as several mandatory provisions in relation to consumers such as the right to terminate a contract after the initial term with a maximum notice period of one month (paragraph 7)
  • The principle of universal service; that affordable basic telephony services should be available to everyone (paragraph 9)
  • That ACM is empowered to hear disputes between communication providers (although referral to ACM does not preclude the bringing of court proceedings), and that consumers have access to a dispute resolution committee (paragraph 12)
  • The obligation for communication providers to ensure that the telecommunications services that are offered to end users can be intercepted upon request by the competent authority (paragraph 13)
Last modified 5 Oct 2016
Regulatory bodies

ACM

Physical Address: Muzenstraat 41, 2511 WB Den Haag
Postal Address: PO Box 16326, 2500 BH Den Haag

Telephone: +31 70 7222 000

Website: www.acm.nl

Last modified 5 Oct 2016
Regulated activities

There are two main categories of communication providers for the purposes of the Dutch Telecommunication Act; providers of electronic communication networks (ECNs) and providers of electronic communication services (ECS).  The categories are then further sub-divided into public and private providers.  

An electronic communications network is defined in the Dutch Telecommunications Act as:

  • A transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description
  • Such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals:
  • Apparatus comprised in the system
  • Apparatus used for the switching or routing of the signals
  • Software and stored data

An 'electronic communications service' means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals (except in so far as it is a content service).

If a service is provided over another communication provider's network (or through an agreement with a communications provider), the entity providing that service is subject to the same regulations and is therefore considered an ECS provider.

Last modified 5 Oct 2016
Registration / licensing

Communication providers have general authorisation to operate in the Netherlands and do not require a licence, permit, consent etc.  In the Netherlands, all providers of public electronic communications services and all operators of communications networks must register with the regulatory authority (ACM) prior to the start of their operations in the Netherlands. In order to register, information must be provided on the provider's corporate structure, its turnover and the services provided in the Netherlands.

Once the registration is effective, the provider will be listed in the public register of communication companies and will receive a registration number.  In case of a subsequent change of activities, the registration must be updated by notifying the change to ACM.  All registered communication companies must annually report the turnover they achieved by providing communication services in the Netherlands to ACM.  On this basis, ACM levies an annual fee (called 'contribution in the costs of regulation'), the amount of which depends on the turnover achieved. No fee is due if the turnover amounts to EUR 2 million or less.

Mobile operators (and other users of spectrum) do require a licence in order to install certain mobile network equipment.

Last modified 5 Oct 2016
Establishment

From a telecoms regulatory perspective, there are no requirements for a communications provider to be domiciled in the Netherlands prior to or during the provision of services.  Advice should however be sought from a tax perspective.

Last modified 5 Oct 2016
Interconnection/roaming

ACM has certain powers with regards to ex-ante regulations on interconnection and roaming.

When a provider of a public electronic communications network (that controls access to end users) is approached by another proprietor, there is a general obligation to enter into negotiations. Whilst the underlying principle of these negotiations is freedom of contract, the outcome of these negotiations should be aimed at an agreement regarding end-to-end connectivity.

An agreement has to be reached on subjects such as technical aspects of the connection of the network(s), tariffs, quality of the services, and other relevant conditions. The providers are to enter into these negotiations 'proactively'.

These negotiations are to be conducted objectively, transparently, proportionally, and non-discriminatorily.

The obligation to enter into negotiations concerns an obligation to achieve a result. When the desired result is not reached, ACM may be requested to make the provider install the requested end-to-end connectivity on conditions set forth by ACM. These conditions may even relate to subjects such as what tariffs are considered 'reasonable'.

ACM may also act on its own discretion, if no request is filed.

Last modified 5 Oct 2016
Consumer protection

Specific obligations relating to consumers include:

  • The requirement to include certain minimum terms in consumer contracts
  • Conditions relating to term and termination
  • The requirement to make certain information available to the customer such as a description of the services offered and the standard tariffs
  • Availability of number portability
  • Restrictions on sales and marketing activities

In addition to specific telecoms regulations, provisions of general consumer law also apply, such as rules concerning unfair consumer terms.

Last modified 5 Oct 2016
Taxes and fees

Registration with ACM itself is free of charge.  Once registered, however, all providers that achieve a turnover in excess of EUR 2,000,000 in the Netherlands must pay an annual fee to the regulator as a contribution to the costs of regulation. The exact fee depends on the turnover achieved, but in most cases it varies between EUR 6,500 and EUR 30,000.

Last modified 5 Oct 2016
Enforcement

Certain provisions of the Dutch Telecommunications Act relating to use of frequencies (Chapter 3) and compatibility of electromagnetic equipment (Chapter 10) are subject to criminal prosecution by the Department of Justice on the basis of the Economic Offences Act. Depending on the nature of the offence and whether or not it was intentional or non-intentional, providers may be sentenced with a fine that can vary from EUR 20,250 to EUR 81,000, whilst individuals can receive a jail sentence of one to six years.

Other violations of the Dutch Telecommunications Act are subject to administrative prosecution by either the Telecoms Department (Agentschap Telecom) of the Ministry of Economic Affairs or by ACM, depending on the subject-matter of the violation. Both authorities have a broad degree of discretion when deciding the measure to be imposed. Depending on the nature, duration and the severity of the infringement, they may choose.

Last modified 5 Oct 2016
Contacts
Martijn van Wanroij
Martijn van Wanroij
Legal Director
T +31 (0)20 5419 643
Joris Willems
Joris Willems
Advocaat - Partner
T +31 (0)20 5419 992
Last modified 5 Oct 2016