EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 15.12.2010 
SEC(2010) 1559 final 
  
COMMISSION STAFF WORKING PAPER 
COMPARATIVE CHART 
DIRECTIVE 98/84/EC AND EUROPE AN 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 
COM(2010) 753 final 
 
EN 2   EN 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 gi ve unauthorized access to 
protected services. Section I: General provisions  
Article 1: Object and purpose  
This Convention is concerned w ith broadcasting and information 
society services offered against payment and based on, or which consist of, conditional access. The pur pose 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 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, m eaning 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 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. 
 
 
EN 3   EN 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(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 indi vidual 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 sha ll mean the installation, 
maintenance or replaceme nt 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 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" m eans any equipment, software 
and/or arrangement designed or adapted to give access in an 
intelligible form to one of the ser vices 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 pa ragraph a. of this article, without 
the authorisation of the service provider. 
 
EN 4   EN 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 
specified in Article 4. 
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.  
 
EN 5   EN 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 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, mark eting 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 t hose 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 
 
EN 6   EN 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 
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 appr opriate measures as may be necessary 
to enable it to seize and confiscat e 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 m easures to ensure that providers 
of protected services whose interest s are affected by an unlawful 
activity established in Article 4 a bove 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  Provisions specific to the 
European Union: implementation, reports, 
entry into force.  
 
EN 7   EN 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 
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. 
 
EN 8   EN 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 
 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 rele vant international instruments on 
international co-operation in crimin al or administrative matters and 
with their domestic law, the wi dest 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, hol d 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 m eetings convened by the Secretary 
General of the Council of Europe. 
2) Each Party may be represen ted 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 ques tion which does not fall within its Provisions specific to 
international public law: 
international co-operation, multilateral consultations, amendments. 
 
EN 9   EN 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 
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 ame ndments 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 acced ed 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 
 
EN 10   EN 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 
be submitted to the Committee of Ministers for approval. Once it has 
been approved, the text of the am endment 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 St ate or the European Community 
may not express their consen t to be bound by the Convention 
without accepting at the same time the amendment.
 
 Article 11: Relationship with other c onventions or agreements 
1) This Convention does not affect the rights and undertakings 
derived from international multilatera l conventions concerning special §4: Disconnection clause for 
EU Member States 
 
EN 11   EN 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 
matters. 
2) The Parties to the Convention may conclude bilateral or 
multilateral agreements with one anot her 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 rela tions 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 aris ing from this Convention except 
in so far as there is  no Community rule gove rning the particular 
subject concerned.
 
 
EN 12   EN 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 
 Section V: Final clauses
Article 12: Signature and entry into force 
1) This Convention shall be ope n 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 Co mmunity 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 Gene ral 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 expr essed 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  
 
EN 13   EN 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 
Ministers of the Council of Europe, after consulting the Parties to the 
Convention, may invite any State wh ich 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 appl ication 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 su ch declaration by the Secretary 
General. 
3) Any declaration made under the two preceding paragraphs 
may, in respect of any territory sp ecified in such declaration, be 
withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal sh all become effective on the first 
day of the month following the expiration of a period of three months 
 
EN 14   EN 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 
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, th e 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 recei pt 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 Eu rope, the other States party to the 
European Cultural Convention, the European Community and any 
other State which has acceded to this Convention of: 
 
EN 15   EN 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 
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, notificati on or communication relating to 
this Convention.