Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access
Date: 1998-11-20
Institutions: Council of the European Union, European Parliament
Subjects: European standard, access to information, pay television, right to justice, technical standard

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Official Journal of the European Communities

28. 11. 98

DIRECTIVE 98/84/EC OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL

of 20 November 1998

on the legal protection of services based on, or consisting of, conditional access

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 57(2), 66 and 100a
thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure laid down in
Article 189b of the Treaty (3),

(1) Whereas the objectives of the Community as laid
down in the Treaty include creating an ever closer
union among the peoples of Europe and ensuring
economic and social progress, by eliminating the
barriers which divide them;

(2) Whereas the cross-border provision of broadcasting
and information society services may contribute,
from the individual point of view, to the full effect-
iveness of freedom of expression as a fundamental
right and, from the collective point of view, to the
achievement of the objectives laid down in the
Treaty;

(3) Whereas the Treaty provides for the free movement
of all services which are normally provided for
remuneration; whereas this right, as applied to
is
broadcasting and information society services,
also a specific manifestation in Community law of
a more general principle, namely freedom of
expression as enshrined in Article 10 of the Euro-
pean Convention for the Protection of Human
Rights and Fundamental Freedoms; whereas that
Article explicitly recognizes the right of citizens to
receive and impart information regardless of fron-
tiers and whereas any restriction of that right must
be based on due consideration of other legitimate
interests deserving of legal protection;

(1) OJ C 314, 16. 10. 1997, p. 7 and OJ C 203, 30. 6. 1998,

p. 12.

(2) OJ C 129, 27. 4. 1998, p. 16.
(3) Opinion of the European Parliament of 30 April 1998 (OJ C
152, 18. 5. 1998, p. 59), Council Common Position of 29
June 1998 (OJ C 262, 19. 8. 1998, p. 34) and Decision of the
European Parliament of 8 October 1998 (OJ C 328, 26. 10.
1998). Council Decision of 9 November 1998.

(4) Whereas

the Commission undertook a wide-
ranging consultation based on the Green Paper
‘Legal Protection of Encrypted Services in the
Internal Market'; whereas the results of that consul-
tation confirmed the need for a Community legal
instrument ensuring the legal protection of all
those services whose remuneration relies on condi-
tional access;

(5) Whereas the European Parliament, in its Resolu-
tion of 13 May 1997 on the Green Paper (4), called
on the Commission to present a proposal for a
Directive covering all encoded services in respect
of which encoding is used to ensure payment of a
fee, and agreed that this should include informa-
tion society services provided at a distance by elec-
tronic means and at the individual request of a
service receiver, as well as broadcasting services;

for

the potential

(6) Whereas the opportunities offered by digital tech-
nologies provide
increasing
consumer choice and contributing to cultural plur-
alism, by developing an even wider
range of
services within the meaning of Articles 59 and 60
of the Treaty; whereas the viability of those services
will often depend on the use of conditional access
in order to obtain the remuneration of the service
provider; whereas, accordingly, the legal protection
of service providers against illicit devices which
allow access to these services free of charge seems
necessary in order to ensure the economic viability
of the services;

(7) Whereas the importance of this issue was recog-
nized by the Commission Communication on ‘A
European Initiative in Electronic Commerce';

(8) Whereas,

in accordance with Article 7a of

the
Treaty, the internal market is to comprise an area
without internal frontiers in which the free move-
ment of services and goods is ensured; whereas
Article
the
Community to take cultural aspects into account in
its action under other provisions of the Treaty;

the Treaty

requires

128(4)

of

(4) OJ C 167, 2. 6. 1997, p. 31.

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whereas by virtue of Article 130(3) of the Treaty,
the Community must, through the policies and
activities it pursues, contribute to creating the
conditions necessary for the competitiveness of its
industry;

(9) Whereas this Directive is without prejudice to
possible future Community or national provisions
meant to ensure that a number of broadcasting
services, recognized as being of public interest, are
not based on conditional access;

(10) Whereas this Directive is without prejudice to the
cultural aspects of any further Community action
concerning new services;

(11) Whereas

the disparity between national

rules
concerning the legal protection of services based
on, or consisting of, conditional access is liable to
create obstacles to the free movement of services
and goods;

those obstacles

(12) Whereas the application of the Treaty is not suffi-
cient to remove these internal market obstacles;
whereas
should therefore be
removed by providing for an equivalent level of
protection between Member States; whereas this
the national rules
implies an approximation of
relating to the commercial activities which concern
illicit devices;

(13) Whereas it seems necessary to ensure that Member
States provide appropriate legal protection against
the placing on the market, for direct or indirect
financial gain, of an illicit device which enables or
facilitates without authority the circumvention of
any technological measures designed to protect the
remuneration of a legally provided service;

(14) Whereas

those

activities which
commercial
concern illicit devices include commercial com-
munications covering all
forms of advertising,
direct marketing, sponsorship, sales promotion and
public relations promoting such products and
services;

(15) Whereas

those commercial activities are detri-
mental to consumers who are misled about the
origin of illicit devices; whereas a high level of
consumer protection is needed in order to fight
fraud; whereas
against
the
Article 129a(1) of
Community should contribute to the achievement
of a high level of consumer protection by the
measures it adopts pursuant to Article 100a thereof;

the Treaty provides that

this kind of consumer

(16) Whereas, therefore, the legal framework for the
creation of a single audiovisual area laid down in
Council Directive 89/552/EEC of 3 October 1989
on the coordination of certain provisions laid down
regulation or administrative action in
by law,
Member States concerning the pursuit of television
broadcasting activities (1) should be supplemented
with reference to conditional access techniques as
laid down in this Directive, in order, not least, to
ensure equal treatment of the suppliers of cross-
border broadcasts, regardless of their place of estab-
lishment;

(17) Whereas, in accordance with the Council Resolu-
tion of 29 June 1995 on the effective uniform
application of Community law and on the penalties
applicable for breaches of Community law in the
internal market (2), Member States are required to
take action to ensure that Community law is duly
applied with the same effectiveness and thorough-
ness as national law;

(18) Whereas,

in accordance with Article 5 of

the
Treaty, Member States are required to take all
appropriate measures to guarantee the application
and effectiveness of Community law, in particular
by ensuring that the sanctions chosen are effective,
dissuasive and proportionate and the remedies
appropriate;

(19) Whereas the approximation of the laws, regulations
and administrative provisions of the Member States
should be limited to what is needed in order to
achieve the objectives of the internal market, in
accordance with the principle of proportionality as
set out in the third paragraph of Article 3b of the
Treaty;

(20) Whereas the distribution of illicit devices includes
transfer by any means and putting such devices on
the market for circulation inside or outside the
Community;

(21) Whereas this Directive is without prejudice to the
application of any national provisions which may
prohibit the private possession of illicit devices, to
the application of Community competition rules
application of Community rules
and to the
concerning intellectual property rights;

(22) Whereas national

law concerning sanctions and
remedies for infringing commercial activities may
provide that the activities have to be carried out in
the knowledge or with reasonable grounds for
knowing that the devices in question were illicit;

(1) OJ L 298, 17. 10. 1989, p. 23. Directive as amended by Dir-
the

the European Parliament and of

ective 97/36/EC of
Council (OJ L 202, 30. 7. 1997, p. 60).

(2) OJ C 188, 22. 7. 1995, p. 1.

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(23) Whereas the sanctions and remedies provided for
under this Directive are without prejudice to any
other sanction or remedy for which provision may
be made under national law, such as preventive
measures in general or seizure of illicit devices;
whereas Member States are not obliged to provide
criminal sanctions for infringing activities covered
by this Directive; whereas Member States’ provi-
sions for actions for damages are to be be in
conformity with their national legislative and judi-
cial systems;

(24) Whereas this Directive is without prejudice to the
application of national rules which do not
fall
within the field herein coordinated, such as those
adopted for the protection of minors,
including
those in compliance with Directive 89/552/EEC, or
national provisions concerned with public policy or
public security,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

The objective of this Directive is to approximate provi-
sions in the Member States concerning measures against
illicit devices which give unauthorised access to protected
services.

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
programmes 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 in-
formation in the field of technical standards and
regulations and of rules on information society
services (1),

(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 authorisation;

(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, main-
tenance or replacement of conditional access devices,
as well as the provision of commercial communi-
cation 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 author-
isation of the service provider;

(f)

field coordinated by this Directive shall mean any
provision relating to the infringing activities 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 asso-
ciated services, which originate in another Member
State; or

(b) restrict
devices;

the free movement of conditional access

for reasons falling within the field coordinated by this
Directive.

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;

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

(b) the installation, maintenance or

replacement

for

commercial purposes of an illicit device;

(1) OJ L 204, 21. 7. 1998, p. 37. Directive as amended by Direc-

tive 98/48/EC (OJ L 217, 5. 8. 1998, p. 18).

(c) the use of commercial communications to promote

illicit devices.

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Article 5

Sanctions and remedies

Article 7

Reports

The sanctions

1.
shall be effective, dissuasive and
proportionate to the potential impact of the infringing
activity.

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

Implementation

1. Member States shall bring into force the laws, regula-
tions 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 accom-
panied 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 Commis-
sion the text of the provisions of national law which they
adopt in the field coordinated by this Directive.

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 accom-
panied, 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.

Done at Brussels, 20 November 1998.

For the European Parliament

For the Council

The President

J. M. GIL-ROBLES

The President

E. HOSTASCH