Proposal for a COUNCIL DECISION concerning the signing of the European Convention on the legal protection of services based on, or consisting of, conditional access
Date: 2010-12-15
Institutions: European Commission
Subjects: European standard, access to information, activity report, application of EU law, audiovisual piracy, computer piracy, pay television, right to justice, technical standard

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EUROPEAN COMMISSION  

Brussels, 15.12.2010 
COM(2010) 753 final 

2010/0360 (NLE) 

Proposal for a 

COUNCIL DECISION 

concerning the signing of the European Convention on the legal protection of services 
based on, or consisting of, conditional access  

SEC(2010) 1559 final 

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EXPLANATORY MEMORANDUM 

On 20 November 1998, the Council and the European Parliament adopted Directive 
98/84/EC on the legal protection of services based on, or consisting of, conditional 
access1. 

The  Directive  created  a  common  legal  framework  applicable  throughout  the 
European  Union  for  combating  illicit  devices  which  allow  unauthorised  access  to 
television services offered against payment and effectively protecting such services. 
This  protection  covers  both  television  and  radio  broadcasting  services  and 
transmission by Internet. 

The primary objective of the Directive was to provide legal protection to all services 
for which payment depends on conditional access, i.e. access to the protected service 
is  made  conditional  upon  prior  individual  authorisation2.  More  specifically,  the 
protection  consists  of  declaring  as  unlawful  all  commercial  activity  relating  to 
equipment  which  allows  or  facilitates  access  to  services  without  authorisation  or 
payment to the provider, and establishing sanctions. 

The services are thus legally offered by providers by means of a conditional access 
device, in other words equipment or software designed or adapted to give access to a 
protected  service in an intelligible  form3. Conversely,  an  illicit  device refers to  any 
equipment or software designed or adapted to give access to a protected service in an 
intelligible form without the authorisation of the service provider4. 

The Directive defines the unlawful activities linked to illicit devices in this context. 
These  relate  primarily  to  their  manufacture,  import,  distribution,  sale,  rental  or 
possession,  and  secondly  to  their  installation,  maintenance  or  replacement.  Lastly, 
the use of commercial communications to promote hacking devices is also declared 
to constitute an unlawful activity. It should be noted that only the above-mentioned 
activities carried out in a commercial context are declared to be unlawful. 

The  sanctions  imposed  for  an  unlawful  activity are left entirely to the discretion of 
the  Member  States,  which  must  respect  the  general  principles  of  Community  law. 
They  must  be  "effective,  dissuasive  and  proportionate"5  to  the  infringements 
committed. 

Furthermore,  the  Member  States  must  allow  all  providers  of  services  based  on,  or 
consisting  of,  conditional  access  appropriate  remedies  to  stop  an  unlawful  threat  to 
their activity (by means of injunctions for instance) and to obtain compensation for 
any prejudice suffered due to an unlawful activity. 

In 1999, the Council of Europe started to draft a European convention on the legal 
protection of services based on, or consisting of, conditional access. 

OJ L 320, 28.11.1998, p. 54. 
Article 2(b) of Directive 98/84/EC. 
Article 2(c) of Directive 98/84/EC. 
Article 2(e) of Directive 98/84/EC. 
Article 5 of Directive 98/84/EC. 

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Extensive,  effective  protection  for  services  based  on,  or  consisting  of,  conditional 
access appeared to be particularly necessary. In fact, many European states which are 
not  members  of  the  European  Union  may  provide  havens  for  the  development  or 
distribution  of  devices  for  hacking  into  conditional  access  services  if  their  legal 
system  does  not  provide  for  sanctions  against this  very  specific  hacking  activity.  It 
was therefore necessary to extend the provisions of Directive 98/84/EC and to create 
a  common  and  effective  framework  at  European  level  for  the  protection  of  these 
services. 

The Council therefore authorised the Commission by Decision of 22 June 19996 to 
represent the European Community in the negotiations on the Convention. 

The  negotiation  instructions  to  the  Commission  were  intended  to  ensure  that  the 
European  Convention  included  definitions  and  measures  which  matched  those  of 
Directive  98/84/EC,  and  that  there  would  be  maximum  compatibility  between  the 
two legal instruments. 

The negotiations were successful and the Convention, adopted on 24 January 2001, 
is fully compatible with Directive 98/84/EC. 

Indeed,  the  Convention  mainly  takes  over  the  provisions  of  Directive  98/84/EC, 
thereby  protecting  systems  based  on,  or  consisting  of,  conditional  access  from  the 
unlawful activities listed in Directive 98/84/EC. 

The wording of the two texts differs slightly in places. For instance, the Convention 
not only defines as a criminal offence the manufacture of illicit devices but also their 
production. It also gives a clearer definition of the sanctions established for activities 
defined  as  unlawful,  since  it  describes  them  as  penal,  administrative  or  other. 
However, as in Directive 98/84/EC, the sanctions must be proportionate, dissuasive 
and  effective.  In  short,  the  different  wording  of  the  Convention  of  the  Council  of 
Europe  by  no  means  differs  in  terms  of  content  or  scope  from  the  Community 
Directive. 

The Convention is open for signature by the European Union. Furthermore, Article 
11(4) explicitly provides that, in their mutual relations, Parties which are members of 
the European Community shall apply Community rules and shall therefore not apply 
the rules arising from the Convention unless there is no Community rule governing 
the particular subject concerned. This disconnection clause in favour of the Member 
States of the European Union ensures the primacy of EU rules. 

In  its  second  evaluation  report  on  Directive  98/84/EC  adopted  on  30  September 
20087, the Commission indicated that the signing of the Convention by the European 
Union should encourage broader ratification by the Member States of the Council of 
Europe  and  thus  make  it  possible  to  extend  legal  protection  for  services  based  on 
conditional access beyond the borders of the EU. 

Consequently, the Commission recommends that the Council sign the Convention, as 
it  will  make  it  possible  to  widen  the  scope  of  the  legal  framework  established  by 
Directive 98/84/EC and thus make it easier to effectively combat threats to protected 
services. 

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Not published in the OJ. Ref.: 9556/99. 
COM(2008) 593 final, not published in the OJ. 

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2010/0360 (NLE) 

Proposal for a  

COUNCIL DECISION  

concerning the signing of the European Convention on the legal protection of services 
based on, or consisting of, conditional access  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union  and  in  particular 
Article 207(4) thereof, in conjunction with Article 218(5) thereof, 

Having regard to the proposal by the Commission8, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

On  (…),  the  Council  authorised  the  Commission  to  negotiate  within  the  Council  of 
Europe,  on  behalf  of  the  European  Community,  a  convention  concerning  the  legal 
protection of services based on, or consisting of, conditional access. 

The European Convention on the legal protection of services based on, or consisting 
of, conditional access was adopted on 24 January 2001. 

The  Convention  establishes  a  regulatory  framework  which  is  virtually  identical  to 
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 access9. 

Signing  the  Convention  would  send  a  strong  signal  in  favour  of  the  Convention  and 
thus help to extend the provisions of Directive 98/84/EC beyond the borders of the EU 
and establish a law on services based on conditional access which would be applicable 
all over the European continent. 

The  Convention  entered  into  force  on  1  July  2003  and  is  open  for  signature  by  the 
Community. 

Subject to its conclusion at a later date, the Convention should be signed on behalf of 
the EU, 

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OJ C, [date], p. … . 
OJ L 320, 28.11.1998, p. 54. 

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HAS ADOPTED THIS DECISION: 

Article 1 

The President of the Council shall be authorised to appoint the person(s) empowered to sign, 
on behalf of the EU, the European Convention on the legal protection of services based on, or 
consisting of, conditional access. 

The text of the Convention is attached to this Decision. 

Article 2 

This Decision shall enter into force on the day of its adoption. 

Done at Brussels,  

For the Council 

The President 

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ANNEX  

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

Preamble 

The  member  states  of  the  Council  of  Europe,  other  States  and  the  European  Community 
signatory hereto, 

Considering  that  the  aim  of  the  Council  of  Europe  is  to  achieve  a  greater  unity  between  its 
members; 

Bearing in mind Recommendation No R (91) 14 of the Committee of Ministers on the legal 
protection of encrypted television services; 

Considering  that  piracy  of  decoding  equipment  for  encrypted  services  is  still  a  problem 
throughout Europe; 

Noting  that  new  types  of  conditional  access  services  and  devices,  as  well  as  new  forms  of 
unlawful access to these, have appeared since the adoption of the above recommendation; 

Noting that there is great disparity among European States on legislation aimed at protecting 
services based on, or consisting of, conditional access; 

Noting  that  unlawful  access  threatens  the  economic  viability  of  the  organisations  providing 
broadcasting and information society services and, in consequence, may affect the diversity of 
programmes and services offered to the public; 

Convinced of the need to pursue a common policy aimed at the protection of services based 
on, or consisting of, conditional access; 

Convinced  that  criminal,  administrative  or  other  sanctions  can  play  an  effective  role  in  the 
prevention of unlawful activities against conditional access services; 

Believing that particular attention should be given to illicit activities that are undertaken for 
commercial purposes; 

Taking  account  of  existing  legal  instruments  which  contain  provisions  aiming  at  the 
protection of services based on, or consisting of, conditional access, 

Have agreed as follows: 

Section I – General provisions 

Article 1 – Object and purpose 

This  Convention  is  concerned  with  broadcasting  and  information  society  services  offered 
against  payment  and  based  on,  or  which  consist  of,  conditional  access.  The  purpose  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. 

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For the purposes of this Convention: 

Article 2 – Definitions 

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, meaning 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, considered as a service in its own 
right; 

b) 

c) 

d) 

"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; 

"conditional  access  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 paragraph a. of this article; 

"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 
paragraph of this article, without the prior authorisation of the service provider. 

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. 

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) 

b) 

c) 

d) 

e) 

the manufacture or production of illicit devices for commercial purposes; 

the importation of illicit devices for commercial purposes; 

the distribution of illicit devices for commercial purposes; 

the sale or rental of illicit devices for commercial purposes; 

the possession of illicit devices for commercial purposes; 

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f) 

the  installation,  maintenance  or  replacement  of  illicit  devices  for  commercial 
purposes; 

g) 

the commercial promotion, marketing 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 those referred 
to in paragraph 1 of this article. 

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. 

Article 6 – Confiscation measures 

The Parties shall adopt such appropriate measures as may be necessary to enable it to seize 
and confiscate 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 measures to ensure that providers of protected services 
whose interests are affected by an unlawful activity established in Article 4 above 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. 

Section IV – Implementation and amendments 

Article 8 – International cooperation 

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 relevant 
international  instruments  on  international  co-operation  in  criminal  or  administrative  matters 
and with their domestic law, the widest measure of cooperation 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,  hold 
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 meetings convened by the Secretary General of the Council of Europe. 

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2. 

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5. 

1. 

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3. 

4. 

5. 

6. 

Each Party may be represented 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  question 
which does not fall within its competence. 

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. 

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. 

Subject  to  the  provisions  of  this  Convention,  the  Parties  shall  lay  down  rules  of 
procedure for the consultation meetings. 

Article 10 – Amendments 

Any Party may propose amendments to this Convention. 

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  acceded  to  or  has 
been  invited  to  accede  to  this  Convention  in  accordance  with  the  provisions  of 
Article 13. 

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. 

The  text  adopted  by  the  multilateral  consultation  meeting  shall  be  submitted  to  the 
Committee  of  Ministers  for  approval.  Once  it  has  been  approved,  the  text  of  the 
amendment shall be forwarded to the Parties for acceptance. 

All  the  amendments  shall  enter  into  force  on  the  thirtieth  day  after  all  the  Parties 
have informed the Secretary General of their acceptance thereof. 

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 

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1. 

2. 

3. 

4. 

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. 

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  State  or  the 
European Community may not express their consent to be bound by the Convention 
without accepting at the same time the amendment. 

Article 11 – Relationship with other conventions or agreements 

This  Convention  does  not  affect  the  rights  and  undertakings  derived  from 
international multilateral conventions concerning special matters. 

The Parties to the Convention may conclude bilateral or multilateral agreements with 
one  another  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. 

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 
relations 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. 

In  their  mutual  relations,  Parties  which  are  members  of  the  European  Community 
shall apply Community rules and shall not therefore apply the rules arising from this 
Convention except in so far as there is no Community rule governing the particular 
subject concerned. 

Section V – Final clauses  

Article 12 – Signature and entry into force 

1. 

2. 

3. 

This Convention shall be open 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 Community may express their 
consent to be bound by: 

(a) 

(b) 

signature without reservation as to ratification, acceptance or approval; or 

signature  subject 
ratification, acceptance or approval. 

to  ratification,  acceptance  or  approval  followed  by 

Instruments  of  ratification,  acceptance  or  approval  shall  be  deposited  with  the 
Secretary General of the Council of Europe. 

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 
expressed  their  consent  to  be  bound  by  the  Convention  in  accordance  with  the 
provisions of the preceding paragraph. 

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4. 

1. 

2. 

1. 

2. 

3. 

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. 

Article 13 – Accession to the Convention by non-member States 

After  the  entry  into  force  of  this  Convention,  the  Committee  of  Ministers  of  the 
Council  of  Europe,  after  consulting  the  Parties  to  the  Convention,  may  invite  any 
State  which  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. 

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  

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. 

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 application 
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 such 
declaration by the Secretary General. 

Any  declaration  made  under  the  two  preceding  paragraphs  may,  in  respect  of  any 
territory  specified  in  such  declaration,  be  withdrawn  by  a  notification  addressed  to 
the  Secretary  General  of  the  Council  of  Europe.  The  withdrawal  shall  become 
effective on the first day of the month following the expiration of a period of three 
months after the date of receipt of such notification by the Secretary General. 

No reservations may be made to this Convention. 

Article 15 – Reservations 

Article 16 – Settlement of disputes 

In case of a dispute between Parties as to the interpretation or application of this Convention, 
the  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 

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1. 

2. 

Any Party may, at any time, denunciate this Convention by means of a notification 
addressed to the Secretary General of the Council of Europe. 

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 receipt 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  Europe,  the  other  States  party  to  the  European  Cultural  Convention,  the  European 
Community and any other State which has acceded to this Convention of: 

a) 

b) 

c) 

d) 

e) 

f) 

any signature in accordance with Article 12; 

the  deposit  of  any  instrument  of  ratification,  acceptance,  approval  or  accession  in 
accordance with Articles 12 or 13; 

any date of entry into force of this Convention in accordance with Articles 12 and 13; 

any declaration made in accordance with Article 4; 

any proposal for amendment made under Article 10; 

any other act, notification or communication relating to this Convention. 

In  witness  whereof  the  undersigned,  being  duly  authorised  thereto,  have  signed  this 
Convention. 

Done at Strasbourg, the 24th January 2001, in English and French, both texts being equally 
authentic, in a single copy which shall be deposited in the archives of the Council of Europe. 
The  Secretary  General  of  the  Council  of  Europe  shall  transmit  certified  copies  to  each 
member  State  of  the  Council  of  Europe,  to  the  other  States  party  to  the  European  Cultural 
Convention, to the European Community and to any State invited to accede to it. 

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