COMMISSION STAFF WORKING PAPER COMPARATIVE CHART DIRECTIVE 98/84/EC AND EUROPEAN 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
Date: 2010-12-15
Institutions: European Commission
Subjects: European standard, access to information, access to the courts, audiovisual piracy, computer piracy, pay television, right to justice

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EUROPEAN COMMISSION 

Brussels, 15.12.2010 
SEC(2010) 1559 final 

COMMISSION STAFF WORKING PAPER 

COMPARATIVE CHART 
DIRECTIVE 98/84/EC AND EUROPEAN 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 

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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 

Section I: General provisions 
Article 1: Object and purpose 

The  objective  of  this  Directive  is  to  approximate 
provisions  in  the  Member  States  concerning  measures 
against illicit devices which give unauthorized access to 
protected services. 

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. 

Article 2: Definitions 

Article 2: Definitions  

For the purposes of this Directive: 

For the purposes of this Convention : 

protected  service  shall  mean  any  of 

(a) 
following 
remuneration and on the basis of conditional access: 

services,  where 

provided 

the 
against 

- 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, 

"protected service" means any of the following services, when 

a) 
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; 

Article  1  of  the  Convention 
repeats  the  same  objectives 
and  purposes 
those 
stated  in  article  1  of  directive 
98/84/EC. 

than 

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. 

- information society services within the  meaning of 

or  the  provision  of  conditional  access  to  the  above  services 

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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 

considered as a service in its own right; 

"conditional  access"  means  any  technical  measure  and/or 
b) 
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"  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; 

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 paragraph a. of this article, without 
the authorisation of the service provider. 

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; 

conditional  access  shall  mean  any  technical 
(b) 
measure  and/or  arrangement  whereby  access  to  the 
protected  service  in  an  intelligible  form  is  made 
conditional upon prior individual 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  shall  mean  the  installation, 
maintenance  or  replacement  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) 
any  provision  relating 

field  coordinated  by  this  Directive  shall  mean 
infringing  activities 
the 

to 

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European Convention on the Legal Protection of Services based 
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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. 

Without  prejudice  to  paragraph  1,  Member 

2. 
States may not: 

(a)  restrict  the  provision  of  protected  services,  or 
in  another 
associated  services,  which  originate 
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. 

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DIRECTIVE 98/84/EC, "CONDITIONAL  ACCESS 
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European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

REMARKS 

Article 4: Infringing activities 

Section II: Illicit activities 
Article 4: Offences 

Member States shall prohibit on their territory all of the 
following activities: 

the  manufacture, 

import,  distribution,  sale, 
(a) 
rental  or  possession  for  commercial  purposes  of  illicit 
devices; 

the installation, maintenance or replacement for 

(b) 
commercial purposes of an illicit device; 

the  use  of  commercial  communications 

(c) 
promote illicit devices. 

to 

It shall be unlawful to carry out one of the following activities on the 
territory of a Party: 

a) 

b) 

c) 

d) 

e) 

f) 

g) 

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; 

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

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. 

Both  texts  use  the  exact  same 
in  regards  with 
definitions 
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 

Section III: Sanctions and remedies 
Article 5: Sanctions for unlawful activities 

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

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. 

can 

The  convention  gives  details 
about  sanctions  for  unlawful 
activities.  They 
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 

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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 
type  of 
the  same 
implies 
sanctions  than  those  found  in 
the Convention. 

take 

Member  States  shall 

the  necessary 
2. 
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 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. 

command 

Both  the  Convention  and  the 
directive 
that 
legal  actions  and 
certain 
proceedings 
made 
to  providers  of 
available 
protected 
e.g. 
confiscation  of  illicit  devices, 
action 
damages, 
for 
injunction, etc. 

services: 

be 

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 

specific 

Provisions 
European 
implementation, 
entry into force. 

to 
the 
Union: 
reports, 

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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. 
the 
Member  States  shall  communicate 
Commission  the  text  of  the  provisions  of  national  law 
which  they  adopt  in  the  field  coordinated  by  this 
Directive. 

to 

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 
this 
Committee  concerning 
the 
Directive 
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. 

implementation  of 
appropriate, 

accompanied,  where 

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. 

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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 relevant international instruments on 
international  co-operation  in  criminal  or  administrative  matters  and 
with  their  domestic  law,  the  widest  measure  of  co-operation  in 
to  criminal  or 
investigations  and 
this 
administrative  offences  established 
Convention.  

judicial  proceedings  relating 

in  accordance  with 

Provisions 
international 
international 
multilateral 
amendments. 

specific 
to 
law: 
public 
co-operation, 
consultations, 

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. 

2) 
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 
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 

its  competence, 

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DIRECTIVE" 

European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

REMARKS 

competence. 

Any  State  referred  to  in  Article  12,  paragraph  1,  or  the 
3) 
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 
4) 
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 

5) 
lay down rules of procedure for the consultation meetings. 

Article 10: Amendments 

1) 

Any Party may propose amendments 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  acceded  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 

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REMARKS 

European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

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. 

5) 
All amendments shall enter into force on the thirtieth day after 
all the Parties have informed the Secretary General of their acceptance 
thereof. 

On 

6) 
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. 

If an amendment has been approved by the Committee of 
7) 
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 
1) 
derived from international multilateral conventions concerning special 

§4:  Disconnection  clause  for 
EU Member States 

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DIRECTIVE 98/84/EC, "CONDITIONAL  ACCESS 
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European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

REMARKS 

matters. 

The  Parties  to  the  Convention  may  conclude  bilateral  or 
2) 
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. 

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  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. 

4) 
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. 

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European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

REMARKS 

specific 
public 

Provisions 
to 
law: 
international 
signature,  entry  into  force, 
territorial 
application, 
settlement of disputes. 

Section 
Article 12: Signature and entry into force 

V: 

Final 

clauses

1) 
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: 

signature  without  reservation  as  to  ratification,  acceptance  or 

a) 
approval; or 

signature  subject  to  ratification,  acceptance  or  approval, 

b) 
followed by ratification, acceptance or approval. 

Instruments  of  ratification,  acceptance  or  approval  shall  be 

2) 
deposited with the Secretary General 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 expressed their consent to be bound by 
the  Convention  in  accordance  with  the  provisions  of  the  preceding 
paragraph. 

In respect of any signatory State or the European Community 
4) 
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 

1) 

After the entry into force of this Convention, the Committee of 

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REMARKS 

European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

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. 

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 

Any  State  or  the  European  Community  may,  at  the  time  of 
1) 
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 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. 

3) 
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 

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after the date of receipt of such notification by the Secretary General. 

REMARKS 

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,  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  

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  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: 

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European Convention on the Legal Protection of Services based 
on, 
or consisting of, Conditional Access (The convention) 

a) 

any signature in accordance with Article 12; 

the  deposit  of  any  instrument  of  ratification,  acceptance, 

b) 
approval or accession in accordance with Articles 12 or 13; 

any date of entry into force of this Convention in accordance 

c) 
with Articles 12 and 13; 

d) 

e) 

any declaration made in accordance with Article 4; 

any proposal for amendment made under Article 10; 

any  other  act,  notification  or  communication  relating  to 

f) 
this Convention. 

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