5G regulation and law in Belgium

1. What is the state of 5G deployment in your country?

There were delays to adopting 5G regulations due to a political disagreement between the federal authority and the regional authorities on how to distribute the revenues generated by a 5G auction.

As a result, 5G deployment was also delayed.

Operators have however been able to provide 5G services on the basis of temporary licences or through frequency bands allocated to them under previous regulations.

The 5G regulations were finally adopted on 28 November 2021.

The national regulatory authority (BIPT) then adopted a series of individual decisions on 23 August 2022 and 16 November 2022 granting 5G user rights to the following operators:

  • Proximus (in the 700 MHz, 1400 MHz and 3600 MHz bands);
  • Orange (in the 700 MHz, 1400 MHz and 3600 MHz bands);
  • Telenet (in the 700 MHz, 1400 MHz and 3600 MHz bands);
  • Citymesh Mobile (in the 700 MHz and 3600 MHz bands);
  • Network Research Belgium (in the 3600 MHz band).

Their 5G network coverage can be viewed on the following links: Carte 5G and nPerf.

Overall, the 5G network appears to be much more developed in the north, in particular in Antwerp, Ghent and the coastal cities, as well as in the periphery of Brussels.

Some operators have stated in the press that they intend to reach 99% 5G coverage by 2024.

2. Are telecoms companies monetising 5G investments - or are the services provided to consumers at similar prices to 4G? 

The market has seen an increase in mobile tariffs.

Whereas several factors such as inflation could explain an increase, a BIPT spokesperson indicated in the press that this could be due to where operators are in the fibre and 5G investment cycle.

As a general trend, tariff plans without 5G seem to be marketed at lower prices than tariff plans that include 5G.

3. Has 5G been launched for industrial purposes? For which sectors?

Some operators have already initiated 5G B2B projects, primarily for logistics and industrial purposes:

  • At the beginning of 2020, Proximus and the Port of Antwerp signed a Memorandum of Understanding for a project to develop, on the basis of a test licence, a private 5G network for industrial applications such as connecting tugboats with each other and with the port to improve shipping coordination). In 2022, the Port of Antwerp selected the 6th NeTWorK consortium (a collaboration between DroneMatrix, Proximus and SkeyDrone), to roll out a large-scale drone project based on 5G technology.
  • In 2020, Orange and some industrial partners have launched a project in the Port of Antwerp zone. As part of this, Orange opened its first permanent Orange 5G Lab in Antwerp with a view to generating synergies with the Port of Antwerp around co-innovation use cases.
  • Citymesh has also initiated B2B partnerships with entities including Brussels Airport and Port of Zeebrugge to develop private 5G networks. From September 2021, Brussels Airport and Skeyes have tested in cooperation with Citymesh to what extent drones could help monitor and deter birds in the vicinity of the airport. Citymesh has also taken part in a project to build a 5G private network that enables fast connectivity for wind farms in the North Sea.
  • Network Research Belgium (NRB) has obtained its 5G licence primarily for the purpose of creating 5G B2B partnerships with private and public entities.

4. What is being done to ensure that a wide range of operators and industrial companies, from small to large, have access to frequencies? Are such frequencies accessible to stadiums, airports and other special premises?

No specific measures have been taken to date to this effect.

Based on our understanding of the 5G regulations, it does not seem that the authorities intend to reserve specific frequency bands directly for certain industries and/or individuals. Aside from some test licences that have been assigned on a provisional and non-commercial basis, the industrial 5G projects have been led by telecom operators with 5G licences (see answer 3 above). Some of the 5G operators are in fact primarily active in the B2B segment (such as Citymesh Mobile and NRB).

5.What public tenders have awarded spectrum licences? 5.1 What were the criteria for awarding each of the tenders?

The conditions for obtaining and exercising rights of use for the frequency bands dedicated to 5G are in the 5G regulations adopted on 28 November 2021 (i.e. the 700 MHz Royal Decree, the 1400 MHz Royal Decree and the 3600 MHz Royal Decree), together with the information memorandum published by BIPT.

Based on the 5G regulations, BIPT organised three autonomous processes in 2022 for granting 5G rights of use:

  • The first process concerned the allocation of 30 MHz duplex in the 700 MHz band for a period of 20 years
    Proximus (10 MHz duplex), Telenet (5 MHz duplex), Orange (10 MHz duplex) and Citymesh Mobile (5 MHz duplex) obtained spectrum in this frequency band.
  • The second process concerned the allocation of 390 MHz in the 3600 MHz band for the period until 6 May 2040
    Proximus (100 MHz), Telenet (100 MHz), Orange (100 MHz), Citymesh Mobile (50 MHz) and NRD (20 MHz) obtained spectrum in this frequency band. A block of 20 MHz (3410-3430 MHz) remained unsold.
  • The third procedure concerned the allocation of 90 MHz in the 1400 MHz band for a period of 20 years
    Proximus (45 MHz), Telenet (15 MHz) and Orange (30 MHz) obtained spectrum in this frequency band.

5.1 What were the criteria for awarding each of the tenders?

Applications for 5G rights of use must:

  • be submitted by 16 February 2022, as indicated in the call for applications published by BIPT in the Belgian Official Journal;
  • be submitted to BIPT against delivery of a receipt, in two copies, with indication of an original copy signed by the candidate’s competent representatives;
  • include the required deposit, paid unconditionally and irrevocably in cleared funds in euros;
  • be complete, providing all requested information in the correct form according to Article 19 of the 700 MHz Royal Decree, Article 13 of the 1400 MHz Royal Decree and Article 15 of the 3600 MHz Royal Decree;
  • be submitted by a corporate body, which must not be in a state of liquidation or bankruptcy or a similar situation, has not filed for bankruptcy and is not involved in a liquidation procedure or judicial concordat, or a similar situation or process.

For the financial conditions regarding the obtention of the licences, see section 5.3 below.

5.2 What are the conditions of the spectrum licence?

The conditions for the exercise of 5G rights of use are:

  • the duration of the initial validity period is 20 years for the rights of use in the 700 MHz and 1400 MHz frequency bands, and until 6 May 2040 for the rights of use in the 3600 MHz frequency band. The rights of use may be extended by BIPT for supplementary periods of maximum five years;
  • use of compliant radio equipment and avoidance of radio frequency interference;
  • payment of the unique fee and the annual fees (see section 5.3 below);
  • only operators holding rights of use in the 700 MHz frequency band are subject to coverage obligations.

Population coverage obligations:

  • For existing operators: 70% after one year, 99.5% after two years, and 99.8% after six years.
  • For other operators: 30% after three years, 70% after six years and 99.8% after eight years.

In addition, the operators are also subject to an obligation to cover certain railway lines.

  • BIPT may require existing operators with spectrum in the 700 MHz band to offer new entrants that also have spectrum in the 700 MHz band national roaming on their networks, for a limited period (under the conditions set out in Article 13 of the 700 MHz Royal Decree);
  • All operators holding rights of use in the 700 MHz frequency band have an obligation to offer, at their own expense, national roaming to the ASTRID radio communications network (which is used to transmit voice and data for the Belgian rescue and security services).

In addition, the Ministers of Telecommunications and the Interior may, after consulting BIPT regarding the technical feasibility and operational necessity, require one or several 700 MHz operators to provide ASTRID with additional minimum specific public protection and disaster relief measures to support the rescue and security services.

5.3 What is the price and how is it calculated?

Operators were/are required to pay a unique fee, as well as annual fees.

Unique fee

The minimum bid for the lots in the 5G frequency bands (reserve price) has been set based on Article 30 of the Electronic Communications Act of 13 June 2005, which sets an amount per allocated MHz and per month of validity of the rights of use.

For the auction processes in the 700 MHz and 1400 MHz frequency bands, the reserve price has been calculated for a period of 240 months (20 years).

For the auction procedure in the 3600 MHz frequency band, the reserve price has been calculated on the basis of the number of months between 7 May 2025 and 6 May 2040 (as the unique fee did not have to be paid for the period until 6 May 2025).

In respect of the 700 MHz frequency band:

  • Proximus paid a unique fee of EUR 122,870,000 for a 10 MHz duplex;
  • Orange paid a unique fee of EUR 122,860,000 for a 10 MHz duplex;
  • Telenet paid a unique fee of EUR 21,340,000 for a 5 MHz duplex;
  • Citymesh paid a unique fee of EUR 19,335,000 for a 5 MHz duplex.

In respect of the 1400 MHz frequency band:

  • Proximus paid a unique fee of EUR 108,890,000 for 45 MHz;
  • Orange paid a unique fee of EUR 69,650,000 for 30 MHz;
  • Telenet paid a unique fee of EUR 38,000,000 for 15 MHz.

In respect of the 3600 MHz frequency band:

  • Proximus paid a unique fee of EUR 56,320,000 for 100 MHz;
  • Orange paid a unique fee of EUR 54,850,000 for 100 MHz;
  • Telenet paid a unique fee of EUR 55,800,000 for 100 MHz;
  • Citymesh paid a unique fee of EUR 30,990,000 for 50 MHz;
  • NRD paid a unique fee of EUR 10,970,000 for 20 MHz.

Annual fees

The operators must pay the following:

  • fee related to the notification as an operator;
  • annual frequency availability fees;
  • annual fees for the use of numbers.

The amounts of the annual frequency availability fees for the year 2022 were set at EUR 102,000 in the 700 MHz band, EUR 55,900 in the 1400 MHz band, and EUR 11,200 in the 3600 MHz band.

Operators must pay annual fees for all the allocated frequencies, whether or not they are used. When calculating the annual fees, one MHz duplex corresponds to 2 MHz.

For the 700 MHz, 1400 MHz and 3600 MHz bands, the annual fees are reduced by 50% during the first three years of the validity period of the rights of use.

6. Is there a long-term spectrum plan or announcements for future tenders?

The 5G auction completed in July 2022, and the BIPT granted user rights in August and November 2022. To our knowledge, no new auctions are planned for the near future.

In the longer term, BIPT seems to envisage auctioning other frequency bands such as the 26 GHz or the 28 GHz frequency bands. A public consultation took place in this respect in 2019.

7. If 5G specific rules are drafted, what do they say?

To date, the only specific rules that have been drafted in relation to 5G are in the above-mentioned 5G regulations adopted on 28 November 2021 (i.e. the 700 MHz Royal Decree, the 1400 MHz Royal Decree and the 3600 MHz Royal Decree), as well as the 5G security measures referred to in the answer to question 12.

Certain rules/guidance relating to 5G deployment also appear in instruments adopted by the BIPT, such as the individual decisions granting 5G user rights or a communication of 2018 relating to the introduction of 5G (the main objective of which was to discuss the frequency bands available and define a roadmap for the auction).

8. Are there any issues in the implementation of the 5G projects? Have there been any decisions regarding non-compliance with 5G concessions’ obligations?

At this stage, given the recent adoption of the BIPT decisions granting 5G user rights to the operators (in August and November 2022), it is premature to comment on this issue and we are not aware of any publicly available information that BIPT would consider adopting a non-compliance decision with respect to a specific operator.

Based on publicly available information, we are neither aware of any appeals lodged against the BIPT’s granting of 5G user rights to the operators.

However, Telenet lodged an appeal in February 2022 before the Council of State (Belgian Administrative Supreme Court) against certain provisions of the 5G regulations, namely the reservation of spectrum for a fourth entrant. This appeal is still pending.

9. What focused 5G network or spectrum sharing regulation exists? What are the latest developments in the thinking of the regulators about 5G shared infrastructure ownership or use?

The 5G rules on network or spectrum sharing are the general ones provided for in the Electronic Communications Act of 13 June 2005, as modified in 2021 following the transposition of the provisions of the European Electronic Communications Code.

While the draft 5G regulations initially contained some specific provisions relating to active infrastructure sharing in the allocated 5G frequency bands, these were removed from the final text of the 5G regulations following comments in the opinions of the Council of State relating to the 700 MHz draft Decree, the 1400 MHz draft Decree and the 3600 MHz draft Decree.

10. Are 5G network sharing or spectrum sharing agreements in place?

Yes, there are sharing agreements in place.

Proximus and Orange Belgium signed an active radio access network sharing agreement, which did not involve spectrum sharing, on 22 November 2019. The shared mobile access network will be designed, built and operated by a new Brussels-based joint venture, owned 50/50 by Proximus and Orange Belgium. On 23 December 2022, the National Competition Authority rejected a complaint brought by Telenet against this RAN sharing agreement.

11. What are or will be the rules for granting competitors access to new 5G networks once they are deployed?

Belgian legislation provides for the possibility of sharing antenna sites, other sites, infrastructure and other network elements both passive and active (see Articles 25 to 28/4 of the Electronic Communications Act of 13 June 2005). Some forms of infrastructure sharing are even mandatory by law.

Pursuant to Article 19/1 of the Electronic Communications Act of 13 June 2005, spectrum sharing shall not be prevented under the conditions attached to the rights of use. In any case, sharing agreements between operators remain subject to competition law.

12. What comments have been made regarding 5G cyber-security and possible use of Chinese technology, including regulation?

Several measures related to the security of 5G networks have been taken, through the adoption of the Law of 17 February 2022 and its implementing decrees (some of which are still at a draft stage).

According to 5G security rules, operators must obtain a prior authorisation from ministers before using/deploying active elements of the 5G network produced by manufacturers and before contracting a service provider to install, configue, maintain and/or monitor the active elements of their 5G network. Any operator that has already started 5G deployment or contracted service providers for the installation, configuration, maintenance and/or monitoring of their 5G network elements, will be subject to a regularisation system.

The network infrastructure of 5G operators must be located in EU territory, with a draft implementing decree further specifying the modalities of this localisation requirement.

This legislation also imposes restrictions as to the use of high-risk equipment manufacturers and service providers, depending on the part of the network concerned (core network, backbone, backhaul, transport or radio access), whether the active elements are located on/cover a site in a sensitive area and whether the operators have an essential/critical function. These restrictions shall be applicable, in principle, only as from 1 January 2028 or 1 January 2031.

The high-risk profile of a supplier is assessed on the basis of three criteria, i.e. the likelihood that the supplier will be subject to interference from a non-EU country, the ability of the supplier to guarantee supplies in terms of time and quantity, and the overall quality of the products or services and supplier security practices, including the level of control by the supplier over its own supply chain and whether an appropriate hierarchical classification is subject to security practices.

Although it is not explicit, these measures appear to target Chinese equipment suppliers in particular.

In October 2020, Proximus and Orange announced that they had chosen – instead of Huawei – Ericsson (for Proximus) and Nokia (for Orange) as partners to upgrade their existing 2G/3G/4G networks and deploy 5G. In March 2021, Telenet announced that it had selected Ericsson, Nokia, and Google Cloud as partners for its 5G roll-out.

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Dirk Van Liedekerke
Partner
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Matthieu van Lierde
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Alexis Laes
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