AUTHORISATION OF TELECOMS NETWORKS AND
SERVICES
(21567)
10979/00
COM(00) 386
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Draft Directive of the European Parliament and the Council on the
authorisation of electronic communications networks and services
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| Legal base:
| Article 95; co-decision; qualified majority voting
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| |
| Document originated:
| 12 July 2000 |
| Forwarded to the Council:
| 28 August 2000 |
| Deposited in Parliament:
| 15 September 2000 |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 10 October 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared |
Background
17.1 This draft Directive is one of seven
proposals for legislation that will form the new regulatory framework
for electronic communications networks and services. They were
anticipated in the Commission Communication on the results of
the public consultation on the 1999 Communications Review which
the Committee considered on 24 May and 19 July[59]
and which was debated in European Standing Committee C on 16 February
2000[60].
17.2 The other six proposals are also considered
today. They are listed in the paragraph on the draft Directive
on a common regulatory framework for electronic communications
networks and services[61].
17.3 A further proposal, the draft Council
Regulation on unbundled access to the local loop[62],
was considered and cleared on 25 October and 1 November. It will
complement the existing telecoms framework.
The draft Directive
17.4 The aim of the proposed Directive we
consider here is to revise and simplify the existing harmonised
regulatory framework for authorisation of telecoms networks and
services across the EU. In line with the policy objectives of
the new regulatory framework, the proposal aims to remove existing
barriers to the single market and ensure that regulation is technologically
neutral and restricted to the minimum necessary. The proposal
sets out the principles that national regulatory authorities (NRAs)
would be obliged to follow in authorising electronic communications
at national level.
17.5 The contents of the proposed Directive
can be summarised as follows:
— Scope, aim and definitions
17.6 The aim and scope of the new framework
are described as being to establish a harmonised simplified framework
for all authorisations relating to the provision of electronic
communications networks and services. Article 2 applies the definitions
set out in the Framework Directive50;
— General authorisations
17.7 Although the existing Licensing Directive
97/13/EC gives preference to general authorisations, it still
provides for the wide use of individual licences. The present
proposal would limit NRAs to covering all electronic communication
services and networks under a general authorisation only, and
to requiring notification only (Article 3). The minimum list of
rights for operators under the general authorisation are set out.
These are to provide electronic communications services to the
public; negotiate interconnection with other public service providers;
establish electronic communications networks; apply for rights
of way; and be designated as universal service providers (Article
4);
— Rights to use radio frequencies and numbers
17.8 The circumstances in which individual
licences ("rights of use") and specific conditions could
be imposed would be limited to the assignment of radio frequencies
and numbers only, and individual licences should not be used for
radio if possible. It is also clarified that Member States are
permitted to allow trading of spectrum (Article 5). There would
be strict conditions regarding limitation of rights of use for
radio frequencies (Article 7);
— Transparency
17.9 To aid transparency of authorisations,
the conditions which could be imposed on service providers would
be further limited and harmonised. A strict separation would be
required between those conditions which are not sector-specific,
conditions under the general authorisation and those attached
to rights of use for radio frequencies and for numbers (Article
6). Member States would be required to publish, and keep up to
date, information on rights and obligations (Article 15);
— Simplification of procedures
17.10 A simplified enforcement procedure
is provided (Article 10). In spite of current common rules on
procedures for licensing, some Member States require information
to be provided prior to authorising service provision. The present
proposal would ensure that no information would be required under
the general authorisation as a prior condition to market entry,
and systematic verification of compliance with licensing conditions
would be restricted to cases of doubt about compliance (Article
11). Operators would be able to request declarations from NRAs
confirming their rights under the general authorisation to facilitate
obtaining rights of way and interconnection (Article 9). NRAs
would be required to give adequate notice of modification of rights
and obligations (Article 14);
— Reducing the range of divergence of fees
17.11 As highlighted in the Commission's
earlier public consultation, there is currently a wide divergence
in fees for telecoms licensing across the Community. The proposal
therefore aims to reduce administrative charges by simplifying
NRAs' authorisation procedures and the resulting administrative
costs. It would also increase transparency by requiring NRAs to
publish annual overviews of costs and charges. Member States would
then be required to adjust subsequent fees if the total sum of
charges exceeded administrative costs. Small and medium-sized
companies would be exempt from administrative charges (Article
12). Fees for rights of use and rights of way would be subject
to the principles of non-discrimination, objective justification
and proportionality. Member States would be allowed to take into
account policy objectives concerning the development of innovative
services and competition (Article 13);
— Strengthening the internal market
17.12 Building on existing arrangements,
the current obligations on Member States to implement agreements
reached within the European Conference of Posts and Telecoms on
harmonised assignment of spectrum would be strengthened (Article
8). There would also be provision for further harmonisation of
authorisation conditions, procedures or fees if barriers to the
internal market persist (Article 16);
The Government's view
17.13 The Minister for Small Business and
E-Commerce at the Department of Trade and Industry (Ms Patricia
Hewitt) says:
"The Government welcomes
the proposal as part of the Commission's overall approach which
should create a framework for licensing, which is flexible, technology
neutral and has a light touch. In particular the Government welcomes
the aim of simplifying authorisation procedures and moves towards
a system of general authorisation removing the need for individual
licences as a forward-looking deregulatory measure. These principles
are in line with the approach being taken forward in the UK, particularly
in the context of the forthcoming Communications White Paper.
OFTEL's strategy is already designed to ensure that regulation
is only imposed where justified and is appropriate to the level
of competition in the market.
"The Government also welcomes the clarification
in the proposal to permit the use of spectrum trading as a tool
to assist spectrum management. However, we have some concerns
with the way the provision has been drafted since it would appear
to unnecessarily restrict the ways in which this tool could be
used. The proposal rightly retains involvement by the NRA to supervise
the spectrum market but mandates too intrusive a role and restricts
trading to licences that have been auctioned. Deciding how to
use the tool should be a matter for individual Member States.
"The Government endorses the need to retain
individual authorisations and conditions for the assignment of
radio spectrum, which is a finite resource. It acknowledges the
proposals to limit the conditions to the minimum necessary. However,
it has some concerns as to whether or not the right balance is
being attained and that all the conditions and procedures necessary
for effective management of the radio spectrum through authorisation
will be achieved.
"However, the Government has some concerns about
the technical detail of the Commission's proposals. In particular,
while the Government welcomes the Commission's aims of reducing
administrative charges for telecoms licensing and notes that the
level of telecoms licence fees can be a barrier to market entry,
it is concerned that, as drafted, the recoverable administrative
charges would not fund all activities required under legislation,
for example to protect consumers."
Consultation
17.14 The Minister says that the Department
and OFTEL have been liaising closely with industry and consumer
representatives throughout the 1999 Communications review and
that the Department, OFTEL and the Radiocommunications Agency
are continuing to consult interested stakeholders on the Commission's
proposals through established consultation mechanisms. In addition,
she says, the Radiocommunications Agency has carried out separate
public consultations on spectrum secondary trading.
Regulatory Impact Assessment
17.15 A regulatory impact assessment will
be submitted on the package of proposals.
Timetable
17.16 The Minister says that the proposal
may be discussed during the French Presidency at a Council Working
Group and that a Common Position is not likely to be reached until
the Swedish Presidency from January to June 2001. The French are
hoping, however, to reach a Common Position on the Framework Directive50
at the 22 December Telecoms Council.
Conclusion
17.17 The Minister has helpfully enumerated
the Government's concerns about some aspects of this draft, whilst
welcoming much of it in principle. We ask her to submit a Supplementary
Explanatory Memorandum when these concerns have been dealt with
in the Working Group and the draft is nearer to a state in which
a Common Position can be agreed on it. She should do so in good
time for us to consider it before it is put to Council.
17.18 Meanwhile, we shall not clear this
document.
59 (21189) 8330/00; see HC 23-xix (1999-2000), paragraph
7 (24 May 2000) and HC 23-xxv (1999-2000), paragraph 8 (19 July
2000). Back
60
Official Report, European Standing Committee C, 16 February
2000. Back
61 (21562)10962/00;
see paragraph 15 of this report. Back
62 (21563)
10964/00; see HC 23-xxvii (1999-2000), paragraph 23 (25 October
2000) and (21695) - ; see HC 23-xxviii (1999-2000), paragraph
32 (1 November 2000). Back
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