Select Committee on European Scrutiny Twenty-Ninth Report


RADIO SPECTRUM POLICY


(21585)
11117/00
COM(00) 407

Draft Decision of the European Parliament and of the Council on a
regulatory framework for radio spectrum policy in the European
Community.
Legal base: Article 95 EC; co-decision; qualified majority voting
Document originated: 12 July 2000
Forwarded to the Council: 30 August 2000
Deposited in Parliament: 27 September 2000
Department: Trade and Industry
Basis of consideration: EM of 2 October 2000
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Politically important
Committee's decision: Not cleared; further information requested on progress

Background

  18.1  This draft Decision 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[63] and which was debated in European Standing Committee C on 16 February 2000[64].

  18.2  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[65].

  18.3  This Decision follows from, and gives effect to, undertakings contained in the Commission's Communication of November 1999 "The Next Steps in Radio Spectrum Policy — Results of the Public Consultation on the Green Paper[66]".

The draft Decision

  18.4  The purpose of this proposal is to establish a policy and legal framework in the Community through which harmonisation of the use of the radio spectrum, in areas relevant to Community policy objectives, can be achieved. It seeks to complement the spectrum management activities of the International Telecommunication Union (ITU) and the Conference of European Postal and Telecommunications Administrations (CEPT). The ITU is part of the UN and is responsible for radio spectrum harmonisation at global level, principally through its World Radio Conferences (WRCs). The CEPT provides a framework for discussions on radio spectrum matters in Europe and has 43 Member States. The Commission's Explanatory Memorandum states that the aim of the proposal is to establish a framework for effective spectrum harmonisation in the Community, while recognising the experience and expertise of the CEPT and ITU/WRC.

  18.5  The Minister for Small Business and E-Commerce at the Department of Trade and Industry (Ms Patricia Hewitt) has summarised the most significant provisions of the proposal as:

    "(i) Creation of Senior Official Spectrum Policy Group (SOSPG)

    "Article 3 proposes the creation of the SOSPG. This would comprise senior representatives from Member States and the Commission and would meet at least twice a year under the Chairmanship of the Council Presidency. Article 4 lists the proposed functions of the Group. Essentially these are to monitor and evaluate developments in the use of the radio spectrum and advise the Commission on the need for spectrum harmonisation measures at Community level. The SOSPG would be responsible for consulting representatives of business and groups representing radio spectrum users.

    "(ii) Harmonisation of Radio Spectrum

    "Articles 5 and 6 set out a new framework for spectrum harmonisation under which the Commission would exercise delegated powers on the basis of the Comitology Decision[67]. It is proposed that the Commission will chair a Radio Spectrum Committee of representatives of Member States, in accordance with the procedural requirements of the Comitology Decision. Taking into account 'where possible' the advice of the SOSPG the Commission may propose harmonisation measures relating to the use of radio spectrum, assignment methods, conditions of use and provision of information. These will take the form of a mandate to the CEPT, which will be subject to the advisory procedure specified in the Comitology Decision.

    "On the basis of the work completed by CEPT, the Commission will decide whether the results of the mandate are acceptable and may decide to make the results mandatory for Member States, through the regulatory procedure set out in the Comitology Decision. If the Commission considers that the CEPT's work on the basis of a mandate is unacceptable, it may adopt measures to achieve the objectives of the mandate acting in accordance with the regulatory procedure.

    "(iii) Provision of Information on Spectrum Allocation and Assignment

    "Article 7 would require Member States to publish information on frequency allocation[68] and assignment[69] as specified in the Annex. This information would include existing allocations and assignment of radio spectrum, plans for changes to existing allocations and for the introduction of new services and procedures for granting authorisation to use spectrum, including charges and licence fees. However, Article 10 specifies that Member States shall not disclose information covered by the obligation of professional secrecy.

    "(iv) Relations with Third Countries and International Organisations

    "Article 8 provides that the Commission shall monitor developments which have spectrum implications in third countries and in international organisations and may propose measures to 'secure the implementation of the principles and objectives of this Decision where appropriate' and that, in international organisations, where necessary, 'common positions shall be agreed to ensure Community coordination among Member States'.

  18.6  Commenting on the impact on UK law, the Minister says:

    "None of the proposals in the Decision would require changes to UK law. However, the proposal in Articles 5 and 6 for the Commission to exercise delegated powers in the area of spectrum harmonisation could lead to the adoption of specific spectrum harmonisation measures, either in the form of directives or, more probably, decisions, to which the UK would be legally required to give effect through the allocation decisions taken by the Radiocommunications Agency of the DTI. The requirement in Article 7 that Member States should publish specified information on spectrum allocation and assignment could also require changes to the way in which information is currently published in the UK, for example through the Radiocommunications Agency's UK Spectrum Strategy and its Radio Frequency Allocation Tables."

The Government's view

  18.7  In a detailed comment on the policy implications of the proposal, the Minister sets out the Government's concerns about the proposal in Article 6 of the draft Decision that the Commission should exercise delegated powers to harmonise radio spectrum allocation. She says that the Government does not consider that the delegation of implementing powers is appropriate in this case.

  18.8  The Minister also says that the Government would have concerns if the intention of Article 8.3 were to seek agreement on detailed briefs in negotiations with third countries. This could hamper the negotiating flexibility which is essential in the context of a World Radiocommunications Conference and could, on occasion, bind the UK to positions which would be incompatible with the national interest.

  18.9  The Minister's detailed comments are as follows:

    "The Government fully supports the Commission's objective of securing effective provision and efficient use of radio spectrum, but has concerns ... about the proposal that the Commission should exercise delegated powers to harmonise radio spectrum allocation.

    "The Commission's Explanatory Memorandum states that the purpose of its proposal is to complement, rather than replace, the spectrum management activities of ITU/WRC and CEPT and of the Member States. The Government agrees, as stated in its response to the earlier Green Paper[70], that selective Community intervention in the spectrum management process can be valuable in supplementing, and providing an impetus to the process of spectrum harmonisation through the CEPT (which as a non-treaty-based organisation cannot adopt legally biding measures) in pursuit of important Community policy objectives. This approach has already been successfully followed through the UMTS Decision[71] and S/PCS Decision[72], under which Member States were mandated to seek early agreement in CEPT on the provision of harmonised spectrum for these services.

    "The Government agrees that there is value in setting up new arrangements to advise the Commission on strategic spectrum management issues and to help identify those issues where Community involvement in the spectrum management process will add value rather than introducing unnecessary duplication. The proposal to establish the Senior Official Radio Spectrum Policy Group is welcome and the UK will expect to play an active part in its work.

    "The Government can also accept the proposal that Member States should publish information on spectrum allocation and assignment. There is value to Government, industry and users in having this information on a comparable basis across the EU as a whole. The UK already provides comprehensive information about current and proposed spectrum use through its published frequency allocation tables and UK Spectrum Strategy which the Commission has said that it regards as a model. At present, the Radiocommunications Agency (RA) does not publish information on spectrum assignments to specific operators. However, the RA is in discussion with the industry about ways in which this might be done, though steps will need to be taken to ensure that confidential information, for example the assignments provided to security companies, is subject to suitable safeguards. The Government will seek to ensure that the Decision takes account of the need for special treatment for such assignments.

    "Article 8, which concerns relations with third countries and International Organisations, appears acceptable, though some clarification of the Commission's intentions is needed. The proposal in Article 8.3 that common positions should be agreed to ensure Community co-ordination amongst Member States in International Organisations is acceptable, provided that the intention is to endorse broad Community objectives, prior to each World Radio Conference, in line with current practice. The Government would have concerns, however, if the intention were to seek agreement on detailed negotiating briefs. This could hamper the negotiating flexibility which is essential in the context of a WRC, and could also, on occasion, bind the UK to positions which would be incompatible with our national interest.

    "The Government considers that the most problematic aspect of the Decision is the proposed approach to spectrum harmonisation measures in Article 6 under which the Commission would have delegated power to take action to harmonise radio spectrum use, including assignment methods and conditions of use.

    "At present, in line with Council Resolution 318/01 of 1992, the CEPT is recognised by the Community as being the appropriate body for achieving spectrum harmonisation in Europe. CEPT has important strengths, in particular the fact that its 43 members embrace the whole of Europe. It is therefore a highly suitable organisation for achieving European-wide spectrum harmonisation.

    "On the other hand, the Government agrees that CEPT has weaknesses. There is some force in the criticism of CEPT which is sometimes advanced, that it is too technically-driven, and insufficiently sensitive to wider political and strategic issues. A process of internal reform is already underway in CEPT to attempt to remedy this weakness. However, the Government agrees that a high level strategic input to spectrum policy at European level is needed and therefore supports, as stated above, the creation of the SOSPG.

    "CEPT is also limited in that, as a non-treaty-based organisation, its recommendations and decisions cannot be legally binding. As a result, industry cannot be certain that the measures that it adopts will be implemented in all member countries, within a reasonable timescale. The UK agrees that, where major strategic EU wide issues are at stake, there may be value in action by the EU to require Member States, within CEPT, to reach agreement on the provision of harmonised spectrum within a specified timescale.

    "To date, where this has been considered necessary, it has been done through specific measures agreed through the Council of Ministers and European Parliament. A recent, highly successful, example, was the UMTS Decision of December 1998[73] which committed Member States to agree on harmonised spectrum for third generation mobile services. As part of that process, CEPT was mandated to carry out various activities which it completed well within the required timetable.

    "The draft Decision proposes a significant change to this approach. As at present, the Commission could continue to give mandates to the CEPT. However, the Commission would then be able to decide, subject to consulting a committee of representatives of Member States, established under the Comitology Decision to make the results mandatory for Member States. The Commission would also be able to decide, where it considers the results of work done on the basis of a mandate to be unsatisfactory, that it will adopt measures to achieve the objective of the mandate, acting in accordance with the regulatory procedure laid down in Article 5 of the Comitology Decision. This would permit the Commission to adopt measures without recourse to the Council of Ministers or European Parliament, provided that they were approved by the Radio Spectrum Committee.

    "The Government does not consider that the delegation of implementing powers is appropriate in this case. In its view, such powers are intended to be used only where the Commission is operating delegated powers within an established policy framework laid down by the Council of Ministers, in line with Article 202 of the Treaty establishing the European Community. In the Government's view, Article 6 of the draft Decision does not comply with this requirement as it simply confers on the Commission an open-ended power to adopt measures 'where appropriate'.

    "Moreover, even if the drafting of the Decision were to be improved, the Government does not consider, in principle, that spectrum harmonisation is an appropriate area for the exercise of delegated powers. Any decision to harmonise spectrum allocation for a particular service may involve the need to balance a number of technical and economic, and in some cases cultural and social considerations. Defence considerations may also be involved, since around 40% of the spectrum in Europe is allocated to military purposes. The UK therefore considers that any individual decision on spectrum harmonisation should be a matter for the Council of Ministers and European Parliament. The experience of the UMTS and SPCS Decisions has shown that rapid agreement can be achieved through existing mechanisms where this is required."

  18.10  On consultation, the Minister says:

    "DTI, Oftel and the Radiocommunications Agency have been liaising closely with industry and consumer representatives throughout the 1999 Communications Review. In addition the Radiocommunications Agency has consulted users extensively on spectrum issues through the Spectrum Management Advisory Group and its established consultation mechanisms, including its industry consultative committees. This process will continue over the coming months."

Regulatory Impact Assessment

  18.11  The impact on business of such measures could be positive or negative, the Minister says. Rapid and effective frequency harmonisation can benefit business by facilitating the development of a European-wide market, but inappropriate harmonisation can impose additional costs by requiring businesses to change their frequency usage unnecessarily or tying them to sub-optimal technologies. An RIA will be prepared in due course, she says, if the Decision is adopted and specific measures brought forward under it.

  18.12  According to the Minister, the creation of the Senior Official Radio Spectrum Policy Group, which will have a duty to consult users, should help to ensure that actions undertaken by the Commission are based on a thorough analysis of relevant market developments in Europe and could strengthen the voice of users in the spectrum management process. Minister.

Timetable

  18.13  The Minister says that the French Presidency regards this proposal as of lower priority than other items in the package. Discussion on it is, therefore, not likely to begin until early in 2001.

Conclusion

  18.14  We note the Government's significant concerns with the proposal, but that it supports the Commission's objective of securing effective provision and efficient use of radio spectrum.

  18.15  Since it appears unlikely that discussion will begin until next year, we shall not clear the document, but ask the Government to report progress.


63  (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

64  Official Report, European Standing Committee C, 16 February 2000. Back

65  (21562)10962/00; see paragraph 15 of this Report. Back

66  (20668) 12840/99; see HC 23-ii (1999-2000), paragraph 4 (1 December 1999) and Official Report, European Standing Committee C, 16 February 2000. Back

67  Decision 1999/468/EC. Back

68  Attribution of spectrum to specific services. Back

69  Attribution of spectrum to specific users. Back

70  (20668) 12840/99; see HC 23-ix (1999-2000), paragraph 7 (16 February 2000). Back

71  128/1999/EC. (19284) -; see HC 155-xxxv (1997-98), paragraph 9 (22 July 1998). Back

72  710/97/EC. Back

73  128/1999/EC. Back


 
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