RADIO SPECTRUM POLICY|
COM (01) 524
Draft Decision of the European Parliament and of the Council on a regulatory framework for radio spectrum policy in the European Community.
Amended draft Decision of the European Parliament and of the Council on a regulatory framework for radio spectrum policy in the European Community.
Unofficial Presidency text (Common Position) of the draft Decision of the European Parliament and of the Council on a regulatory framework for radio spectrum policy in the European Community.
||Article 95 EC; co-decision; qualified majority voting
||Trade and Industry|
|Basis of consideration:
||(a) Minister's letter of 22 June 2001
(b) and (c) EM of 15 October 2001
|Previous Committee Report:
||(a) HC 23-xxix (1999-2000), paragraph 18 (15 November 2000) and HC 152-i (2001-02), paragraph 15 (18 July 2001)
|To be discussed in Council:
||No date set|
||Not cleared; further information requested
3.1 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 2000.
3.2 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
3.3 In his Explanatory Memorandum of 15 October,
the Minister for E-Commerce and Competitiveness at the Department
of Trade and Industry (Mr Douglas Alexander) brings us up to date
with developments since his letter of 22 June on document (a).
He comments on the amended text at document (b) but concentrates
on the unofficial Presidency text at document (c), on which he
tells us that a "Common Orientation" was agreed at the
Transport/ Telecommunications Council of 27/28 June. We note that
the text which he attaches to his Explanatory Memorandum is described
as the Common Position text, having been updated by the Working
Party on Telecommunications at its meetings of 12/13 and 19 July.
3.4 The Minister notes that:
"The proposal for the
Decision has been considerably amended in discussions in the Council
over the past year. Its main provisions are now as follows.
Harmonisation of Radio Spectrum
"Articles 3 and 4 set out a new framework for
spectrum harmonisation under which the Commission would exercise
delegated powers on the basis of Decision 1999/468/EC (the Comitology
Decision). It is proposed that the Commission will chair a Radio
Spectrum Committee (RSC) composed of representatives of Member
States, in accordance with the procedural requirements of the
Comitology Decision. The Commission may submit to the RSC technical
implementing measures relating to the availability and efficient
use of radio spectrum, including the 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
"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.
"There is now a new provision, in Article 4a,
which would allow the Commission to approve transitional periods
and/or spectrum sharing arrangements in response to a request
by a Member State.
Availability of Information
"Article 5 would require Member States to publish
their national frequency allocation tables and information on
rights, conditions, procedures, charges and fees concerning the
use of radio spectrum. They are also required to keep this information
up to date and to take measures to develop appropriate databases
in order to make such information available to the public.
Relations with Third Countries and International
"Article 6 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 [provides] that, in international
organisations, where necessary, 'common policy objectives shall
be agreed to ensure Community co-ordination among Member States'.
"Following intensive discussion in the Working
Group under the Swedish Presidency, a Common Orientation was reached
on the Decision at the Transport/Telecommunications Council on
28 June. All the major concerns outlined in the Explanatory Memorandum
of 2 October 2000 have now been met, i.e.
the scope of
the provision under which the Commission would be able to adopt
delegated spectrum harmonisation measures through comitology procedures
has been considerably narrowed and now applies to 'technical implementing
measures'. The Commission will thus only be able to bring forward
harmonisation proposals where there is existing Community legislation,
agreed at the political level, which requires spectrum harmonisation
for its implementation. Any other harmonisation proposals will
have to be brought forward under the co-decision procedure, as
it has been agreed that assignment methods
for example, whether to issue licences through an auction
or comparative selection should remain within national
competence and will not fall within the scope of delegated harmonisation
measures. Recital 6 now clearly states this; and
the requirements relating to publication
of spectrum information have also been clarified and the requirement
to publish information on assignments to individual users, which
could have been problematic from the point of view of confidentiality,
has been deleted.
"Another important change from the Commission's
original proposal, which the UK did not seek, is the removal of
the proposal for a Senior Official Spectrum Policy Group (SOSPG).
This was deleted following an opinion from the Council Legal Service
that it is inappropriate for a purely advisory group to be established
under a legal instrument of the Council and European Parliament.
The Commission has largely overcome this problem by attributing
limited advisory functions to the Radio Spectrum Committee set
up under Article 3. It remains to be seen whether the Commission
will bring forward a proposal to set up the SOSPG under a Commission
Decision an option which is open to them.
Consideration by European Parliament
"The first reading of the Decision in the European
Parliament took place from 2-5 July. The rapporteur, Mrs Angelika
Niebler, presented a report containing 19 amendments on behalf
of the Committee on Industry, External Trade, Research and Energy.
These all related to the Commission's original proposal.
"In general, the amendments proposed by the
EP were helpful in terms of the UK's objectives, though not all
seemed likely to be workable in practice. The EP's main concern
was that the process of spectrum harmonisation should be subject
to political control rather than being regarded as simply a technical
matter to be decided at the discretion of the Commission. A number
of the amendments put down therefore envisaged a greater degree
of involvement for the Council and, in particular, the European
Parliament, in the harmonisation process. The Parliament also
sought direct involvement in the work of the SOSPG, including
to receive papers and send up to three observers to meetings of
"In addition, there were a number of amendments,
mainly to the recitals, intended to emphasise the importance of
such factors as public safety, cultural and linguistic diversity
and freedom of expression.
Commission Comments on European Parliament
"In its response, the Commission has accepted
all the EP's less substantive amendments, but has rejected those
which would give the Council and the Parliament a veto over the
spectrum harmonisation process or would involve direct EP participation
in the spectrum management process, eg through the Senior Official
Radio Spectrum Policy Group.
Council consideration of EP Amendments
"The EP's amendments were considered by the
Telecommunications Working Group at its meetings on 12/13 and
19 July 2001. The only proposed amendments of the EP which have
been retained in the current Working Group text are a number of
minor amendments to the recitals. The EP's substantive proposals
in relation to spectrum harmonisation and the role of the SOSPG
were not accepted as they have been overtaken by changes to the
Decision during negotiations in the Council Working Group."
The Government's view
3.5 The Minister says:
"The Commission's original
proposal had substantial policy implications for spectrum management
at the European level. These were set out in paragraphs 16-28
of the DTI's Explanatory Memorandum of 2 October 2000.
"The changes that have been agreed in discussion
over the last year, described in the section on Recent Developments
above, have significantly changed the potential impact of the
Decision. In particular, as explained ... above, all the UK's
major concerns have now been dealt with.
"Under the current Common Orientation text,
new substantive proposals for spectrum harmonisation in the EU
will still need to be agreed under the co-decision procedure.
However, technical implementing measures, in support of an agreed
Community policy, can be agreed through the "fast-track"
comitology procedures set out in Articles 3 and 4 of the Decision.
"The Government welcomes this important change,
for which the UK pressed hard. The Government believes that spectrum
harmonisation is not simply a technical matter but can have major
political, economic, cultural and social implications. It is therefore
right that the decision to harmonise radio spectrum in a new area
should be agreed through the full political decision-taking process.
However, the Government agrees that, where there is an agreed
Community policy, for instance in areas such as transport or telecommunications,
which requires the provision of harmonised spectrum to give effect
to it, harmonisation through comitology procedures may be helpful.
"Other potential problems raised by the Decision
have also been resolved in negotiation. A major concern was the
possibility that the Commission might seek to use the powers under
Articles 3 and 4 to impose a harmonised approach to spectrum assignment
(the process of licensing and authorising individual users). This
could have had adverse consequences for the UK, given the Commission's
sceptical attitude towards the use of market-based spectrum management
mechanisms, in particular auctions. The specific reference to
spectrum assignment in Article 4 was removed at an early stage
in the negotiations. However, we remained concerned that the Commission
might be able to use some slightly vague wording in Article 1
about the availability and efficient use of radio spectrum as
a means of introducing such measures. We therefore obtained agreement
at the July Telecommunications Council to a Recital to put this
matter beyond doubt. Recital 6 now states that:
'Radio spectrum technical
management does not cover assignment and licensing procedures,
nor the decision whether to use competitive selection procedures
for the assignment of radio frequencies'.
"The Government considers that the removal from
the Decision of the proposal to establish the Senior Official
Radio Spectrum Policy Group, following the advice of Council Legal
Service, is disappointing. As explained in the earlier Explanatory
Memorandum, the Government agrees that there would be value in
setting up new arrangements to advise the Commission of strategic
spectrum management issues and help identify those issues where
Community involvement in the spectrum management process will
add value. We would support a Commission proposal to establish
the SOSPG under a Commission Decision. In the meantime, we welcome
the proposal in Article 1 and Article 4.6 to broaden the remit
of the Radio Spectrum Committee to give it an advisory function.
Policy implications of European Parliament
"The EP's amendments, described in paragraphs
8 and 9 above, were based on the Commission's original text and
did not take account of the fact that their major concerns have
already been dealt with by the requirement, inserted at the UK's
suggestion, that harmonisation should only apply to 'technical
implementing measures'. Other EP proposals, including some which
would have given the Parliament a role in respect of the proposed
Senior Official Spectrum Policy Group, have also now been overtaken
"We would regard other EP amendments, dealing
with issues such as cultural, regional and linguistic diversity
and freedom of expression, as unnecessary in a document dealing
with spectrum management but not, in principle, unacceptable.
"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.
Regulatory Impact Assessment
"The draft Decision does not contain any legislative
proposals which will directly impact on business. The proposal
in Article 4 for a new 'fast-track' approach, under which specific
spectrum harmonisation measures could be adopted by the Commission,
is an enabling power and it is not currently possible to predict
what specific measures might be brought forward under it.
"The impact on business of such measures could
be positive or negative. 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 if the Decision is adopted and
specific measures brought forward under it.
"The financial implications of the Commission's
original proposal related to the proposed Spectrum Policy Expert
Group which would have been responsible for analysing and preparing
reports on trends in spectrum use and more technical issues relating
to spectrum harmonisation. The Commission's original Financial
Statement estimated that the cost of these studies would be in
the region of 1.85 million euros (£1.13m) annually in 2002
and 2003 and 1.65 million euros (£1.01m) annually in 2004
and subsequent years. As explained above, the Group will not now
be established under the Decision and it is currently unclear
whether it will be set up under a separate Commission Decision."
3.6 The Minister has provided us with a well-written
and full Explanatory Memorandum which brings us up to date on
developments since his last update in June, when we did not clear
the document but asked to be informed of the progress of the negotiations.
The Explanatory Memorandum sets out clearly the main provisions
of the proposal, as agreed in the Council, and the Government's
position on it as it now stands.
3.7 The Minister describes the agreement reached
at the July Council as being a "Common Orientation".
This appears to be a new addition to the expanding and imaginative
vocabulary used by Councils to agree to texts which, without significant
amendment and without further opportunity for scrutiny, emerge
under the title "Common Position". In this case we have
no objection to the Government agreeing to support the proposal
and we can see that the term "Common Orientation" was
probably used as the Council wished the Working Group to make
a few further amendments to the text, within the policy direction
agreed. However, we do regard the scrutiny reserve as having been
lifted by the Minister and now ask him for a short letter to tell
us why he took this decision and why he did not inform us of it
between 27 June and 18 July, when we considered his letter of
3.8 Meanwhile, we do not clear the documents.
5 (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). The Communication on which the consultation took place
was debated in European Standing Committee C on 16 February 2000. Back
11117/00; see headnote to this paragraph. Back