Documents considered by the Committee on 24 November - European Scrutiny Committee Contents

4 Radio Spectrum Policy and European Broadband




+ ADDs 1-2

COM(10) 471




COM(10) 472

Proposed Council Decision establishing the first Radio Spectrum Policy Programme

Commission Communication: European Broadband: investing in digitally driven growth

Legal baseArticle 114 TFEU; QMV; ordinary legislative procedure
DepartmentBusiness, Innovation and Skills
Basis of considerationMinister's letter of 19 November 2010
Previous Committee ReportHC 428-v (2010-11), chapters 4 and 5 (27 October 2010); also see (31638) 9981/10: HC 428-i (2010-11), chapter 28 (8 September 2010) and (31645) 10245/10: HC 428-i (2010-11), chapter 29 (8 September 2010)
To be discussed in Council2 December 2010 Telecoms Council
Committee's assessmentPolitically important
Committee's decision(a)  Not cleared; further information requested

(b)  Cleared


4.1 The EU regulatory framework agreed in 2002 consisted of the:

—  Framework Directive setting out the main principles, objectives and procedures for an EU regulatory policy regarding the provision of electronic communications services and networks;

—  Access and Interconnection Directive stipulating procedures and principles for imposing pro-competitive obligations regarding access to and interconnection of networks on operators with significant market power;

—  Authorisation Directive introducing a system of general authorisation, instead of individual or class licences, to facilitate entry in the market and reduce administrative burdens on operators;

—  Universal Service Directive requiring a minimum level of availability and affordability of basic electronic communications services and guaranteeing a set of basic rights for users and consumers of electronic communications services;

—  Privacy and Electronic Communications Directive setting out rules for the protection of privacy and of personal data processed in relation to communications over public communication networks.

4.2 In addition, the Radio Spectrum Decision established principles and procedures for the development and implementation of an internal and external EU radio spectrum policy.

4.3 The Framework also established a number of committees and policy groups to manage and implement the new system:

—  Communications Committee: which advises on implementation issues;

—  European Regulators Group: to facilitate consistent application of the regime;

—  Radio Spectrum Policy Group: to enable Member States, the Commission and stakeholders to coordinate the use of radio spectrum;

—  Radio Spectrum Committee: to deal with technical issues around harmonisation of radio frequency allocation across Europe.

4.4 In this fast-developing sector, it was decided in 2007 that the regulatory framework needed to be revised, with a view to ensuring that it continued to serve the best interests of consumers and industry in today's marketplace. An agreement on the EU Telecoms Reform was reached by the European Parliament and Council of Ministers on 4 November 2009, after two years of discussion during the legislative process. It consists of:

—   the "Better Regulation" Directive;[7]

—  the "Citizens' Rights" Directive;[8] and

—  the Regulation establishing the BEREC and the Office.[9]

4.5 BEREC (Body of European Regulators of Electronic Communications) replaced the European Regulators Group.[10]

4.6 The new rules now need to be transposed into national laws of the 27 Member States by May 2011. The main elements of the reform package are at Annex 1 of chapter 4 of our previous Report.

4.7 On 8 September we considered the Commission's over-arching Communication, "A Digital Agenda for Europe", which focuses on seven priority areas, and foresees some 100 follow-up actions, of which 31 would be legislative. The seven areas are:

—  creating a digital Single Market;

—  greater interoperability;

—  boosting internet trust and security;

—  much faster internet access;

—  more investment in research and development;

—  enhancing digital literacy skills and inclusion; and

—  applying information and communications technologies to address challenges facing society like climate change and the ageing population.

4.8 In his analysis of that Communication, the Minister for Culture, Communications and Creative Industries Department for Business, Innovation and Skills/Department for Culture, Media and Sport (Ed Vaizey) said that the Commission had itself noted "the ambitious UK Government involvement in the telecoms area through provisions of what has since become the Digital Economy Act (2010) with far-reaching proposals concerning modernisation of spectrum, a commitment to ensure universal broadband availability and promotion of next generation networks (NGN)."[11] He also noted that almost all National Regulatory Authorities (NRAs = Ofcom in the UK) had imposed regulatory measures following their analyses of broadband markets covering wholesale (physical) network infrastructure access at a fixed location (market 4/2007);[12] and wholesale broadband access (market 5/2007). He further noted that.

"On spectrum management, the Commission notes the need for coordinated action to open up the digital dividend spectrum to different services across Europe, creating an opportunity particularly for wireless broadband network operators to gain valuable radio spectrum."

The Council Decision

4.9 This Council Decision is part of the Commission's "Broadband Package"; the other constituent parts being:

—  the Commission Communication "European Broadband: investing in digitally driven growth"; and

—  a Commission Recommendation on Regulated Access to Next Generation Access (NGA) Networks, in common parlance the NGA Recommendation;

4.10 The package is the Commission's strategy for encouraging the roll-out of broadband and fast- and ultra-fast networks in the EU, using the radio spectrum that will be liberated by the switch from analogue to digital. It sets out a framework for helping Member States meet the broadband targets in the over-arching European Digital Agenda, which is itself a key component of the EU2020 Strategy. Those broadband targets are:

—  by 2013, basic broadband coverage for all EU citizens;

—  by 2020, fast broadband coverage at 30 Megabits per second for all EU citizens, with at least half European households subscribing to broadband access at 100 Megabits per second; and

—  by 2020, doubling EU Member States' total annual public spending on ICT Research and Development to €11 billion).

4.11 With respect to the Council Decision, the Commission recalls that Article 8a(3) of Framework Directive 2002/21/EC as amended by Directive 2009/140/EC invites the Commission to present a legislative proposal to the European Parliament and Council to establish a multiannual Radio Spectrum Policy Programme (RSPP) setting out policy orientations and objectives for the strategic planning and harmonisation of the use of spectrum, "taking utmost account of the opinion of the Radio Spectrum Policy Group (RSPG)."

4.12 The RSPP is based on Article 114 TFEU, "given the importance of the availability and efficient use of spectrum for the establishment of an internal market for electronic communications and for other EU policy areas." The RSPP will determine until 2015 how spectrum use can contribute to EU objectives and optimise social, economic and environmental benefits. It builds on EU regulatory principles for electronic communications and on the Radio Spectrum Decision No 676/2002/EC, reaffirms principles to be applied to all types of spectrum use, establishes objectives for EU initiatives and lists actions to be launched.

4.13 Our previous Report rehearses the background in detail, so as to illustrate the context in which the proposal is rooted. It was explained well and commented on fully in a very helpful Explanatory Memorandum from the Minister for Culture, Communications and Creative Industries (Ed Vaizey). He welcomed the recognition that the Commission gave to the importance of spectrum for economic growth in Europe and the need for a market-based approach to its allocation, and also the reaffirmation of the guiding principles of service- and technology-neutrality in the Radio Spectrum Policy Programme proposal. He generally endorsed the policy objectives, but has some concerns over certain aspects of the proposal. He noted the various consultations that the Commission had carried out leading up to the publication of this proposal, confirmed that the UK (including Ofcom) had taken a full role during the consultation period and said that he intended this to continue during the negotiations that would now begin in the Council and then with the European Parliament.

Our assessment

4.14 It is in the nature of the process that, at this stage, the Government (and, no doubt, other Member States) would not be fully content with the draft proposal. The Minister having illustrated those aspects of the proposals about which he had concerns, and which he said he would be addressing during the upcoming negotiations, we reminded him of the need to keep the Committee informed appropriately and in a timely fashion about any proposed revisions; and, in the first instance, asked to be told what Conclusions were adopted at the 2 December Telecoms Council, and his views on the extent to which they advanced, or if appropriate undermined, UK interests.

4.15 In the meantime, we retained the Council Decision under scrutiny.

The Commission Communication

4.16 The Minister fully supported the Commission's analysis that broadband will play a key role in economic recovery and was supportive of the overall objectives of the Communication. He described the Government's objective as to have the best superfast broadband network in Europe by 2015 and said that, to achieve this, the Government was encouraging and supporting investment in rural and difficult to reach areas at the same time as market players were investing in more densely populated areas. The Government's policy was, he said, broadly consistent with the EU's targets and likely to meet them ahead of most other Member States. With regard to calls on Member States to set out national broadband plans, the Minister said that the Government had articulated a vision and would set out in a strategy document before the end of 2010 the interventions planned to achieve it, and that this should take the UK a long way towards achieving the specific EU targets. The Minister also supported the recommendation that Member States should take actions that promoted investment in broadband networks and reduce investment costs, which he said was consistent with the approach that the Government had been pursuing. The Minister also welcomed the commitments the Commission had made in the Communication in respect of European funding, noting that, in developing its approach, the Government wished to make use of all available sources of funding to support private sector investment in broadband networks. However, noting that the proposed financing instruments to complement existing resources for financing of broadband infrastructure would require dedicated resources and that the Commission had said that these dedicated resources could be provided by an EU contribution, the Minister said that:

"It is the UK Government's position that any proposals for additional funding from the EU Budget should respect the current Financial Framework ceilings and offer good value for money, particularly in the current economic climate. The Government cannot support proposals calling for funding post-2013 as this could prejudice the 2014-2020 Financial Perspective negotiations. These decisions should not be made in isolation of wider EU issues."

4.17 The Minister concluded by noting that the Communication would be the subject of Council Conclusions at the December Telecoms Council.

Our assessment

4.18 Though it raised no legal or political issues, we reported this to the House because of importance of its subject matter. In addition, we also endorsed what the Minister had to say about the financial aspects, and asked him to write before the Telecoms Council meeting with as much information as possible about the Conclusions that he expected to be adopted, and to say in particular if he was confident that they would include the necessary caveats that he had set out.

The Minister's letter of 19 November 2010

4.19 In his letter of 19 November 2010, the Minister responds on both issues as follows:


"In my view the draft Council Conclusions are a set of high-level statements that set out a roadmap for the roll-out of broadband for Member States (with the RSPP playing a role in this activity).

"You may wish to note that the draft Conclusions only specifically mention the RSPP in two instances and, in the main, they currently advocate policies that more or less align with those that HMG is undertaking to ensure the efficient use of spectrum in order to ensure the timely roll-out of mobile broadband. I am of the view that it is worth noting that both the roles of innovation and competition are recognised within the Conclusions.

"As such, I conclude that the current draft text places no restrictions that would have a negative impact on the UK's future negotiations in this area and, indeed, bolster the UK's negotiating stance within the EU.

"You may wish to note that it is now anticipated that the bulk of the negotiations will now take place under the auspices of the Hungarian and Polish Presidencies and my officials will keep you informed on a regular basis as the negotiations progress."

4.20 With regard to our queries about the content of the Council Conclusions on this Communication, and specifically about whether the Conclusions contain caveats that preclude or pre-empt discussions covering the EU budget post-2012, the Minister says:


"I am pleased to report that the current draft does not precipitate these outcomes and thus the UK's position on future EU budget negotiations is not compromised.

"That said, I am of the firm view that EU funding can play a pivotal role in assisting the roll-out of broadband in the UK. An excellent example of this is the broadband project in Cornwall that attracted EU funding. I am pleased that the draft Conclusions note actions that should increase the up-take of EU funding within the UK.

"I hope that my response has fully answered those issues that you raise and I look forward to working with you closely to ensure that HMG's policy positions continue to reap benefits for the UK."

4.21 The Minister concludes by saying that he does not anticipate any major changes to the draft Conclusions, which will then be put to Ministers at the Telecoms Council on 3rd December that he will attending, and on this basis requests that scrutiny be lifted on the Broadband Strategy, thus permitting his agreement to them at the Council.


4.22 We are grateful to the Minister for his open approach.

4.23 With regard to the draft RSSP Council Decision, we look forward to further timely updates from the Minister at appropriate moments, as the negotiations progress in the relevant Council Working Party, and certainly before any political agreement in the Council. In the meantime, we shall continue to retain it under scrutiny.

4.24 We now clear the Commission Communication.

7   Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services. See OJ No. L337, 18.12.09, p.37. Back

8   Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws. See OJ No. L337, 18.12.09, p.11. Back

9   Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office. See OJ No. L337, 18.12.09, p.1. Back

10   The European Regulators Group for electronic communications networks and services was set up by the Commission to provide a suitable mechanism for encouraging cooperation and coordination between national regulatory authorities and the Commission, in order to promote the development of the internal market for electronic communications networks and services. Building on this experience, the Body of European Regulators for Electronic Communications (BEREC) and its support Office were created within the recently approved reform of the EU Telecom rules to improve the consistency of implementation of the EU regulatory framework. The first meetings of the Board of Regulators of BEREC and the Management Committee of the Office were held in Brussels on 28 January 2010. In July 2010, Member States decided that its permanent seat will be in Riga. See for further information on BEREC. See for full information on BEREC. Back

11   The general idea behind Next Generation Networks (NGN) is that one network transports all information and services (voice, data, and media such as video) by encapsulating these into packets, as on the Internet. The International Telecommunications Union thus defines NGN) as "a packet-based network able to provide Telecommunication Services to users and able to make use of multiple broadband, QoS-enabled transport technologies and in which service-related functions are independent of the underlying transport-related technologies. It enables unfettered access for users to networks and to competing service providers and services of their choice. It supports generalised mobility which will allow consistent and ubiquitous provision of services to users." See for further information. Back

12   Markets defined by 2007/879/EC, Commission Recommendation of 17th December 2007, on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services - the "Framework Directive" (FWD). Back

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