12 The EU and the
ITU World Radiocommunication Conference WRC-15
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested; drawn to the attention of the Culture, Media and Sport Committee
|
| Document details | Proposal for a Council Decision on the EU position at the November 2015 World Radiocommunication Conference (WRC-15)
|
| Legal base | Articles 114 and 218(9) TFEU; QMV
|
| Department | Culture, Media and Sport
|
| Document numbers | (36909), 9455/15 + ADD 1, COM(15) 234
|
Summary and Committee's conclusions
12.1 World radiocommunication conferences (WRC) are held every
three to four years. It is the job of WRC to review, and, if necessary,
revise the Radio Regulations, the international treaty
governing the use of the radio-frequency spectrum and the geostationary-satellite
and non-geostationary-satellite orbits. Revisions are made on
the basis of an agenda determined by the International Telecommunication
Union (ITU) Council, which takes into account recommendations
made by previous world radiocommunication conferences. The general
scope of the agenda of world radiocommunication conferences is
established four to six years in advance, with the final agenda
set by the ITU Council two years before the conference, with the
concurrence of a majority of Member States. [ 146]
12.2 The European Conference of Postal and Telecommunications
Administrations (CEPT[ 147])
— a pan-European body rather than an EU (including countries
such as Russia and Iceland) — has been involved in preparations
for WRC-15 since 2012.
12.3 The Commission draft proposal sets out the negotiating
positions that (in its view) Member States must take on behalf
of the EU at the International Telecommunication Union (ITU) World
Radiocommunication Conference (WRC-15) which will take place in
Geneva from 2 to 27 November 2015.
12.4 The Minister for Culture and the Digital Economy
at the Department for Culture, Media and Sport (Mr Edward Vaizey)
explains that, earlier this year, the Radio Spectrum Policy Group
(RSPG[ 148]) published
an Opinion setting out its view of EU objectives for the WRC.
It envisaged that this would lead to a Commission Communication
and then non-binding Council Conclusions on the positions that
EU Member States should adopt — the approach for previous
WRCs, which has "worked reasonably well".
12.5 This year, however, the Commission is proposing
a Council Decision, which would be binding on all Member States.
The Commission argues that decisions on some of the agenda items
at the WRC will affect areas of EU policy and so it is necessary
for Member States to take positions on behalf of the Union. The
EU is a "sector member" of the ITU, not a full member,
so it is unable to negotiate on its own behalf. The proposed Decision
sets out positions to be adopted on behalf of the EU in relation
to four of the WRC-15 Agenda items and provides that Member States
"must ensure that any relevant amendments comply with EU
law and do not bear any prejudice to its future foreseeable development".
The details are set out in "Background" below.
12.6 As the then Committee's 2011 Report on the
most recent World Radiocommunication Conference, WRC-12, demonstrates,
the Minister is correct about the normal preparatory procedure.[ 149]
The Commission's approach here is a clear departure from previous
practice in that it is now asserting more aggressively that the
EU has exclusive competence over some of the subject matter of
the negotiations. Whether this new approach will be vindicated
will depend upon the Commission being able to establish that there
is indeed some element of EU exclusive competence, albeit it has
not been asserted in the past.
12.7 We note that the Minister considers that
there is no good reason for changing of the EU approach to these
negotiations, and that it should instead maintain and build on
the process used at WRC-12, especially as his understanding is
that the RSPG (of which the Commission is a member) has expressed
a similar view and that a number of other Member States will similarly
resist the implications of this proposal as drafted.
12.8 We shall accordingly retain this proposal
under scrutiny, pending an update from the Minister on the end-June
Council Working Group discussion to which he refers, in which
he undertakes to "keep the position in relation to competence
under review". We should like this update to be provided
no later than Thursday 3 September (i.e., in time for the Committee
to consider it at its first meeting after the summer recess, on
9 September). We ask that it includes his assessment whether or
not the Commission is likely to pursue its claim of exclusive
competence to litigation.
12.9 We are also drawing these developments to
the attention of the Culture, Media and Sport Committee.
Full
details of the documents:
Proposal for a Council Decision on the position to be adopted,
on behalf of the European Union, in the International Telecommunication
Union (ITU) World Radiocommunication Conference 2015 (WRC-15):
(36909), 9455/15 + ADD 1, COM(15) 234.
Background
12.10 Under the terms of the ITU Constitution,
a WRC can:
· revise
the Radio Regulations and any associated Frequency assignment
and allotment Plans;
· address
any radiocommunication matter of worldwide character;
· instruct
the Radio Regulations Board and the Radiocommunication
Bureau, and review their activities; and
· determine
Questions for study by the Radiocommunication Assembly and
its Study Groups in preparation for future Radiocommunication
Conferences.
12.11 The WRC-15 will be held in Geneva, from 2-27
November 2015.[ 150]
12.12 In his Explanatory Memorandum of 15 June 2015,
the Minister says that the Commission:
"argues that decisions on some of the agenda
items at the WRC will affect areas of EU policy and so it is necessary
for Member States to take positions on behalf of the Union. The
EU is a 'sector member' of the ITU, not a full member, so it is
unable to negotiate on its own behalf. The proposed Decision sets
out positions to be adopted on behalf of the EU in relation to
four of the WRC-15 Agenda items and provides that Member States
must ensure that any relevant amendments comply with EU law and
do not bear any prejudice to its future foreseeable development."
12.13 With regard to the Legal and Procedural
Issues raised by this proposal, the Minister says:
· the
legal bases cited are Articles 114 and 218(9) TFEU;
· Article
114 concerns the internal market; and
· Article
218(9) sets out a procedure for establishing the EU's position
in an international organisation.
"Recital (1) to the proposed Decision states
'All EU Member States are Parties to the Radio Regulations,
and at least some of the revisions may affect common EU rules
or alter their scope. Therefore, although the Union is not a full
member of the ITU, it is necessary to decide on positions to be
taken on the Union's behalf'. Article 216(1) of the Treaty
on the Functioning of the European Union (TFEU) provides that
the EU has external competence where the conclusion of an agreement
'is likely to affect common rules or alter their scope'.
This is an area of exclusive external competence (Article 3(2)
TFEU).
"However, there is an argument that revisions
to the Radio Regulations will not affect common rules or alter
their scope. The Radio Regulations allow assignment to a station
of any frequency. In operating, the station must not cause harmful
interference to radio services or communications of other ITU
Member States or of recognized operating services where these
operate in accordance with the Radio Regulations. The Radio Spectrum
Policy Group (a high-level advisory group that assists the Commission
in the development of radio spectrum policy) has explained that
'It is up to each ITU Member state or group of Member States
to decide on the actual use of frequency bands in their countries
taking into account the sharing conditions and coordination requirement
defined in the RR [Radio Regulations] in order to protect spectrum
use in other countries'. The RSPG Opinion goes on to express
the view that 'the modifications of the RR cannot affect the
EU common rules on spectrum' (RSPG Opinion 19 February 2015[ 151]).
"The view of the RSPG was that 'the common
policy objectives have to be established in accordance with the
requirements of the principle of sincere cooperation, as pointed
out in the RSPP [Radio Spectrum Policy Program Decision 243/2012/EU],
Art. 10.1 (b)'. Article 10(1)(b) of the RSPP provides that
in international negotiations relating to spectrum matters 'if
the subject matter of the international negotiations falls partly
within the competence of the Union and partly within the competence
of the Member States, the Union and the Member States shall seek
to establish a common position in accordance with the requirements
of sincere cooperation'.
"Also of relevance to the consideration of competence
are the Framework Directive (Directive 2002/21/EC) and the Radio
Spectrum Decision (Decision 676/2002/EC).
"Article 8a of the Framework Directive concerns
the strategic planning and coordination of radio spectrum policy.
Article 8a(4) provides that 'Where necessary to ensure the
effective coordination of the interests of the European Community
in international organisations competent in radio spectrum matters,
the Commission, taking utmost account of the opinion of the RSPG,
may propose common policy objectives to the European Parliament
and the Council'.
"Article 6 of the Radio Spectrum Decision concerns
relations with third countries and international organisations.
This provides that the Commission 'shall monitor developments
regarding radio spectrum in third countries and in international
organisations, which may have implications for the implementation
of this Decision'. Under Article 6(3) the Commission 'may
propose measures with the aim of securing the implementation of
the principles and objectives of this Decision, where appropriate.
When necessary to meet the aim set out in Article 1, common policy
objectives shall be agreed to ensure Community coordination among
Member States'. The aim set out in Article 1 is to 'establish
a policy and legal framework in the Community in order to ensure
the coordination of policy approaches and, where appropriate,
harmonised conditions with regard to the availability and efficient
use of the radio spectrum necessary for the establishment and
functioning of the internal market in Community policy areas such
as electronic communications, transport and research and development'.
Article 1(2) explains that, amongst other things, the Decision
establishes procedures to 'ensure the effective coordination
of Community interests in international negotiations where radio
spectrum use affects Community policies'. Article 1(3) goes
on to explain that 'Activities pursued under this Decision
shall take due account of the work of international organisations
related to radio spectrum management, e.g. the International Telecommunication
Union (ITU) and the European Conference of Postal and Telecommunications
Administrations (CEPT)'."
The Government's view
12.14 The Minister describes the Commission's approach
as "a clear departure from previous practice".
12.15 He continues as follows:
— at
WRC-12, the Commission invited Member States to agree negotiating
positions through the adoption of a Commission Communication and
then non-binding Council Conclusions on the positions that EU
Member States should take;
— while this discussion still needs to
take place at Council level, the Government does not at this time
see any rationale for changing of the EU approach to these negotiations,
and would prefer to maintain and build on the process used at
WRC-12; and
— the Government understands that "the
RSPG has a similar view", and that "a number of other
Member States will similarly resist the implications of this proposal
as drafted".
12.16 In the immediate future, as of 15 June, the
Minister's expectation was that the Commission would present its
proposal to a Council Working Group at the end of June, when he
would "keep the position in relation to competence under
review".
Previous Committee Reports
None, but see (32669), 8758/11: Thirty-first Report
HC 428-xxviii (2010-12), chapter 6 (24 May 2011).
146 The 2014-18 membership is: Region A (Americas):
9 seats: Argentina, Brazil, Canada, Costa Rica, Cuba,
Mexico, United States, Paraguay, Venezuela; Region B
(Western Europe): 8 seats: France, Italy, Germany, Greece,
Lithuania, Spain, Switzerland, Turkey; Region C (Eastern
Europe and Northern Asia): 5 seats: Azerbaijan, Bulgaria,
Poland, Romania, Russian Federation; Region D (Africa): 13
seats Algeria, Burkina Faso, Egypt, Ghana, Kenya, Mali, Morocco,
Nigeria, Rwanda, Senegal, Tanzania, Tunisia, Uganda; and Region
E (Asia and Australasia): 13 seats: Australia, Bangladesh,
China, India, Indonesia, Japan, Korea (Republic of), Kuwait, Pakistan,
Philippines, Saudi Arabia, Thailand, United Arab Emirates. Back
147 The European Conference of Postal and Telecommunications Administrations
- CEPT - was established in 1959 by 19 countries. It now has
48 members. CEPT offers its members the chance of:
o establishing a European forum for
discussions on sovereign and regulatory issues in the field of
post and telecommunications issues;
o providing mutual assistance among
members with regard to the settlement of sovereign/regulatory
issues;
o exerting an influence on the goals
and priorities in the field of European Post and Telecommunications
through common positions;
o shaping, in the field of European
posts and telecoms, those areas coming under its responsibilities;
o carrying out its activities at a pan-European
level;
o strengthening and fostering more intensive
co-operation with Eastern and Central European countries;
o promoting and facilitating relations
between European regulators (e.g. through personal contacts);
o influencing, through common positions,
developments within ITU and UPU in accordance with European goals;
o responding to new circumstances in
a non-bureaucratic and cost-effective way and carrying out its
activities in the time allocated;
o settling common problems at committee
level, through close collaboration between its committees;
o giving its activities more binding
force, if required, than in the past; creating a single Europe
on posts and telecommunications sectors.
Since 2001, as a response to the convergence
in the telecommunications sector and the requirements of the information
society, the two committees dealing separately with radiocommunications
and telecommunications were replaced by a single Electronic Communications
Committee. Back
148 The RSPG consists of representatives of the Member States and
of the Commission. In addition, representatives of the EEA countries,
the candidate countries, the European Parliament, the European
Conference of Postal and Telecommunications Administrations (CEPT)
and the European Telecommunications Standardisation Institute
(ETSI) attend as observers. The RSPG contributes to the development
of a EU Radio Spectrum Policy, taking into account not only technical
parameters but also economic, political, cultural, strategic,
health and social considerations. The high-level advisory group
also considers the various potentially conflicting needs of radio
spectrum users with a view to ensuring that a fair, non-discriminatory
and proportionate balance is achieved. The RSPG adopts opinions,
which are meant to assist and advise the Commission on Radio Spectrum
Policy issues, on coordination of policy approaches and, where
appropriate, on harmonised conditions with regard to the availability
and efficient use of radio spectrum necessary for the establishment
and functioning of the internal market. Back
149 See the then Committee's Report of 24 May 2011 for its consideration
of the process used at WRC-12: Thirty-first Report HC 428-xxviii
(2010-12), chapter 6 (24 May 2011): (32669), 8758/11. Back
150 See World Radicommunication Conferences. Back
151 Minister's footnote: See"RSPG Opinion on Common Policy Objectives
for WRC-15". Back
|
