Select Committee on European Scrutiny Third Report


COM(00) 407

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.

Legal base: Article 95 EC; co-decision; qualified majority voting
Department: 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
Committee's assessment: Politically important
Committee's decision: 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.[5]

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 Administrations (CEPT).

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 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.

    "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 Organisations

    "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'.

    Recent Developments

    "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 at present;

      —   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 the group.

    "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 Amendments

    "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.[6]

    "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 Amendments

    "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 by events.

    "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.

    Financial implications

    "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 22 June.

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

6  (21585) 11117/00; see headnote to this paragraph. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 12 November 2001