Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme Text with EEA relevance

21.3.2012

EN

Official Journal of the European Union

L 81/7

(1)

In accordance with Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (3), the Commission may submit legislative proposals to the European Parliament and the Council for establishing multiannual radio spectrum policy programmes. Those programmes should set out policy orientations and objectives for the strategic planning and harmonisation of the use of spectrum in accordance with the directives applicable to electronic communications networks and services. Those policy orientations and objectives should refer to the availability and efficient use of the spectrum necessary for the establishment and functioning of the internal market. The Radio Spectrum Policy Programme (hereinafter ‘the Programme’) should support the goals and key actions outlined in the Commission Communication of 3 March 2010 on the Europe 2020 Strategy and the Commission Communication of 26 August 2010 on ‘A Digital Agenda for Europe’, and is included among the 50 priority actions of the Commission Communication of 11 November 2010, ‘Towards a Single Market Act’.

(2)

This Decision should be without prejudice to existing Union law, in particular Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (4), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (5), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (6), Directive 2002/21/EC as well as Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (7). This Decision should also be without prejudice to measures taken at national level, in compliance with Union law, that pursue general interest objectives, in particular relating to content regulation and audiovisual policy, and to the right of Member States to organise and use their spectrum for public order and public security purposes and for defence.

(3)

Spectrum is a key public resource for essential sectors and services, including mobile, wireless broadband and satellite communications, television and radio broadcasting, transport, radiolocation, and applications such as alarms, remote controls, hearing aids, microphones, and medical equipment. It supports public services, such as security and safety services including civil protection, and scientific activities, such as meteorology, Earth observation, radio astronomy and space research. Easy access to spectrum also plays a role in the provision of electronic communications, in particular for citizens and businesses located in remote and sparsely populated areas, such as rural areas or islands. Regulatory measures on spectrum therefore have economic, safety, health, public interest, cultural, scientific, social, environmental and technical implications.

(4)

A renewed economic and social approach with regard to the management, allocation and use of spectrum should be adopted. That approach should have a particular focus directed towards spectrum policy, with the aim to ensure greater spectrum efficiency, better frequency planning and safeguards against anti-competitive behaviour.

(5)

The strategic planning and harmonisation of spectrum use at Union level should enhance the internal market for wireless electronic communications services and equipment as well as other Union policies requiring spectrum use, thus creating new opportunities for innovation and employment creation, and simultaneously contributing to economic recovery and social integration across the Union, while at the same time respecting the important social, cultural and economic value of spectrum.

(6)

The harmonisation of appropriate spectrum use can also be beneficial to the quality of the services provided through electronic communications, and is essential in order to create economies of scale, lowering both the cost of deploying wireless networks and the cost of wireless devices for consumers. To that end, the Union needs a policy programme that covers the internal market in all Union policy areas involving the use of spectrum, such as electronic communications, research, technological development and space, transport, energy and audiovisual policies.

(7)

The Programme should promote competition and contribute to laying the foundation for a genuine single digital market.

(8)

The Programme should, in particular, support the Europe 2020 Strategy, given the huge potential of wireless services to promote a knowledge-based economy, develop and assist sectors relying on information and communications technologies and overcome the digital divide. The growing use of, in particular, audiovisual media services and online content is increasing demand for speed and coverage. It is also a key action in the Digital Agenda for Europe, which aims to deliver fast broadband internet in the future network- and knowledge-based economy, with an ambitious target for universal broadband coverage. Providing the highest possible wired and wireless broadband speeds and capacity contributes to achieving the target of access to broadband at a speed of not less than 30 Mbps for all by 2020 with at least half of Union households having access to broadband at a speed of at least 100 Mbps, and is important for fostering economic growth and global competitiveness, and necessary to achieve the sustainable economic and social benefits of a single digital market. It should also support and promote other Union sectoral policies such as a sustainable environment and economic and social inclusion for all Union citizens. Given the importance of wireless applications for innovation, the Programme is also a key initiative in support of Union policies on innovation.

(9)

The Programme should lay the foundations for a development whereby the Union can take the lead regarding wireless broadband speeds, mobility, coverage and capacity. Such leadership is essential in order to establish a competitive single digital market working to open up the internal market for all Union citizens.

(10)

The Programme should specify guiding principles and objectives up to 2015 for Member States and institutions of the Union, and set out specific implementation initiatives. While spectrum management is still largely a national competence, it should be exercised in compliance with existing Union law and allow for action to pursue Union policies.

(11)

The Programme should also take into account Decision No 676/2002/EC and the technical expertise of the European Conference of Postal and Telecommunications Administrations (hereinafter ‘CEPT’) so that Union policies which rely on spectrum and have been agreed by the European Parliament and the Council can be implemented by technical implementing measures, noting that such measures can be taken whenever necessary to implement already existing Union policies.

(12)

Easy access to spectrum may require innovative types of authorisation such as collective use of spectrum, or infrastructure sharing, the application of which in the Union could be facilitated by identifying best practices and encouraging information sharing, as well as by defining certain common or converging conditions for the use of spectrum. General authorisations, which are the least onerous type of authorisation, are of particular interest where interference does not risk hampering the development of other services.

(13)

While technologically still in development, so-called ‘cognitive technologies’ should already be further explored, including by facilitating sharing based on geolocalisation.

(14)

Spectrum rights trading combined with flexible usage conditions could substantially benefit economic growth. Therefore, bands where flexible use has already been introduced by Union law should immediately be made tradable pursuant to Directive 2002/21/EC. The sharing of best practices on authorisation conditions and procedures for such bands and common measures to prevent accumulation of rights of use of spectrum which may create dominant positions, as well as undue failure to use such rights, would facilitate the coordinated introduction by all Member States of these measures and facilitate acquisition of such rights anywhere in the Union. Collective (or shared) use of spectrum — as an undetermined number of independent users and/or devices to access spectrum in the same range of frequencies at the same time and in a particular geographic area under a well-defined set of conditions — should be fostered where applicable, without prejudice to the provisions of Directive 2002/20/EC with regard to electronic communications networks and services.

(15)

As underlined in the Digital Agenda for Europe, wireless broadband is an important means to boost competition, consumer choice and access in rural and other areas where deployment of wired broadband is difficult or not economically viable. However, spectrum management may affect competition by changing the role and power of market players, for example if existing users receive undue competitive advantages. Limited spectrum access, in particular when appropriate spectrum becomes scarcer, can create a barrier to entry for new services or applications and hamper innovation and competition. Acquisition of new rights of use of spectrum, including through spectrum transfer or leasing or other transactions between users, and the introduction of new flexible criteria for spectrum use can have an impact on the existing competitive situation. Member States should therefore take appropriate ex ante or ex post regulatory measures (such as action to amend existing rights, to prohibit certain acquisitions of rights of use of spectrum, to impose conditions on spectrum hoarding and efficient use such as those referred to in Directive 2002/21/EC, to limit the amount of spectrum available for each undertaking, or to avoid excessive accumulation of rights of use of spectrum) to avoid distortions of competition in line with the principles underpinning Directive 2002/20/EC and Council Directive 87/372/EEC of 25 June 1987 on the frequency bands to be reserved for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community (8) (the ‘GSM’ Directive).

(16)

The establishment of an inventory of existing spectrum use together with an analysis of technology trends, future needs and demand for spectrum, in particular between 400 MHz and 6 GHz, should allow the identification of frequency bands in which efficiency could be improved, and of spectrum-sharing opportunities, to the benefit of both the commercial and public sectors. The methodology for establishing and maintaining an inventory of existing uses of spectrum should take due account of the administrative burden placed on the administrations and should aim to minimise that burden. Therefore, the information provided by the Member States pursuant to Commission Decision 2007/344/EC of 16 May 2007 on harmonised availability of information regarding spectrum use within the Community (9) should be taken fully into account when developing the methodology for establishing an inventory of existing uses of spectrum.

(17)

Harmonised standards under Directive 1999/5/EC are essential to achieve efficient use of spectrum and should take account of legally defined sharing conditions. European standards for non-radio electric and electronic equipment and networks should also avoid disturbance to spectrum use. The cumulative impact of the increasing volume and density of wireless devices and applications combined with the diversity of spectrum use presents a challenge to current approaches to interference management. These should therefore be examined and reassessed together with receiver characteristics and more sophisticated interference avoidance mechanisms.

(18)

Member States should be allowed, where appropriate, to introduce compensatory measures relating to migration costs.

(19)

In line with the objectives of the Digital Agenda for Europe, wireless broadband could contribute substantially to economic recovery and growth if sufficient spectrum were made available, rights of use of spectrum were awarded quickly, and trading were allowed to adapt to market evolution. The Digital Agenda for Europe calls for all Union citizens to have access to broadband at a speed of at least 30 Mbps by 2020. Therefore, the spectrum that has already been covered by existing Commission Decisions should be made available under the terms and conditions of those Decisions. Subject to market demand, the authorisation process should be carried out in accordance with Directive 2002/20/EC by 31 December 2012 for terrestrial communications, to ensure easy access to wireless broadband for all, in particular within frequency bands designated by Commission Decisions 2008/411/EC (10), 2008/477/EC (11), and 2009/766/EC (12). In order to complement terrestrial broadband services and ensure the coverage of most remote Union areas, satellite broadband access could be a fast and feasible solution.

(20)

More flexible arrangements governing the use of spectrum should be introduced, where appropriate, in order to foster innovation and high-speed broadband connections, which enable firms to reduce their costs and increase their competitiveness and make it possible to develop new interactive online services, for example in the fields of education, health and services of general interest.

(21)

Having nearly 500 million people connected to high-speed broadband in Europe would contribute to the development of the internal market, creating a globally unique critical mass of users exposing all regions to new opportunities, giving each user increased value and giving the Union the capacity to be a world-leading knowledge-based economy. The rapid deployment of broadband is therefore crucial for the development of European productivity and for the emergence of new and small enterprises that can be leaders in different sectors, for example healthcare, manufacturing, and the services industry.

(22)

In 2006, the International Telecommunication Union (ITU) estimated that the future spectrum bandwidth requirements for the development of International Mobile Telecommunications-2000 (IMT-2000) and IMT-advanced systems (i.e. 3G and 4G mobile communications) would be between 1 280 and 1 720 MHz in 2020 for the commercial mobile industry for each ITU region including Europe. It should be noted that the lower figure (1 280 MHz) is higher than the requirements for some countries. In addition, there are some countries in which the requirement is larger than the higher figure (1 720 MHz). Both these figures include the spectrum already in use, or planned to be used, for Pre-IMT systems, IMT-2000 and its enhancements. Without freeing up the spectrum required, preferably in a harmonised way at global level, new services and economic growth will be hindered by capacity constraints in mobile networks.

(23)

The 800 MHz band (790-862 MHz) is optimal for the coverage of large areas by wireless broadband services. Building on the harmonisation of technical conditions under Decision 2010/267/EU, and on the Commission Recommendation of 28 October 2009 facilitating the release of the digital dividend in the European Union (13) calling for analogue broadcasting to be switched off by 1 January 2012, and given rapid national regulatory developments, that band should in principle be made available for electronic communications services in the Union by 2013. In the longer term, additional spectrum could also be envisaged in the light of the results of an analysis of technology trends, future needs and demand for spectrum. Considering the capacity of the 800 MHz band to transmit over large areas, coverage obligations could be attached to rights, where appropriate.

(24)

Increased wireless broadband opportunities are crucial to provide the cultural sector with new distribution platforms, thereby paving the way for the successful future development of that sector.

(25)

Wireless access systems, including radio local area networks, may outgrow their current allocations on an unlicensed basis. The need for and feasibility of extending the allocations of unlicensed spectrum for wireless access systems, including radio local area networks, at 2,4 GHz and 5 GHz, should be assessed in relation to the inventory of existing uses of, and emerging needs for, spectrum, and depending on the use of spectrum for other purposes.

(26)

While broadcasting will remain an important platform for distributing content as it is still the most economical platform for mass-distribution, wired or wireless broadband and other new services provide new opportunities for the cultural sector to diversify its range of distribution platforms, to deliver on-demand services and to tap into the economic potential of the major increase in data traffic.

(27)

In order to focus on the priorities of the multiannual Programme, Member States and the Commission should cooperate to support and achieve the objective of enabling the Union to take the lead in wireless electronic communication broadband services by freeing up sufficient spectrum in cost-efficient bands for those services to be widely available.

(28)

Since a common approach and economies of scale are key to developing broadband communications throughout the Union and to preventing competition distortion and market fragmentation among Member States, certain best practices on authorisation conditions and procedures should be identified in concerted action among Member States and with the Commission. Such conditions and procedures could include coverage obligations, spectrum block size, the timing of granting rights, access to mobile virtual network operators and the duration of rights of use of spectrum. Reflecting the importance of spectrum trading for increasing efficient use of spectrum and developing the internal market for wireless equipment and services, those conditions and procedures should apply to frequency bands that are allocated to wireless communications, and for which rights of use may be transferred or leased.

(29)

Additional spectrum might be needed by other sectors such as transport (for safety, information and management systems), research and development (R&D), e-health, e-inclusion and, if necessary, public protection and disaster relief (PPDR), in view of their increased use of video and data transmission for a quick and efficient service. Optimising synergies between spectrum policy and R&D activities and carrying out studies of radio compatibility between different spectrum users should help innovation. Moreover, results of research under the Seventh Framework Programme for Research, Technological Development and Demonstration Activities (2007 to 2013) require the examination of the spectrum needs of projects that might have a large economic or investment potential, in particular for SMEs, such as cognitive radio or e-health. Adequate protection against harmful interference should also be ensured to sustain R&D and scientific activities.

(30)

The Europe 2020 Strategy sets environmental objectives for a sustainable, energy-efficient and competitive economy, for example by improving energy efficiency by 20 % by 2020. The information and communication technology sector has a key role to play, as stressed in the Digital Agenda for Europe. Proposed actions include acceleration of the Union-wide deployment of intelligent energy management systems (smart grids and smart metering) using communication capabilities to reduce energy consumption, and the development of intelligent transport systems and intelligent traffic management to reduce carbon dioxide emissions by the transport sector. Efficient use of spectrum technologies could also help reduce energy consumption by radio equipment and limit the environmental impact in rural and remote areas.

(31)

A coherent approach to spectrum authorisation in the Union should take full account of the protection of public health against electromagnetic fields which is essential for citizens’ well-being. While observing Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (14), it is essential to ensure constant monitoring of the ionising and non-ionising effects of spectrum use on health, including the real-life cumulative effects of spectrum use in various frequencies by an increasing number of equipment types.

(32)

Essential general interest objectives such as the safety of life call for coordinated technical solutions for the interworking of safety and emergency services between Member States. Sufficient spectrum should be made available on a coherent basis for the development and free movement of safety services and devices and the development of innovative pan-European or interoperable safety and emergency solutions. Studies have indicated the need for additional harmonised spectrum below 1 GHz to deliver mobile broadband services for PPDR across the Union in the next five to ten years.

(33)

Spectrum regulation has strong cross-border or international dimensions, due to propagation characteristics, the international nature of markets dependent on radio-based services, and the need to avoid harmful interference between countries.

(34)

According to the relevant case law of the Court of Justice of the European Union, where the subject matter of an international agreement falls partly within the competence of the Union and partly within the competence of the Member States, it is essential to ensure close cooperation between the Member States and the institutions of the Union. That obligation to cooperate, as clarified in well established case law, flows from the principle of unity in the international representation of the Union and its Member States.

(35)

Member States might also need support on frequency coordination in bilateral negotiations with countries neighbouring the Union, including candidate and acceding countries, to meet their obligations under Union law on frequency coordination issues. This should also help avoid harmful interference and improve spectrum efficiency and convergence in spectrum use even beyond Union borders.

(36)

To realise the objectives of this Decision it is important to enhance the current institutional framework for the coordination of spectrum policy and management at the level of the Union, including in matters directly affecting two or more Member States, while taking full account of the competence and expertise of national administrations. Cooperation and coordination are also essential between standardisation bodies, research institutions and CEPT.

(37)

In order to ensure uniform conditions for the implementation of this Decision, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (15).

(38)

Since the objective of this Decision, namely to establish a multiannual radio spectrum policy programme, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the proposed action, be better achieved at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Decision does not go beyond what is necessary in order to achieve that objective.

(39)

The Commission should report to the European Parliament and the Council on the results achieved under this Decision, as well as on planned future actions.

(40)

In drawing up its proposal the Commission has taken utmost account of the opinion of the Radio Spectrum Policy Group established by Commission Decision 2002/622/EC (16),

(a)

applying the most appropriate and least onerous authorisation system possible in such a way as to maximise flexibility and efficiency in spectrum use. Such an authorisation system shall be based on objective, transparent, non-discriminatory and proportionate criteria;

(b)

fostering development of the internal market by promoting the emergence of future Union-wide digital services and by fostering effective competition;

(c)

promoting competition and innovation, taking account of the need to avoid harmful interference and of the need to ensure technical quality of service in order to facilitate the availability of broadband services and to respond effectively to increased wireless data traffic;

(d)

defining the technical conditions of the use of spectrum, taking full account of relevant Union law, including on the limitation of the exposure of the general public to electromagnetic fields;

(e)

promoting technology and service neutrality in the rights of use of spectrum, where possible.

(a)

applying technology and service neutrality in the rights of use of spectrum for electronic communications networks and services and the transfer or lease of individual rights of use of radio frequencies;

(b)

promoting the harmonisation of use of radio frequencies across the Union, consistent with the need to ensure effective and efficient use thereof;

(c)

facilitating increased wireless data traffic and broadband services, in particular by fostering flexibility, and promoting innovation, taking account of the need to avoid harmful interference and ensure the technical quality of service.

(a)

encourage efficient management and use of spectrum to best meet the increasing demand for use of frequencies reflecting the important social, cultural and economic value of spectrum;

(b)

seek to allocate sufficient and appropriate spectrum in a timely manner to support Union policy objectives and to best meet the increasing demand for wireless data traffic, thereby allowing the development of commercial and public services, while taking into account important general interest objectives such as cultural diversity and media pluralism; to that end, every effort should be made to identify, based on the inventory established pursuant to Article 9, at least 1 200 MHz of suitable spectrum by 2015. That figure includes spectrum already in use;

(c)

bridge the digital divide and contribute to the objectives of the Digital Agenda for Europe, fostering access to broadband at a speed of not less than 30 Mbps by 2020 for all Union citizens and making it possible for the Union to have the highest possible broadband speed and capacity;

(d)

enable the Union to take the lead in wireless electronic communication broadband services by freeing up sufficient spectrum in cost-efficient bands for those services to be widely available;

(e)

secure opportunities for both the commercial as well as public sectors by means of increased mobile broadband capacities;

(f)

promote innovation and investment through enhanced flexibility in the use of spectrum, through a consistent application across the Union of the principles of technology and service neutrality between the technological solutions that may be adopted and through adequate regulatory predictability as provided for, inter alia, in the regulatory framework for electronic communications through the freeing up of harmonised spectrum for new advanced technologies, and through the possibility of trading rights of use of spectrum, thereby creating opportunities for future Union-wide digital services to be developed;

(g)

facilitate easy access to spectrum by harnessing the benefits of general authorisations for electronic communications in accordance with Article 5 of Directive 2002/20/EC;

(h)

encourage passive infrastructure sharing where this would be proportionate and non-discriminatory, as envisaged in Article 12 of Directive 2002/21/EC;

(i)

maintain and develop effective competition, in particular in electronic communication services, by seeking to avoid, through ex ante measures or ex post remedies, the excessive accumulation of rights of use of radio frequencies by certain undertakings which results in significant harm to competition;

(j)

reduce the fragmentation and fully exploit the potential of the internal market in order to foster economic growth and economies of scale at the level of the Union by enhancing the coordination and harmonisation of technical conditions for the use and availability of spectrum, as appropriate;

(k)

avoid harmful interference or disturbance by other radio or non-radio devices, inter alia, by facilitating the development of standards which contribute to the efficient use of spectrum, and by increasing immunity of receivers to interference, taking particular account of the cumulative impact of the increasing volumes and density of radio devices and applications;

(l)

foster the accessibility of new consumer products and technologies so as to secure consumer endorsement for the transition to digital technology and to secure efficient use of the digital dividend;

(m)

reduce the Union’s carbon footprint by enhancing the technical efficiency and energy efficiency of wireless communication networks and equipment.

(a)

limiting the amount of spectrum for which rights of use are granted to any undertaking, or attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics, for instance the bands below 1 GHz allocated to electronic communication services. Such additional conditions may be imposed only by the competent national authority;

(b)

reserving, if appropriate in regard to the situation in the national market, a certain part of a frequency band or group of bands for assignment to new entrants;

(c)

refusing to grant new rights of use of spectrum or to allow new spectrum uses in certain bands, or attaching conditions to the grant of new rights of use of spectrum or to the authorisation of new spectrum uses, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use;

(d)

prohibiting or imposing conditions on transfers of rights of use of spectrum, not subject to national or Union merger control, where such transfers are likely to result in significant harm to competition;

(e)

amending the existing rights in accordance with Directive 2002/20/EC where this is necessary to remedy ex post the distortion of competition by any transfer or accumulation of rights of use of radio frequencies.

(a)

to allow the identification of frequency bands in which the efficiency of existing spectrum uses could be improved;

(b)

to help identify frequency bands that could be suitable for reallocation and spectrum-sharing opportunities in order to support Union policies set out in this Decision, while taking into account future needs for spectrum based, inter alia, on consumers’ and operators’ demand, and of the possibility to meet such needs;

(c)

to help analyse the various types of use of the spectrum by both private and public users;

(d)

to help identify frequency bands that could be allocated or reallocated in order to improve their efficient use, promote innovation and enhance competition in the internal market, to explore new ways for sharing spectrum, to the benefit of both private and public users, while taking into account the potential positive and negative impact of allocation or reallocation of such bands and of adjacent bands on existing users.

(a)

to develop practical arrangements and uniform formats for the collection and provision of data by the Member States to the Commission on the existing uses of spectrum, provided that the business confidentiality rules under Article 8 of Decision No 676/2002/EC and the right of Member States to withhold confidential information are observed, taking into account the aim of minimising the administrative burden and existing obligations on the Member States under other Union law, in particular obligations to provide specific information;

(b)

to develop a methodology for the analysis of technology trends, future needs and demand for spectrum in Union policy areas covered by this Decision, in particular for those services which could operate in the frequency range from 400 MHz to 6 GHz, in order to identify developing and potential significant uses of spectrum;

(a)

if the subject matter of the international negotiations falls within the competence of the Union, the Union position shall be established in accordance with Union law;

(b)

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 the principle of sincere cooperation.