Amended proposal for a European Parliament and Council Decision on a common framework for the harmonized development of satellite personal communications services in the European Union (1) (96/C 350/10) (Text with EEA relevance) COM(96) 467 final - 95/0274(COD)

(Submitted by the Commission pursuant to Article 189a (2) of the EC Treaty on 14 October 1996) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular Articles 57, 66 and 100a,

Having regard to the proposal of the Commission,

Having regard to the opinion of the Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

1. Whereas on 7 December 1993 the Council adopted a Resolution on the introduction of satellite personal communications services in the Community (2), whereas in that Resolution the Council stressed the importance of coordinated action required to allow the introduction of satellite personal communications services in the Community, taking full account of the global nature of these services; whereas the Council underlined the need for the development of an effective policy and asked the Commission to study the matter, monitor international developments and propose appropriate measures and/or actions;

Whereas on 19 May 1995, the European Parliament adopted a Resolution on Mobile and Personal communications in the European Union (3) in which it considers as a priority objective to establish, before 1 January 1996, a harmonized authorization approach for satellite based mobile and personal communications and, on that basis, the implementation of procedures for the provision of licences of those systems at an early stage; whereas this approach must be implemented early enough in order to take account of the rapid development of these services at a global level and their social and commercial potential;

Whereas on 29 June 1995 the Council adopted a Resolution on the further development of mobile and personal communications in the European Union (4) in which it considers as a priority objective to ensure the sufficiently early definition of a harmonized authorization approach for satellite based mobile and personal communications, after study by the European Committee for Telecommunications Regulatory Affairs (Ectra);

Whereas satellite personal communications systems have a role to play in assuring the delivery of universal service to remote parts of the European Community, thereby strengthening social and economic cohesion;

2. Whereas, having considered the telecommunications, trade and industry aspects as well as the frequency and standardization aspects of satellite personal communications, and after consultation of the relevant industry, the Commission has submitted proposals for decision-making and the related time schedule with the aim to come to selection and authorization of satellite personal communications services on the basis of a common approach;

3. Whereas, market entry for satellite PCS space segment operators can only be restricted on the basis of objective, transparent, proportionate and non-discriminatory selection criteria relating to the availability of scarce resources, and award procedures shall be objective, transparent and non-discriminatory; whereas within the limited common spectrum a harmonized selection is required at a European Community level; whereas the common conditions for authorizations for satellite PCS services shall be based on the principles of objectivity, transparency, non-discrimination, and proportionality;

4. Whereas, since satellite personal communication by nature addresses foremost the needs of mobile users travelling between Member States but especially outside the European Community, diverging national legislations, regulations, and administrative measures would hinder or even prevent the provision of European Community-wide satellite personal communications services, the free movement of related equipment and, as a consequence, the successful introduction of satellite PCS on the internal market;

5. Whereas the free provision of satellite personal communications services and the free movement of related equipment on the internal market can only be achieved if an approximation of national regulations and administrative measures is achieved on the basis of harmonized conditions for authorizations for providers of services and gateway operators and, if required, for equipment;

6. Whereas the European Parliament and the Council are examining measures on authorizations and individual licences in the field of telecommunications in the European Community; whereas, given the urgency of the matter and in the absence of adoption and implementation of such European Community authorization measures, the area of satellite personal communications services therefore requires an action at a European Community level, as specified in this Decision; whereas the action shall be urgent but of limited duration;

7. Whereas, given the foreseen implementation time-schedule for satellite personal communications systems, the action aims to ensure that, within its limited duration, appropriate regulatory and policy measures are taken in the European Community on the selection and authorization of satellite personal communications, taking due account of the international dimension and its ensuing requirements;

8. Whereas, in view of limited availability of the frequency resources, categories of satellite personal communications services shall be determined for which a comparative bidding process is required to come to a selection of satellite systems; whereas a single European Community-level selection process shall avoid incompatible national decisions on the selection of satellite systems; whereas the procedures by means of which the comparative bidding process will be undertaken will have to be determined in detail;

9. Whereas potential applicants shall be informed of the procedure of the comparative bidding process, and of the criteria which have been determined for selection, and of the principles which will be used for the establishment of the common conditions to be attached to authorization for satellite PCS space segment operators;

10. Whereas the determination of common conditions for selected space segment operators, and of harmonized conditions for authorizations for providers of services, gateway operators and, if required, circulation and use of equipment will permit Member States to provide authorizations under applicable national regimes in accordance with the provisions of Directive 94/46/EC, and thereby avoiding uncoordinated and incompatible national regulatory decisions;

11. Whereas measures adopted by the European Radiocommunications Committee (ERC) and the European Committee for Telecommunications Regulatory Affairs (Ectra), if consistent with the European Community's interested, may be a basis for the use of the relevant frequencies by, and for the elaboration of the authorization criteria of, satellite personal communications services;

Whereas the European standardization bodies such as the European Telecommunications Standards Institute (ETSI) and Cen/Cenelec may be engaged in a timely fashion to elaborate the necessary standards which are relevant in this area;

12. Whereas the global dimension of satellite personal communications systems and services, as well as the related global regulatory structure under which they are provided play an important role in the considerations of the European Community; wheres this action at a European Community level shall permit the European Community and its Member States to exert greater influence on the world-wide development of mobile and personal communications;

Whereas the inherent global nature of satellite personal communications services may require the adoption of a substantial number of agreements with third countries on, inter alia, interconnection, free circulation and use of equipment, satellite system and satellite control centres operations, frequency band usage and sharing plans, numbering, safety and distress operations, access to gateway stations and access to third markets; whereas these agreements are closely related to market access arrangements; whereas therefore the Commission may start multilateral and/or bilateral negotiations on these aspects of satellite personal communications;

13. Whereas the results of international discussions and/or other warranted changes of circumstances may require that decisions taken under this action be amended or other appropriate action be undertaken by the Commission in close cooperation with the Member States;

14. Whereas Member States shall take all appropriate action to implement this action and its resulting decisions in a timely fashion and communicate national implementation measures to the Commission;

15. Whereas the relevant industry should be requested to cooperate closely with the Commission and the national regulatory authorities in order to achieve solutions for issues raised during the selection and authorization of satellite personal communications services; whereas this cooperation may be extended to address the issues in an international context;

Whereas the Commission may wish to seek assistance from an ad hoc panel of experts in the elaboration of the detailed work required under the tasks assigned to it by this Decision; whereas the ad hoc panel of experts should be made up, in as far as available, of relevant experts from industry augmented, as necessary, by experts from national ministries, representatives of relevant bodies such as, inter alia, ETSI, Ectra, ERC, and other relevant governmental bodies;

Whereas the nature of the information provided by applicants and other relevant industry may be of a commercially-in-confidence nature; whereas the utmost discretion shall be undertaken in respect of this information; whereas however this shall not prevent publication of information relevant for a selection and authorization process;

HAVE ADOPTED THIS DECISION:

Article 1

The establishment of an action at a European Community level The purpose of this Decision is to promote the harmonized introduction of satellite personal communications services in the European Community by means of coordinated action at a European Community level between the national regulatory authorities for telecommunications.

This action is limited to a period of three years from the date of publication of this Decision in the Official Journal of the European Communities. The Commission shall keep developments in the satellite personal communications area under review, report on the effectiveness of action taken under this Decision after two years and, if required, propose a prolongation or extension of action in this area to the European Parliament and the Council.

Article 2

Objectives

The objectives of action in satellite personal communications shall be to ensure, within the period set out in Article 1:

(i) the selection of satellite PCS space segment operators;

(ii) the adoption of common conditions to be attached to national authorizations for satellite PCS space segment operators;

(iii) harmonization of conditions for authorizations, established in accordance with the provisions of Directive 94/46/EC, and Directive . . ./. . ./EC on a common framework for general authorisations and individual licenses in the field or telecommunications services, for providers of S-PCS services and gateway operators, and, if required, appropriate measures for equipment circulation and use;

(iv) the establishment of a dialogue and, where appropriate, negotiations between the European Community and third countries with the aim of establishing international cooperation in order to allocate access to space segment in the light of the interests of all the countries concerned, promote the development of satellite personal communications services and remove the obstacles to their development.

Article 3

Definitions

For the purposes of this decision:

- authorization of a space segment operator: the permission allowing an undertaking to establish and operate space segment capacity for the provision of S-PCS services and to be granted the right to use the relevant frequency spectrum under specified conditions,

- provider of S-PCS services: any undertaking providing satellite communications services as defined in Directive 94/46/EC and making use of space segment capacity provided by the selected space segment operators; this does not cover resellers of authorized services,

- gateway operator: any undertaking providing satellite network services as defined in Directive 94/46/EC and making use of the space segment capacity provided by the selected space segment operators.

Article 4

Establishment of selection process for space segment operators The Commission shall, in close cooperation with the national regulatory authorities of the Member States in accordance with the procedure laid down in Article 7:

(i) establish categories of satellite personal communications services, and determine, where appropriate, the need for selection of satellite personal communications space segment operators;

(ii) adopt, for the relevant categories, criteria for the common selection of satellite personal communications space segment operators to be authorized to provide their services in the European Community;

(iii) adopt the procedures by which a comparative bidding process may be undertaken;

(iv) adopt, for all categories of services, principles for the common conditions to be attached to authorizations for selected satellite personal communications space segment operators;

Article 5

Selection of space segment operators

1. A call for declaration of interest shall be published in the Official Journal of the European Communities within six months after adoption of this Decision.

(i) The call for declaration of interest shall set out the criteria for the common selection for each category of service established pursuant to Article 4 (ii), the procedures to be followed in the selection established pursuant to Article 4 (iii) and the principles of the common conditions to be attached to authorizations established pursuant to Article 4 (iv).

(ii) The call for declaration of interest shall invite declarations from any person or entity wishing to operate a system for the purpose of providing satellite personal communications services in the European Community.

2. A Decision selecting satellite personal communications space segment operators for the relevant categories of services shall be adopted in accordance with the procedure laid down in Article 9.

Article 6

Adoption of common and harmonized conditions for authorizations The issuing of authorizations to space segment operators, gateway operators and providers of S-PCS services shall be governed by the provisions of the European Parliament and Council Directive on a common framework for general authorizations and individual licences in the field of telecommunications services. Without prejudice to the provisions of the above Directive, and in particular of Annex I thereof, the following shall be adopted by a Decision in accordance with the procedure laid down in Article 8:

(i) common conditions to be attached to the authorizations of the selected satellite personal communications space segment operators;

(ii) harmonized conditions for the authorization of providers of satellite personal communications services, gateway operators, and, if required, for the circulation and use of equipment;

(iii) any other measures aimed at facilitating the development of satellite personal communications services.

In view of the adoption of common and harmonized authorization conditions, the Commission may decide, where it deems appropriate, to consult representatives of selected space segment operators.

Article 7

Cooperation with CEPT and European standardization bodies

In order to assist the adoption of common and harmonized criteria and conditions and with due regard to the time schedule established in Annex, the Commission may ask the European standardization bodies such as the European Telecommunications Standards Institute (ETSI) and Cen/Cenelec, as well as the European Radio Committee (ERC), and the European Committee for Telecommunications Regulatory Affairs (Ectra), via work requirements under the relevant existing framework agreements with those organizations, to study the necessary technical criteria and conditions.

Article 8

The Advisory Committee

1. The Commission shall be assisted in the implementation of this Decision by by the European Union Telecommunications Committee set up by the European Parliament and Council Directive on a common framework for general authorizations and individual licenses in the field of telecommunications services.

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit to be determined by the Chairman according to the urgency of the matter and, where necessary, by taking a vote.

The opinion shall be recorded in the minutes. Furthermore, each Member State shall have the right to request that its position be included in the minutes.

The Commission shall take the utmost account of the opinion delivered by the Committee and shall inform the Committee of the manner in which its opinion has been taken into account.

Article 9

The Regulatory Committee

1. By way of exception to the provisions of Article 8, the following procedure shall apply in respect of the matters covered by Article 5 (2).

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

4. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.

If, on the expiry of a period of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

Article 10

International aspects

1. The Council shall, by 31 December 1996, draw up a common position on the allocation of the frequencies necessary for the operation of S-PCS and, should this prove a desirable step towards the establishment of a critical mass, shall give the Commission a mandate to negotiate within the relevant international bodies, particularly the International Telecommunications Union, and where appropriate, with relevant third countries with a view to establishing the conditions of access to space segment and the obligations to be attached to authorizations for space segment operators.

2. The Member States shall inform the Commission of any difficulties encountered, de jure or de facto, by Community organizations in the introduction of satellite personal communications in third countries;

3. Whenever the Commission establishes that the action undertaken under this Decision, in particular with regard to the information received further to paragraphs 1 and 2, may require negotiations with the aim of facilitating the introduction of satellite personal communications in the European Community and remove obstacles thereto, the Commission may request the granting or extension of a mandate to start, where appropriate, negotiations in view of these aims.

The principle of Community action will be aimed at ensuring effective and comparable access for Community organisations to the markets in these third countries and at facilitating the interoperability of the various personal mobile communications systems, particularly by means of the transmission standards which already render such systems interoperable within the European Community.

4. Measures taken pursuant to this Article shall be without prejudice to the Community's and Member States' obligations under relevant international agreements.

Article 11

Amendment of decisions

In order to take into account the results of discussions in international fora and/or with third countries or as a result of measures taken in accordance with the provisions of Article 10, as well as any warranted change of circumstances, the Commission shall adopt, in close cooperation with the national regulatory authorities of the Member States in accordance with the procedure laid down in Article 8, all appropriate measures as deemed necessary, including amending its decisions.

Article 12

Implementation

1. Member States shall take all necessary measures by law or administrative action to enable implementation of the measures agreed in or pursuant to this Decision;

2. Member States shall supply the Commission, not later than six months after adoption of this Decision with such information as may be required by the Commission to verify the implementation of this Decision.

3. Member States shall supply the Commission, not later than three months after adoption of the decisions taken pursuant to this Decision and in accordance with the time schedule in Annex, with such information which will allow the Commission to verify the compliance with such decisions.

Article 13

Confidentiality

1. Without prejudice to the provisions of this Decision, the Commission and the national regulatory authorities, their officials and other servants, and experts consulted shall not disclose any information acquired by them as a result of the implementation of this Decision and of the kind covered by the obligation of professional secrecy.

2. The provisions of paragraph 1 shall not prevent publication of information on selection criteria and authorization conditions which does not include information of a confidential nature.

Article 14

This Decision is addressed to the Member States.

(1) OJ No C 15, 20. 1. 1996, p. 6.

(2) OJ No C 339, 16. 12. 1993, p. 1.

(3) Not yet published in to Official Journal.

(4) OJ No C 188, 22. 7. 1995, p. 3.

ANNEX

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