COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Decision of the European Parliament and of the Council on a regulatory framework for radio spectrum policy in the European Community

1. BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2000)407 final - 2000/0187 (COD)): // 29.8.2000

Date of the opinion of the Economic and Social Committee: // 24.1.2001

Date of the opinion of the European Parliament, first reading: // 5.7.2001

Date of transmission of the amended proposal: // 18.9.2001

Date of adoption of the common position: // 16.10.2001

2. OBJECTIVE OF THE COMMISSION PROPOSAL

The proposal establishes a policy and legal framework in the European Community in order to ensure co-ordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of 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 (R&D).

3. COMMENTS ON THE COMMON POSITION

3.1. Summary of the position of the Commission

The Commission accepts the common position reached by the Council.

The common position maintains the main objectives of the Commission's proposal but spells them out in further detail. Also, the procedural means and institutional responsibilities for reaching those objectives have been further identified in the common position.

The Council supports the main principle underlying the proposal for a Decision, namely that, where the European Parliament and the Council have agreed on a Community policy that depends on radio spectrum, comitology procedures shall be used for the adoption of technical harmonisation measures necessary for the implementation of such policy. Where it is necessary to adopt harmonisation measures that cannot be considered as technical implementing measures, the Commission shall present to the European Parliament and to the Council a legislative proposal on the basis of the Treaty.

3.2. Amendments adopted by the European Parliament at its first reading

3.2.1. Amendments of the European Parliament

The European Parliament adopted at first reading 21 amendments to the Commission's original proposal.

As a result of the European Parliament's opinion, the Commission introduced several amendments in its proposal.

In its amended proposal, the Commission incorporated the following European Parliament's amendments, either in full, in part or in principle: 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 17, 20, 23 [1], 24, and 25.

[1] Amendments 20 and 23 are acceptable to the Commission in their original form, but the single amendment resulting from merging amendments 19, 20 and 23 are not acceptable to the Commission.

3.2.2. Amendments of the European Parliament accepted by the Commission and included in the common position

The following amendments, accepted in full, in part or in principle by the Commission in its amended proposal, have been retained by the Council in its common position: 1, 2, 7, 11, 12, 13, and 25.

Of the amendments retained, there have been minimal or partial adjustments to some, while others were already covered in the amendments agreed by Council, although the underlying objective of the European Parliament's revisions has been maintained.

3.2.3. Amendments of the European Parliament accepted by the Commission but not included in the common position

The following amendments were accepted in full, in part or in principle by the Commission in its amended proposal but not included by the Council in its common position: 3, 4, 8, and 20.

Amendments 5, 6, 9, 17 and 24 were not accepted by the Council because the operative parts of the text to which they related were deleted in the common position or the text of the common position already covered the issue raised in the amendment. (see section 3.2.4).

Amendment 4 (management of radio spectrum)

Although the thrust of Parliament's amendment is already sufficiently covered in the proposals for a Framework Directive and Authorisation Directive, the Commission saw no harm to repeat the message in the Decision that radio spectrum should be managed effectively. The Council though that this aspect was already covered by other legislation.

Amendment 8 (assignment and licensing issues)

The Commission agrees with Parliament's amendment that there is a need to discuss, co-ordinate, and, where appropriate, harmonise national approaches to radio spectrum assignment and licensing. The Council, however, cannot accept this amendment as it opposes that legislative harmonisation proposals in these areas are initiated under this Decision.

Amendment 20 (CEPT mandates)

The Commission could have accepted the amendment in its original version since it would require the CEPT to consult the appropriate spectrum management bodies and it would allow the Committee to approve mandates to the CEPT in accordance with the advisory procedure. However, amendment 20 was merged with amendments 19 and 23 and the last mentioned element was changed (i.e. a regulatory procedure rather than an advisory procedure). The Council could therefore not accept this amendment.

3.2.4. Differences between the Commission's amended proposal and the Council's common position

Recitals

The Council has deleted recitals and has added new ones and amended many of the existing recitals in order to increase the clarity of the text, to be consistent with amendments to the Articles of the Decision, or to emphasise certain key provisions.

The Council has introduced a number of additional elements in the recitals of its common position.

| | Radio spectrum policy should contribute to freedom of expression (Recital 2a in the common position).

| | Comitology will be used for the adoption of technical implementing measures (Recital 2b in the common position).

| | Composition and function of the Radio Spectrum Committee (Recital 2c in the common position).

| | Legislative proposals, which go beyond technical implementing measures, shall be presented to the Parliament and to the Council (Recital 2d in the common position).

| | Transitional periods for the implementation of technical implementing measures where frequencies for public order, public security and defence are affected (Recital 3a in the common position).

| | The Commission may organise consultations outside the framework of this Decision (Recital 4 in the common position).

| | Radio spectrum technical management excludes assignment and licensing procedures (Recital 6 in the common position).

Article 1 - Aim and scope

The common position identifies the co-ordination of policy approaches and the harmonisation of conditions with regard to radio spectrum in agreed Community policy areas as the main aim of the Decision. It clarifies that, in order to meet this aim, procedures should be established in order to facilitate Community policy- and decision making, ensure that relevant information is publicly available and co-ordinate Community interests at an international level where radio spectrum is discussed.

Radio spectrum for public order and public security purposes and defence is a special case, as confirmed in the common position, since harmonisation activities in these are areas cannot be based on internal market considerations. However, the activities pursued under the Decision may affect radio spectrum occupied by public order and public security purposes and defence and these interests should therefore be taken into account in the policy and legislative process. The common position provides the Member States with the opportunity to request transitional periods for the implementation of technical measures where such measures impact on radio spectrum occupied by public order and public security purposes and defence.

The Council believes that, with this provision, the thrust of Parliament's amendment 9 has been covered. However, the Commission believes that Recital 4 in the common position could be strengthened by the text proposed in the Commission's amended proposal.

Article 2 - Definitions

The definitions on allocation and assignment have been deleted in the common position since these terms do not appear in the Council text anymore (Parliament's amendments 14 and 15 have therefore become obsolete).

Articles 3 and 4 - Senior Official Radio Spectrum Policy Group

The Council rejected the creation of a consultative or policy body under a Decision of the European Parliament and of the Council which would give advice to the Commission. The Council does support the view, however, that the Decision should establish a Community policy forum with a view to contributing to the formulation, preparation and implementation of Community radio spectrum policy. According to the common position, this policy function should be assumed by the Radio Spectrum Committee (see below).

In addition, the common position encourages the Commission to organise consultations outside the framework of this Decision in order to take into account the views of all interested parties, including the Community institutions, industry and commercial and non-commercial users of radio spectrum (Recital 4 in the common position). However, the common position does not specify whether such consultations should be organised by the Commission on an ad hoc basis or whether a separate consultative and advisory body, such as the Commission envisaged with the Senior Official Radio Spectrum Policy Group, should be established under a Commission Decision. In any case, both the Parliament as well as the Council acknowledge the need for wide consultation on radio spectrum policy issues in the Community.

Articles 5 and 6 (original proposal)/Articles 3 and 4 (common position) - Radio Spectrum Committee

The Commission supports the common position with regard to the use of comitology procedures for achieving the aim of the Decision.

The common position clarifies that the Radio Spectrum Committee will adopt technical implementing measures in agreed Community policy areas with a view to ensuring harmonised conditions for the availability and efficient use of radio spectrum as well as the availability of information. The Committee will also be consulted and hold policy discussions on Community radio spectrum policy issues.

Where implementing measures would deal with the areas of frequency allocation or information availability, the Commission can call upon the European Conference of Postal and Telecommunications administrations (CEPT) to provide technical assistance in the production of such measures. In other areas, it will be for the Radio Spectrum Committee to draft technical implementing measures.

The Commission shall adopt measures in accordance with a regulatory procedure. Where justified, the Commission may grant a Member State a transitional period and/or allow for a sharing arrangement in case a measure would affect frequency bands used exclusively for public order and security purposes and defence, provided this would not unduly defer implementation of the measure or would create undue differences in the competitive or regulatory situations between Member States.

Article 7 (original proposal)/Article 5 (common position) - Availability of information

The Commission supports the provisions in the common position dealing with information availability, which are almost identical to Parliament's amendment 25. The Member States will be obliged to make relevant information publicly available, also in electronic format, and comitology procedures can be used to further harmonise the content and format of the information to be published.

Article 8 (original proposal)/Article 6 (common position) - Relations with third countries and international organisations

The provisions of this Article are not substantially changed. However, the common position refers to the need to agree upon common policy objectives rather than common positions with regard to negotiations with third countries or in international organisations. Since this modification reflects current practice, which has sorted good results, it is acceptable.

Other Articles

The provisions of these Articles are not or not substantially changed.

4. CONCLUSION

The Council common position incorporates or addresses many of the concerns expressed by the European Parliament in its first reading, and remains close to the principles behind the Commission's original proposal. The Commission therefore supports the common position.