Commission Recommendation of 20 March 2003 on the harmonisation of the provision of public R-LAN access to public electronic communications networks and services in the Community (Text with EEA relevance)
Date: 2003-03-20
Institutions: European Commission
Subjects: access to information, approximation of laws, electronic mail, protection of privacy, public service, regulation of telecommunications, telecommunications, transmission network

L 78/12

EN

Official Journal of the European Union

25.3.2003

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION RECOMMENDATION

of 20 March 2003

on the harmonisation of the provision of public R-LAN access to public electronic communications
networks and services in the Community

(Text with EEA relevance)

(2003/203/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty establishing the European
Community,

Having regard to Directive 2002/21/EC of the European Parlia-
ment and of the Council of 7 March 2002 on a common regu-
latory framework for electronic communications networks and
services (Framework Directive) (1), hereinafter referred to as ‘the
Framework Directive’, and in particular Article 19 thereof,

Whereas:

Pursuant to Article 5(1) of the Authorisation Directive,
Member States are required, where possible, and in parti-
cular where the risk of harmful interference is negligible,
not to make the use of radio frequencies subject to the
grant of individual rights of use; furthermore, pursuant
to Article 2(1) and Article 4 of Directive 2002/77/EC (3)
of the Commission, Member States shall not adopt or
maintain measures limiting the number of undertakings
authorised to provide services or to use radio frequencies
unless they are objective, proportional and non-discrimi-
natory.

(1)

(2)

(3)

The European Council on 15 and 16 March 2002 in
Barcelona advocated fostering multiple broadband access
platforms to the Information Society and stressed the
need to complete the internal market
for electronic
communications services.

(5)

In accordance with Article 19(1) of
the Framework
Directive, the Communications Committee delivered its
favourable opinion on 24 January 2003.

As
the least onerous authorisation system possible
should be used to allow the provision of electronic
communications networks and services, pursuant
to
Article 3(2) of Directive 2002/20/EC of the European
Parliament and of the Council of 7 March 2002 on the
authorisation of electronic communications networks
(Authorisation Directive) (2), hereinafter
and services
referred to as ‘the Authorisation Directive’, the provision
of electronic communications networks or services may,
without prejudice to specific obligations referred to in
Article 6(2) or rights of use referred to in Article 5 of
that Directive, only be subject to a general authorisation.

(1) OJ L 108, 24.4.2002, p. 33.
(2) OJ L 108, 24.4.2002, p. 21.

Pursuant to policy objectives and regulatory principles
defined by Article 8 of the Framework Directive, the
national regulatory authorities should take all reasonable
measures to promote competition in the provision of
electronic communications networks, electronic commu-
nications services and associated facilities and services by
promoting innovation and by encouraging efficient use
and ensuring the effective management of radio frequen-
cies; national regulatory authorities should also remove
obstacles to the provision of electronic communications
networks, associated facilities and services and electronic
communications services at European level.

(6)

Radio Local Area Networks (R-LAN) are an innovative
means for the provision of broadband wireless access to
the Internet and to corporate intranet networks not only
for private uses but also for the public in general in areas
such as airports, train stations and shopping malls.

(3) Commission Directive 2002/77/EC of 16 September 2002 on
competition in the markets for electronic communications networks
and services (OJ L 249, 17.9.2002, p. 21).

25.3.2003

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Official Journal of the European Union

L 78/13

(7)

(8)

(9)

(10)

A majority of Member States already allow R-LAN access
to public electronic communications networks and
services on a commercial or non-commercial basis;
considering the importance of R-LAN as an alternative
platform for broadband access to Information Society
it is now desirable to promote a harmonised
services,
approach for the provision of such public R-LAN access
throughout the Community; a distinction is to be drawn
between the provision of services and the use of radio
spectrum; the provision of R-LAN access to public elec-
tronic communications networks and services on a
commercial basis should be allowed under the least
onerous system, i.e. to the extent possible without any
sector specific conditions.

the 5 GHz bands); part of

R-LAN may use all or part of either the 2400,0 —
2483,5 MHz (hereinafter the 2,4 GHz band) or the
5150-5350 MHz or 5470-5725 MHz bands (herein-
after
these bands may
currently not be available to R-LAN in certain Member
States; further harmonisation of these bands may there-
fore be necessary in the framework of Decision 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) (1).

The risk of interference between the various different
users who may share the 2,4 GHz band and between
coexisting R-LAN systems is accepted by the parties
involved; as long as R-LAN users do not create harmful
interference to possible protected users in the same
bands, the use of the 2,4 and 5 GHz bands should not
be subject to individual rights nor, to the extent possible,
to general authorisation conditions other than as allowed
under point 17 of the Annex to the Authorisation Direc-
tive; opening the 5 GHz band to public R-LAN access
services would also reduce the pressure on the 2,4 GHz
band.

In order to minimise the risk of harmful interference,
general authorisation conditions might be imposed
where justified and in a proportionate manner; such
general authorisation may refer to appropriate require-
ments, in conformity with Directive 1999/5/EC of the
European Parliament and of the Council of 9 March
1999 on radio equipment and telecommunications term-
inal equipment and the mutual recognition of
their
conformity (R&TTE Directive) (2), the harmonisation of
which may be achieved pursuant to the Radio Spectrum
Decision and the R&TTE Directive.

(12)

(13)

be no discrimination between the various R-LAN and
other
technologies giving access to communications
networks and services.

The terms on which access may be allowed to public
and private property for providers of public R-LAN
access services are subject to competition rules of the
Treaty, as well as, where relevant, to the Framework
Directive.

Security and confidentiality are regulated at present by
Articles 4 and 5 of Directive 97/66/EC of the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the
protection of privacy
telecommunications
sector (3); on the forthcoming repeal of that Directive,
those provisions will be replaced by Articles 4 and 5 of
Directive 2002/58/EC of the European Parliament and of
the Council of 12 July 2002 concerning the processing
of personal data and the protection of privacy in the
electronic
from 1
November 2003,

communications

sector (4)

in the

as

HEREBY RECOMMENDS:

1. That, in applying the measures necessary to comply with
Directives 2002/20/EC and 2002/21/EC, Member States
should allow the provision of public R-LAN access to public
electronic communications networks and services in the
available 2,4 GHz and 5 GHz bands to the extent possible
without sector specific conditions and in any case subject
only to general authorisation.

2. That Member States should not make the use of the avail-
able 2,4 GHz or 5 GHz bands for the operation of R-LAN
systems subject to the grant of any individual right.

3. That Member States should not restrict the choice of R-LAN
equipment to be used by service providers where these meet
the requirements laid down under Directive 1999/5/EC.

4. That Member States should pay special attention to the
requirements of Articles 4 and 5 of Directive 97/66/EC and
the equivalent provisions in Directive 2002/58/EC, which
regulate security and confidentiality of public communica-
tions networks and services.

Done at Brussels, 20 March 2003.

(11)

In line with Community competition rules, Article 8(1)
of the Framework Directive lays down the principle of
technologically neutral regulation, so that there should

For the Commission

Erkki LIIKANEN

Member of the Commission

(1) OJ L 108, 24.4.2002, p. 1.
(2) OJ L 91, 7.4.1999, p. 10.

(3) OJ L 24, 30.1.1998, p. 1.
(4) OJ L 201, 31.7.2002, p. 37.