Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the first radio spectrum policy programme
Date: 2010-09-20
Institutions: European Commission
Subjects: European audiovisual area, harmonisation of standards, radiation protection, technical regulations, telecommunications, waveband

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EUROPEAN COMMISSION 

Brussels, 20.9.2010 
COM(2010) 471 final 

2010/0252 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing the first radio spectrum policy programme  

{SEC(2010) 1034} 
{SEC(2010) 1035} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Article  8a(3)  of  Framework  Directive  2002/21/EC  as  amended  by  Directive  2009/140/EC 
invites  the  Commission  to  present  a  legislative  proposal  to  the  European  Parliament  and 
Council  to  establish  a  multiannual  Radio  Spectrum  Policy  Programme  (RSPP)  setting  out 
policy orientations and objectives for the strategic planning and harmonisation of the use of 
spectrum, taking utmost account of the opinion of the Radio Spectrum Policy Group (RSPG).  

The RSPP is based on Article 114 of the  Treaty  on the Functioning  of the European Union 
(TFEU),  given  the  importance  of  the  availability  and  efficient  use  of  spectrum  for  the 
establishment  of  an  internal  market  for  electronic  communications  and  for  other  EU  policy 
areas. The RSPP will determine until 2015 how spectrum use can contribute to EU objectives 
and  optimise  social,  economic  and  environmental  benefits.  It  builds  on  EU  regulatory 
principles  for  electronic  communications  and  on  the  Radio  Spectrum  Decision  No 
676/2002/EC  (the  RSD),  reaffirms  principles  to  be  applied  to  all  types  of  spectrum  use, 
establishes objectives for EU initiatives and lists actions to be launched. 

•  General context 

Spectrum  is  essential  for  the  digital  society,  fast  wireless  services,  economic  recovery, 
growth, high-quality jobs and long-term EU competitiveness. Spectrum policy initiatives are 
also  key  to  the  Digital  Agenda  for  Europe  and  to  the  Europe  2020  strategy  for  smart, 
sustainable  and  inclusive  growth.  Inputs  for  the  RSPP  came  from  the  Spectrum  Summit 
hosted  by  Parliament  and  Commission,  a  Commission  public  consultation  and  the  RSPG 
Opinion. 

•  Existing provisions in the area of the proposal 

With  regard  to  electronic  communications  spectrum  policy  is  covered  by  the  Framework 
Directive 2002/21/EC and the Authorisation Directive 2002/20/EC as amended by Directive 
2009/140/EC, which introduced significant enhancements to ensure efficient use of spectrum, 
remove rigidity in spectrum management and deliver easier access to spectrum. Furthermore, 
the RSD already allows for the harmonisation of technical conditions for the use of spectrum 
relevant to existing EU policies involving the use of spectrum. 

•  Consistency with the other policies and objectives of the Union 

Spectrum  use  has  an  increasing  influence  on  sustainable  growth,  competitiveness  and 
productivity  in  the  internal  market  in  relation  to  important  EU  sectoral  policies.  Since 
spectrum  is  scarce,  priorities  are  needed  to  ensure  that  spectrum  is  allocated  and  used 
efficiently  and  effectively,  taking  into  account  EU  policy  objectives  for  electronic 
communications and broadband for all and for transport, research, Earth observation, Galileo, 
environmental protection and the fight against global warming. 

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2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

Interested parties were given several opportunities to comment: 

•  The  Spectrum  Summit  in  March  2010  revealed  a  clear  understanding  among  EU 
institutions,  Member  States  and  stakeholders  of  the  need  for  more  spectrum  for 
applications with a high social and economic impact. The Summit results are summarised 
in  Annex  1  of  the  impact  assessment,  and  the  relevant  documents  are  available  at 
http://ec.europa.eu/information_society/policy/ecomm/radio_spectrum/rspp/index_en.htm. 

•  A  public  consultation  and  call  for  input  by  the  Commission  in  preparation  for  the  Radio 
Spectrum Policy Programme was held from 4 March to 9 April 2010. The 101 responses 
received  are  summarised  in  Annex  2  of  the  impact  assessment,  and  are  available  at 
http://ec.europa.eu/information_society/policy/ecomm/radio_spectrum/rspp/rspp_pc_rep/index_en.htm. 

•  The  RSPG,  a  high-level  group  advising  the  Commission  on  spectrum  policy,  adopted  its 
impact  assessment).  See 

formal  opinion  on  9  June  2010  (Annex  3  of 
http://rspg.groups.eu.int/_documents/documents/opinions/rspg10_330_rspp_opinion.pdf. 
The Commission has taken utmost account of this opinion in finalising its draft proposal. 

the 

•  Before finalisation, the draft RSPG opinion was subject to a separate public consultation – 

the responses received are available at 
http://rspg.ec.europa.eu/consultations/responses_rspp2010/index_en.htm.  

•  Collection and use of expertise 

Scientific/expertise domains concerned 

In addition to the RSPG opinion and to the large number of responses received to the public 
consultations and summit, the following studies are also relevant: 

–  "Exploiting the digital dividend – a European approach" (Analysys Mason, DotEcon and 

Hogan & Hartson) 2009. 

–  "Optimising the Public Sector's Use of Radio Spectrum in the EU" (WIK-Consult) 2008. 

–  Radio interference in the European Community (Eurostrategies and LS telcom), 2008. 

–  “Preparing the next steps in regulation of electronic communications — a contribution to 
the  review  of  the  electronic  communications  regulatory  framework”  (Hogan  &  Hartson, 
Analysys), 2006. 

Means used to make the expert advice publicly available 

The above studies are available on the Commission's web site at:   
http://ec.europa.eu/information_society/policy/ecomm/radio_spectrum/documents/studies/ind
ex_en.htm 

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and 

http://ec.europa.eu/information_society/policy/ecomm/info_centre/documentation/studies_ext
_consult/index_en.htm#2006 

•  Impact assessment 

Given  the  RSPP's  high  level  strategic  nature,  the  impact  assessment  identifies  options  and 
assesses whether EU intervention would add value compared to national or regional action. It 
identifies  the  strategic  direction  necessary  for spectrum  policy  at  EU  level.  It  highlights  the 
need for a global EU spectrum policy approach given the impact of spectrum on a number of 
sectors with varying degrees of EU competence. The Impact Assessment Board's opinion on 
the impact assessment was issued on 2 July 2010.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The proposed programme sets out policy orientations and objectives for the strategic planning 
and  harmonisation  of  spectrum  use  in  order  to  achieve  the  internal  market.  It  supports  the 
Europe  2020  Strategy  and  the  Digital  Agenda  for  Europe  and  promotes  other  EU  policies 
concerned  with  spectrum.  It  will  ensure  the  application  of  principles  and  define  policy 
orientations for all aspects of spectrum policy with an EU dimension. It sets concrete priority 
initiatives  for  enhanced  coordination,  flexibility,  and  availability  of  spectrum  for  wireless 
broadband communications and other specific EU policies; it requires an inventory of existing 
uses  and  emerging  spectrum;  it  identifies  improvements  to  safeguard  EU  interests  in 
international  negotiations,  and  to  assist  Member  States  in  bilateral  negotiations;  it  calls  for 
improved cooperation between technical bodies and it requests the Commission to report by 
2015. 

•  Legal basis 

Article 114 TFEU.320 

•  Subsidiarity principle 

The  proposed  action  entails  amendment  of  the  existing  EU  regulatory  framework  and  thus 
concerns  an  area  in  which  the  EU  has  already  exercised  its  competence.  The  proposal 
therefore  complies  with  the  subsidiarity  principle  as  set  out  in  Article  5  of  the  Treaty  on 
European Union (TEU).  

•  Proportionality principle 

The  proposal  complies  with  the  proportionality  principle  as  it  sets  a  minimum  level  of 
harmonisation,  leaving  the  definition  of  implementing  measures  to  national  regulatory 
authorities  (NRAs)  or  Member  States.  Proposed  amendments  do  not  go  beyond  what  is 
necessary for achieving better regulation of the sector. They thus comply with the principle of 
proportionality set out in Article 5 TEU. 

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•  Choice of instrument 

This is a legislative measure as Article 8a3 of the Framework Directive calls for a legislative 
proposal to Parliament and Council. A non-binding measure such as a Parliament and Council 
recommendation  would  neither  make  EU  coordination  obligatory  nor  require  action  from 
Member States. Parliament and Council Decisions No 128/1999/EC, No 626/2008/EC and No 
676/2002/EC were adopted in the past to impose similar obligations and actions. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no additional implications for the EU budget. 

5. 

ADDITIONAL INFORMATION 

•  Simplification and reduction of administrative costs 

The  proposal  aims  to  lower  administrative  burdens  by  increasing  spectrum  flexibility  and 
easing administrative procedures for spectrum use. It is part of both the Commission’s rolling 
programme for updating and simplifying the acquis and its Work Programme under reference 
2010/INFSO/002. 

•  Review/revision/sunset clause 

The  Decision  establishes  a  programme  to  be  implemented  by  2015  and  calls  on  the 
Commission to conduct a review before preparing the next programme.  

•  Information from Member States 

Member States are to inform the Commission on the implementation of their obligations. 

•  European Economic Area 

The proposed act is of relevance to the EEA. 

•  Detailed explanation of the proposal 

Article 1 Subject matter and scope 

This states the general objective of the programme and its scope. 

Article 2 Application of General Regulatory Principles  

This aims to ensure consistent application of general regulatory principles by Member States 
including:  efficient  use  and  management  of  spectrum,  encouraging  technology  and  service 
neutrality, applying the lightest authorisation system and guaranteeing the internal market and 
competition. 

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Article 3 Policy objectives 

Policy objectives to be implemented by Member States and the Commission include: ensuring 
sufficient  availability  of  spectrum;  maximising  spectrum  flexibility;  enhancing  the  efficient 
use of spectrum through general authorisations and spectrum flexibility; avoiding competition 
distortions; avoiding harmful interference and disturbance; harmonising technical conditions; 
and ensuring health protection. 

Article 4 Enhanced efficiency and flexibility 

This sets policy orientations to be translated into actions by Member States and Commission, 
including  better  flexibility  in  spectrum  authorisation  to  bridge  the  digital  divide;  creating 
technical  conditions  for  broadband  services;  enhancing  collective  spectrum  use;  developing 
standards; and preserving and promoting effective competition and the internal market. 

Article 5 Competition 

This aims to promote competition by listing various remedies that Member States could adopt 
against  possible  distortions  resulting  from  flexibility,  trading  and  hoarding  or  other 
accumulation of spectrum rights. 

Article 6 Spectrum for wireless broadband communications  

Steps  are  to  be  taken:  to  attain  specific  targets  for  wireless  broadband  and  to  ensure 
availability of spectrum designated for this purpose; to mandate the freeing of the 800 MHz 
digital dividend band by 2013; to ensure coverage of rural areas and access for less favoured 
citizens; to make certain bands tradable and ensure spectrum for ubiquitous satellite access. 

Article 7 Spectrum needs for specific Union policies 

Commission  and  Member  States  are  to  cooperate  to  meet  spectrum  needs  for  the  internal 
market  in  relation  to  several  EU  policies,  including  space  policy,  environmental  protection, 
public  safety  and  protection,  civil  protection  and  disaster  relief,  as  well  as  research  and 
scientific activity. 

Article 8 Inventory - monitoring of existing uses of and emerging needs for spectrum 

In  cooperation  with  the  Member  States,  the  Commission  is  to  organise  an  inventory  of 
existing spectrum uses and possible future spectrum needs. 

Article 9 International negotiations 

This  sets  out  steps  to  raise  the  EU's  profile  in  international  negotiations  and  to  protect  EU 
interests.  The  EU  is  to  offer  support  to  Member  States  in  their  negotiations  with  third 
countries  for  the  implementation  of  EU  obligations.  In  the  World  Radio  Communications 
Conference in 2012, the Union should promote results that, amongst other things, enable full 
use  of  the  800  MHz  and  the  3.4-3.8  GHz  bands  for  broadband  in  the  Union;  ensure  that 
sufficient amount of appropriately protected spectrum is available for Union sectoral policies, 
such as the European Space Policy and the Single European Sky; and ensure that changes in 
the  ITU  Radio  Regulations  support  and  complement  the  relevant  principles  of  the  Union 
regulatory framework. 

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Article 10 Cooperation among various bodies 

The Commission and the Member States are to cooperate to enhance the current institutional 
setting  and  foster  co-ordination  of  the  management  of  spectrum,  and  to  improve  the 
cooperation  between  standardisation  bodies,  CEPT  and  the  Joint  Research  Centre  to  better 
link spectrum management and standardisation. 

Article 11 Public consultation 

The Commission and Member States are to consult the public whenever necessary. 

Article 12 Reporting 

The Commission is required to report by 2015 to the European Parliament and the Council. 

Articles 13, 14 and 15: Implementation, Notification, Entry into force, Addressees 

These contain obligations on the Member States to implement the provision of the decision by 
2015 if not specified otherwise in the preceding articles and to inform the Commission, along 
with the standard provisions. 

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2010/0252 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing the first radio spectrum policy programme  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  and  in 
particular Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee1, 

Having regard to the opinion of the Committee of the Regions2, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

Article  8a(3)  of  the  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  provides  that  the 
Commission  may  submit  a  legislative  proposal  to  the  European  Parliament  and 
Council  for  establishing  multiannual  radio  spectrum  policy  programmes  setting  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.  These  policy  orientations  and  objectives 
should  refer  to  the  availability  and  efficient  use  of  spectrum  necessary  for  the 
establishment  and  functioning  of  the  internal  market.  This  Decision  is  without 
prejudice  to  existing  EU  law,  in  particular  Directives  1999/5/EC  and  Directives 
2002/20/EC and 2002/21/EC, as well as Decision No 676/2002/EC. It is also without 
prejudice  to  measures  taken  at  national  level,  in  compliance  with  EU  law,  to  pursue 
general interest objectives, in particular relating to content regulation and audio-visual 
policy and to the right of Member States to organise and use their spectrum for public 
order and public security purposes and defence. 

(2) 

Spectrum  is  a  key  resource  for  essential  sectors  and  services,  including  mobile, 
wireless  broadband  and  satellite  communications,  television  and  radio  broadcasting, 

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OJ C , , p. . 
OJ C , , p. . 
OJ L 108, 24.4.2002, p. 33. 

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(3) 

(4) 

(5) 

(6) 

transport, radiolocation, and applications such as alarm, 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.  Regulatory 
measures on spectrum therefore have economic, safety, health, public interest, cultural, 
scientific, social, environmental and technical implications. 

The  strategic  planning  and  harmonisation  of  spectrum  use  at  Union  level  should 
enhance  the  single  market  for  wireless  electronic  communications  services  and 
equipment as well as other Union policies requiring spectrum use, thus creating new 
opportunities  for  innovation  and  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.  To  this  end,  the  Union  therefore  needs  a 
policy programme that covers the internal market in all Union policy areas involving 
the  use  of  spectrum  such  as  electronic  communications,  research  and  development, 
transport and energy. 

This first programme should in particular support the Europe 2020 Strategy for smart, 
sustainable  and  inclusive  growth  given  the  huge  potential  of  wireless  services  to 
promote  an  information-based  economy,  develop  and  assist  sectors  relying  on 
information  and  communications  technologies  and  overcome  the  digital  divide.  It  is 
also  a  key  action  in  the  Digital  Agenda  for  Europe4  which  aims  to  deliver  fast 
broadband  internet  in  the  future  network-based  knowledge  economy,  with  an 
ambitious target for universal broadband coverage with speeds of at least 30 Mbps for 
all Europeans by 2020, thereby achieving the sustainable economic and social benefits 
of  a  digital  single  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,  this 
programme is also a key initiative in support of Union policies on innovation. 

The first programme should specify guiding principles and objectives up to 2015 for 
Member States and Union institutions, 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. 

the 

The  programme  should  also  take  into  account  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)5 
and 
the  European  Conference  of  Postal  and 
Telecommunications  Administrations  (CEPT)  so  that  Union  policies  which  rely  on 
spectrum and were agreed by Parliament and Council can be implemented by technical 
implementing measures, noting that such measures can be taken whenever necessary 
to implement already existing Union policies. 

technical  expertise  of 

(7) 

Ensuring  the  optimal  use  of  spectrum  may require innovative authorisation  solutions 
such  as  collective  use  of  spectrum,  general  authorisations  or  infrastructure  sharing. 
The application of such principles in the Union might be facilitated by the definition of 

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COM(2010) 245, 19.5.2010. 
OJ L 108, 24.4.2002, p. 1. 

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(8) 

(9) 

certain common or converging conditions for spectrum usage. General authorisations, 
which  are  the  least  onerous  authorisation  system,  are  of  particular  interest  where 
interference does not risk hampering the development of other services. 

Spectrum rights trading combined with flexible usage conditions should substantially 
benefit  economic  growth.  Therefore,  bands  where  flexible  use  has  already  been 
introduced  by  Union  law  should  be  immediately  made  tradable  pursuant  to  the 
Framework  Directive.  In  addition,  common  principles  for  the  format  and  content  of 
such tradable rights as well as common measures to prevent accumulation of spectrum 
which  may  create  dominant  positions  as  well  as  undue  failure  to  use  acquired 
spectrum, would facilitate the coordinated introduction by all Member States of these 
measures and facilitate acquisition of such rights anywhere in the Union. 

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 economically unviable. 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 usage rights, including through spectrum trading 
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 spectrum rights, to 
impose conditions on spectrum hoarding and efficient use such as those referred to in 
Article 9 paragraph 7 of the Framework Directive, to limit the amount of spectrum for 
each operator, or to avoid excessive accumulation of spectrum) to avoid distortions of 
competition  in  line  with  the  principles  underpinning  Article  5(6)  of  Directive 
2002/20/EC (the "Authorisation" Directive) and Article 1(2) of Directive 87/372/EEC 
(the "GSM" Directive). 

(10)  Optimal and efficient spectrum use requires continuous monitoring of developments, 
and up-to-date transparent information on spectrum use throughout the Union. While 
Commission  Decision  2007/344/EC  on  harmonised  availability  of  information 
regarding  spectrum  use  within  the  Community6
  requires  Member  States  to  publish 
information  on  usage  rights,  a  detailed  inventory  of  existing  spectrum  use  together 
with  an  effective  review  and  assessment  methodology  are  necessary  in  the  Union  to 
improve the efficiency of spectrum and radio equipment use, in particular between 300 
MHz  and  3  GHz.  This  would  help  to  identify  inefficient  technologies  and  usages  in 
both  the  commercial  and  public  sectors,  as  well  as  unused  assignments  and  sharing 
opportunities, and to evaluate future consumer and business needs. 

(11)  Harmonised standards under 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  conformity7  are  essential  to  achieve 
efficient spectrum use and should take account of legally defined sharing conditions. 
European  standards  for  non-radio  electric  and  electronic  equipment  and  networks 

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OJ L 129, 17.5.2007, p. 67. 
OJ L 91, 7.4.1999, p. 10. 

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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 challenges current approaches to interference management. 
These  should  be  examined  and  reassessed  together  with  receiver  characteristics  and 
more sophisticated interference avoidance mechanisms. 

(12) 

In line with the objectives of the Commission's flagship initiative "Digital Agenda for 
Europe", wireless broadband could contribute substantially to economic recovery and 
growth if sufficient spectrum is made available, usage rights are awarded quickly and 
trading is allowed to adapt to market evolution. The Digital Agenda calls for all Union 
citizens to have access to broadband of at least 30 Mbps by 2020. Therefore, spectrum 
that  has  already  been  designated  should  be  authorised  by  2012  for  terrestrial 
communications  to  ensure  easy  access  to  wireless  broadband  for  all,  in  particular 
within  spectrum  bands  designated  by  Commission  Decisions  2008/477/EC, 
2008/411/EC  and  2009/766/EC.  To  complement  terrestrial  broadband  services  and 
ensure  coverage  of  most  remote  Union  areas,  affordable  satellite  broadband  access 
could be a fast and feasible solution. 

(13)  The 800 MHz band 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  Commission  Recommendation  of  28  October  2009  calling  for 
analogue broadcasting to be switched off by 1 January 2012, and given rapid national 
regulatory  developments,  this  band  should  in  principle  be  made  available  for 
electronic  communications  in  the  Union  by  2013.  In  the  longer  term,  additional 
spectrum below 790 MHz could also be envisaged, depending on experience and the 
lack of spectrum in other bands adequate for coverage. Considering the capacity of the 
800 MHz band to transmit over large areas, coverage obligations should be attached to 
rights. 

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

(15)  Additional  spectrum  may  be  needed  by  other  sectors  such  as  transport  (for  safety, 
information and management systems), R&D, public protection and disaster relief, e-
health  and  e-inclusion.  Optimising  synergies  between  spectrum  policy  and  R&D 
activities  and  carrying  out  studies  of  radio  compatibility  between  different  spectrum 
users should help innovation. The Commission's Joint Research Centre should help in 
developing the technical aspects of spectrum regulation, notably by providing testing 
facilities to verify interference models relevant to Union legislation. Moreover, results 
of research under the Seventh Framework Programme require the examination of the 
spectrum needs of projects that may have a large economic or investment potential, in 
particular  for  SMEs,  e.g.  cognitive  radio  or  e-health.  Adequate  protection  against 
harmful interference should also be ensured to sustain R&D and scientific activities. 

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(16)  The  Europe  2020  Strategy  sets  environmental  objectives  for  a  sustainable,  resource 
efficient and competitive economy, for example by improving resource efficiency by 
20%. The information and communication technology (ICT) 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. 

(17)  Protection of public health against electromagnetic fields is essential for citizens' well-
being  and  for  a  coherent  approach  to  spectrum  authorisation  in  the  Union;  while 
subject to Council Recommendation 1999/519/EC on the limitation of exposure of the 
general public to electromagnetic fields, 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. 

(18)  Essential public interest objectives such as 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  circulation  of  safety  services  and  devices  and  innovative  pan-
European  or  interoperable  safety  and  emergency  solutions.  Studies  have  already 
shown  the  need  for  additional  harmonised  spectrum  below  1  GHz  to  deliver  mobile 
broadband  services  for  public  protection  and  disaster  relief,  across  the  Union  in  the 
next 5 to 10 years. 

(19)  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. 
Moreover,  the  references  to  international  agreements  in  Directives  2002/21/EC  and 
2002/20/EC as amended8 means that Member States shall not enter into international 
obligations that prevent or constrain the fulfilment of their Union obligations. Member 
States  should,  in  accordance  with  the  case-law,  undertake  all  necessary  efforts  to 
enable  appropriate  representation  of  the  Union  in  matters  under  its  competence  in 
international  bodies  in  charge  of  spectrum  coordination.  Moreover,  where  Union 
policy or competence is at stake, the Union should politically drive the preparation of 
negotiations and play a role in multilateral negotiations, including in the International 
Telecommunications Union that corresponds to its level of responsibility for spectrum 
matters under Union law. 

(20)  To evolve from current practice and building on the principles defined in the Council 
Conclusions  of  3  February  1992  on  procedures  to  be  followed  at  the  World 
Administrative  Radio  Conference  of  1992,  and  where 
the  World  Radio 
communications  Conferences  (WRC)  and  other  multilateral  negotiations  touch  upon 
principles and policy issues with an important Union dimension, the Union should be 
able to establish new procedures to defend its interests in multilateral negotiations, in 

8 

OJ L 337, 18.12.2009, p. 37. 

EN 

12 

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addition  to  the  long-term  objective  of  becoming  a  member  of  the  International 
the 
Telecommunications  Union  alongside 
Commission,  taking  into  account  the  opinion  of  the  Radio  Spectrum  Policy  Group 
(RSPG), may also propose common policy objectives to the European Parliament and 
the Council, as set out in Directive 2002/21/EC . 

the  Member  States; 

this  end, 

to 

(21)  The  2012  WRC  includes  specific  issues  of  Union  relevance  such  as  the  digital 
dividend, scientific and meteorological services, sustainable development and climate 
change, satellite communications and the use of spectrum for GALILEO (established 
by  Council  Regulation  (EC)  No  876/20029  setting  up  the  Galileo  Joint  Undertaking 
and  Council  Regulation  (EC)  No  1321/200410  on  the  establishment  of  structures  for 
the  management  of  the  European  satellite  radio-navigation  programmes),  as  well  as 
the  Global  Monitoring  for  Environment  and  Security  European  programme11  for  the 
improved use of Earth observation data. 

(22)  Member  States  may  also  need  support  on  frequency  coordination  in  bilateral 
negotiations with non-Union neighbouring countries, including accession or candidate 
countries,  to  meet  their  Union  obligations  on  frequency  coordination  issues.  This 
should  also  help  avoid  harmful  interference  and  improve  spectrum  efficiency  and 
spectrum use convergence even beyond Union borders. Action is particularly pressing 
in  the  800  MHz  and  3.4-3.8GHz  bands  for  the  transition  to  cellular  broadband 
technologies and for the harmonisation of spectrum necessary for the modernisation of 
air traffic control. 

(23)  To realise the objectives of this Programme it is important to develop an appropriate 
institutional framework for the co-ordination of spectrum management and regulation 
at Union level, while taking full account of the competence and expertise of national 
administrations.  This  can  also  assist  in  putting  spectrum  co-ordination  between 
Member States in the context of the internal market. Cooperation and coordination are 
also essential between standardisation bodies, research institutions and the CEPT. 

(24)  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. 

(25) 

In drawing up its proposal the Commission has taken utmost account of the opinion of 
the RSPG. 

HAVE ADOPTED THIS DECISION: 

Article 1 
Aim 

This Decision establishes a radio spectrum policy programme for the strategic planning and 
harmonisation of the use of spectrum to ensure the functioning of the internal market. 

9 
10 
11 

OJ L 138, 28.5.2002, p. 1. 
OJ L 246, 20.7.2004, p. 1 
COM(2009) 589. 

EN 

13 

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Article 2 
Application of general regulatory principles  

Member  States  shall  cooperate  with  each  other  and  with  the  Commission  in  a  transparent 
manner,  in  order  to  ensure  the  consistent  application  of  the  following  general  regulatory 
principles across the Union: 

(a) 

(b) 

(c) 

(d) 

encouraging efficient use of spectrum to best meet the increasing demand for use of 
frequencies; 

applying  technology  and  service  neutrality  in  the  use  of  spectrum  for  electronic 
communications  networks  and  services,  in  accordance  with  Article  9  of  Directive 
2002/21/EC  (Framework  Directive),  and  where  possible  for  other  sectors  and 
applications, in such a way as to promote efficiency of spectrum use, in particular by 
fostering flexibility, and to promote innovation; 

applying  the  least  onerous  authorisation  system  possible  in  such  a  way  as  to 
maximise flexibility and efficiency in spectrum usage; 

guaranteeing  the  functioning  of  the  internal  market,  in  particular  by  ensuring 
effective competition. 

Article 3 
Policy objectives 

In order to focus on the priorities of this first Programme, Member States and the Commission 
shall cooperate in order to support and implement the following policy objectives: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

make sufficient appropriate spectrum available in a timely manner to support Union 
policy objectives; 

maximise  flexibility  in  the  use  of  spectrum,  to  promote  innovation  and  investment, 
through  the  application  of  the  principles  of  technology  and  service  neutrality,  the 
opening of spectrum to new services, and the possibility to trade spectrum rights; 

enhance  the  efficient  use  of  spectrum  by  harnessing  the  benefits  of  general 
authorisations and increasing the use of such types of authorisation; 

in  electronic 
maintain  and  develop  effective  competition, 
communication  services,  by  preventing  ex  ante,  or  remedying  ex  post,  excessive 
accumulation  of  radio  frequencies  by  certain  economic  operators  which  results  in 
significant harm to competition; 

in  particular 

reduce  the  fragmentation  of  the  internal  market  by  enhancing  coordination  and 
harmonisation  of  technical  conditions  for  the  use  and  availability  of  spectrum,  as 
appropriate,  including  the  development  of  transnational  services,  and  by  promoting 
economies of scope and scale at Union level; 

avoid  harmful  interference  or  disturbance  by  other  radio  or  non-radio  devices  by 
facilitating  the  development  of  standards  allowing  for  flexible  and  efficient  use  of 
spectrum,  and  increasing  immunity  of  receivers  to  interference,  taking  particular 

EN 

14 

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account  of  the  cumulative  impact  of  the  increasing  volumes  and  density  of  radio 
devices and applications; 

(g) 

in defining the technical conditions for the allocation of spectrum, take full account 
of the results of research certified by the relevant international organisations into the 
potential effects on human health of electromagnetic field emissions. 

Article 4 
Enhanced efficiency and flexibility 

Member States shall adopt by 1 January 2013 authorisation and allocation measures 
appropriate for the development of broadband services, in conformity with Directive 
2002/20/EC  of  the  European  Parliament  and  of  the  Council  on  the  authorisation  of 
electronic  communications  networks  and  services  (Authorisation  Directive)12,  such 
as  allowing  relevant  operators,  where  possible  and  on  the  basis  of  consultations  in 
accordance  with  Article  11,  direct  or  indirect  access  to  contiguous  blocks  of 
spectrum of at least 10 MHz. 

Member States shall foster, in cooperation with the Commission, the collective use 
of spectrum as well as shared use of spectrum. 

Member  States  and  the  Commission  shall  cooperate  to  develop  and  harmonise 
standards  for  radio  equipment  and  telecommunications  terminals  as  well  as  for 
electric  and  electronic  equipment  and  networks  based  where  necessary  upon 
standardisation mandates from the Commission to the relevant standardisation bodies 

Member  States  shall  ensure  that  selection  conditions  and  procedures  promote 
investment and efficient use of spectrum. 

In  order  to  avoid  possible  fragmentation  of  the  internal  market  due  to  divergent 
selection  conditions  and  procedures  for  harmonised  spectrum  bands  allocated  to 
electronic communication services and made tradable in all Member States pursuant 
to Article 9b of Directive 2002/21/EC, the Commission, in cooperation with Member 
States, shall develop guidelines on authorisation conditions and procedures for such 
bands, in particular on infrastructure sharing and coverage conditions; 

Whenever necessary in order to ensure the effective use of spectrum rights and avoid 
spectrum  hoarding,  Member  States  shall  take  appropriate  measures  including 
financial penalties or the withdrawal of rights. 

Article 5 
Competition 

Member  States  shall  maintain  and  promote  effective  competition  and  avoid 
distortions of competition in the internal market or in a substantial part of it.  

In order to implement fully the obligations of paragraph 1, and in particular to ensure 
that  competition  is  not  distorted  by  any  accumulation,  transfer  or  modification  of 

1. 

2. 

3. 

4. 

5. 

6. 

1. 

2. 

12 

OJ L 108, 24.4.2002, p. 21. 

EN 

15 

   EN 

                                                 
rights of use for radio frequencies, Member States may adopt inter alia the following 
measures, which are without prejudice to the application of competition rules: 

(a)  Member States may limit the amount of spectrum for which rights of use are 
granted  to  any  economic  operator  or  may  attach  conditions  to  such  rights  of 
use,  such  as  the  provision  of  wholesale  access,  in  certain  bands  or  in  certain 
groups  of  bands  with  similar  characteristics,  for  instance  the  bands  below  1 
GHz allocated to electronic communication services; 

(b)  Member States may refuse to grant new rights of use or to allow new spectrum 
usages in certain bands, or may attach conditions to the grant of new rights of 
use or to the authorisation of new spectrum usages, when this would lead to an 
accumulation of spectrum frequencies by certain economic operators which is 
likely to result in significant harm to competition; 

(c)  Member  States  may  prohibit  or  impose  conditions  on  transfers  of  spectrum 
usage  rights,  not  subject  to  national  or  Union  merger  control,  when  this  is 
likely to result in significant harm to competition; 

(d)  Member States may amend the existing rights in accordance with Article 14 of 
Directive  2002/20/EC  when  this  is  necessary  to  remedy  ex-post  excessive 
accumulation of spectrum frequencies within certain economic operators which 
significantly harms competition. 

3. 

Member States shall ensure that authorisation and selection procedures avoid delays 
and promote effective competition. 

1. 

2. 

3. 

Article 6 
Spectrum for wireless broadband communications 

Without  prejudice  to  the  principles  of  service  and  technology  neutrality,  Member 
States, in cooperation with the Commission, shall take all steps necessary to ensure 
that  sufficient  spectrum  for  coverage  and  capacity  purposes  is  allocated  within  the 
Union,  in  order  to  ensure  that  wireless  applications  contribute  effectively  to 
achieving the target for all citizens to have access to broadband of a speed of at least 
30 Mbps by 2020. 

Member  States  shall,  by  1  January  2012,  authorise  the  use  of  all  the  spectrum 
designated  by  Commission  Decisions  2008/477/EC  (2.5–2.69  GHz),  2008/411/EC 
(3.4–3.8  GHz)  and  2009/766/EC  (900/1800  MHz),  under  conditions  that  provide 
consumers with easy access to wireless broadband services. 

Member  States  shall,  by  1  January  2013  make  the  800  MHz  band  available  for 
electronic communications services in line with the harmonised technical conditions 
laid  down  pursuant  to  the  Decision  No  676/2002/EC.  In  Member  States  where 
exceptional  national  or  local  circumstances  would  prevent  the  availability  of  the 
band, the Commission may authorise specific derogations until 2015. In accordance 
with  Article  9  of  Directive  2002/21/EC  ,  the  Commission,  in  cooperation  with  the 
Member  States,  shall  keep  under  review  the  use  of  the  spectrum  below  1GHz  and 
assess  whether  additional  spectrum  could  be  freed  and  made  available  for  new 
applications. 

EN 

16 

   EN 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

Member States, in cooperation with the Commission, shall ensure that the provision 
of access to broadband content and services using the 790-862 MHz (800MHz) band 
is encouraged in sparsely populated areas, in particular through coverage obligations; 
in  doing  so,  they  shall  examine  ways  and,  where  necessary,  take  appropriate 
measures to ensure that the freeing of the 800 MHz band does not adversely affect 
programme making and special events (PMSE) users. 

The Commission is invited to adopt, as a priority, appropriate measures, pursuant to 
Article  9b(3)  of  the  Directive  2002/21/EC,  to  ensure  that  Member  States  allow 
trading within the Union of spectrum usage rights in the harmonised bands 790–862 
MHz (the "800 MHz band"), 880–915 MHz, 925–960 MHz, 1710–1785 MHz, 1805–
1880  MHz,  1900–1980  MHz,  2010–2025  MHz,  2110–2170  MHz,  2.5–2.69  GHz, 
and 3.4–3.8 GHz. 

If  necessary,  the  Commission  shall  ensure  the  availability  of  additional  spectrum 
bands  for  the  provision  of  harmonised  satellite  services  for  broadband  access  that 
will  cover  the  whole  territory  of  the  Union  including  the  most  remote  areas  with  a 
broadband  offering  enabling  Internet  access  at  a  comparable  price  to  terrestrial 
offerings. 

Article 7 
Spectrum needs for specific Union policies 

Member  States  and  the  Commission  shall  ensure  spectrum  availability  and  protect 
the  radio  frequencies  necessary  for  monitoring  the  Earth's  atmosphere  and  surface, 
allowing  the  development  and  exploitation  of  space  applications  and  improving 
transport  systems,  in  particular  for  the  global  civil  navigation  satellite  system 
GALILEO,  for  the  Global  Monitoring  for  Environment  and  Security  programme 
GMES, and for intelligent transport safety and transport management systems. 

In  cooperation  with  the  Member  States,  the  Commission  shall  conduct  studies  and 
examine the possibility to design authorisation schemes which would contribute to a 
low-carbon  policy,  by  saving  energy  in  the  use  of  spectrum  as  well  as  by  making 
spectrum  available  for  wireless  technologies  with  a  potential  for  improving  energy 
saving, including smart energy grids and smart metering systems. 

If necessary, the Commission shall ensure that sufficient spectrum is made available 
under  harmonised  conditions  to  support  the  development  of  safety  services  and  the 
free  circulation  of  related  devices  as  well  as  the  development  of  innovative 
interoperable solutions for public safety and protection, civil protection and disaster 
relief. 

Member  States  and  the  Commission  shall  review  the  spectrum  needs  of,  and 
collaborate  with,  the  scientific  community;  identify  a  number  of  research  and 
development  initiatives  and  innovative  applications  that  may  have  a  major  socio-
economic  impact  and/or  potential  for  investment  and  prepare  for  the  allocation  of 
sufficient  spectrum  to  such  applications  under  harmonised  technical  conditions  and 
the least onerous administrative burden. 

EN 

17 

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1. 

2. 

3. 

1. 

2. 

3. 

4. 

5. 

Article 8 
Inventory and monitoring of existing uses of and emerging needs for spectrum 

The Commission, assisted by the Member States, which shall provide all appropriate 
information on spectrum use, shall create an inventory of existing spectrum use and 
of  possible  future  needs  for  spectrum  in  the  Union,  in  particular  in  the  range  from 
300 MHz to 3 GHz. 

The inventory referred to in paragraph (1) shall allow the assessment of the technical 
efficiency of existing spectrum uses and the identification of inefficient technologies 
and  applications,  unused  or  inefficiently  used  spectrum  and  spectrum  sharing 
opportunities.  It  shall  take  into  account  future  needs  for  spectrum  based  on 
consumers' and operators' demands, and of the possibility to meet such needs. 

The inventory referred to in paragraph (1) shall review the various types of spectrum 
usage by both private and public users, and help identify spectrum bands that could 
be assigned or re-allocated in order to increase their efficient use, promote innovation 
and  enhance  competition  in  the  internal  market,  to  the  benefit  of  both  private  and 
public users, while taking into account the potential positive and negative impact on 
existing users of such bands. 

Article 9 
International negotiations 

The Union shall participate in international negotiations relating to spectrum matters 
to defend its interests, acting in accordance with Union law concerning, among other 
things, the principles of internal and external competences of the Union. 

Member States shall ensure that international agreements to which they are a party in 
the context of the International Telecommunications Union (ITU) are in conformity 
with  existing  Union  legislation,  and  in  particular  with  the  relevant  rules  and 
principles of the Union regulatory framework on electronic communications. 

Member  States  shall  ensure  that  international  regulations  allow  the  full  use  of 
frequency  bands  for  the  purposes  for  which  they  are  designated  under  Union  law, 
and  that  a  sufficient  amount  of  appropriately  protected  spectrum  is  available  for 
Union sectoral policies. 

The  Union  shall  provide,  upon  request,  political  and  technical  support  to  Member 
States  in  their  bilateral  negotiations  with  non-Union  neighbouring  countries 
including candidate and acceding countries, to resolve spectrum coordination issues 
that  prevent  Member  States  from  implementing  their  obligations  under  Union  law 
regarding spectrum policy and management. The Union shall also support efforts by 
third  countries  to  implement  spectrum  management  that  is  compatible  with  that  of 
the Union, so as to safeguard Union spectrum policy objectives. 

When  negotiating  with  third  countries,  Member  States  shall  be  bound  by  their 
obligations under Union law. When signing or otherwise accepting any international 
obligations  regarding  spectrum,  Member  States  shall  accompany  their  signature  or 
any  other  act  of  acceptance  by  a  joint  declaration  stating  that  they shall implement 

EN 

18 

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such  international  agreements  or  commitments  in  accordance  with  their  obligations 
under the treaties. 

Article 10 
Cooperation among various bodies 

1. 

2. 

The  Commission  and  the  Member  States  shall  cooperate  to  enhance  the  current 
institutional  setting,  in  order  to  foster  co-ordination  at  Union  level  of  the 
management  of  spectrum,  including  in  matters  directly  affecting  two  or  more 
Member  States,  with  a  view  to  developing  the  internal  market  and  ensuring  that 
Union  spectrum  policy  objectives  are  fully  achieved.  They  shall  seek  to  promote 
Union spectrum interests outside the Union in accordance with Article 9. 

The Commission and Member States shall ensure that standardisation bodies, CEPT 
and the Commission's Joint Research Centre closely cooperate in any technical issue 
whenever  necessary  to  ensure  the  efficient  use  of  spectrum.  To  this  end,  they  shall 
maintain a coherent link between spectrum management and standardisation in such 
a way as to enhance the internal market. 

Article 11 
Public consultation 

Wherever  appropriate,  the  Commission  shall  organise  public  consultations  to  collect  the 
views  of  all  interested  parties  as  well  as  the  views  of  the  public  in  general  on  the  use  of 
spectrum in the Union. 

EN 

19 

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Article 12 
Reporting 

By 31 December 2015, the Commission shall conduct a review of the application of this radio 
spectrum  policy  programme  and  report  to  the  European  Parliament  and  the  Council  on  the 
activities developed and the measures adopted pursuant to this Decision. 

Article 13 
Notification 

Member  States  shall  apply  these  policy  orientations  and  objectives  by  1  July  2015  unless 
otherwise specified in the preceding articles.  

They shall provide the Commission with all information necessary for the purpose reviewing 
the application of this Decision. 

Article 14 
Entry into force 

This  Decision  shall  enter  into  force  on  the  20th  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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20 

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