COMMUNICATION FROM THE COMMISSIONTO THE EUROPEAN PARLIAMENTpursuant to Article 294(6) of the Treaty on the Functioning of the European Unionconcerning the position of the Council on the adoption of a Decision of the European Parliament and of the Council establishing a multi-annual radio spectrum policy programme.
Date: 2012-01-12
Institutions: European Commission
Subjects: European audiovisual area, harmonisation of standards, telecommunications

EUROPEAN COMMISSION 

Brussels, 12.1.2012 
COM(2012) 3 final 

2010/0252 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Decision of the European Parliament and of 
the Council establishing a multi-annual radio spectrum policy programme. 

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2010/0252 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Decision of the European Parliament and of 
the Council establishing a multi-annual radio spectrum policy programme. 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2010) 471 final – 2010/0252 COD): 

20 September 2010 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

16 February 2011 

Date of the position of the European Parliament, first reading: 

11 May 2011 

Date of transmission of the amended proposal: 

11 May 2011 
SP (2011)5858 

Date of adoption of the position of the Council: 

13 December 2011 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The  proposed  Radio  Spectrum  Policy  Programme  (RSPP)  based  on  Article  114  TFEU 
responds  to  the  invitation  by  Parliament  and  the  Council  in  Article  8a(3)  of  Framework 
Directive 2002/21/EC as amended by Directive 2009/140/EC to present a legislative proposal 
to  establish  a  multiannual  programme  setting  out  policy  orientations  and  objectives  for  the 
strategic planning and harmonisation of the use of spectrum. 

The  RSPP  reflects  the  importance  of  the  availability  and  efficient  use  of  spectrum  for  the 
internal  market  in  electronic  communications  and  other  EU  policy  areas  such  as  transport, 
research,  Earth  observation,  navigation  satellite  systems,  environmental  protection  and  the 
fight  against  global  warming.  The  RSPP  is  part  of  the  Commission's  Digital  Agenda  for 
Europe  and  contributes  to  the  Europe  2020  strategy  for  smart,  sustainable  and  inclusive 
growth  as  spectrum  is  essential  for  the  digital  society,  fast  wireless  services,  economic 
recovery,  growth,  high-quality  jobs  and  long-term  EU  competitiveness.  The  Single  Market 
Act also calls upon the Parliament and Council to adopt the proposal without delay. 

The  RSPP  will  create  a  process  to  determine  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 
(676/2002/EC),  reaffirms  principles  to  be  applied  to  all  types  of  spectrum  use,  establishes 
objectives for EU initiatives and lists actions to be launched. 

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3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The  position  of  the  Council  at  first  reading  is  the  result  of  a  compromise  reached  after 
informal  negotiations  between  the  Council,  the  European  Parliament  and  the  Commission 
which  culminated  at  the  informal  trilogue  meeting  of  24  October  2011,  and  which  was 
confirmed by an exchange of letters between co-legislators. 

This compromise includes: 

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a  clear  commitment  to  complete  the  authorisation  process  for  already  harmonised 
spectrum, including the 800 MHz band, by 1/1/2013; 

a strong inventory mechanism based on Commission implementing measures as well 
as clear deadlines for adopting those measures; 

an  explicit  target  to  identify  at  least  1200  MHz  of  spectrum  by  2015  based  on  the 
inventory, for wireless broadband communications; 

a  commitment  to  examine  the  need  for  further  spectrum  for  wireless  broadband 
based on capacity requirements; 

the means to guarantee competition in the use of spectrum in particular for electronic 
communications services; 

the development of policy initiatives on collective and shared use of spectrum; 

a provision to enhance EU coordination in international spectrum negotiations; 

a  commitment  to  develop  policy  initiatives  on  the  spectrum  requirements  of  other 
internal market sectors and EU policies, including energy saving, Earth observation 
and monitoring, public safety and protection, wireless microphones and the Internet 
of Things. 

Therefore,  the  Commission  can  accept  the  Council's  position  as  it  reflects  the  compromise 
reached and calls for similar adoption without amendment by Parliament in the shortest time 
possible considering the importance of the matter, the close deadlines set in the draft decision 
and the need for swift implementation thereof. 

The  Commission  also  made  three  statements  (see  below)  for  the  minutes  of  the  Council 
meeting  of  13  December  2011  which  explain  the  Commission's  view  on  certain  specific 
provisions. 

4. 

CONCLUSION 

The  Commission  supports  the  position  of  the  Council,  while  making  the  three  statements 
below, and invites the Parliament to approve the Council's position without amendment in line 
with the compromise reached on 24 October 2011, as quickly as possible to allow for early 
entry into force of the decision. 

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5. 

UNILATERAL  STATEMENTS  MADE  BY  THE  COMMISSION  TO  THE  MINUTES  OF  THE 
COUNCIL MEETING OF 13 DECEMBER 2011. 

(1) 

On insertion of a reference to RSPG in Article 9.2:  

'The Commission notes that Article 9.2 requires the Commission to take utmost account of the 
views  of  the  Radio  Spectrum  Policy  Group  (RSPG)  before  adopting  implementing  acts  in 
relation to the inventory. The Commission considers that in the matter of implementing acts 
there are no other procedural requirements than those laid down by Article 291 TFEU. The 
RSPG  has  been  created  by  the  Commission  itself  for  the  purposes  of  using  its  advice  and 
expertise,  which  the  Commission  will  continue  to  do  considering  that  it  plays  an  important 
advisory  role  and  provides  valuable  input  in  regard  to  policy  matters,  but  it  is  for  the 
Commission to consult this group as it considers necessary.' 

(2) 

On Article 10.1 regarding international negotiations: 

'The Commission confirms its interpretation of references to "Member States' competence" as 
competence  not  attributed  to  the  European  Union.  It  also  recalls  that  the  Treaties  in  their 
entirety remain applicable, including in particular Article 218(9) TFEU as the case may be".' 

(3) 

On the procedure of adoption of implementing acts for Art. 13.2: 

'The  Commission  underlines  that  it  is  contrary  to  the  letter  and  to  the  spirit  of  Regulation 
182/2011  to  invoke  Article  5,  paragraph  4,  second  subparagraph,  point  (b)  in  a  systematic 
manner. Recourse to this provision must respond to a specific need to depart from the rule of 
principle which is that the Commission may adopt a draft implementing act when no opinion 
is  delivered.  Given  that  it  is  an  exception  to  the  general  rule  established  by  Article  5, 
paragraph 4,  recourse  to  second  subparagraph,  point  (b)  cannot  be  simply  seen  as  a 
"discretionary power" of the Legislator, but must be interpreted in a restrictive manner and 
thus must be justified.' 

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