Brussels, 29 October 2009
Telecoms: Legal action against Germany for not implementing the Commission Decision on the harmonisation of the 2500-2690 MHz frequency band in the Community
The Commission today opened an infringement procedure against Germany for failing to allocate the 2500-2690 MHz radio frequency band for a wide range of radio services, including fixed wireless services. Under EU radio spectrum harmonisation rules (particularly Commission Decision 2008/477/EC), all EU countries have to ensure that all kinds of telecoms services can utilise this band. At present, Germany only allocates this frequency band to mobile services. This is an obstacle to the deployment of pan-European wireless broadband services and does not respect EU Telecoms rules.
“Only a timely and effective implementation of the European rules that harmonise the way we designate and make available spectrum across the EU will pave the way for an unambiguous legal environment for spectrum usage, enhanced competition and roll-out of wireless broadband services,” said EU Telecoms Commissioner Viviane Reding. “ Unfortunately, despite intensive contacts between the Commission services and the German authorities, they have still not yet taken all steps to ensure that the 2500-2690 MHz band is allocated to fixed wireless services and technologies. This represents not only a violation of EU law, but it also could delay the roll-out of wireless broadband services throughout Germany and Europe."
The Commission today decided to send a letter of formal notice to Germany, the first step in an infringement procedure against an EU Member State for failing to put EU rules in place. Since 1 January 2008, the German Frequency Allocation Ordinance (Frequenzbereichszuweisungsplanverordnung) has only allocated the 2500-2690 MHz frequency band to mobile services. However, since the adoption of a Commission Decision in 2008, EU rules state that this frequency band can be used for terrestrial systems that provide any telecoms service, including both mobile and fixed services. Any underlying technology can be used to provide this service, as long as the service in question respects certain technical parameters so that it does not create interference to neighbouring networks.
Despite the latest modification of this Ordinance published in the German State Gazette on 20 July 2009, the frequency allocation in this band has not been modified in a way that would fully implement the EU rules. With the allocation of this frequency band restricted to mobile services, fixed wireless operators lack the legal certainty they need to provide telecoms services in the 2.6 GHz radio spectrum band, even if they acquire spectrum rights during the future tender procedure, which Germany's national telecoms regulator (Bundesnetzagentur) is expected to conduct in 2010.
The German government has two months to respond to the letter of formal notice sent by the Commission today. If the Commission receives no reply, or if the observations of the German government are not satisfactory, the Commission can issue a reasoned opinion (the second stage in an infringement procedure). If after that Germany still fails to fulfil its obligations under EU law, the Commission can refer the case to the European Court of Justice.
Spectrum harmonisation Decisions under the help operators and other service providers take advantage of harmonised conditions at EU level whenever they acquire spectrum usage rights. This contributes to consolidating the internal market in areas such as telecoms, transport and research and development. The Commission monitors whether EU countries put implementation of spectrum harmonisation rules in place.
Germany has a three-level system of designating and making available radio frequencies. The primary, legally-binding instrument is the national Frequency Allocation Ordinance (Frequenzbereichszuweisungsplanverordnung) that contains the national frequency allocation table. The second instrument issued by the national regulatory authority (Bundesnetzagentur) is the Frequency Usage Plan (Frequenznutzungsplan), which is based on the provisions laid down by the Ordinance. Finally, frequency assignment procedures, being usually tender procedures, are conducted by the Bundesnetzagentur in order to grant stakeholders rights of spectrum use.
A detailed overview of the telecoms infringement proceedings is available at: