The European Commission’s legal action over spectrum: what can it achieve?

When I first saw the case papers for the Commission’s action against the European Council, I was struck not only by the idea of the Commission taking legal action against one of its counterparts, with all the questions such an action raises about who bears the cost – I very quickly learned that this is not such an irregular occurrence – but by the sheer “and-another-thing” nature of its argument.

The Council’s failure to enforce the EU position had allegedly undermined Europe’s credibility on the world stage. And it precipitated a free-for-all for opportunist member states who read the Council’s decision as an incitement to wanton sedition and started making wild proposals in the new anything-goes climate the Council has supposedly created – even if it has been doing things this way for years.

Whether the Commission’s action was right or wrong is not really PolicyTracker‘s concern. Understanding what the Commission hopes to achieve is far more interesting.

For example, did it really affect the outcome of WRC-15? The Commission itself has said the Council’s conclusions were not very different from those it set forth in the proposal it ordered the Council to adopt. Rather, it cited the Treaties to say why it took issue with the Council’s decision. 

The Commission has lots of very big jobs on its hands at the moment. And one of them is bringing about 5G by 2020. This could be why it deems forcing member states to take a legally-binding position so important. 

But we’ve been here before. EU ministers removed spectrum provisions from their discussions on the Connected Continent initiative and Brussels very quickly renewed its push for legislative control over harmonisation. Broadcasters agreed it was time to move out of 700 MHz and the Commission, armed with what has been seen by broadcasters as a severe interpretation of the Lamy Report, proposed the dropping of the two-year leeway Pascal Lamy recommended and set a hard 2020 deadline for eviction, throwing in supplementary downlink in their new home in the lower-UHF band for good measure.

Next comes the Telecommunications Regulatory Framework Review, which could contain proposals on central control of award processes, spectrum caps and further harmonisation. Central control still appears to be the Commission’s intention when it comes to spectrum.

But this seems to go against the mood among regulators, who are looking to a more consensus-led approach. Talk of “good offices” and finding ways to share best practice between member states in a collaborative way seems like something elected representatives will have an easier time accepting than top-down diktats. The alternative at the moment seems to be a politically-led attempt to drag Europe into the future with a one-size-fits-all legislative hook.