Royal Decree 462/2015, Of 5 June, Which Regulates Instruments And Coordination Procedures Between Different Public Administrations Public Aid To Encourage The Promotion Of The Information Society On Me...

Original Language Title: Real Decreto 462/2015, de 5 de junio, por el que se regulan instrumentos y procedimientos de coordinación entre diferentes Administraciones Públicas en materia de ayudas públicas dirigidas a favorecer el impulso de la sociedad de la información me...

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-6646

It Agenda Digital for Spain, approved by the Government in the meeting of the Council of Ministers of 15 of February of 2013, sets the strategy of Spain for reach them objectives of the Agenda Digital for Europe and pursues, between others objectives, foster the development of networks and services for ensure the connectivity digital.

Broadband networks and, in particular, those of ultra-fast broadband are infrastructures that support the digital world in the coming years and prerequisite to compete in a globalized world.

For this reason, the fourteenth additional provision of law 9/2014, of 9 may, General of telecommunications, expected by Royal Decree, the competent bodies will be identified and will be established procedures for coordination between administrations and public bodies, in relation to state aid to broadband.

To its time, the available additional eighteenth of it cited law General of telecommunications contains a mandate to the Government for establish a strategy national of networks ultra-fast that have as objective boost the deployment of networks of access ultra-fast to it band wide, both fixed as mobile, of face to achieve its universalization, as well as foster its adoption by citizens, companies and administrations to ensure social and territorial cohesion.

Such strategy must adopt them measures precise for reach them objectives concrete of coverage and adoption established by the Agenda Digital for Europe e incorporated to it Agenda Digital for Spain and, in particular, to achieve the universalization of a connection that allow communications of data of band wide that is extend progressively, so in the year 2017 will reach a speed minimum of Internet of 10 megabit by second (Mbps) and before end the year 2020 will reach all users to a minimum speed of 30 Mbps Internet, and that at least 50% of households can have access to speeds greater than 100 Mbps services.

In addition, the strategy should include policies to increase the adoption and use of ultra-fast broadband between citizens, businesses and administrations. In particular, are considered priority actions necessary to promote regional health centers, public universities, public secondary schools and public libraries in cities and region headers have a connection to the public communications network with a capacity of functional Internet access at a minimum speed of 30 Mbps in 2016 and 100 Mbps by 2020. These measures are structured with the proper collaboration and coordination with the communities autonomous.

According to this, the present Royal Decree aims to ensure that the aid that they should be granted by the different public administrations, which are aimed at favouring the promotion of the information society through the promotion of the offer and availability of networks broadband that they make it possible to stimulate the economy and digital employment and the provision of innovative digital services , are compatible with the regulatory sector of telecommunications and with them plans of band wide of the Ministry of industry, energy and tourism.

As it expressly mentions this fourteenth additional provision of the aforementioned General Law on telecommunications, the call and granting of aid must respect in any case the Community framework and the objectives set out in article 3 of this law.

For this purpose, should be pointed out that the guidelines of the European Union for the implementation of the rules on State aid to the deployment faster networks broadband, published in the OJEU reference 2013/C 25/01 (hereinafter Guidelines) set out the procedure and the criteria for evaluation by the Commission of the compatibility with the market of such aid which concerns article 107.3 from the Treaty on the functioning of the European Union.

These guidelines are applicable to all models of intervention employing public authorities to support the deployment of broadband networks, that can be taken, inter alia, the following forms: allowance in the form of grants, loans at better conditions to those offered by the market, support in kind, network broadband (or part thereof) operated by the State or managed by a grantee broadband network.

The same guidelines set out a series of recommendations to the Member States, compliance with which is necessary to assign functions to the competent national bodies and set a mechanism of coordination between them, in order to establish the appropriate legal basis allowing to facilitate the design of the measures that will be implemented, trying to expedite the process of obtaining of the authorization by the European Commission in the field of State aid at the same time.

In particular, the above-mentioned guidelines established in relation to the adequacy of State aid as a political instrument and design of the extent that is essential to the coordination of interventions which are carried out at national, regional or municipal level to avoid duplication and inconsistencies, encouraging the Member States to that, whenever possible, to devise national plans containing the main guiding principles of public initiatives. The guidelines recognize the important role that national regulatory authorities should be based on technical knowledge and experience because of the fundamental role that attributed to them by the sectoral rules. In Spain the two national regulatory authorities on telecommunications concerned in this regard, in accordance with the General Law of telecommunications are, on the one hand, the Government, through the Secretary of State of telecommunications and the information society (SETSI) of the Ministry of industry, energy and tourism, and on the other the National Commission of the markets and the competition (CNMC).

These two national regulatory authorities is the best location to support Governments in relation to the aid measures in the work of identifying areas of action, determine the prices and conditions for wholesale access and settle disputes between applicants for such access to broadband networks. Also, in relation to the conception of it measure and it need of limit the distortion of it competition, them guidelines established that is must identify clearly what areas geographical will be covered by the measure of support, whenever is possible in cooperation with them agencies national competent, recommending consult to it authority national of regulation.

By it above, and in relation to them performances of coordination marked, the real Decree provides the elaboration by the SETSI of a map detailed of coverage of band wide that facilitates the design of them indicated measures of helps.

In addition, also provides for the adoption of guidelines for public administrations intending to grant aid to facilitate the promotion of the information society by encouraging the supply and availability of broadband networks.

However, fundamentally, the coordination of aid measures is guaranteed by the issuance by the SETSI of a report on the compatibility of the aid measure promoted in relation to the legal regime of telecommunications and with the plans of broadband on the Ministry of industry, energy and tourism. This report, that will have character binding in what is refers to such compatibility, also will address the compliance of them conditions established in them guidelines of the Union European, including those requirements relating to them prices and conditions of access wholesalers that had been releases by the CNMC.

Among other things, to assess whether the support measures seeking to grant the public administrations are compatible with the plans of broadband from the Ministry of industry, energy and tourism, will be scanned if they are complementary to the measures that put underway the Ministry for the deployment of broadband networks. Such complementarity will obey, among other reasons, that in the case of measures targeting specific areas that because of their special characteristics require specific actions.

By order of the Minister of industry, energy and tourism can be referred thresholds, among others, to the beneficiaries, the characteristics of the services that are going to pay or the amount of aid, below which the SETSI report may be replaced by a declaration by the competent body of the public administration which intends to grant aid , although the Royal Decree establishes that the SETSI report will be required in the case of aid measures which have been notified to the Commission pursuant to the provisions of article 108 of the Treaty on the functioning of the European Union.

All this regulation incorporated by this Royal Decree is that it is irrelevant to the first additional provision of the Circular 1/2010 of 15 June 2010, of the market of the Telecommunications Commission, which regulates the conditions of exploitation of networks and the provision of services of electronic communications by public administrations.


On the other hand, are contained in the Royal Decree two final provisions amending of two existing regulatory texts. Thus, the first final provision modifies the Royal Decree 964/2006, on 1 September, which approves the national technical Plan of VHF frequency-modulation sound broadcasting. The modification has as purpose the Elimination of procedures administrative, the promotion of it simplification and efficiency administrative and the impulse of the use of media telematic in them relations with the Administration, for which is designed a new procedure according to which the SETSI gives them concessions of domain public radio rigged to them licenses FM granted by them communities autonomous analyzing technical projects and performs inspections prior to putting in operation of each radio station. One of them procedures suppressed consists in that the project technical of the station FM not has that present is through the communities autonomous but directly before the SETSI.

The second final provision modifies the rules of use of the Radioelectric public domain, approved by Royal Decree 863/2008, of May 23, to make possible the granting of a temporary authorization for the exploitation of a resource spectrum, which is in the process of planning and coordination in the International Telecommunications Union (ITU). Therefore given extensive time (around 7 years) used in the planning and coordination of these resources ITU orbit-spectrum, provided legal security and possibility of use the operator that has urged the resource obtaining spectrum. Provisional authorization, as its name suggests, is not a definitive title and is always subject to recognition by the ITU of the spectrum resource and lack of technical problems.

Finally, it available end third comes to the repeal of the code of conduct for the provision of them services of charging additional of 23 of July of 2004, taking in has it doctrine sitting by the Court Supreme in its sentence of it section third of it room of it contentious of 29 of January of 2015.

He present real Decree, that consists of six articles, an available additional, an available transient, a provision repealing and seven provisions late, is dictates to the amparo of the competition State in matter of telecommunications planned by the article 149.1.21. th of the Constitution Spanish.

During processing the Royal Decree has been the subject of report by the National Commission of markets and competition and the Advisory Council of telecommunications and the information society, body in which, in addition to the telecommunications sector, the autonomous communities and local authorities are represented. Pursuant to the fifth additional provision of law 9/2014, of 9 may, General of telecommunications, the report of this body is equivalent to the completion of the hearing procedure governed by article 24.1. c) of the Law 50/1997, of 27 November, the Government. Also the project has been subjected to a report by the Ministry of finance and public administration for the purposes of the provisions of article 24.3 of the same Act.

In his virtue, a proposal from the Minister of industry, energy and tourism, with the prior approval of the Minister of finance and public administration, in accordance with the Council of State and after deliberation by the Council of Ministers at its meeting of June 5, 2015, HAVE: article 1. Object and scope of application.

1.Constituye the object of this Royal Decree the establishment of certain instruments and procedures of administrative coordination in order to ensure proper coordination of the support measures seeking to carry out the different public administrations which are aimed at favouring the promotion of the information society by encouraging the supply and availability of broadband networks that make it possible to stimulate the economy and digital employment and the provision of services Digital innovators, as well as to ensure that such measures are compatible with the legal regime of telecommunications and broadband from the Ministry of industry, energy and tourism plans.

2. in addition, these instruments and procedures aims to also facilitate the fulfilment by Governments seeking to aid mentioned in the preceding paragraph of the guidelines of the European Union for the implementation of the rules on State aid to the rapid deployment of broadband networks, contained in the communication from the Commission European 2013/C 25/01.

3. for the purposes of this Royal Decree shall aid those that have this consideration pursuant to article 107.1 of the Treaty on the functioning of the European Union, and will be considered public administration those identified in article 2 of the law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure and other entities that make up the public sector.

Article 2. Map of coverage.

The State of telecommunications and the information society secretariat will prepare an annual report of coverage of ultrafast broadband that facilitates the design of support measures referred to in this decree by the different public administrations and the identification of areas susceptible to performance, in accordance with the guidelines of the European Union. Also will be available to public administrations that request it the information they require to put up such support measures.

For the identification of the areas susceptible to performance, the Secretary of State for telecommunications and the information society will be a public consultation directed to those directly concerned and, in particular, to the National Commission of markets and public administrations and competition.

Article 3. Mandatory report from the Secretariat of State for telecommunications and the information society.

1. them administrations public that intend to grant aid directed to favor the impulse of it society of it information through the promotion of it offer and availability of networks of band wide, request to the Secretariat of State of telecommunications and for the society of it information it emission of a report whose content and effects is established in the paragraph 3.

Together with the application they accompany a description of the measure and the draft legal instrument that set the basis for the granting of aid, where it should be included the areas of performance, a minimum of three months before being notified to the European Commission. When is request report on a measure of helps whose notification to the Commission European not is mandatory, this application is presented with a minimum of three months of advance to its approval.

2. then the Secretary of State for telecommunications and the information society shall refer to the National Commission of markets and competition information received from the interested public administration, asking him to report with regard to the requirements relating to the fixing of prices and conditions of wholesale access to infrastructures which are the subject of such aid.

The National Commission of markets and competition shall forward this report to the Secretary of State for telecommunications and the information society within a maximum period of two months from the request.

3. the report of the Secretary of State for telecommunications and the information society will give a ruling on the compatibility of the aid measure promoted in relation to the legal regime of telecommunications and plans of broadband on the Ministry of industry, energy and tourism, where, among other aspects, plus compatibility with the broadband coverage map to that referred to in article 2 and the complementarity with the measures in support of said Ministry. The report will be binding for the applicant Government purporting to grant such aid in all regards to stated in this paragraph.

The report is may also include an assessment of the adequacy of the aid measure to the conditions laid down in the guidelines of the European Union and recommendations for its implementation, picking up the wording of the requirements relating to the fixing of prices and conditions of wholesale access which have been notified by the National Commission of markets and competition in the report issued at the request of the Secretary of State for telecommunications and for the information society.

Article 4. Reference thresholds.


1. order of the Minister of industry, energy and tourism is may establish thresholds referred, between others, to it population benefited, to them features of them services that is go to provide or to it amount of it helps, below which not will be mandatory request to the Secretariat of State of telecommunications and for the society of the information the report to is makes reference in the article 3 or Alternatively, this report may be replaced by a declaration of the head of the competent body of the public administration which intends to grant the aid, which will focus on the compatibility of the aid with the legal regime of telecommunications and their complementarity with the plans of broadband on the Ministry of industry, energy and tourism.

However, the report of the Secretariat of State of telecommunications and for the society of the information will be mandatory for measures of helps that is have of notify to the Commission European in compliance of them forecasts of the article 108 of the treated of operation of the Union European.

2 in the event that, in accordance with the provisions of the preceding paragraph, the report of the Secretary of State for telecommunications and for the information society can be replaced by a statement of responsibility of the competent body of the public administration which intends to grant the aid, this statement will be presented in accordance with the procedure and the content that is set in the order referred to in the preceding paragraph , which also establish the documentation that will refer to the mentioned Secretary of State article 5. Publication of information and monitoring reports.

(1. Secretariat of State of telecommunications and for the society of the information will have of a portal of Internet in which may publish, directly or through links, them following content: to) them plans of band wide of the Ministry of industry, energy and tourism.

(b) the procedures in course on support measures referred to in the present Royal Decree which are notified to you by public administrations.

(c) the information that you is sent by them administrations public or you is provided through the database national of grants (BDNS) on such measures of helps: 1 text full of each measure of helps approved and their provisions of application, or a link to the same 2nd name of the authority awarding 3rd name of them beneficiaries of them aid granted , mode and amount of aid, grant date, type of beneficiary (SMES, large enterprise), geographical location and main economic sector in which the recipient operates.

2. in the case of aid measures that are part of national framework schemes, the Secretary of State for telecommunications and the information society will develop and will present the monitoring reports to be sent to the European Commission from the implementation of the project which has received aid, and every two years duration of the aid measure consolidating the information concerning the individual measures that may be submitted to him by the Government.

The Secretariat of State of telecommunications and for the society of the information sent a copy of these reports of follow-up to the Commission national of them markets and it competition.

Article 6. Resolution of conflicts of access.

According to stated in article 15 of the law 9/2014, General of telecommunications, the National Commission of markets and competition will know of conflicts in connection with wholesale access to broadband networks that have been of help.

Sole additional provision. Orientations and guidelines.

1. order of the Minister of industry, energy and tourism, to be published in the «Official Gazette», may adopt guidelines aimed at public authorities intending to grant aid to facilitate the promotion of the information society by encouraging the supply and availability of broadband networks.

2. in these guidelines will include guidelines on the principles applicable to the determination of the conditions and rates for wholesale access.

The price of wholesale access should be based on the principles of pricing established by the National Commission of markets and competition and comparative patterns and must take into account the amount and type of aid received.

The National Commission of markets and competition be sent to the Ministry of industry, energy and tourism content to include in these guidelines in relation to the principles applicable to the determination of the conditions and rates for wholesale access.

Sole transitional provision. Transitional regime of the compatibility reports.

Insofar as it does not approve the order of the Minister of industry, energy and tourism to that referred to in article 4, public administrations intending to grant aid to facilitate the promotion of the information society through the promotion of the offer and availability of networks broadband only are required to request the support of the Secretariat of State for telecommunications and the information society , when these measures of helps is go to notify to the Commission European in compliance of them forecasts of the article 108 of the treated of operation of the Union European or when such measures of helps is avail to them regulations by which is exempts to certain categories of aid of the obligation of notification, adopted with arrangement to the article 1 of the Regulation (CE) No. 994 / 98 of the Council , of 7 May 1998 on the application of articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal state aid, amended by the Regulation (EU) No. 733/2013, of the Council of 22 July 2013.

Sole repeal provision. Repeal legislation.

Many provisions of equal or lower rank is contrary to the provisions of this Royal Decree are repealed.

First final provision. Modification of Royal Decree 964/2006 of 1 September, which approves the national technical plan of VHF frequency-modulation sound broadcasting.

Amending article 3 of the Royal Decree 964/2006, on 1 September, which approves the national technical plan for broadcasting in VHF with modulation of frequency, which is drawn up the following way: «article 3. Associated with Radioelectric public domain grants licences for the provision of the service of audiovisual communications in VHF frequency-modulation sound broadcasting.

1. rigged Radioelectric public domain grants licences for the provision of the service of audiovisual communications in VHF frequency-modulation sound broadcasting will be awarded in accordance with the technical specifications laid down in the national technical Plan which is approved by Royal Decree and in accordance with the procedure which is regulated in the following paragraphs.

2. once the competent body of the autonomous community have been communicated to the Secretariat of State for telecommunications and for the information society the cardholder data that is has awarded by competition by the autonomous community licences for the provision of the service of audiovisual communications in VHF frequency-modulation sound broadcasting the Secretary of State for telecommunications and the information society, on request of the holder of the licence, shall grant the concession of Radioelectric public domain entail each license. Deadline for decision on the granting of the concession of Radioelectric public domain annexed to leave shall be three months from the filing of the application.

3. in the term of four months to count from the granting of it corresponding concession of domain public radio, the holder of the award sent to the Secretariat of State of telecommunications and for it society of it information the project technical of installation of the CA, in accordance with them forms and procedures established, to the effect, in it headquarters electronic of the Ministry of industry Energy and tourism. The Secretary of State for telecommunications and the information society shall decide on the approval of the technical project within the period of six months, from its presentation.

4 carried out the installation of the radio station, the holder of the concession will request to the Secretary of State for telecommunications and the information society the commissioning of radio station authorization, requiring mandatory and prior inspection of the facilities by the technical services of the Secretary of State said, that there will be a period of three months counted from the filing of the application to carry out.

Once the inspection and found that the facilities are in accordance with the approved technical project, the Secretariat of State of telecommunications and the information society shall authorize the commissioning of the station to the holder of the concession.


5. the Secretariat for State of telecommunications and the information society, at the request of the grantor autonomous community of the audiovisual license, will report on the State of procedures of approval of technical projects and setting up authorizations, corresponding to concessions of Radioelectric public domain linked to licenses granted by it.»

Second final provision. Modification of the regulation of development of the law 32 / 2003, of 3 of November, General of telecommunications, in it relative to the use of the domain public radio, approved by the Royal Decree 863 / 2008, of 23 of mayo.

Amending paragraph 2 of article 31 of the rules of law 32/2003 of November 3, General development of telecommunications, with regard to the use of the Radioelectric public domain, approved by the Royal Decree 863/2008, of May 23, which is drawn up in the following way: «2. once published by the ITU the information relating to the appeal presented by the Kingdom of Spain spectrum reservation request» It may be granted an authorization provisional for the exploitation of this resource, if all the conditions required for such exploitation. In any case, such authorization will be subject to the specifications and limitations arising from the process of international coordination and may be cancelled if there are technical problems in the exploitation of the spectrum resource, or if the ITU doesn't recognize the resource spectrum in favor of the Kingdom of Spain reserve.»

Third final provision. Repeal of the code of conduct for the provision of the services of charging additional.

Is repealed the code of conduct for the provision of them services of charging additional of 23 of July of 2004, as well as the paragraph 1 of the article fifth of the order PRE / 361 / 2002, of 14 of February, of development, in it relative to them rights of them users and to them services of charging additional, of the title IV of the Real Decree 1736 / 1998 , 31 July, which approves the regulation which develops the title III of the General Telecommunications Act.

Fourth final provision. Skill-related title.

This Royal Decree is issued under cover of the exclusive competence of the State in matters of telecommunications, recognized in article 149.1.21. ª of the Constitution.

Fifth final provision. Guidelines of the European Union.

This Royal Decree is run at application of the guidelines of the European Union for the implementation of the rules on State aid to the rapid deployment of broadband networks, contained in the communication from the European Commission 2013/C 25/01.

Sixth final provision. Regulatory development and implementation.

The Minister of industry, energy and tourism will deliver, in the scope of their powers, many provisions and measures necessary for the development and application of the provisions of this Royal Decree.

Available to finish seventh. Entry in force.

This Royal Decree shall enter into force the day following its publication in the "Official Gazette".

Given in Madrid, the 5 of June of 2015.

PHILIP R.

The Minister of industry, energy and tourism, JOSE MANUEL SORIA LOPEZ