5G regulation and law in the Netherlands

According to the latest 5G Observatory report (June 2024), the Netherlands was the last country in the European Union to assign the 3.5 GHz band. A major reason for this delay has been a lawsuit launched by satellite operator Inmarsat, which operated a large ground station in the north of the Netherlands using the 3.5 GHz band for emergency communications with sea traffic.

Since several years the Dutch authorities were working on freeing up more frequency space for 5G. As far back as 2021, the Dutch Minister of Economic Affairs and Climate Policy (Minister) decided to amend the National Frequency Plan 2014 (NFP) to free up the 3.5 GHz band for the development of the 5G network from 1 September 2022 onwards. Following publication of these amendments, Inmarsat in 2021 sued the Minister at the Rotterdam District Court over its plan to revoke Inmarsat’s licences.. The Court ruled on 30 June 2021 that the Minister’s decision had been negligently prepared and failed to take into account the importance of undisturbed continuation of the emergency, urgent and safety communications (EUS) and therefore suspended the amendment of the NFP.

Taking this ruling into account, the Minister on 23 February 2023 published a temporary amendment to the NFP, in which the 3.5 GHz band was earmarked for both fixed satellite links and national mobile communications (also known as dual use). This decision was appealed by 8 parties for different reasons. Various stakeholders were against the Minister's plan  including the Dutch mobile operators KPN, Odido and VodafoneZiggo, as well as prospective and current users of local licences in the band such as Amsterdam’s Schiphol Airport and the Port of Rotterdam Authority. In a 29 November 2023 ruling, the Rotterdam District Court dismissed all appeals. The Court stated that the Minister enjoys a wide degree of discretion when determining the efficient use of frequency space. According to the court, the Minister did prepare the decision carefully and gave sufficient reasons for his considerations.

In October 2023, however, Inmarsat agreed to move its operations from the Netherlands to Greece. As of 1 February 2024, Inmarsat’s operations have moved to Greece. A new decision amending the NFP was published on 8 January 2024, permanently removing fixed satellite links for EUS communications on the 3.5 GHz band from 1 February 2024

After the departure of Inmarsat, an auction of the 3.5 GHz band could finally be organised. In a 5G auction on 1 July 2024, KPN, Odido and VodafoneZiggo acquired licences in the 3.5 GHz band. The week-long bidding ended with prices just over the reserve rates set by the government, for a total EUR 174.4m (USD 181.4m). The new spectrum will be available in the summer of 2024 and will significantly expand the 5G network capacity from the operators. The licences run for 16 years, until the end of 2040 and come with coverage obligations in the next 2-5 years.  Furthermore in February and August 2024, 24 licences for private 5G networks were granted. The licences were mainly granted to large companies such as Philips Medical systems, Dow Benelux, Daf Trucks, Schiphol Airport and  the Port of Rotterdam Authority. All private licences are valid until 31 December 2040. The licence holders must ensure that their networks do not cause disruption to existing and future networks that use the same spectrum.

Under the auction conditions, parties could obtain a maximum of 40% of the frequencies.

See also question 6: Guidelines for sharing mobile networks.

The licence granted includes a commissioning obligation. For a 10 MHz licence, the commissioning obligation is 54 km2 after two years and 536 km2 after five years. For a 60 MHz size licence, the obligations are 324 km2 after two years and 3,216 km2 after five years.

(See: Auction regulation and explanatory notes 3,5 GHz-band 2024, non-binding translation)

Please note the concerned operators have already extensive 5G coverage.

See the 5G coverage maps below.                        

KPN 5G coverage map                        Vodafone 5G coverage map                   Odido coverage map

 (Source: NPERF.com)   

In addition, the Dutch Authority for Digital Infrastructure (RDI), formerly known as the Telecom Agency (Agentschap Telecom), can licence private networks subject to conditions.

(See: Licence for plot-based network in the 3.5 GHz band, Dutch only)

See also Question 1.

The 5G spectrum auction took place on 1 July 2023 with three participants: KPN, VodafoneZiggo and Odido (former T-Mobile). The concerned licences were auctioned in three 60MHz licences in the first part of the auction and 12 10MHz licences in the second part of the of the auction.

The Netherlands’ three national mobile operators KPN, Odido and Vodafone Ziggo all received 100 MHz of spectrum in the 5G pioneer band. In total, the auction raised EUREUR174.4m (USD 181.4m) in revenues, with KPN and Odido both paying EUREUR58.4m   and Vodafone Ziggo EUREUR57.5m (USD 59.3m). The licences will be valid until 31 December 2040.

The main criteria was winning the auction with the highest bid.

In principle, any legal entity based in the EU or European Economic Area (EEA) can apply for a licence provided the applicant complies with the licence conditions. However, tenderers are telecommunications operators because the licence holder is obliged to provide a public electronic communications service in the Netherlands: within two years of the licence coming into force in an area of at least 324 km2 and within five years in an area of at least 3.216 km2.

General admission requirements are stated in Article 9 Frequency Decree 2013 (Frequentiebesluit 2013).

The licence term  for the 5G spectrum licences is until 1 December 2040.

The applicant is a legal person governed by private law under the law of one of the member states that is a party to the EEA and has its registered office, central administration or principal place of business within the EEA.

The application should be accompanied by:

• Information on the applicant, including the applicant's name, registration number and extract from the Trade Register or a comparable register;
• A list of maximum four persons who are authorised to duly represent the applicant;
• Information on the legal entities related to the applicant within the meaning of Article 3 of the capping regulation, in the form of an organisation chart showing their legal structures;
• A declaration from a civil law notary concerning the accuracy these details, also stating that the applicant is not in a state of liquidation, has not been granted suspension of payments and has not been dissolved.
• An applicant must provide a deposit or a bank guarantee for  EUR 19.61m (USD 20.42m) as security for the payment of its bid.

(See: Auction regulation and explanatory notes 3,5 GHz-band 2024, non-binding translation) 

Frequency technical conditions

• Use of frequency space shall be made in such a way as to provide appropriate protection to systems in adjacent bands.
• The licence-holder shall synchronise its network with the other networks in the frequency band 3450 MHz - 3750 MHz.
• The licence-holder must offer appropriate protection to the networks of licence holders in the 3400 MHz - 3450 MHz and 3750 MHz - 3800 MHz frequency bands until 1 September 2026 and must accept interference from those networks until then.
• The licence-holder must not cause unacceptable interference by the desired signal from radio devices in other radio or receiving devices or in electrical or electronic equipment.

(See: Ministerial decision to auction of 3.5 GHz band licences, Dutch only)

The Telecommunications Act also includes generic provisions that licence-holders must meet in full. These include authorised wiretapping and the application of other powers in accordance with the Code of Criminal Procedure and the Intelligence and Security Services Act 2017.

EUR 174,427,204 (USD 181,7m) was jointly paid by the winners. That is EUR 4,447,204 (USD 4.6m) above the predetermined reserve price of EUR 169,980,000 (USD 177m).

A reserve price is the minimum price for which a frequency licence is sold. This price is consequently taken as the starting price in the first round of the auction.

Calculation method: The reserve price was set as a percentage of the expected value of the spectrum. SEO, an economic research institute, was engaged by the government to develop a calculation methodology. This organisation concluded that reserve price to be used in the 3.5 GHz auction is preferably between 40% and 60% of the estimated value of the spectrum. In SEO's opinion, the range between these percentages best suits the objectives of the auction and the expected competition between bidders.

SEO calculated the value of the spectrum to be auctioned based on the benchmark method. The benchmark consists of the results of auctions of the 3.5 GHz band in 21 European countries: Germany, France, Spain, UK, Finland, Ireland, Luxembourg, Austria, Hungary, Czech Republic, Greece, Sweden, Spain, UK, Bulgaria, Slovenia, Croatia, Norway, Portugal, Slovakia and Belgium. The auction results from Italy (2017) and Bulgaria (2021) have been excluded from the study due to special market conditions and auction fixtures that affected the pricing in these auctions.

(See: Auction regulation and explanatory notes 3,5 GHz-band 2024, non-binding translation)

See also the table in question 3 for the actual prices paid per operator.

See question 1 for the issues with the implementation of the 5G projects.

We are not aware of any decisions regarding non-compliance with 5G concessions' obligations.

The government’s Digital Connectivity Action Plan (Dutch only: Actieplan Digitale Connectiviteit, July 2018), laid down a comprehensive plan for the development of broadband and 5G in July 2018. Following the Action Plan, the Memorandum on Mobile Communications (Dutch only: Nota Mobiele Communicatie) was drawn up in June 2019. The Memorandum on Mobile Communications provides a more specific policy framework on spectrum allocation in the upcoming years, thereby confirming the need for predictability of policy.

Future tenders

No future tenders have been announced after the auction on 1 July 2024. The current licences expire on 31 December 2040.

There is no specific legislation surrounding the roll-out of 5G in the Netherlands. The Telecommunications Act does contain rules on the issuance of frequencies and the sharing of antenna sites.

No 5G network sharing or spectrum sharing agreements are in place yet.

Regulations

The Telecom Code is implemented in the Dutch Telecommunications Act. Chapter 5B of the Telecommunications Act contains rules on co-location and shared use. In addition chapter 5C contains rules on shared use of facilities such as antennas.

Chapter 5B Telecommunications Act provides options for imposing co-location and sharing obligations on providers of public electronic communication networks and associated facilities. These obligations may be imposed by public authorities to protect public interests, namely the protection of the environment, public health or safety, urban planning or planning objectives.

Chapter 5C Telecommunications Act covers shared use, specifically for the public infrastructure required for the construction and operation of short-range wireless access points ('small cells'). These wireless access points are necessary for the deployment of 5G networks. The public infrastructure may consist of public buildings and installations which are part of street furniture and controlled by municipalities. These municipalities are required to publish the conditions for shared use of public infrastructure. In order to guide municipalities in this, the Dutch Government published in 2022 a "Guideline for shared use of municipal infrastructure for the placement of small cells" (Dutch only: Leidraad medegebruik gemeentelijke infrastructuur bij plaatsing small cells).

Guidelines for sharing mobile networks

In February 2021 the Dutch Authority for Consumers & Markets (ACM) published the Guidelines for sharing of mobile networks. With these guidelines, the ACM wishes to provide MNOs clarity about coordination of antenna site acquisition and leasing and renting out spectrum.

In the guidelines, the ACM states that it has no objection if the parties cooperate in the purchase of antenna locations in the operational phase of the roll-out. However, a precondition is that exchange of information, mutual consultations, arrangements, and concerted practices among market participants that work together when acquiring a site for masts can only take place insofar these are necessary for the joint acquisition and design of that site . In order to maintain a level playing field among the relevant parties, the cooperation must be open to all licence holders for public mobile telecommunication services.

With regard to the leasing and letting of spectrum, the ACM believes that in many cases the cap regulation prevents distortion of competition. Leasing frequencies to, for example, an operator of local business networks could lead to new services and increased competition. Since the spectrum auction of mid-2020, the maximum number of frequencies a single operator can use has been limited to 40 percent. The ACM is of the opinion that this limitation will ensure that, in general, competition will not be jeopardized.

The ACM does not view spectrum leasing by MNOs to non-MNOs such as local network or private providers, as restricting competition in advance.

Since the spectrum auction of mid-2020, the maximum number of frequencies a single operator can use has been limited to 40 percent of the total number. The ACM is of the opinion that this limitation will ensure that in general competition will not be jeopardized.

See also question 6: Guidelines for sharing mobile networks.

Possible use of Chinese technology

The government on 5 December 2019 published a Decree on the Integrity and Security of Telecom Networks (Bvit) (Dutch only: Besluit veiligheid en integriteit telecommunicatie). The general administrative order (AMvB) creates a legal basis for excluding suppliers. Using the Bvit, the government will create a ministerial regulation that names the companies to be excluded. Suppliers may be excluded "if it is known or suspected that they intend to misuse or undermine a telecom network or service offered in the Netherlands, or have close ties with or are under the influence of a party with such an intention." The ministerial regulation naming the relevant companies has yet to be published.

A new Act on undesirable influence in telecommunication businesses (Dutch only: Wet ongewenste zeggenschap telecommunicatie), introducing a new investment control regime for the telecom sector, entered into force on 1 October 2020.

The new provisions include a limited list of conducts that could be considered a national security threat. This list, in essence, regards the ability of parties to disrupt or distort domestic telecommunication services.

The investment control regime comes into play when a party directly or indirectly acquires significant influence (overwegende zeggenschap) in a telecom business. Parties that intend to acquire significant influence in a telecom business must notify the Ministry of Economic Affairs and Climate. The Minister will in principle have eight weeks to decide whether or not to allow the transaction. This period can, however, be extended.

In a 2021 Ministry of Foreign Affairs study, several government leaders and experts warned against the rollout of Huawei's 5G networks because it increases Chinese access to digital infrastructure and opportunities for espionage. Following this investigation, the three major Dutch telecom providers KPN, T-Mobile and Vodafone decided to stop using Huawei's 5G equipment in their (core) networks. Huawei confirmed this in an article in the Dutch newspaper Financieel Dagblad in 2021. However, Huawei still supplies equipment such as antennas for the so-called edge network.

In May 2024, Financieel Dagblad reported that a consortium of companies working on a project for the technological successor to 5G communications, 6G, will receive EUR200m (USD 208.4m) from the National Growth Fund only under strict conditions. For instance, equipment may not leave the EU and knowledge gained cannot be shared with non-European parent companies. This is because one of the project participants, the chipmaker Ampleon, owns a Chinese manufacturer since 2022. By setting these conditions, the Ministry of Economic Affairs wants to prevent technology getting into the hands of undesirable parties and also wants to prevent ‘foreign influence’.

Cybersecurity

In October 2021, the Telecommunications security and integrity regulation  (Dutch only: Regeling veiligheid en integriteit telecommunicatie) came into force. The Regulation is based on the Bvit and includes rules on the security measures mobile network operators must take. Some 19 organisational and technical security measures are mentioned in the regulation.

In September 2022, the Ministry of Economic Affairs and the Top Sector ICT supported the National Growth Fund proposal to realise the Future Networks Services (FNS) program. The Dutch cabinet has pledged a conditional investment of EUR 203m (USD 209m) from the National Growth Fund for the development of the next generation of mobile networks: 6G. FNS will receive EUR61m (USD 63.54m) in the first phase and EUR142m (USD 148m) has been earmarked for Phase 2.

The aim of the FNS consortium is to jointly build between 2024 and 2030 a strong Dutch 6G ecosystem. 
In 2024,  the FNS consortium consists of 60 partners, including leading telecom and semiconductor manufacturers, mobile operators, ICT companies and research institutes. These partners will jointly research specific components of 6G: software antennas, AI-driven network software and leading-edge applications. In addition, a nationwide 6G test-bed will be built in which components and applications will be tested.

One of the research projects supported by the FNS consortium is with Odido, which is working to develop new ways to make the use of 6G by consumers and businesses scalable and affordable.

See also Question 8.