Legal provisions of COM(2016)399 - Amendment of Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets

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dossier COM(2016)399 - Amendment of Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets.
document COM(2016)399 EN
date May 17, 2017


Article 1

Regulation (EU) No 531/2012 is amended as follows:

(1)Article 3 is amended as follows:

(a)in paragraph 4, the first subparagraph is replaced by the following:

‘4.   Rules on regulated wholesale roaming charges laid down in Articles 7, 9 and 12 shall apply to the provision of access to all components of wholesale roaming access referred to in paragraph 3, unless both parties to the wholesale roaming agreement explicitly agree that any average wholesale roaming charge resulting from the application of the agreement is not subject to the maximum regulated wholesale roaming charge for the period of validity of the agreement.’;

(b)paragraph 6 is replaced by the following:

‘6.   The reference offer referred to in paragraph 5 shall be sufficiently detailed and shall include all components necessary for wholesale roaming access as referred to in paragraph 3, providing a description of the offerings relevant for direct wholesale roaming access and wholesale roaming resale access, and the associated terms and conditions.

That reference offer may include conditions to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union. Where specified in a reference offer, such conditions shall include the specific measures that the visited network operator may take to prevent permanent roaming or anomalous or abusive use of wholesale roaming access as well as the objective criteria on the basis of which such measures may be taken. Such criteria may refer to aggregate roaming traffic information. They shall not refer to specific information relating to individual traffic of the roaming provider’s customers.

The reference offer may, inter alia, provide that where the visited network operator has reasonable grounds for considering that permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place, the visited network operator may require the roaming provider to provide, without prejudice to Union and national data protection requirements, information allowing the determination of whether a significant share of the roaming provider’s customers is in a situation of permanent roaming or whether there is anomalous or abusive use of wholesale roaming access on the network of the visited operator, such as information on the share of customers for which a risk of anomalous or abusive use of regulated retail roaming services provided at the applicable domestic retail price has been established on the basis of objective indicators in accordance with the detailed rules on the application of the fair use policy adopted pursuant to Article 6d.

The reference offer may, as a last resort, where less stringent measures have failed to address the situation, provide for the possibility to terminate a wholesale roaming agreement where the visited network operator has established that, based on objective criteria, permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place, and has informed the home network operator accordingly.

The visited network operator may terminate the wholesale roaming agreement unilaterally on grounds of permanent roaming or anomalous or abusive use of wholesale roaming access only upon prior authorisation of the visited network operator’s national regulatory authority.

Within three months of receipt of a request by the visited network operator for authorisation to terminate a wholesale roaming agreement, the national regulatory authority of the visited network operator shall, after consulting the national regulatory authority of the home network operator, decide whether to grant or refuse such authorisation and shall inform the Commission accordingly.

The national regulatory authorities of the visited network operator and of the home network operator may each request BEREC to adopt an opinion with regard to the action to be taken in accordance with this Regulation. BEREC shall adopt its opinion within one month of receipt of such a request.

Where BEREC has been consulted, the national regulatory authority of the visited network operator shall await and take the utmost account of BEREC’s opinion before deciding, subject to the three-month deadline referred to in the sixth subparagraph, whether to grant or refuse authorisation for the termination of the wholesale roaming agreement.

The national regulatory authority of the visited network operator shall make information concerning authorisations to terminate wholesale roaming agreements available to the public, subject to business confidentiality.

The fifth to ninth subparagraphs of this paragraph shall be without prejudice to the power of a national regulatory authority to require the immediate cessation of a breach of the obligations set out in this Regulation, pursuant to Article 16(6) and to the right of the visited network operator to apply adequate measures in order to combat fraud.

If necessary, national regulatory authorities shall impose changes to reference offers, including as regards the specific measures that the visited network operator may take to prevent permanent roaming or anomalous or abusive use of wholesale roaming access, and the objective criteria on the basis of which the visited network operator may take such measures, to give effect to obligations laid down in this Article.’;

(2)in Article 7, paragraphs 1 and 2 are replaced by the following:

‘1.   With effect from 15 June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of a regulated roaming call originating on that visited network, inclusive, among others, of origination, transit and termination costs, shall not exceed a safeguard limit of EUR 0,032 per minute. That maximum wholesale charge shall, without prejudice to Article 19, remain at EUR 0,032 until 30 June 2022.

2. The average wholesale charge referred to in paragraph 1 shall apply between any pair of operators and shall be calculated over a 12-month period or any such shorter period as may remain before the end of the period of application of a maximum average wholesale charge, as provided for in paragraph 1 or before 30 June 2022.’;

(3)in Article 9, paragraph 1 is replaced by the following:

‘1.   With effect from 15 June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of a regulated roaming SMS message originating on that visited network shall not exceed a safeguard limit of EUR 0,01 per SMS message and shall, without prejudice to Article 19, remain at EUR 0,01 until 30 June 2022.’;

(4)in Article 12, paragraph 1 is replaced by the following:

‘1.   With effect from 15 June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of regulated data roaming services by means of that visited network shall not exceed a safeguard limit of EUR 7,70 per gigabyte of data transmitted. That maximum wholesale charge shall decrease to EUR 6,00 per gigabyte on 1 January 2018, to EUR 4,50 per gigabyte on 1 January 2019, to EUR 3,50 per gigabyte on 1 January 2020, to EUR 3,00 per gigabyte on 1 January 2021 and to EUR 2,50 per gigabyte on 1 January 2022. It shall, without prejudice to Article 19, remain at EUR 2,50 per gigabyte of data transmitted until 30 June 2022.’;

(5)Article 16 is amended as follows:

(a)paragraph 2 is replaced by the following:

‘2.   National regulatory authorities and, where relevant, BEREC shall make up-to-date information on the application of this Regulation, in particular Articles 6a, 6b, 6c, 6e, 7, 9, and 12, publicly available in a manner that enables interested parties to have easy access to it.’;

(b)the following paragraph is inserted:

‘4a.   Where a national regulatory authority considers information to be confidential in accordance with Union and national rules on business confidentiality, the Commission, BEREC and any other national regulatory authorities concerned shall ensure such confidentiality. Business confidentiality shall not prevent the timely sharing of information between the national regulatory authority, the Commission, BEREC and any other national regulatory authorities concerned for the purposes of reviewing, monitoring and supervising the application of this Regulation.’;

(6)in Article 17(1), the following subparagraph is added:

‘Disputes between visited network operators and other operators on rates applied to inputs necessary for the provision of regulated wholesale roaming services may be referred to the competent national regulatory authority or authorities pursuant to Article 20 or 21 of the Framework Directive. In such a case, the competent national regulatory authority or authorities may consult BEREC about the action to be taken in accordance with the Framework Directive, the Specific Directives or this Regulation to resolve the dispute. Where BEREC has been consulted, the competent national regulatory authority or authorities shall await BEREC’s opinion before taking action to resolve the dispute.’;

(7)Article 19 is amended as follows:

(a)paragraph 3 is replaced by the following:

‘3.   In addition, the Commission shall, by 15 December 2018, submit to the European Parliament and to the Council an interim report summarising the effects of the abolition of retail roaming surcharges, taking into account any relevant BEREC report. The Commission shall subsequently, after consulting BEREC, submit biennial reports to the European Parliament and to the Council, accompanied, if appropriate, by a legislative proposal to amend the maximum wholesale charges for regulated roaming services laid down in this Regulation. The first such report shall be submitted by 15 December 2019.

Those biennial reports shall include, inter alia, an assessment of:

(a)the availability and quality of services, including those which are an alternative to regulated retail voice, SMS and data roaming services, in particular in the light of technological developments;

(b)the degree of competition in both the retail and wholesale roaming markets, in particular the competitive situation of small, independent or newly started operators, and MVNOs, including the competition effects of commercial agreements and the degree of interconnection between operators;

(c)the extent to which the implementation of the structural measures provided for in Articles 3 and 4, and, in particular, on the basis of the information provided by the national regulatory authorities, of the procedure for prior authorisation laid down in Article 3(6), has produced results in the development of competition in the internal market for regulated roaming services;

(d)the evolution of the retail tariff plans available;

(e)changes in data consumption patterns for both domestic and roaming services;

(f)the ability of home network operators to sustain their domestic charging model and the extent to which exceptional retail roaming surcharges have been authorised pursuant to Article 6c;

(g)the ability of visited network operators to recover the efficiently incurred costs of providing regulated wholesale roaming services;

(h)the impact of the application of fair use policies by operators in accordance with Article 6d, including the identification of any inconsistencies in the application and implementation of such fair use policies.’;

(b)paragraph 4 is replaced by the following:

‘4.   In order to assess competitive developments in the Union-wide roaming markets, BEREC shall collect data regularly from national regulatory authorities on developments in retail and wholesale charges for regulated voice, SMS and data roaming services, including wholesale charges applied for balanced and unbalanced roaming traffic respectively. It shall also collect data on the wholesale roaming agreements not subject to the maximum wholesale roaming charges provided for in Articles 7, 9 or 12 and on the implementation of contractual measures at wholesale level aiming to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union.

Those data shall be notified to the Commission at least twice a year. The Commission shall make them public.

On the basis of data collected, BEREC shall report regularly on the evolution of pricing and consumption patterns in the Member States both for domestic and roaming services, the evolution of actual wholesale roaming rates for unbalanced traffic between providers of roaming services, and on the relationship between retail prices, wholesale charges and wholesale costs for roaming services. BEREC shall assess how closely those elements relate to each other.

BEREC shall also collect information annually from national regulatory authorities on transparency and comparability of different tariffs offered by operators to their customers. The Commission shall make those data and findings public.’.

Article 2

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

Points 2, 3 and 4 of Article 1 shall apply from 15 June 2017.

This Regulation shall be binding in its entirety and directly applicable in all Member States.