Legal provisions of COM(2021)85 - Roaming on public mobile communications networks within the Union (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)85 - Roaming on public mobile communications networks within the Union (recast). |
|---|---|
| document | COM(2021)85  |
| date | April 6, 2022 |
Article 1
Subject matter and scope
1. This Regulation provides for a common approach for ensuring that users of public mobile communications networks, when travelling within the Union, do not pay excessive prices for Union-wide roaming services in comparison with competitive national prices, when making calls and receiving calls, when sending and receiving SMS messages and when using packet switched data communication services.
This Regulation thereby contributes to the smooth functioning of the internal market while achieving a high level of consumer protection, data protection, privacy and trust, fostering competition, independence and transparency in the market and offering incentives for innovation, consumer choice and the integration of persons with disabilities, while fully complying with the Charter of Fundamental Rights of the European Union.
This Regulation sets out the conditions for wholesale access to public mobile communications networks for the purpose of providing regulated roaming services. It applies both to charges levied by network operators at wholesale level and to charges levied by roaming providers at retail level.
2. This Regulation also lays down rules aiming to increase transparency and improving the provision of information on charges to users of roaming services, including users of non-regulated roaming services in third countries. It also increases transparency for users of non-regulated roaming services when they connect to a non-terrestrial public mobile communications network, such as on board vessels or aircraft, where applicable.
3. The maximum charges set out in this Regulation are expressed in euro.
4. Where maximum charges under Articles 8 to 11 are denominated in currencies other than the euro, the values shall be determined in those currencies by applying the average of the reference exchange rates published on 15 January, 15 February and 15 March of the relevant calendar year by the European Central Bank in the Official Journal of the European Union. For the maximum charges, the limits in currencies other than the euro shall be revised annually as from 2023. The annually revised limits in those currencies shall apply from 15 May.
5. This Regulation is without prejudice to the assignment of tasks to national regulatory authorities and other competent authorities under Directive (EU) 2018/1972, including the responsibilities for implementing Part III, Title III of that Directive.
Article 2
Definitions
1. For the purposes of this Regulation, the definitions set out in Article 2 of Directive (EU) 2018/1972 shall apply.
2. In addition to the definitions referred to in paragraph 1, the following definitions shall apply:
| (a) | ‘roaming provider’ means an undertaking that provides a roaming customer with regulated retail roaming services; |
| (b) | ‘domestic provider’ means an undertaking that provides a roaming customer with domestic mobile communications services; |
| (c) | ‘home network’ means a public communications network located within a Member State and used by the roaming provider for the provision of regulated retail roaming services to a roaming customer; |
| (d) | ‘visited network’ means a terrestrial public mobile communications network situated in a Member State other than that of the roaming customer’s domestic provider that permits a roaming customer to make or receive calls, to send or receive SMS messages or to use packet switched data communications, by means of arrangements with the home network operator; |
| (e) | ‘Union-wide roaming’ means the use of a mobile device by a roaming customer to make or receive intra-Union calls, to send or receive intra-Union SMS messages, or to use packet switched data communications, while in a Member State other than that in which the network of the domestic provider is located, by means of arrangements between the home network operator and the visited network operator; |
| (f) | ‘roaming customer’ means a customer of a roaming provider of regulated roaming services, by means of a terrestrial public mobile communications network situated in the Union, whose retail contract or arrangement with that roaming provider permits Union-wide roaming; |
| (g) | ‘regulated roaming call’ means a mobile voice telephony call made by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming customer, originating on a public communications network within the Union and terminating on a visited network; |
| (h) | ‘SMS message’ means a Short Message Service text message, composed principally of alphabetical or numerical characters, or both, capable of being sent between mobile and/or fixed numbers assigned in accordance with national numbering plans; |
| (i) | ‘regulated roaming SMS message’ means an SMS message sent by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming customer, originating on a public communications network within the Union and terminating on a visited network; |
| (j) | ‘regulated data roaming service’ means a roaming service enabling the use of packet switched data communications by a roaming customer by means of his mobile device while it is connected to a visited network, excluding the transmission or receipt of regulated roaming calls or SMS messages, but including the transmission and receipt of MMS messages; |
| (k) | ‘wholesale roaming access’ means direct wholesale roaming access or wholesale roaming resale access; |
| (l) | ‘direct wholesale roaming access’ means the making available of facilities or services, or both, by a mobile network operator to another undertaking, under defined conditions, for the purpose of that other undertaking providing regulated roaming services to roaming customers; |
| (m) | ‘wholesale roaming resale access’ means the provision of roaming services on a wholesale basis by a mobile network operator different from the visited network operator to another undertaking for the purpose of that other undertaking providing regulated roaming services to roaming customers; |
| (n) | ‘domestic retail price’ means a roaming provider’s domestic retail per-unit charge applicable to calls made and SMS messages sent, originating and terminating on different public communications networks within the same Member State, and to data consumed by a customer. |
With regard to the first subparagraph, point (n), in the event that there is no specific domestic retail per-unit charge, the domestic retail price shall be deemed to be the same charging mechanism as that applied to the customer for calls made and SMS messages sent, originating and terminating on different public communications networks within the same Member State, and data consumed in that customer’s Member State.
Article 3
Wholesale roaming access
1. Mobile network operators shall meet all reasonable requests for wholesale roaming access, in particular in a manner that allows the roaming provider to replicate the retail mobile services offered domestically where it is technically feasible to do so on the visited network.
2. Mobile network operators may refuse requests for wholesale roaming access only on the basis of objective criteria, such as technical feasibility and network integrity. Commercial considerations shall not be grounds to refuse requests for wholesale roaming access in order to limit the provision of competing roaming services.
3. Wholesale roaming access shall cover access to all network elements and associated facilities, relevant services, software and information systems, necessary for the provision of regulated roaming services to customers, and shall cover all available network technologies and all available network generations.
4. Rules on regulated wholesale roaming charges laid down in Articles 9, 10 and 11 shall apply to the provision of access to all components of wholesale roaming access referred to in paragraph 3 of this Article, 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.
Without prejudice to the first subparagraph of this paragraph, in the case of wholesale roaming resale access, mobile network operators may charge fair and reasonable prices for components not covered by paragraph 3.
5. Mobile network operators shall publish a reference offer, taking into account the BEREC guidelines referred to in paragraph 8, and shall make it available to an undertaking requesting wholesale roaming access. Mobile network operators shall provide the undertaking requesting access with a draft wholesale roaming agreement, in accordance with this Article, for such access at the latest one month after the initial receipt of the request by the mobile network operator. The wholesale roaming access shall be granted within a reasonable period of time not exceeding three months from the conclusion of the wholesale roaming agreement. Mobile network operators receiving a wholesale roaming access request and undertakings requesting access shall negotiate in good faith.
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. The reference offer shall contain all information necessary to enable the roaming provider to ensure its customers have access, free of charge, to emergency services through emergency communications to the most appropriate PSAP and to enable the transmission, free of charge, of caller location information to the most appropriate PSAP while using roaming services.
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 implementing acts on the application of fair use policies adopted pursuant to Article 7.
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 17(7) 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.
7. Where the undertaking requesting the access desires to enter into commercial negotiations to include components not covered by the reference offer, the mobile network operators shall respond to such a request within a reasonable period of time not exceeding two months from its initial receipt. For the purposes of this paragraph, paragraphs 2 and 5 shall not apply.
8. By 5 October 2022, in order to contribute to the consistent application of this Article, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, update the guidelines for wholesale roaming access laid down in accordance with Article 3(8) of Regulation (EU) No 531/2012.
Article 4
Provision of regulated retail roaming services
1. Roaming providers shall not levy any surcharge in addition to the domestic retail price on roaming customers in any Member State for any regulated roaming calls made or received, for any regulated roaming SMS messages sent or for any regulated data roaming services used, nor shall they levy any general charge to enable the terminal equipment or service to be used abroad, subject to Articles 5 and 6.
2. Roaming providers shall not offer regulated retail roaming services under conditions that are less advantageous than those offered domestically, in particular in terms of the quality of service provided for in the retail contract, where the same generation of mobile communications networks and technologies are available on the visited network.
Mobile communication operators shall avoid unreasonable delays in handovers between networks at internal Union border crossings.
3. In order to contribute to the consistent application of this Article, by 1 January 2023, after consulting stakeholders and in close cooperation with the Commission, BEREC shall update its retail guidelines regarding the implementation of the quality-of-service measures.
Article 5
Fair use
1. Roaming providers may apply in accordance with this Article and the implementing acts adopted pursuant to Article 7 a fair use policy to the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in order to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel.
Any fair use policy shall enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans.
2. Article 8 shall apply to regulated retail roaming services exceeding any limits under any fair use policy.
Article 6
Sustainability mechanism
1. In specific and exceptional circumstances, with a view to ensuring the sustainability of its domestic charging model, where a roaming provider is not able to recover its overall actual and projected costs of providing regulated roaming services in accordance with Articles 4 and 5, from its overall actual and projected revenues from the provision of such services, that roaming provider may apply for authorisation to apply a surcharge. That surcharge shall be applied only to the extent necessary to recover the costs of providing regulated retail roaming services, having regard to the applicable maximum wholesale charges.
2. Where a roaming provider decides to avail itself of paragraph 1 of this Article, it shall without delay submit an application to the national regulatory authority and provide it with all necessary information in accordance with the implementing acts referred to in Article 7. Every 12 months thereafter, the roaming provider shall update that information and submit it to the national regulatory authority.
3. Upon receipt of an application pursuant to paragraph 2, the national regulatory authority shall assess whether the roaming provider has established that it is unable to recover its costs in accordance with paragraph 1, with the effect that the sustainability of its domestic charging model would be undermined. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. The national regulatory authority shall authorise the surcharge where the conditions laid down in paragraph 1 and in this paragraph are met.
4. Within one month of receipt of an application pursuant to paragraph 2, the national regulatory authority shall authorise the surcharge unless the application is manifestly unfounded or provides insufficient information. Where the national regulatory authority considers that the application is manifestly unfounded, or considers that insufficient information has been provided, it shall take a final decision within a further period of two months, after having given the roaming provider the opportunity to be heard, authorising, amending or refusing the surcharge.
Article 7
Implementation of fair use policy and of sustainability mechanism
1. In order to ensure consistent application of Articles 5 and 6, the Commission shall, after consulting BEREC, adopt implementing acts laying down detailed rules on the following:
| (a) | the application of fair use policies; |
| (b) | the methodology for assessing the sustainability of the provision of retail roaming services at domestic prices; and |
| (c) | the application to be submitted by a roaming provider for the purposes of the assessment referred to in point (b). |
The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 20(2).
The Commission shall, after consulting BEREC, review the implementing acts referred to in the first subparagraph periodically in light of market developments.
2. When adopting implementing acts laying down detailed rules on the application of fair use policies, the Commission shall take into account the following:
| (a) | the evolution of pricing and consumption patterns in the Member States; |
| (b) | the degree of convergence of domestic price levels across the Union; |
| (c) | the travelling patterns in the Union; |
| (d) | any observable risks of distortion of competition and investment incentives in domestic and visited markets. |
3. The Commission shall base the implementing acts referred to in paragraph 1, points (b) and (c) on the following:
| (a) | the determination of the overall actual and projected costs of providing regulated retail roaming services by reference to the effective wholesale roaming charges for unbalanced traffic and a reasonable share of the joint and common costs necessary to provide regulated retail roaming services; |
| (b) | the determination of overall actual and projected revenues from the provision of regulated retail roaming services; |
| (c) | the consumption of regulated retail roaming services and the domestic consumption by the roaming provider’s customers; |
| (d) | the level of competition, prices and revenues in the domestic market, and any observable risk that roaming at domestic retail prices would appreciably affect the evolution of such prices. |
4. The national regulatory authority and, where applicable for the exercise of the powers conferred on them by national law transposing Directive (EU) 2018/1972, other competent authorities shall strictly monitor and supervise the application of fair use policies. The national regulatory authority shall strictly monitor and supervise the application of the measures on the sustainability of the provision of retail roaming services at domestic prices, taking utmost account of relevant objective factors specific to the Member State concerned and of relevant objective variations between roaming providers. Without prejudice to the procedure set out in Article 6(3), the national regulatory authority shall, in a timely manner, enforce the requirements of Articles 5 and 6 and the implementing acts provided for in paragraph 2 of this Article. The national regulatory authority may at any time require the roaming provider to amend or discontinue the surcharge if it does not comply with Article 5 or 6.
Other competent authorities shall enforce the requirements of Article 5 and of the implementing acts which are relevant for the exercise of the powers conferred on them by national law transposing Directive (EU) 2018/1972, as the case may be.
The national regulatory authority and, where applicable, other competent authorities shall inform the Commission annually concerning the application of Articles 5 and 6, and of this Article.
5. Implementing Regulation (EU) 2016/2286 shall continue to apply until the date of application of a new implementing act adopted pursuant to paragraph 1 of this Article.
Article 8
Exceptional application of retail surcharges for the consumption of regulated retail roaming services and provision of alternative tariffs
1. Without prejudice to the third subparagraph, where a roaming provider applies a surcharge for the consumption of regulated retail roaming services in excess of any limits under any fair use policy, it shall meet the following requirements, excluding VAT:
| (a) | any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent and regulated data roaming services shall not exceed the maximum wholesale charges provided for in Articles 9(2), 10(1) and 11(1), respectively; |
| (b) | any surcharge applied for regulated roaming calls received shall not exceed the single maximum Union-wide mobile voice termination rates set for that year in accordance with Article 75(1) of Directive (EU) 2018/1972. |
With regard to point (b) of the first subparagraph of this paragraph, where the Commission decides, following its review of the delegated act adopted pursuant to Article 75(1) of Directive (EU) 2018/1972, that setting a Union-wide voice termination rate is no longer necessary and decides not to impose a maximum mobile voice termination rate, any surcharge applied for regulated roaming calls received shall not exceed the rate set by the most recent delegated act adopted pursuant to Article 75 of that Directive.
Roaming providers shall not apply any surcharge to a regulated roaming SMS message received or to a roaming voicemail message received. This shall be without prejudice to other applicable charges such as those for listening to such messages.
Roaming providers shall charge roaming calls made and received on a per second basis. Roaming providers may apply an initial minimum charging period not exceeding 30 seconds to calls made. Roaming providers shall charge their customers for the provision of regulated data roaming services on a per-kilobyte basis, except for MMS messages, which may be charged on a per-unit basis. In such a case, the retail charge which a roaming provider may levy on its roaming customer for the transmission or receipt of a roaming MMS message shall not exceed the maximum retail charge for regulated data roaming services set out in the first subparagraph.
2. Roaming providers may offer, and roaming customers may deliberately choose, a roaming tariff other than one set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article, by virtue of which roaming customers benefit from a different tariff for regulated roaming services than they would have been accorded in the absence of such a choice. The roaming provider shall remind those roaming customers of the nature of the roaming advantages which would thereby be lost.
Without prejudice to the first subparagraph, roaming providers shall apply a tariff set in accordance with Articles 4 and 5, and paragraph 1 of this Article to all existing and new roaming customers automatically.
Any roaming customer may, at any time, request to switch to or from a tariff set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article. When roaming customers deliberately choose to switch from or back to a tariff set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article, any switch shall be made within one working day of receipt of the request, shall be free of charge and shall not entail conditions or restrictions pertaining to elements of the subscriptions other than roaming. Roaming providers may delay a switch until the previous roaming tariff has been effective for a minimum specified period not exceeding two months.
3. Without prejudice to Part III, Title III of Directive (EU) 2018/1972, roaming providers shall ensure that a retail contract which includes any type of regulated retail roaming service specifies the characteristics of that regulated retail roaming service provided, including in particular:
| (a) | the specific tariff plan or tariff plans and, for each tariff plan, the types of services offered, including the volumes of communications; |
| (b) | any restrictions imposed on the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in particular quantified information on how any fair use policy is applied by reference to the main pricing, volume or other parameters of the provided regulated retail roaming service concerned; |
| (c) | clear and comprehensible information on the conditions and the quality of the roaming service when roaming within the Union in accordance with the BEREC guidelines referred to in paragraph 6. |
4. Roaming providers shall ensure that a retail contract which includes any type of regulated retail roaming services provides information about the types of services that may be subject to increased charges when roaming, without prejudice to Article 97 of Directive (EU) 2018/1972.
5. Roaming providers shall publish the information referred to in paragraphs 3 and 4.
In addition, roaming providers shall publish information about reasons why the roaming service is potentially offered under conditions that are less advantageous than those offered domestically. That information shall include factors that can have an impact on the quality of the roaming service to which the roaming customer subscribes, such as network generations and technologies available to the roaming customer in a visited Member State.
6. For the purpose of ensuring the consistent application of this Article, by 1 January 2023, after consulting stakeholders and in close cooperation with the Commission, BEREC shall update its retail roaming guidelines, in particular in regard to the implementation of this Article and the transparency measures referred to in Articles 13, 14 and 15.
Article 9
Wholesale charges for the making of regulated roaming calls
1. 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 the visited network, inclusive, inter alia, of origination, transit and termination costs, shall not exceed a safeguard limit of EUR 0,022 per minute. That maximum wholesale charge shall decrease to EUR 0,019 per minute on 1 January 2025 and shall, without prejudice to Article 21, remain at EUR 0,019 per minute until 30 June 2032.
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 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 2032.
3. The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale roaming revenue received by the total number of wholesale roaming minutes actually used for the provision of wholesale roaming calls within the Union by the relevant operator over the relevant period, aggregated on a per-second basis adjusted to take account of the possibility for the operator of the visited network to apply an initial minimum charging period not exceeding 30 seconds.
Article 10
Wholesale charges for regulated roaming SMS messages
1. 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 the visited network shall not exceed a safeguard limit of EUR 0,004 per SMS message. That maximum wholesale charge shall decrease to EUR 0,003 per SMS message on 1 January 2025, and shall, without prejudice to Article 21, remain at EUR 0,003 until 30 June 2032.
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 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 2032.
3. The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale revenue received by the visited network operator or home network operator for the origination and transmission of regulated roaming SMS messages within the Union in the relevant period by the total number of such SMS messages originated and transmitted on behalf of the relevant roaming provider or home network operator within that period.
4. The visited network operator shall not levy any charge on a roaming customer’s roaming provider or home network operator, separate from the charge referred to in paragraph 1, for the termination of a regulated roaming SMS message sent to a roaming customer while roaming on its visited network.
Article 11
Wholesale charges for regulated data roaming services
1. 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 the visited network shall not exceed a safeguard limit of EUR 2,00 per gigabyte of data transmitted. That maximum wholesale charge shall decrease to EUR 1,80 per gigabyte of data transmitted on 1 January 2023, to EUR 1,55 per gigabyte on 1 January 2024, to EUR 1,30 per gigabyte on 1 January 2025, to EUR 1,10 per gigabyte on 1 January 2026 and to EUR 1,00 per gigabyte by 1 January 2027, after which, without prejudice to Article 21, it shall remain at EUR 1,00 per gigabyte of data transmitted until 30 June 2032.
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 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 2032.
3. The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale revenue received by the visited network or home network operator for the provision of regulated data roaming services in the relevant period by the total number of megabytes of data actually consumed by the provision of those services within that period, aggregated on a per-kilobyte basis on behalf of the relevant roaming provider or home network operator within that period.
Article 12
Wholesale charges for emergency communications
Without prejudice to Articles 9, 10 and 11, the visited network operator shall not levy on the roaming provider any charges related to any type of emergency communications initiated by the roaming customer or to the transmission of caller location information.
Article 13
Transparency of retail conditions for roaming calls and SMS messages
1. To alert roaming customers to the fact that they will be subject to roaming charges when making or receiving a call or when sending an SMS message, each roaming provider shall, except when the customers have notified the roaming provider that they do not require this service, provide the customers, by means of an automatic message, without undue delay and free of charge, when they enter a Member State other than that of their domestic provider, with basic personalised pricing information on the roaming charges, including VAT, that apply to the making and receiving of calls and to the sending of SMS messages by that customer in the visited Member State.
That basic personalised pricing information shall be expressed in the currency of the home bill provided by the customer’s domestic provider and shall include information on:
| (a) | any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and |
| (b) | any surcharge applied in accordance with Article 6. |
Roaming providers shall provide roaming customers, when they enter a Member State other than that of their domestic provider, with information on the potential risk of increased charges due to the use of value-added services by means of an automatic message, without undue delay and free of charge, except where a roaming customer has notified its roaming provider that it does not require this service. Such information shall include a link to access, free of charge, a dedicated webpage providing up-to-date information about the types of services that may be subject to increased costs and, where available, information about numbering ranges for value-added services or other relevant additional information contained in the database established pursuant to Article 16, first paragraph, point (a), in accordance with Article 16, third paragraph. The webpage shall include information about charges applicable to freephone numbers while roaming, if any.
The basic personalised pricing information referred to in the first subparagraph of this paragraph shall also include the free-of-charge number referred to in paragraph 2 for obtaining more detailed information.
On the occasion of each message, customers shall have the opportunity to give notice to the roaming provider, free of charge and in an easy manner, that they do not require the automatic message. Customers who have given notice that they do not require the automatic message shall have the right at any time and free of charge to require the roaming provider to provide the service again.
Roaming providers shall provide customers with disabilities with the basic personalised pricing information referred to in the first subparagraph automatically, by voice call, free of charge, if they so request.
With the exception of the reference to any fair use policy and the surcharge applied in accordance with Article 6, the first, second, fifth and sixth subparagraphs of this paragraph shall also apply both to voice and SMS roaming services used by roaming customers when connecting to national or international non-terrestrial public mobile communications networks, and provided by a roaming provider and to voice and SMS roaming services used by roaming customers travelling outside the Union and provided by a roaming provider.
2. In addition to the information provided for in paragraph 1, customers shall have the right to request and receive, free of charge, and irrespective of their location within the Union, more detailed personalised pricing information on the roaming charges that apply in the visited network to voice calls and SMS messages, and information on the transparency measures applicable by virtue of this Regulation, by means of a mobile voice call or by SMS messages. Such a request shall be to a free-of-charge number designated for this purpose by the roaming provider. Obligations provided for in paragraph 1 shall not apply to devices which do not support SMS functionality.
3. The roaming provider shall send a notification to the roaming customer when the applicable fair use volume of regulated voice, or SMS, roaming services is fully consumed or any usage threshold applied in accordance with Article 6 is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated voice, or SMS, roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.
4. Roaming providers shall provide all customers with full information on applicable roaming charges, when subscriptions are taken out. They shall also provide their roaming customers with updates on applicable roaming charges without undue delay each time there is a change in these charges.
Roaming providers shall send a reminder at reasonable intervals thereafter to all customers who have opted for another tariff.
5. Roaming providers shall make available information to their customers on how to effectively avoid inadvertent roaming in border regions. Roaming providers shall take all reasonable steps to protect their customers from paying roaming charges for inadvertently accessed roaming services while situated in their home Member State.
6. Roaming providers shall take all reasonable steps to protect their customers from paying additional charges for voice calls and SMS messages for inadvertently connecting to non-terrestrial public mobile networks, such as enabling roaming customers to opt out of connecting to non-terrestrial networks. Where such an opt-out mechanism is offered, the roaming customer shall have the right to opt out from the use of non-terrestrial networks at any time, easily and free of charge and to request the reinstatement of the connection to such networks.
Article 14
Transparency and safeguard mechanisms for retail data roaming services
1. Roaming providers shall ensure that their roaming customers, both before and after the conclusion of a retail contract, are kept adequately informed of the charges which apply to their use of regulated data roaming services, in ways which facilitate customers’ understanding of the financial consequences of such use and permit them to monitor and control their expenditure on regulated data roaming services in accordance with paragraphs 2 and 4.
Where appropriate, roaming providers shall inform their customers, before the conclusion of a retail contract and on a regular basis thereafter, of the risk of automatic and uncontrolled data roaming connection and download. Furthermore, roaming providers shall notify to their customers, free of charge and in a clear and easily understandable manner, how to switch off those automatic data roaming connections in order to avoid uncontrolled consumption of data roaming services.
2. An automatic message from the roaming provider shall inform the roaming customer that the latter is using regulated data roaming services, and provide basic personalised tariff information on the charges, in the currency of the home bill provided by the customer’sdomestic provider, applicable to the provision of regulated data roaming services to that roaming customer in the Member State concerned, except where the customer has notified the roaming provider that he does not require that information.
That basic personalised tariff information shall include information on:
| (a) | any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and |
| (b) | any surcharge applied in accordance with Article 6. |
The information shall be delivered directly to the roaming customer’s mobile device, for example by an SMS message, an email, means of a text message or a pop-up window on the mobile device, every time the roaming customer enters a Member State other than that of his domestic provider and initiates for the first time a data roaming service in that particular Member State. It shall be provided free of charge at the moment the roaming customer initiates a regulated data roaming service, by an appropriate means adapted to facilitate its receipt and easy comprehension.
A customer who has notified his roaming provider that he does not require the automatic tariff information shall have the right at any time and free of charge to require the roaming provider to provide this service again.
3. The roaming provider shall send a notification when the applicable fair use volume of regulated data roaming service is fully consumed or any usage threshold applied in accordance with Article 6 is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated data roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.
4. Each roaming provider shall grant to all their roaming customers free of charge access to a facility which provides in a timely manner information on the accumulated consumption expressed in volume or in the currency in which the roaming customer is billed for regulated data roaming services and which guarantees that, without the customer’s explicit consent, the accumulated expenditure for regulated data roaming services over a specified period of use, excluding MMS messages billed on a per-unit basis, does not exceed a specified financial limit. Customers may notify the roaming provider that they do not require access to such a facility.
To that end, the roaming provider shall make available one or more maximum financial limits for specified periods of use, provided that the customer is informed in advance of the corresponding volume amounts. One of those limits (the default financial limit) shall be close to, but not exceed, EUR 50 of outstanding charges per monthly billing period, excluding VAT.
Alternatively, the roaming provider may establish limits expressed in volume, provided that the customer is informed in advance of the corresponding financial amounts. One of those limits (the default volume limit) shall have a corresponding financial amount not exceeding EUR 50 of outstanding charges per monthly billing period, excluding VAT.
In addition, the roaming provider may offer to its roaming customers other limits with different, that is, higher or lower, maximum monthly financial limits.
The default limits referred to in the second and third subparagraphs shall be applicable to all customers who have not opted for another limit.
Each roaming provider shall also ensure that an appropriate notification is sent directly to the roaming customer’s mobile device, for example by an SMS message, an email, means of a text message or a pop-up window on the computer, when the data roaming services have reached 80 % of the agreed financial or volume limit. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.
When the financial or volume limit would otherwise be exceeded, a notification shall be sent to the roaming customer’s mobile device. Where a roaming customer subject to a default financial limit or default volume limit as referred to in the fifth subparagraph consumes more than EUR 100 in a monthly billing period, excluding VAT, an additional notification shall be sent to that roaming customer’s mobile device. Those notifications shall indicate the procedure to be followed if the customer wishes to continue provision of those services and the cost associated with each additional unit to be consumed. If the roaming customer does not respond as prompted in the notification received, the roaming provider shall immediately cease to provide and to charge the roaming customer for regulated data roaming services, unless and until the roaming customer requests the continued or renewed provision of those services.
Whenever a roaming customer requests the removal or reinstatement of a financial or volume limit facility, the change shall be made within one working day of receipt of the request, shall be free of charge, and shall not entail conditions or restrictions pertaining to other elements of the subscription.
5. Paragraphs 2 and 4 shall not apply to machine-to-machine devices that use mobile data communication.
6. Roaming providers shall take all reasonable steps to protect their customers from paying roaming charges for inadvertently accessed roaming services while situated in their home Member State. This shall include informing customers on how to effectively avoid inadvertent roaming in border regions.
7. Roaming providers shall take all reasonable steps to protect their customers from paying additional charges for data services for inadvertently connecting to non-terrestrial public mobile networks, such as enabling roaming customers to opt out of connecting to non-terrestrial networks. Where such an opt-out mechanism is offered, the customer shall have the right to opt out from the use of non-terrestrial networks at any time, easily and free of charge, and to request the reinstatement of the connection to such networks.
8. With the exception of paragraph 2, second subparagraph, paragraph 3 and paragraph 6, and subject to the second and third subparagraphs of this paragraph, this Article shall also apply both to data roaming services used by roaming customers when connecting to national or international non-terrestrial public mobile networks provided by a roaming provider and to data roaming services used by roaming customers travelling outside the Union and provided by a roaming provider.
With regard to the facility referred to in paragraph 4, first subparagraph, the requirements provided in paragraph 4 shall not apply if the visited network operator in the visited country outside the Union does not allow the roaming provider to monitor its customers’ usage on a real-time basis.
In such a case the customer shall be notified by an SMS message when entering such a country, without undue delay and free of charge, that information on accumulated consumption and the guarantee not to exceed a specified financial limit are not available.
Article 15
Transparency with regard to the means of access to emergency services
Roaming providers shall ensure that their roaming customers are kept adequately informed about the means of access to emergency services in the visited Member State.
The roaming provider shall inform the roaming customer, by means of an automatic message, that the latter may access emergency services free of charge by calling the single European emergency number ‘112’. That message shall also provide the roaming customer with a link to access, free of charge, a dedicated webpage, accessible to persons with disabilities, which provides information on alternative means of access to emergency services through emergency communications mandated in the visited Member State. The information shall be delivered to the roaming customer’s mobile device by an SMS message or where necessary by an appropriate means adapted to facilitate its receipt and easy comprehension every time a roaming customer enters a Member State other than that of the roaming customer’s domestic provider. The information shall be provided free of charge.
In Member States where public warning mobile applications are deployed, if a link to that application is reported by the visited Member State in the database established pursuant to Article 16, first paragraph, point (b), roaming providers shall include, in the message referred to in the second paragraph of this Article, the information indicating that public warnings may be received by a public warning mobile application. A link to the public warning mobile application and instructions for its download shall be provided in the dedicated webpage referred to in the second paragraph of this Article.
Article 16
Databases of numbering ranges for value-added services and means of access to emergency services
By 31 December 2022, BEREC shall establish, and subsequently maintain:
| (a) | a single, Union-wide database of numbering ranges for value-added services in each Member State, to be made accessible to operators, national regulatory authorities and, where applicable, to other competent authorities; and |
| (b) | a single, Union-wide database of means of access to emergency services that are mandated in each Member State and that are technically feasible to be used by roaming customers, to be made accessible to operators and national regulatory authorities and, where applicable, to other competent authorities. |
For the purposes of the establishment and maintenance of the databases referred to in the first paragraph, the national regulatory authorities or other competent authorities shall provide the necessary information and the relevant updates to BEREC by electronic means without undue delay.
Without prejudice to Article 13, the databases referred to in the first paragraph shall enable national regulatory authorities and other competent authorities, on an optional basis, to provide additional information.
Article 17
Supervision and enforcement
1. National regulatory authorities and, where applicable, other competent authorities shall monitor and supervise compliance with this Regulation within their territory.
National regulatory authorities shall strictly monitor and supervise roaming providers availing themselves of Articles 5 and 6.
Where applicable, other competent authorities shall monitor and supervise compliance by the operators with the obligations laid down in this Regulation which are relevant for the exercise of the powers conferred on them by national law transposing Directive (EU) 2018/1972.
2. National regulatory authorities and, where applicable, other competent authorities and BEREC shall make up-to-date information on the application of this Regulation, in particular Articles 4, 5, 6 and 8 to 11, publicly available in a manner that enables interested parties to have easy access to it.
3. National regulatory authorities and, where applicable, other competent authorities shall, in accordance with their respective competences, in preparation for the review provided for in Article 21, monitor developments in wholesale and retail charges for the provision to roaming customers of voice and data communications services, including SMS and MMS, including in the outermost regions referred to in Article 349 of the Treaty on the Functioning of the European Union. National regulatory authorities and, where applicable, other competent authorities shall also be alert to the particular case of inadvertent roaming in the border regions of neighbouring Member States and monitor whether traffic-steering techniques are used to the disadvantage of customers.
National regulatory authorities and, where applicable, other competent authorities shall monitor and collect information on inadvertent roaming and take appropriate measures.
4. National regulatory authorities and, where applicable, other competent authorities shall have the power to require undertakings subject to obligations under this Regulation to supply all information relevant to the implementation and enforcement of this Regulation. Those undertakings shall provide such information promptly on request and in accordance with time limits and level of detail required by the national regulatory authority and, where applicable, other competent authorities.
5. Where a national regulatory authority or other competent authorities considers information to be confidential in accordance with Union and national rules on business confidentiality, the Commission, BEREC and any other national regulatory authority or other competent authority concerned shall ensure such confidentiality. Business confidentiality shall not prevent the timely sharing of information between the national regulatory authority or other competent authorities, the Commission, BEREC and any other national regulatory authorities or other competent authorities concerned, for the purposes of reviewing, monitoring and supervising the application of this Regulation.
6. National regulatory authorities shall be empowered to intervene on their own initiative in order to ensure compliance with this Regulation. National regulatory authorities or other competent authorities in the situations referred to under Article 61(2), points (b) and (c), of Directive (EU) 2018/1972, shall, where necessary, make use of the powers under Article 61 of that Directive to ensure adequate access and interconnection in order to guarantee the end-to-end connectivity and interoperability of roaming services, for example where customers are unable to exchange regulated roaming SMS messages with customers of a terrestrial public mobile communications network in another Member State as a result of the absence of a wholesale roaming agreement enabling the delivery of those messages.
7. Where a national regulatory authority or, where applicable for the exercise of the powers conferred on them by national law transposing Directive (EU) 2018/1972, other competent authorities find that a breach of the obligations set out in this Regulation has occurred, it shall have the power to require the immediate cessation of such a breach.
Article 18
Dispute resolution
1. In the event of a dispute in connection with the obligations laid down in this Regulation between undertakings providing electronic communications networks or services in a Member State, the dispute resolution procedures laid down in Articles 26 and 27 of Directive (EU) 2018/1972 shall apply.
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 Articles 26 and 27 of the Directive (EU) 2018/1972. The competent national regulatory authority or authorities shall notify any cross-border dispute to BEREC in order to bring about a consistent resolution of 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.
2. In the event of an unresolved dispute involving a consumer or end-user and concerning an issue falling within the scope of this Regulation, the Member States shall ensure that the out-of-court dispute resolution procedures laid down in Article 25 of Directive (EU) 2018/1972 are available.
Article 19
Penalties
Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify the Commission of those rules and measures and of any subsequent amendment affecting them without delay.
Article 20
Committee procedure
1. The Commission shall be assisted by the Communications Committee established by Article 118(1) of Directive (EU) 2018/1972. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 21
Review
1. The Commission shall, after consulting BEREC, submit two reports to the European Parliament and to the Council, followed, if appropriate, by a legislative proposal to amend this Regulation.
The first such report shall be submitted by 30 June 2025 and the second by 30 June 2029.
The reports shall include, inter alia, an assessment of:
| (a) | the impact of the roll-out and implementation of next generation mobile communications networks and technologies on the roaming market; |
| (b) | the effectiveness of the quality of service obligations with regard to roaming customers, the availability and quality of services, including those which are an alternative to regulated retail voice, SMS and data roaming services, in particular in light of technological developments and of the access to the different network technologies and generations; |
| (c) | the degree of competition in both the retail and wholesale roaming markets, in particular the actual wholesale rates paid by the operators and the competitive situation of small, independent or newly started operators, and MVNOs, including the competition effects of commercial wholesale roaming agreements, of traffic traded on trading platforms and similar instruments and the degree of interconnection between operators; |
| (d) | the evolution of the machine-to-machine roaming, including roaming on IoT devices; |
| (e) | the extent to which the implementation of the measures provided for in Article 3, 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; |
| (f) | the evolution of the retail tariff plans available; |
| (g) | changes in data consumption patterns for both domestic and roaming services, including changes in travel patterns of European end-users caused by circumstances such as pandemics, for example COVID-19, or natural disasters; |
| (h) | 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 6; |
| (i) | the ability of visited network operators to recover the efficiently incurred costs of providing regulated wholesale roaming services, taking into account the latest information on network deployment, as well as developments in technical capabilities, pricing models and constraints of the networks, for instance the possibility of including cost model calculations based on capacity rather than consumption; |
| (j) | the impact of the application of fair use policies by operators, including on consumption by end-users, in accordance with the implementing acts adopted pursuant to Article 7, including the identification of any inconsistencies in the application and implementation of such fair use policies; as well as the effectiveness and proportionality of the general application of such policies; |
| (k) | the extent to which roaming customers and operators face problems in relation to value-added services and the implementation of the database of numbering ranges for value-added services established pursuant to Article 16, first paragraph, point (a); |
| (l) | the application of the measures of this Regulation and complaints related to the use of emergency communications while roaming; |
| (m) | complaints related to inadvertent roaming. |
2. In order to assess competitive developments in 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, on the impact of the roll-out and implementation of next generation mobile communications networks and technologies on the roaming market, on the use of trading platforms and similar instruments, on the development of machine-to-machine roaming and IoT devices, and on the extent to which wholesale roaming agreements cover quality of service and give access to different network technologies and generations. Where applicable, the national regulatory authorities may provide such data in coordination with other competent authorities.
BEREC shall also collect data regularly from national regulatory authorities on the application of fair use policies by operators, the developments of domestic-only tariffs, the application of the sustainability mechanisms and complaints on roaming and compliance with the quality of service obligations. Where appropriate, national regulatory authorities shall coordinate with and collect such data from other competent authorities. BEREC shall regularly collect and provide additional information on transparency, on the application of measures on emergency communication, on value-added services and on roaming on non-terrestrial public mobile communications networks.
BEREC shall also collect data on the wholesale roaming agreements not subject to the maximum wholesale roaming charges provided for in Article 9, 10 or 11 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.
The data collected by BEREC pursuant to this paragraph shall be notified to the Commission at least once a year. The Commission shall make them public.
By 30 June 2027, the Commission shall submit an interim report to the European Parliament and to the Council, based on the data collected by BEREC pursuant to this paragraph, followed, if appropriate, by a legislative proposal to amend this Regulation.
On the basis of data collected pursuant to this paragraph, 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.
Article 22
Notification requirements
Member States shall notify to the Commission the identity of the national regulatory authorities and, where relevant, of other competent authorities responsible for carrying out tasks under this Regulation.
Article 23
Repeal
Regulation (EU) No 531/2012 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Article 24
Entry into force and expiry
This Regulation shall enter into force on 1 July 2022.
However, the obligations of roaming providers to provide information about numbering ranges for value added services as referred to in Article 13(1), third subparagraph, and information about alternative means of access to emergency services as referred to in Article 15, second paragraph with regard to the information in the databases referred to in Article 16 shall apply from 1 June 2023.
This Regulation shall expire on 30 June 2032.
This Regulation shall be binding in its entirety and directly applicable in all Member States.