Explanatory Memorandum to COM(2016)399 - Amendment of Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)399 - Amendment of Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets. |
|---|---|
| source | COM(2016)399  |
| date | 15-06-2016 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
EU regulatory intervention on wholesale and retail roaming markets has been necessary for the last 10 years in order to improve the conditions for the functioning of the internal market for roaming services within the Union. 1
In 2015, the European Parliament and the Council adopted Regulation (EU) 2015/2120, 2 which entered into force on 29 November 2015 and amended Regulation (EU) No 531/2012 (the Roaming Regulation) 3 .
Regulation (EU) 2015/2120 requires retail roaming surcharges to be abolished in the Union from 15 June 2017, subject to fair usage of roaming services and the possibility of applying a sustainability derogation mechanism of the abolition of retail roaming charges. These new rules for retail roaming services in the Union are referred to in this explanatory memorandum as the ‘roam-like-at-home’ (RLAH) rules.
While necessary, the regulation at retail level alone is not sufficient to implement RLAH. For the abolition of retail roaming surcharges to be sustainable throughout the Union and not to distort competitive conditions in domestic markets, national wholesale roaming markets need to be competitive and deliver wholesale roaming prices that enable operators to sustainably offer retail roaming services without any additional charges.
In this regard, the Commission has undertaken a review of the wholesale roaming market, with a view to assessing measures necessary to enable the abolition of retail roaming surcharges, in accordance with Article 19 (1) of the Roaming Regulation 4 .
This analysis of wholesale markets shows that a number of market failures still affect the functioning of these markets (such as their oligopolistic character, combined with the bilateral nature of roaming agreements and the lack of wholesale substitutes). This analysis also shows that the negotiating position of the net senders of roaming traffic, including the weaker market players on wholesale roaming markets, may in fact deteriorate under RLAH if countervailing measures are not applied. This could in turn distort the functioning of the home operators’ domestic markets.
At the same time, any rules on the wholesale market should ensure that visited operators are able to recover the costs incurred in providing wholesale roaming services, including joint and common costs. This should preserve incentives to invest in visited networks and avoid any distortion in domestic competition in the visited markets caused by regulatory arbitrage by operators using roaming access remedies to compete in otherwise competitive domestic visited markets.
This initiative therefore aims to regulate the functioning of national wholesale roaming markets in order to abolish retail roaming surcharges by 15 June 2017 without distorting the domestic visited and home markets.
• Consistency with existing policy provisions
Abolishing retail roaming surcharges is an essential step towards ensuring that telecom rules support the establishment and functioning of a digital single market across the Union. This target was also stressed in the Digital Single Market Strategy set out by the Commission on 6 May 2015. 5 In particular, regulating the wholesale roaming market to establish RLAH in the Union will help achieve the policy objective of ensuring that well-functioning markets deliver access to high-performance wireless broadband infrastructure at affordable prices across the Union.
The co-legislators acknowledged the importance of this objective for the overall digital single market when the RLAH rules were adopted in 2015. However, given the interrelationship between the wholesale and retail roaming markets, the co-legislators made the application of RLAH subject to the adoption of the legislative measures to tackle the issues at wholesale level needed to enable the abolition of the retail roaming surcharges in the Union.
This proposal for a regulation is therefore meant to complete the rules on roaming, in particular with regard to wholesale roaming markets, and enable the application of RLAH rules from 15 June 2017. This is in line with the policy objectives underpinning the Roaming Regulation and the wider Digital Single Market Strategy.
In addition to the legislative measures proposed here, the establishment of RLAH will also be accompanied by implementing acts to be adopted by 15 December 2016 that will provide for detailed rules on the application of the fair use policy and the methodology for assessing the sustainability of the abolition of retail roaming surcharges.
• Consistency with other Union policies
The Digital Single Market Strategy notes that information and communication technology networks provide the backbone for digital products and services which have the potential to support all aspects of our lives and which drive Europe’s economic development. Regulating wholesale roaming markets with a view to enabling the abolition of roaming surcharges therefore helps develop a strong, competitive and dynamic telecoms sector, and helps create the right conditions for developing advanced digital networks and services which support all sectors of the economy, including small and medium-sized enterprises.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
EU regulatory intervention on wholesale roaming markets and on retail roaming markets has been necessary for the last 10 years, on the basis of Article 114 of the Treaty on the Functioning of the European Union (TFEU). Such intervention has aimed to improve the conditions for the functioning of the internal market for roaming services within the Union 6 because national regulatory authorities have acknowledged that they were unable to autonomously tackle this problem due to the cross-border nature of the international roaming market. 7 Following the adoption of Regulation (EU) 2015/2120, it is necessary to adopt appropriate legislative measures to ensure the proper functioning of the wholesale roaming markets. This will enable the provision of RLAH across the Union, as demonstrated by the review of the wholesale roaming market. Measures to regulate wholesale roaming markets pursuant to Article 114 TFEU are therefore also necessary to ensure the functioning of the internal market for roaming services, and in particular to ensure the sustainable provision of RLAH.
• Subsidiarity
A Union approach for regulating wholesale roaming markets would prevent individual Member States taking different approaches to dealing with the problem of high wholesale prices. These different approaches would create obstacles to the internal market because Union roaming services providers would be subject to varying regulatory conditions depending on whether they were wholesale roaming providers (as visited operators) or buyers of wholesale roaming services (as home operators), in spite of roaming retail rules being laid down in the Roaming Regulation.
A common approach at Union level is also needed because individual Member States may have insufficient incentives to regulate national wholesale markets in a way that takes into account the impact their rules may have on the possibility to provide RLAH in other Member States. An initiative at Union level would better take into account the general interest of all Member States. Failure to ensure consistent regulation of wholesale roaming markets at Union level could make it more difficult to provide RLAH, in view of the increased risk of inconsistencies between the wholesale costs incurred in other Member States and the retail revenues.
A common approach at EU level on the contrary could establish the necessary regulatory conditions and ensure that national wholesale markets support the objective of abolishing roaming surcharges in a sustainable way throughout the Union. Finally, a common approach will also take into account the interdependence between rules for retail and wholesale markets in ensuring the smooth functioning of Union roaming markets, as already emphasised by the Court. 8
• Proportionality
The legislator is given broad discretion in ensuring its choices are proportionate. However, the Court clarified, in particular with regard to rules on roaming, that the legislator must base its choices on objective criteria.
In such a case, when assessing the burdens associated with various possible measures, it must be examined whether the objectives pursued are such as to justify even substantial negative economic consequences for certain operators. 9 Consequently, the proposed regulatory measures take into account two elements in accordance with the criteria laid down in Article 19 (1) of the Roaming Regulation, namely the need to ensure that visited operators are able to recover all costs, including joint and common costs, incurred in providing regulated wholesale roaming services and the need 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.
These specific requirements ensure that, in accordance with the proportionality principle, wholesale roaming rules only do what is necessary to achieve the general policy objective. They must not, for example, create negative economic consequences which are not justified in achieving the objective, such as requiring efficient operators to provide services below cost or imposing access rules which visited operators cannot limit to the provision of roaming services.
On the other hand, as highlighted by the Court, compliance with the proportionality principle does not preclude some operators possibly experiencing negative economic consequences in specific cases, such as a reduction in profits which are above the level which would be incurred in fully competitive markets for wholesale roaming activities or losses due to inefficient management of network costs. This is because in such cases these negative consequences are indeed justified and necessary in order to achieve the objective pursued.
• Choice of instrument
The proposed measures are meant to define directly applicable rules for the provision of wholesale roaming services, by amending the corresponding provisions laid down in the Roaming Regulation. For this reason, a regulation is proposed.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS.
• Ex-post evaluations/fitness checks of existing legislation
The Commission has conducted a comprehensive review of the wholesale roaming market in the Union in view of the specific objectives laid down in the Roaming Regulation.
The review shows in particular that wholesale roaming markets do not always function properly. The impact of these market failures on the functioning of wholesale markets results in prices substantially above estimated costs, in particular for data. However, any competitive dynamics that may be observed on the wholesale roaming markets in the Union are essentially linked to existing wholesale roaming regulated charges. These capped charges are often the only ones available to operators with more limited bargaining power (smaller operators or mobile virtual network operators). The review also concludes that it is not possible to anticipate with certainty the impact of the future RLAH obligation, and in particular the expected increase of roaming traffic, on competition on national wholesale roaming markets. On the contrary, with persistent market failures affecting the wholesale roaming markets, the review report does not exclude the risk that, in the absence of countervailing measures, the position of a substantial number of market players would in fact deteriorate under RLAH.
• Stakeholder consultations
The Commission ran a public consultation on the review of national wholesale roaming markets from 29 November 2015 to 18 February 2016. The purpose of the consultation was to gather views on how well roaming markets function in the EU and on the current regulation of national wholesale roaming markets in the Union in the light of obligation provided in the Roaming Regulation to abolish retail roaming surcharges by 15 June 2017. A total of 97 replies were received (92 via the online questionnaire, 3 by email and 2 position papers) from 25 Member States and Norway.
Operators have differing perceptions of how well wholesale roaming markets are functioning. Certain long-standing incumbents and operators with a large footprint, and generally operators with large inbound roaming traffic, argue that there are some competitive dynamics, as shown by wholesale market charges often being below the current regulatory caps. Other operators, in particular smaller ones, mobile virtual network operators and operators with large outbound roaming traffic, argue that the prices available to them on the wholesale market are at or are close to the current caps and are substantially above costs. Views on the effect of RLAH on competition in the wholesale roaming markets are also split between these two groups of operators, the former arguing that RLAH will increase competition, the latter claiming the opposite.
National regulatory authorities and governments express views similar to those of the operators in their countries. Large inbound roaming countries consider that national wholesale roaming markets function well, while large outbound roaming countries take the opposite view. Finally, consumers and consumer associations are cautious in expressing views on wholesale roaming markets since they are not directly involved in these markets.
A large majority of respondents are of the view that EU-wide wholesale roaming charges caps valid in all Member States would be the most appropriate regulatory approach to enabling RLAH in 2017. However, because of different perceptions of how the wholesale roaming market functions, operators are divided on the most appropriate level of such caps to enable sustainable RLAH. Some support confirming current wholesale roaming charges caps while others are urging for a significant reduction in order to enable sustainable RLAH. Moreover, many operators noted the importance of the level of termination rates to roaming traffic in order to enable RLAH for voice calls.
• Collection and use of expertise
In order to gather the evidence needed for the review report, and in addition to the public consultation, in autumn 2015, the Commission and the Body of European Regulators for Electronic Communications (BEREC) collected a comprehensive body of data from operators. 10 The Commission also requested an external study to estimate the cost of providing wholesale roaming services 11 and analysed the qualitative and quantitative data received on wholesale and retail roaming markets. 12
• Impact assessment
The accompanying Impact Assessment SWD 13 was submitted to the Regulatory Scrutiny Board, which provided a positive opinion on 15 April 2016.
Contents
Option 1 - no action at Union level (baseline scenario). RLAH would not be applicable from 15 June 2017 and consumers would continue to pay retail roaming surcharges.
Option 2 - set EU-wide wholesale roaming charges caps at the current level. In this option the current wholesale roaming charges caps laid down in the Roaming Regulation (EUR 0.05 per minute of call made, EUR 0.02 per SMS, EUR 0.05 per MB) would be confirmed in a legislative act, such that RLAH would enter into force as from 15 June 2017.
Option 3 - set EU-wide wholesale roaming charges caps at a lower level than today. Under this option, legislation would reduce the current wholesale roaming charges caps to EUR 0.04 per minutes of call made, EUR 0,01 per SMS and EUR 0,0085 per MB and would also ensure that RLAH enters into force.
Option 4 - set country-specific wholesale roaming charges caps. This option would apply country-specific wholesale roaming charges caps equal to cost estimates in each Member States and based on a common cost model. It would equally enable RLAH from 15 June 2017.
In addition to the cap-based option among options 2 to 4, the Commission also analysed a complementary measure that would give the parties to a wholesale roaming agreement the possibility to negotiate a de-regulated pricing scheme, thus waiving the application of maximum unit-based wholesale roaming charges caps provided in the Roaming Regulation.
On the basis of the analysis carried out in the impact assessment, option 3 is best suited to enabling sustainable RLAH in the Union, including for operators with less bargaining power. It ensures that visited operators can recover their anticipated costs of providing wholesale roaming services and will keep investment incentives in the visited markets. The cap level under option 3 also leaves space for competition below the cap, allowing operators to derive economic advantages from scale, thus enabling them to negotiate lower tariffs.
The analysis also shows that allowing the visited and visiting operators to agree together not to apply wholesale caps but to have an unregulated contract, e.g. capacity-based pricing or any other contractual form, would impact positively on the wholesale roaming market. This could therefore also be permitted as a complementary measure.
On the contrary, option 4 would not significantly improve the sustainability of RLAH at operator level compared to option 3, but would entail greater risks in terms of cost recovery at wholesale level and considerable implementation difficulties.
Finally, option 1 and, to a lesser extent, option 2 would not achieve the objective of ensuring RLAH across the Union. This is because option 1 would not ensure the abolition of retail roaming surcharges: in particular under option 1, the loss of consumer welfare would amount to EUR 1.4 billion. Nor would option 2 address the widespread unsustainability of RLAH for several operators (around 20 % of the sample analysed) and across several Member States (more than 20 % of Member States).
• Fundamental rights
The proposal’s impact on fundamental rights, such as the freedom to conduct a business, has been analysed. In this regard, taking into account that the proposed caps aim to address a market failure and ensure cost recovery, they do not constitute a disproportionate measure in relation to the objective pursued or an intolerable interference impairing on the very substance of this freedom. The possibility to opt out is also meant to increase parties’ freedom to conclude a wholesale agreement.
4. BUDGETARY IMPLICATIONS
The proposal does not have budgetary implications for the EU.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The RLAH will become mandatory from June 2017, subject to the applicability on that date of the legislative act to be adopted following the present proposal. The Commission therefore proposes linking the reporting obligations to the entry into force of RLAH so that any new retail and wholesale rules have a similar period of application.
With regard to the content of the monitoring and evaluation exercise, the current review clause in Article 19(3) of the Roaming Regulation requires the Commission to assess the ‘degree of competition in both the retail and wholesale roaming markets, in particular the competitive situation of small, independent or newly started operators, including the competition effects of commercial agreements and the degree of interconnection between operators’.
This is therefore directly relevant when assessing the effects of the rules on wholesale roaming considered in the context of this initiative. Within this existing reporting obligation, the Commission proposes using the following indicators to assess the measures specific to this initiative:
• the number of sustainability requests;
• total inbound and outbound roaming traffic volumes per quarter;
• average wholesale prices and volumes for unbalanced and balanced traffic;
• the number and main features of capacity-based wholesale contracts; and
• the wholesale contractual measures adopted to tackle large-scale business activities based on permanent roaming or anomalous or abusive use of wholesale roaming access and their effective application.
• Detailed explanation of the specific provisions of the proposal
The proposed Regulation is composed of two articles, one including all the proposed amendments to the Roaming Regulation and another on entry into force.
• Point 1 modifies Article 3 of Roaming Regulation by adding the possibility for the parties to a wholesale agreement to waive the application of maximum wholesale caps provided in Articles 7, 9 and 12 of the Roaming Regulation.
• Points 2 to 4 introduce amendments to the existing provisions setting the maximum average wholesale roaming charges for calls, SMS and data, and modify the applicable values. The amendments also ensure the consistency of the three amended Articles (Articles 7, 9 and 12).
• Point 5 introduces an amendment to Article 17, with a view to ensure consultation of BEREC in disputes concerning inputs necessary for the provision of regulated wholesale roaming services.
• Points 6 to 7 introduce amendments to the review clause in order to ensure consistency following the entry into force of RLAH and to clarify BEREC’s data-gathering powers in view of the review.