Explanatory Memorandum to 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). |
|---|---|
| source | COM(2021)85  |
| date | 24-02-2021 |
1. CONTEXT OF THE PROPOSAL
Reasons for and objectives of the proposal
Contents
- Introduction
- Background
- The impact assessment accompanying this proposal was submitted to the Regulatory Scrutiny Board, which issued a positive opinion on 20 November 2020
- The proposal includes the following measures to simplify the rules and reduce the burden:
- Article 9 regulates the exceptional application of retail surcharges for regulated retail roaming services and the provision of alternative tariffs. This article amends the previous regulation by
1 Regulation (EU) No 531/2012 expires on 30 June 2022, therefore the aim of this proposal is to extend it, while adjusting the maximum wholesale charges to ensure sustainability of the provision of retail roaming services at domestic prices, introducing new measures to increase transparency and ensuring a genuine ‘roam-like-at-home’ experience in terms of quality of service and access to emergency services while roaming.
2 As Regulation (EU) No 531/2012 has been amended several times, the purpose of this proposal is to recast the Regulation to improve clarity and replace the multiple amending acts it contains.
EU regulatory intervention on wholesale and retail roaming markets has been necessary for the last 14 years in order to improve the conditions for the functioning of the internal market for roaming services within the Union.
3 4 The EU first adopted provisions to bring in a joint approach to regulating roaming on public mobile communications networks in the EU when it adopted Regulation (EC) No 717/2007. In 2009, following a first review of these provisions, their duration was extended and the scope was widened. Following a futher review of the rules, Regulation (EU) No 531/2012 was then adopted. That Regulation amended the previous rules by lowering roaming prices for calls and SMS and capping roaming prices for data across the EU.
5 Regulation (EU) 2015/2120 amended Regulation (EU) No 531/2012 and required retail roaming surcharges to be abolished in the EU from 15 June 2017, subject to fair use of roaming services and the option to apply a sustainability derogation mechanism. These rules for retail roaming services in the Union are referred to in this explanatory memorandum as the ‘roam-like-at-home’ rules (or ‘RLAH’).
Although necessary, 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 to avoid distorting competion in domestic markets, national wholesale roaming markets need incentives to act in a competitive manner and provide wholesale roaming prices that enable operators to offer sustainable retail roaming services without additional charges.
6 7 To this end, the Commission carried out a review of the wholesale roaming market to assess the need for measures to enable retail roaming surcharges to be abolished. It adopted its report on the review of the wholesale roaming market on 15 June 2016. Following the review, the Commission adopted on 17 May 2017 Regulation (EU) 2017/920 amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets with the aim of abolishing retail roaming surcharges by 15 June 2017 without distorting the domestic visited and home markets.
8 On 29 November 2019, the Commission published its first full review of the roaming market (the ‘Commission Review Report’), showing that travellers across the EU have benefited significantly from the end of roaming charges in June 2017. The use of mobile services (data, voice, SMS) while travelling in the EU has increased rapidly and massively, confirming the positive impact of roaming rules.
At wholesale level, the sharp reduction in price caps has contributed to a further reduction in wholesale roaming prices, often significantly below the level of regulated caps, which in turn makes the end of roaming charges sustainable for almost all roaming providers.
Although the Commission Review Report confirms that, on one hand the ‘roam-like-at-home’ rules have been a success and that, overall, the roaming market works well under such rules, on the other it concludes that, despite signs of some competition dynamics in both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed and are not likely to change in the foreseeable future. Therefore the current retail and wholesale regulation is still necessary and cannot be lifted.
Reasons and objective of the proposal, the main amendments and the provisions that remain unchanged.
The aim of this proposal is to extend the rules regulating the EU-wide roaming market beyond 2022, while amending the maximum wholesale charges, bringing in new measures to ensure a genuine RLAH experience while roaming, and repealing other measures that appear no longer necessary.
9 The proposed amendments to the rules are described in detail below.
In essence, the aim of the main amendments proposed is to ensure operators can provide RLAH and recover costs in a sustainable manner at wholesale level. The proposal is to set EU-wide wholesale roaming maximum charges for calls made, SMS messages and data at lower levels than those valid until 30 June 2022. To reconcile the above two objectives of ensuring sustainability and cost recovery, the proposal sets out a two-step glide path for the maximum wholesale charges applicable for data, voice and SMS. In line with the policy choice made in Regulation (EU) No 531/2012, the new maximum wholesale charges should act as a safeguard level and should ensure that operators can recover their costs. They should also enable the widespread and sustainable provision of RLAH, while leaving a margin for commercial negotiations between operators. By contrast, the provisions remain largely unchanged on fair use policy and sustainability (Article 6b and 6c of Regulation (EU) No 531/2012) as does the related implementing act (Commission Implementing Regulation (EU) 2016/2286), that will continue to apply, given that the safeguard rules at retail level continue to work adequately. However, reducing the maximum wholesale charges applicable would also improve the situation for end users, since it affects price components that are calculated depending on their level, in particular the ceiling for surcharges under the fair use policy mechanism, the sustainability derogations and the data allowance of the fair use policy on open data bundles and pre-paid limits.
The proposal also brings in new measures on transparency, quality of service and access to emergency communications.
In particular, it includes amendments that aim to ensure a genuine RLAH for end users and to facilitate innovation and access to networks, while establishing a future-proof regulatory framework for consumers and operators. Specifically, the proposal aims to:
(i)Increase transparency at retail level regarding (a) quality of service (by bringing in an obligation for operators to clarify in their contracts with customers the quality of service that they can reasonably expect when roaming in the EU); (b) communications on value-added services (by obliging operators to provide, in their contracts with customers, information on the type of services that may be subject to higher charges and similar information in the ‘welcome SMS’); (c) access to emergency services (by bringing in an obligation for operators to include information on the different possibilities to access emergency services when roaming in the ‘welcome SMS’).
(ii)Give roaming customers a genuine RLAH experience in terms of quality of service (by obliging roaming providers to ensure, when technically feasible, that the roaming services are provided under the same conditions as if they were consumed domestically and mobile network operators to provide access to all available network technologies and generations).
(iii)Increase the level of transparency at wholesale level with regard to value-added-service numbering ranges by creating a centralised EU database for value-added-service numbering ranges. The aim of the database is to provide a tool for transparency enabling NRAs and operators to have direct access to information on which numbering ranges can generate higher costs in the Member States.
(iv)Ensure free-of-charge access to emergency services to customers while roaming by taking specific measures at wholesale level such as (a) the obligation for operators to provide in the wholesale agreement all regulatory and technical information needed to implement free-of-charge access to emergency services and free-of-charge caller location; (b) the obligation not to levy on the roaming provider any charge related to emergency communications and transmission of caller location information.
10 Lastly, the proposal lifts regulatory obligations where they are no longer needed and includes several amendments that aim to simplify and reduce the regulatory burden.
• Consistency with existing provisions in the policy area
Abolishing retail roaming surcharges marked an essential step towards creating an EU-wide single market, and to making it function properly.
In particular, regulating the roaming market to establish RLAH throughout the EU helped achieve the policy objective of ensuring that well-functioning markets provide access for European consumers to high-performance wireless broadband infrastructure at affordable prices across the EU.
The co-legislators acknowledged the importance of this objective for the overall digital single market when the RLAH rules were adopted in 2015.
Given the above, it is necessary to avoid undermining the achievements made when Regulation (EU) No 531/2012 expires on 30 June 2022. Therefore, the proposal to review the existing roaming rules was included in the 2020 Commission Work Programme under the headline ambition ‘A Europe fit for the Digital Age’ and the specific objective ‘Digital for consumers’.
11 The proposal complements Directive (EU) 2018/1972 establishing the European Electronic Communications Code (EECC), which was to be transposed by the Member States by 21 December 2020. In particular, while promoting the sustainable provision of RLAH, cost recovery and maintaining the incentives to invest in visited networks, the proposal complements EECC’s measures that enable high connectivity and 5G deployment for the benefit of all Europeans, while promoting infrastructure competition and enabling operators to secure a return on investment. By promoting a genuine RLAH experience for end users, the proposal complements EECC provisions that provide effective consumer protection in the context of e-communications, boosting their choice by increasing the level of transparency of information and specific rules on maximum contract duration and number portability. The EECC also aims to provide end users with free-of-charge access to emergency services through emergency communications and to ensure that caller location information is available.
The Commission has set as one of its main objectives to respond to the increased needs of the public and of business for connectivity 12 and to benefit from the digital transformation to strengthen the social and economic resilience of the EU and the Member States, their sustainable growth potential and job creation. Gigabit connectivity, powered with secure fibre and 5G infrastructures, is vital to tap Europe’s potential for digital growth. These political objectives, included in the ‘Shaping Europe’s Digital Future’ communication, are also set out in the EU strategy ‘Towards a European Gigabit Society’, in the 5G action plan for Europe and confirmed with the connectivity flagship policy included in the annual sustainable growth strategy 2021 13 and linked to the Recovery and Resilience Facility 14 . To this end, this proposal enables the seamless use of these infrastructures across borders.
• Consistency with other Union policies
The aim of the EU roaming rules is to contribute to the smooth functioning of the internal market to achieve a high level of consumer protection and maintain competition among mobile network operators. Although this proposal addresses the regulatory issues that arise from the specific details of EU roaming rules, it also complements other EU policies and laws in several areas.
In particular, the proposal contributes to the creation of a ‘Europe Fit for the Digital Age’ and to the ambition to make the most out of the digital transition to give people greater opportunities to connect, communicate and do business.
15 16 The proposal has the objective to ensure that barriers to the single market that were removed when retail roaming surcharges were abolished will not be reinstated. The ‘New Industrial Strategy for Europe’ underlines that a strong, integrated single market is both a springboard and a pre-condition for a competitive EU industry. To make the single market work for all, EU law puts in place common rules to remove barriers, facilitate the circulation of goods and services across the EU, and protect consumers.
17 18 For example, the proposal complements the cross-border portability of online content. Thanks to these two initatives, Europeans are now able to travel in the EU without worrying about mobile roaming charges or losing access to music, games, films, entertainment programmes or sports events for which they have already paid. The proposal also facilitates access to European digital culture, learning tools, work platforms and health applications.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for this proposal is Article 114. This is the legal basis for measures adopted under the ordinary legislative procedure that aim to establish or improve the functioning of the internal market, as provided for in Article 26 TFEU.
According to the case-law of the European Court of Justice, the object of measures adopted under Article 114 (ex-Article 95 TEC) must be to improve the conditions for the establishment and functioning of the internal market 19 . The EU legislature may use this legal basis particularly where there are differences between national rules that obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market 20 or cause significant distortions of competition 21 .
• Subsidiarity
For the rules on EU roaming, as part of the internal market policy area and in line with Article 4 (2) of the TFEU, the EU has shared competence with the Member States.
In this sector, only action by the EU is effective as the problems could not be solved at national, regional or local level. EU action is therefore essential to improve the single market for electronic communications.
22 As observed by the Advocate General in the landmark case C-58/08 Vodafone, the differences in price between calls made within one’s own Member State and those made while roaming could reasonably be regarded as discouraging the use of cross-border services such as roaming. Such discouragement of cross-border activities has the potential to impede the establishment of an internal market in which free movement of goods, services and capital is ensured. Indeed, there is no clearer cross-border activity in the mobile telecoms sector than roaming itself.
23 The fact that services are cross-border justifies action taken at EU level because Member States cannot by themselves address the issue effectively and national regulatory authorities have been unable to autonomously tackle the problems.
24 In its judgment in the above case C-58/08 Vodafone, the Court of Justice found that, in the past, “the high level of retail charges had been regarded as a persistent problem by NRAs, public authorities and consumer protection associations throughout the Community and that attempts to solve the problem using the existing legal framework had not had the effect of lowering charges”.
25 The proposal includes measures both at wholesale and at retail level. In the above judgment, the Court of Justice also found that wholesale regulation of the roaming market complies with the subsidiarity (and proportionality) principles given that “the interdependence of retail and wholesale charges for roaming services is considerable, so that any measure seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of Community-wide roaming services would have been liable to disrupt the smooth functioning of the Community-wide roaming market”.
26 27 Similarly, the issues addressed by the new measures included in the proposal are also strictly linked to and affected by the cross-border character of roaming. Therefore they cannot be adequately addressed by the Member States autonomously and action at EU level would be more effective than action at national level. As a matter of fact, the underlying problems that the proposal seeks to remedy can potentially result in either discouraging the use of roaming, creating barriers in the use of mobile services and applications while travelling in the single market, or, in general, disrupting the smooth functioning of the EU-wide roaming market. According to the applicable case-law, this is an objective that must be pursued and is best achieved at EU level.
• Proportionality
The objective of the EU rules on roaming is to bring in a joint approach to ensure that users of public mobile communications networks, when travelling within the EU, do not pay excessive prices for EU-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 contributes to the smooth functioning of the internal market while achieving a high level of consumer protection, fostering competition and transparency in the market and offering both incentives for innovation and consumer choice. In addition, this proposal brings in additional measures that aim to remove persisting obstacles to a genuine ‘roam-like-at-home’ experience.
Since these objectives cannot be sufficiently achieved by the Member States in a secure, harmonised and timely manner and can therefore be better achieved at EU level, the EU may adopt measures, in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality, also set out in that Article, the proposed regulation does not go beyond what is necessary to achieve those objectives.
In particular, the regulation meets the proportionality criterion also because it is provided for a limited time period, as it has an expiry date (30 June 2032, i.e. an overall duration of 10 years).
The 10-year duration of the proposed new rules was chosen considering that a decade is typical duration to widely roll out any new generation of mobile communication and develop new business models. Looking ahead, the Commission does not expect that the competition would change significantly on the market in the following 10 years 28 . The aim of the 10-year duration is also to provide certainty in the market and minimise regulatory burden.
The proposal also includes a flexible approach to revising the maximum wholesale charges, which, if necessary, will be carried out by adopting a delegated act. This would ensure that one of the key aspects of the functioning of the roaming market can be revised on the basis of reliable and updated data. In the case C-58/08 Vodafone, the Court of Justice of the EU recognised that, in the light of the importance of the objective of consumer protection within the context of Article 95(3) EC (now Article 114 TFEU), intervention that is limited in time in a market that is subject to competition, which makes it possible, in the immediate future, to protect consumers against excessive prices, such as that at issue, even if it might have negative economic consequences for certain operators, is proportionate to the aim pursued. Regulatory obligations on wholesale and retail charges for voice, SMS and data roaming services should be maintained to safeguard consumers as long as competition at the retail or wholesale level is not fully developed.
29 The impact assessment accompanying this proposal discusses proportionality in detail in Section 7.3 - Coherence and proportionality.
• Choice of the instrument
As mentioned above, the proposed new regulation is a recast of Regulation (EU) No 531/2012 that supersedes the multiple acts it contains and makes further amendments. It therefore takes the same legislative form. The review is an opportunity to simplify the current structure and content of Regulation (EU) No 531/2012 with a view to improving coherence and consistency with the regulatory fitness objective.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
30 The issues addressed by this proposal were identified in the 2019 Commission Review Report. It draws on a broad range of data to evaluate how Regulation (EU) No 531/2012 has performed and how the roaming market functioned after the RLAH rules came into force.
31 32 In addition, the backward-looking questions of the public consultation which was held in 2020, and the findings of the joint online surveys by the Commission and the Body of European Regulators for Electronic Communications (BEREC) (in 2018, 2019 and 2020), both complete and complement the conclusions of the Commission Review Report.
The Commission Review Report confirms that, overall, the roaming market functions well under the ‘RLAH’ rules and that the rules have been a success. The report concludes that, despite signs of some competition dynamics on both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed, and are not likely to change in the foreseeable future to warrant lifting the retail or wholesale regulation of the roaming market.
In addition, the Commission Review Report’s findings and other evidence collected as part of the review identified unresolved issues in roaming services, in terms of quality of service, communications to value-added services and access to emergency services. This proposal tackles all these issues in the new measures it proposes.
• Stakeholder consultations
This proposal and the accompanying impact assessment were underpinned by a broad consultation of stakeholders. In particular, views were collected from the public and from consumer associations, national regulatory authorities (NRAs), BEREC, mobile network operators (MNOs), mobile virtual network operators (MVNOs), business stakeholders (including SMEs), government authorities, industry associations and from other stakeholders.
The Commission ran a 12-week public consultation from 19 June to 11 September 2020. The purpose of the consultation was to collect views i on retail roaming services, in particular on the impact of the potential introduction of clarifications and measures related to quality of service, value-added services and emergency communications in a roaming scenario; (2) on the provision of wholesale roaming services; (3) on the administrative burden linked to Regulation (EU) No 531/2012 and the impact of potential simplification measures. A total of 175 replies were received via the online questionnaire.
Other consultation activities were organised along the following streams, described overleaf under “Collection and use of expertise”:
1. The publication of the inception impact assessment to collect feedback for four weeks 33 .
2. Joint Commission/BEREC online surveys. Market input was collected through annual online surveys of MNOs, MVNOs and NRAs. In June 2018 and March 2019, the surveys collected information on implementation of the fair use policy, the sustainability derogations and other aspects linked to implementing the EU roaming rules. In March 2020, the survey covered other aspects such as quality of service, value-added services, emergency communications, technology changes and machine-to-machine, cost of implementation and administrative burden.
3. BEREC was consulted and provided extensive input, including on forward-looking aspects. Of particular note are BEREC’s formal opinion on the functioning of the roaming market 34 , the supplementary cost analysis 35 , and the additional input to the impact assessment on the Commission’s request 36 . In addition, the Commission took into account BEREC’s consultations and market monitoring reports: the BEREC semi-annual international roaming benchmark reports 37 , based on a dedicated data collection and the BEREC annual report on the transparency and comparability of roaming tariffs 38 .
4. Targeted interviews on developments of the roaming market as part of the Commission’s study entitled ‘Technological developments and roaming’ 39 . The contractor held several interviews with operators involved in the global connectivity value chain and carried out a targeted online survey on the potential impact of technological change on the roaming market.
5. Flash Eurobarometer Survey 40 , conducted one year after abolishing the roaming charges. It included questions on the use of roaming when travelling in the EU, on the level of awareness among customers about the abolition of roaming charges, the perceived benefits, the perceived costs of roaming among non-travellers and the use of mobile services in other EU countries.
The information and views gathered were taken into account in drafting the impact assessment accompanying this proposal. The data was used to evaluate Regulation (EU) No 531/2012, assess the unresolved problems in a roaming scenario and develop the policy options presented in the impact assessment.
The public consultation confirmed the benefits that the Roaming Regulation aims to bring and the continued need for EU rules on roaming for EU consumers and businesses. The large majority of respondents to the public consultation, in all groups, replied that the EU rules on roaming had significantly promoted the interests of consumers and businesses in the EU/EEA.
• Collection and use of expertise
In addition to the above forms of consultation, the Commission analysed independently the data collected by BEREC and carried out the following analysis using that data:
1. The report on the review of the roaming market, and the accompanying Staff Working Document 41 (referred to as the Commission Review Report), collected and presented evidence on how Regulation (EU) No 531/2012 has performed against the expected objectives;
2. The interim report to the European Parliament and the Council on implementation of the ‘roam-like-at-home’ rules over the first 18 months 42 ;
3. The Staff Working Document on the findings of the review of the rules on fair use policy and the sustainability derogation 43 .
The Commission also drew on other external expertise in the following work streams:
1. Cost model for assessing the costs of providing wholesale roaming services in the EEA 44 ;
2. Commission study on Technological Developments and Roaming 45 conducted between December 2018 and June 2019;
3. The Commission’s Joint Research Centre (JRC) analysis. The JRC provided extensive support in preparing the impact assessment, in particular by (a) developing the sustainability model 46 and the counterfactual analysis to assess consumer benefits and by (b) measuring the quality of roaming services, through field tests 47 .
• Impact assessments
The impact assessment accompanying this proposal was submitted to the Regulatory Scrutiny Board, which issued a positive opinion on 20 November 2020
Four options were considered:
Option 1 – Baseline. This would entail extending beyond 2022 the rules of Regulation (EU) No 531/2012, maintaining its provisions unchanged, both at retail and at wholesale level. In particular, the level of maximum wholesale charges applicable on 30 June 2022 would continue to apply and the two safeguard mechanisms (fair use and sustainability) would also continue. No measures would be taken to remedy the unresolved problems regarding quality of service, value-added services or access to emergency services while roaming.
Option 2 – Continuity with increased transparency. This would entail extending beyond 2022 the rules of Regulation (EU) No 531/2012 with clarifications, and taking additional measures to increase transparency and to strengthen competition. The maximum wholesale charges applicable on 30 June 2022 would continue to apply. To ensure a genuine ‘roam-like-at-home’ experience, it would involve taking measures to increase transparency on the quality of service, value-added services and access to emergency services. Measures would also be taken to ensure compliance with the obligation to provide technology-neutral access (in terms of network technology and generations) for wholesale roaming services and it would achieve a minimum level of simplification and reduction of the administrative burden.
Option 3 – Sustainable and genuine RLAH. As this was the preferred option, the measures proposed under this option are described in detail above 48 .
Option 4 – Expanded wholesale and retail obligations for an enhanced RLAH experience. In addition to the measures taken under option 3, this option would increase the sustainability of RLAH and cost recovery at wholesale level. It would apply new obligations on quality of service also on visited operators, to ensure a genuine RLAH experience and on the home operator at wholesale level to request the same quality of service as offered at home, for all wholesale agreements, i.e. no preferred network. It would include an opt-in functionality for customers to receive additional information on the different possibilities to access emergency services. It would also envisage creating a single Union-wide database for value-added services’ numbering ranges, including tariff information, to give end users access to information on value-added services’ numbering ranges and the applicable charges.
The option to let the current roaming rules expire was discarded at an early stage.
On the basis of the analysis carried out in the impact assessment, option 3 is best suited to considerably improve sustainability and would reduce the number of operators with a negative roaming margin exceeding 3% of their domestic margin 49 . It is expected to have a positive impact in terms of benefits for consumers since it reduces the need for operators to request a derogation to apply a surcharge under the sustainability mechanism, thus allowing more end users to fully benefit from RLAH. The aim is to create the preconditions for operators to provide the same quality of service while roaming as domestically and to enable consumers to take full advantage of future technological changes and 5G-driven innovation. It aims to address the lack of clarity at wholesale level on access to emergency services while roaming and provide useful tools to remedy the unresolved problems regarding the use of value-added services when roaming. This option aims to increase consumer awareness (i) of the possibility of being charged high prices when using value-added services, and (ii) about how to access emergency services when roaming. As a result, it can contribute substantially to providing a genuine RLAH experience to customers and have an overall positive social impact. The measures proposed are limited to the aspects that have proved to be insufficiently addressed at national level and for which a harmonised approach is necessary.
By contrast, the measures included under option 1 (baseline) and option 2 were not considered effective in achieving the objectives of the review of the roaming rules.
Lastly, the measures included in option 4 were considered overly intrusive, burdensome and disproportionate. Any potential additional regulatory safeguards under option 4 would not outweigh the complexity of implementing the proposed measures.
• Regulatory fitness and simplification (REFIT)
(i) Revising maximum wholesale charges by adopting a delegated act. This proposal envisages a streamlined procedure to revise the maximum wholesale charges by defining in detail the criteria for setting these charges and by empowering the Commission to subsequently amend them through a delegated act. The aim is to simplify and reduce the regulatory burden for the European Commission, the Council, the European Parliament and, to a lesser degree, BEREC and other stakeholders.
(ii) Repealing the obligation for the separate sale of regulated retail roaming services. The provision obliging operators to provide separate sales of regulated retail roaming services will be repealed, including the related implementing act 50 . This structural measure was tabled with a view to improving competition in the retail roaming market. The reason for repealing this measure is that the provisions became ineffective when the ‘roam-like-at-home’ rules were brought in and it would no longer be proportionate to oblige domestic providers to implement this type of service. Repealing these provisions will have a positive impact on operators by reducing the related maintenance costs and the burden of maintaining (largely obsolete) offers for separate sales of data roaming services.
(iii) Repealing the implementing act on the weighted average of maximum mobile termination rates. Under Regulation (EU) No 531/2012, the surcharge applied in exceptional cases for regulated roaming calls received must not exceed the maximum mobile termination rates across the EU set out in an implementing act adopted every year by the European Commission, based on input provided by BEREC. With the definition of a single maximum EU-wide mobile voice termination rate 51 , this implementing act becomes redundant and the adoption process would be an unnecessary regulatory burden. Therefore, any surcharge applied to regulated roaming calls received should not exceed the single maximum EU-wide mobile voice termination rate. This change would also reduce the burden on BEREC to provide input to the Commission, considering the already extensive reporting and data collection responsibilities it has under Regulation (EU) No 531/2012.
(iv) Aligning the current provisions on how to set the maximum charges in currencies other than the euro. Regulation (EU) No 531/2012 sets out rules that oblige service providers in Member States whose currency is not the euro to annually revise the maximum wholesale charges and retail surcharges for regulated roaming services. The rule applied for intra-EU communications, under Regulation (EU) 2015/2120 as amended by Regulation (EU) 2018/1971, stipulates that the maximum charges in currencies other than the euro must be revised annually and apply from 15 May, using the average of the reference exchange rates published on 15 January, 15 February and 15 March the same year. The proposal is to align the provisions of Regulation (EU) No 531/2012 to the provisions on intra-EU communications defining the same date for revising the surcharge for roaming services (15 May instead of 1 May), and the same method for calculating those currencies. The proposed measure would bring clarity and reduce the administrative burden of operators outside the Eurozone that must publish their tariffs twice when the roaming surcharges or intra-EU communications tariffs are revised. It would also reduce the monitoring burden for NRAs in charge of monitoring the revised exchange rates. This measure is expected to have positive effects at retail level, with retail prices updated once a year, instead of twice, as is currently the case. This can considerably reduce the information obligation of operators for amended contract conditions.
(v) Streamlining the monitoring and reporting obligations by BEREC. To reduce the regulatory burden on operators, NRAs and BEREC, the Commission proposes merging and streamlining the monitoring process and BEREC reporting obligations. Streamlining BEREC’s reporting process is expected to reduce the administrative burden for operators, for NRAs and for BEREC.
• 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 budgetary implications of this proposal, and the human and administrative resources required, are indicated in detail in the accompanying legislative financial statement.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The proposal will enter into force on 1 July 2022 and its provisions will apply from that day, save as otherwise provided for in specific articles.
In terms of the content of the monitoring and evaluation process, the review clause in Article 21 of this proposal indicates the criteria to assess each measure specific to this initiative.
Article 21 states that there will be two review reports, the first to be submitted by 30 June 2025 and the second by 30 June 2029.
BEREC will continue to play an essential role in collecting data from national regulatory authorities to monitor developments in the roaming market and the impact of implementing the measures on EU roaming. BEREC will also continue to provide the Commission with the opinions needed, including for the review of the existing rules.
• Detailed explanation of the specific provisions of the proposal
The proposal amends the current regulation to make the following substantive changes:
Article 1 defines the subject matter and scope of the regulation. This article amends the previous regulation to bring in the following substantive changes:
(i)it repeals the reference to provisions to enable the separate sale of regulated roaming services as they become ineffective when the ‘roam-like-at-home’ rules came into force;
(ii)it repeals the reference to transitory rules on the charges that may be levied by roaming providers as this became obsolete when retail roaming charges were abolished in the EU from 15 June 2017;
(iii)the reference to the Framework Directive 52 is repealed following the horizontal recast of the regulatory framework for electronic communications by Directive (EU) 2018/1972;
(iv)it proposes changing the maximum charges denominated in currencies other than euro to align the current provisions to the provisions on intra-EU communications.
Article 2 on definitions amends the current regulation by repealing two definitions, namely ‘alternative roaming provider’ and ‘separate sale of regulated retail data roaming services’ as they became unnecessary when the provisions to enable the separate sale of regulated roaming services were repealed.
Article 3 includes provisions on wholesale roaming access, on the reference offer and on terminating wholesale roaming agreements. This article amends the current regulation to bring in the following substantive changes:
(i)it makes explicit reference to the need that wholesale roaming access must also cover any network technology and generation available and to ensure that the roaming provider is allowed, at least, to replicate in roaming the retail mobile services offered domestically;
(ii)it specifies that the reference offer must contain all the information needed for roaming providers to provide its customers with free-of-charge access to emergency services through emergency communications and free-of-charge transmission of caller location information when using roaming services.
Article 5 on the provision of regulated retail roaming services now also includes the explicit obligation of the visiting operator, subject to technical feasibility, to provide regulated retail roaming services under the same conditions as domestically, in particular in terms of quality of service.
Article 6 and 7 lay down rules on fair use policy and on sustainability derogations, which remain unchanged in substance since the previous regulation. With regard to fair use and the sustainability mechanism, Article 8 clarifies that Commission Implementing Regulation (EU) 2016/2286 continues to apply until the next implementing regulation is adopted.
Article 9 regulates the exceptional application of retail surcharges for regulated retail roaming services and the provision of alternative tariffs. This article amends the previous regulation by
(i)repealing the provision that states that the sum of the domestic retail price and any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent or regulated data roaming services must not exceed certain set limits. These provisions became redundant when the ‘roam-like-at home’ rules came into play in 15 June 2017, and would have a distorting effect,
(ii)repealing the provision setting the obligation for the EU to adopt the implementing act on the weighted average of maximum mobile termination rates to set the limit for any surcharge applied for regulated roaming calls received,
(iii)lastly, this provision regulates specifically the content of a contract including roaming services. It makes an explicit reference to the obligation to provide information on the quality of service that customers can reasonably expect when roaming. In addition, this article amends the previous regulation by making an obligation for roaming providers to ensure that the contract specifies information on the type of services that may be subject to increased charges. The aim of this provision is to increase customer awareness that they may incur high charges if they use value-added services when roaming.
Articles 10, 11 and 12 on wholesale charges for making regulated roaming calls, wholesale charges for regulated roaming SMS messages and wholesale charges for regulated data roaming services amend the previous rules to bring in new levels of maximum wholesale charges. This ensures that wholesale operators can sustainably provide ‘roam-like-at-home’ services and recover costs.
Article 13, which aims to ensure uninterrupted, effective and free-of-charge access to emergency communications, includes a new provision specifying that no charges may be levied on emergency communications initiated by roaming customers.
Article 14 amends the previous regulation to bring in an obligation to provide customers, through an SMS, with information on the potential risks of increased charges if they use value-added services.
Article 16 brings in a new obligation for roaming providers to provide information to roaming customers on how to access emergency services in the visited Member State.
Article 17 includes a new provision mandating BEREC to create and maintain a single Union-wide database for value-added services numbering ranges in the Member States. The aim is to create a transparency tool to give NRAs and operators direct access to information on numbering ranges that can generate higher costs and an intermediate step to increase transparency at retail level.
Article 21 regulates the review process. The most significant change to the previous rules is to replace the ordinary legislative procedure for the revision of the maximum wholesale charges with an empowerment to the Commission to amend the charges by adopting a delegated act. Articles 22 and 23 include new provisions laying down detailed criteria and parameters for this delegated act and the conditions under which the Commission may exercise this delegated power.
The proposal repeals Articles 4 and 5 of Regulation (EU) No 531/2012 on the separate sale of regulated retail roaming services and Article 11 of Regulation (EU) No 531/2012 on ‘Technical characteristics of regulated roaming SMS messages’
531/2012