# EUR-Lex - 52011PC0402 - EN

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# 52011PC0402

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on roaming on public mobile communications networks within the Union /* COM/2011/0402 final - 2011/0187 (COD) */**

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ê 717/2007
(adapted)

2011/0187 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on roaming on public mobile communications
networks within the Union

(Recast)
(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
establishing the European Community Ö Treaty on
the Functioning of the European Union Õ , and in
particular Article 95 Ö 114 Õ thereof,

Having regard to the proposal from the European
Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[1],

Having regard to the opinion of the Committee
of the Regions[2],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

ò new

(1)
Regulation (EC) No
717/2007 of the European Parliament and of the Council of 27 June 2007 on
roaming on public mobile telephone networks within the Community [3] has been
substantially amended. Since further amendments are to be made, it should be recast in the
interests of clarity.

ê 717/2007
recital 1 (adapted)

(2)
The high level of the Ö voice,
SMS and data roaming Õ prices payable
by users of public mobile telephone networks, such as students, business
travellers and tourists, when using their mobile telephones when travelling
abroad within the Community Ö Union Õ is a matter of
concern for Ö consumers, Õ national
regulatory authorities, as well as for
consumers and the Community Ö Union Õ institutions.
The excessive retail charges are resulting from high wholesale charges levied
by the foreign host network operator and also, in many cases, from high retail
mark-ups charged by the customer's own network operator. Reductions in
wholesale charges are often not passed on to the retail customer. Although some
operators have recently introduced tariff schemes that offer customers more
favourable conditions and Ö somewhat Õ lower prices,
there is still evidence that the relationship between costs and prices is not such
as Ö far from
what Õ would prevail
in fully competitive markets.

ê 717/2007
recital 2

(3)
The creation of a European social, educational
and cultural area based on the mobility of individuals should facilitate
communication between people in order to build a real ‘Europe for Citizens’.

ê 717/2007
recital 3 (adapted)

(4)
Directive 2002/19/EC of the European Parliament
and of the Council of 7 March 2002 on access to,
and interconnection of, electronic communications networks and associated
facilities (Access Directive)[4], Directive 2002/20/EC of
the European Parliament and of the Council of 7 March 2002 on the
authorisation of electronic communications networks and services (Authorisation
Directive)[5], Directive 2002/21/EC of
the European Parliament and of the Council of 7 March 2002 on a
common regulatory framework for electronic communications networks and services
(Framework Directive)[6], Directive 2002/22/EC of
the European Parliament and of the Council of 7 March 2002 on
universal service and users' rights relating to electronic communications
networks and services (Universal Service Directive)[7]
and Directive 2002/58/EC of the European Parliament and of the Council of
12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive on
privacy and electronic communications)[8] (hereinafter together
referred to as ‘the 2002 regulatory framework for electronic communications’)
aim to create an internal market for electronic communications within the Community Ö Union Õ while ensuring
a high level of consumer protection through enhanced competition.

ê 717/2007
recital 4 (adapted)

(5)
This Regulation Ö (EC) No
717/2007 Õ is not an
isolated measure, but complements and supports, insofar as Community-wide Ö Union-wide Õ roaming is
concerned, the rules provided for by the 2002 regulatory framework for
electronic communications. That framework has not provided national regulatory
authorities with sufficient tools to take effective and decisive action with
regard to the pricing of roaming services within the Community Ö Union Õ and thus fails
to ensure the smooth functioning of the internal market for roaming services. This Regulation Ö (EC) No
717/2007 Õ is an
appropriate means of correcting this situation.

ê 717/2007
recital 5 (adapted)

(6)
The 2002 regulatory framework for electronic
communications draws on the principle that ex ante regulatory obligations
should only be imposed where there is not effective competition, providing for
a process of periodic market analysis and review of obligations by national
regulatory authorities, leading to the imposition of ex ante obligations on
operators designated as having significant market power. The elements
constituting this process include the definition of relevant markets in
accordance with the Commission's Recommendation[9] on relevant product and service markets within the electronic
communications sector susceptible to ex ante regulation in accordance with
Directive 2002/21/EC[10] (hereinafter referred to as ‘the Recommendation’), the analysis of
the defined markets in accordance with the Commission's guidelines on market
analysis and the assessment of significant market power under the Community Ö Union Õ regulatory
framework for electronic communications networks and services[11],
the designation of operators with significant market power and the imposition
of ex ante obligations on operators so designated.

ê 717/2007
recital 6 (adapted)

ð new

(7)
The Recommendation identifies Ö identified Õ as a relevant
market susceptible to ex ante regulation the wholesale national market for
international roaming on public mobile networks. However, the work undertaken
by the national regulatory authorities, (both
individually and within the European Regulators Group) Ö (ERG) and
its successor the Body of European Regulators for Electronic Communications (BEREC)
established by Regulation (EC) No 1211/2009 of the European Parliament and of
the Council[12], Õ in analysing
the wholesale national markets for international roaming has demonstrated that
it has not yet been possible for a national regulatory authority to address
effectively the high level of wholesale Community-wide Ö Union-wide Õ roaming
charges because of the difficulty in identifying undertakings with significant
market power in view of the specific circumstances of international roaming,
including its cross-border nature. Ö Following
the entry into force of Regulation (EC) No 717/2007, the roaming market was
withdrawn from the revised Recommendation[13]. Õ

ê 717/2007
recital 7

As regards the
retail provision of international roaming services, the Recommendation does not
identify any retail market for international roaming as a relevant market,
owing among other things to the fact that international roaming services at
retail level are not purchased independently but constitute only one element of
a broader retail package purchased by customers from their home provider.

ê 717/2007
recital 8

(8)
In addition, the national regulatory authorities
responsible for safeguarding and promoting the interests of mobile customers
normally resident within their territory are not able to control the
behaviour of the operators of the visited network, situated in other
Member States, on whom those customers depend when using international
roaming services. This obstacle could also diminish the effectiveness of
measures taken by Member States based on their residual competence to adopt
consumer protection rules.

ê 717/2007
recital 9

(9)
Accordingly, there is pressure for Member States
to take measures to address the level of international roaming charges, but the
mechanism for ex ante regulatory intervention by national regulatory
authorities provided by the 2002 regulatory framework for electronic
communications has not proved sufficient to enable those authorities to act
decisively in the consumers' interest in this specific area.

ê 717/2007
recital 10 (adapted)

(10)
Furthermore, the European Parliament resolution
on European electronic communications regulation and markets 2004[14] called on the
Commission to develop new initiatives to reduce the high costs of cross-border
mobile telephone traffic, while the European Council of 23 and
24 March 2006 concluded that focused, effective and integrated
information and communication technology (ICT) policies both at European
and national level are essential to achieving the renewed Lisbon Strategy's goals of economic growth and productivity and noted in this context
the importance for competitiveness of reducing roaming charges.

ê 717/2007
recital 11 (adapted)

ð new

(11)
The 2002 regulatory framework for electronic
communications, on the basis of considerations apparent at that time, was aimed
at removing all barriers to trade between Member States in the area that it
harmonised, inter alia, measures which affect roaming charges. However, this
should not prevent the adaptation of harmonised rules in step with other
considerations in order to find the most effective means of achieving
a high level of consumer protection whilst improving the conditions for the
functioning ofð enhancing competition in ï the internal market Ö for
roaming services and achieving a high level of consumer protection Õ .

ê 717/2007
recital 12 (adapted)

(12)
The 2002 regulatory framework for electronic
communications, in particular the Framework Directive, should therefore be
amended to allow for a departure from the rules otherwise applicable, namely
that prices for service offerings should be determined by commercial agreement
in the absence of significant market power, and to thereby accommodate the
introduction of complementary regulatory obligations which reflect the specific
characteristics of Community-wide Ö Union-wide Õ roaming
services.

ê 717/2007
recital 13

(13)
The retail and wholesale roaming markets exhibit
unique characteristics which justify exceptional measures which go beyond the
mechanisms otherwise available under the 2002 regulatory framework for
electronic communications.

ê 717/2007
recital 14

Regulatory
obligations should be imposed at both retail and wholesale level to protect
the interests of roaming customers, since experience has shown that reductions
in wholesale prices for Community-wide roaming services may not be reflected in
lower retail prices for roaming owing to the absence of incentives for this to happen. On the other hand,
action to reduce the level of retail prices without addressing the level of the
wholesale costs associated with the provision of these services could risk
disrupting the orderly functioning of the Community-wide roaming market.

ê 717/2007
recital 15

These regulatory
obligations should take effect as soon as possible, while providing the
operators concerned with a reasonable period to adapt their prices and service
offerings to ensure compliance, and apply directly in all Member States.

ê 717/2007
recital 16 (adapted)

ð new

(14)
A common approach should be employed for
ensuring that users of terrestrial public mobile telephone Ö communication Õ networks when
travelling within the Community Ö Union Õ do not pay
excessive prices for Community-wide Ö Union-wide Õ roaming
services when making or receiving voice calls, thereby achieving
a high level of consumer protection while safeguarding ð enhancing ï competition Ö concerning
roaming services Õ between mobile
operators Ö , achieving
a high level of consumer protection Õ and preserving
both incentives for innovation and consumer choice. In view of the
cross-border nature of the services concerned, this common approach is needed
so that mobile operators can operate within a single coherent regulatory
framework based on objectively established criteria.

ê 717/2007
recital 17

The most effective
and proportionate approach to regulating the level of prices for making and
receiving intra-Community roaming calls is the setting at Community level of a
maximum average per-minute charge at wholesale level and the limiting of
charges at retail level through the introduction of a Eurotariff. The average
wholesale charge should apply between any pair of operators within the
Community over a specified period.

ê 544/2009
recital 2 (adapted)

ð new

(15)
Ö Regulation
(EC) No 717/2007, as amended by Regulation (EC) No 544/2009, is valid until 30
June 2012. Prior to its expiry, Õ Tthe Commission has carried out a
review in accordance with Ö its Õ Article 11
of Regulation (EC) No 717/2007, where it was required to evaluate whether the objectives of that
Regulation had been achieved, Ö and Õ to review
developments in wholesale and retail charges for the provision to roaming
customers of voice Ö , SMS Õ and data
communications services, including SMS and MMS, and to include, if
appropriate, recommendations regarding the need to regulate those services. In its report to the European Parliament and the Council, contained in its Communication of 23 September 2008 Ö [ XX June
2011 ] Õ on the outcome
of the review of the functioning of Regulation (EC) No 717/2007 of the
European Parliament and of the Council of 27 June 2007 on roaming on
public mobile telephone networks within the Community and amending Directive
2002/21/EC, the Commission
concluded that it was appropriate to extend the validity of Regulation (EC)
No 717/2007 Ö regulation
Õ beyond
30 June 2010 Ö 2012 Õ .

ê 544/2009
recital 6 (adapted)

ð new

(16)
Data on the development of prices for Community-wide Ö Union-wide Õ voice Ö , SMS and
data Õ roaming
services since the entry into force of Regulation (EC) No 717/2007 Ö and its
amending Regulation (EC) No 544/2009 Õ , including in
particular those collected by national regulatory authorities and reported on a
quarterly basis through the medium of the ERG Ö BEREC Õ , do not
provide sufficient evidence to suggest that competition at the retail or wholesale
levels ð has reasonably developed and ï is likely to be sustainable from June 2010 Ö 2012 Õ onwards in the
absence of regulatory measures. Such data indicates that retail and wholesale
prices are clustering Ö continue
to cluster Õ at or close to
the limits set by Regulation (EC) No 717/2007 Ö as
amended by Regulation (EC) No 544/2009 Õ , with only
limited competition below those limits.

ê 544/2009 recital 7 (adapted)

(17)
The expiry in June 2010 Ö 2012 Õ of the
regulatory safeguards which apply to intra-Community Ö Union-wide Õ voice roaming services at wholesale and retail levels by virtue of
Regulation (EC) No 717/2009 Ö , as
amended by Regulation (EC) No 544/2009, Õ would
therefore give rise to a significant risk that the underlying lack of
competitive pressures in the voice roaming
market and the incentive for mobile operators to maximise their roaming
revenues would result in retail and wholesale prices for intra-Community Ö Union-wide Õ roaming that
do not constitute a reasonable reflection of the underlying costs involved in
the provision of the service, thereby jeopardising the objectives of Ö this Õ Regulation (EC)
No 717/2007. Regulation
(EC) No 717/2007 Ö Regulatory
intervention in the market for mobile roaming services Õ should
therefore be extended beyond 30 June 2010 Ö 2012 Õ for a period of two years
in order to ensure the smooth functioning of the internal market by Ö allowing
competition to develop, while at the same time Õ guaranteeing
that consumers continue to benefit from the assurance that they will not be
charged an excessive price, in comparison with competitive national prices, when
making or receiving a regulated roaming call while
at the same time leaving sufficient time for competition to develop.

ò new

(18)
In order to allow for
the development of a more efficient and competitive market for roaming
services, there should be no restrictions that prevent undertakings from
effectively negotiating wholesale access for the purpose of providing roaming
services. However, at present there are obstacles to the access to such
wholesale roaming services, due to differences in negotiating power and in
the degree of infrastructure ownership of undertakings. The removal of these
obstacles would facilitate the development of alternative and innovative
roaming services and offers for customers, in particular from virtual network
operators. It would also facilitate the development of pan-European services.

(19)
Therefore rules should
be introduced to mandate the obligation to meet reasonable requests for
wholesale access to public mobile communications networks for the purpose of
providing roaming services. Such requests should only be refused on the basis
of objective and duly substantiated criteria, which should be determined on a
case by case basis by the national regulatory authorities following the dispute
resolution procedure referred to in Article 17. In order to ensure a level
playing field, wholesale access for the purpose of providing roaming services
should be granted in accordance with the regulatory obligations laid down in
this Regulation applicable at the wholesale level and should take into account
the different cost elements necessary for the provision of such access. A consistent
regulatory approach to the wholesale access for the provision of roaming
services would avoid distortions between Member States.

(20)
A wholesale roaming
access obligation should cover access to all the elements and facilities
necessary to enable the provision of roaming services, such as the following
elements: access to network elements and associated facilities; access to
relevant software systems including operational support systems; access to
information systems or databases for pre-ordering, provisioning, ordering,
maintaining and repair requests, and billing; access to number translation or
systems offering equivalent functionality; access to mobile networks, and
access to virtual network services.

(21)
Mobile communications
services are sold in bundles including both domestic and roaming services which
limits customer choice for roaming services. Such bundles reduce transparency
concerning roaming services, since it is difficult to compare individual items
within the bundles. Consequently, competition among operators on the basis of
the roaming element in the mobile bundle is not yet apparent. Facilitating the
availability of roaming as a stand-alone service would address structural
problems by raising consumer awareness of roaming prices, allowing distinct
consumer choice concerning roaming services and thus increasing competitive
pressure on the demand side. This will therefore contribute to the smooth
functioning of the internal market for European roaming services.

(22)
Consumers should have
the right to opt for the separate sale of roaming services from their domestic
mobile package. Basic principles should be laid down with regard to the
provision of a separate sale of roaming services which should be introduced in
a coordinated manner across the Union. Consumers should be able to choose a
different provider for roaming services without changing their number, and in a
manner which ensures interoperability of services, with roaming services being
provided anywhere in the Union and with the same level of quality.

(23)
Increased cooperation
and coordination among mobile network operators should be established to
technically enable the provision of separate roaming services, and to ensure
coordinated and sound technical evolution of the separate sale of roaming services
in the Union. Therefore, guidelines detailing further the relevant basic
principles and methodologies should be elaborated, in order to allow a rapid
adaptation to changed circumstances and technological advancement. BEREC, in
coordination with the Commission and in collaboration with the relevant
stakeholders, should issue guidelines to develop the technical elements of a
facility to enable the separate sale of roaming services. The Commission could
give a mandate to a European Standardisation Body for the amendment of the
relevant standards that are necessary for the harmonised implementation of the
facility.

(24)
It is considered that
for the separate sale of roaming services to be fully effective, it needs to be
combined with the wholesale access obligation for the provision of roaming
services to facilitate market entry by new or existing players including
cross-border roaming services providers. This solution will avoid distortions
between Member States by ensuring a consistent regulatory approach thereby
contributing to the development of the single market. However, this solution in
roaming services will require a reasonable period for operators to adapt at the
technical level, and therefore will only result in a genuine internal market
with sufficient competition after a certain period of time. For this reason,
price caps for the wholesale charges for voice, SMS messages and data roaming
services as well as safeguard caps for those service at the retail level should
be maintained on a temporary basis at an appropriate level to ensure that the
existing consumer benefits are preserved during a transitional period of
implementation of such structural solutions, after which they could be removed

(25)
With regard to
continuation of temporary price regulation, regulatory obligations should be
imposed at both retail and wholesale level to protect the interests of roaming
customers, since experience has shown that reductions in wholesale prices for
Union-wide roaming services may not be reflected in lower retail prices for
roaming owing to the absence of incentives for this to happen. On the other
hand, action to reduce the level of retail prices without addressing the level
of the wholesale costs associated with the provision of these services could
risk disrupting the orderly functioning of the Union-wide roaming market and
would not allow a higher degree of competition.

(26)
Until the structural
solutions have brought sufficient competition in the roaming market, the most
effective and proportionate approach to regulating the level of prices for
making and receiving intra-Union roaming calls is the setting at Union level of
a maximum average per-minute charge at wholesale level and the limiting of
charges at retail level through the Eurotariff introduced in Regulation (EC) No 717/2007. The average wholesale charge should
apply between any pair of operators within the Union over a specified period.

ê 717/2007
recital 18 (adapted)

ð new

(27)
The Ö transitory Õ Eurotariff should
be set at a Ö safeguard Õ level which ð , whilst ensuring that the existing
consumer benefits are preserved during a transitional period of implementing
the structural solutions, ï guarantees a sufficient margin to operators and encourages
competitive roaming offerings at lower rates. ð During the period concerned, ï Ooperators should actively offer a Eurotariff to all their roaming
customers, free of charge, and in a clear and transparent manner.

ê 717/2007
recital 19 (adapted)

ð new

(28)
This regulatory
approach should ensure that retail charges for Community-wide roaming provide a
more reasonable reflection of the underlying costs involved in the provision
of the service than has been the case. The maximum Ö transitory Õ Eurotariff that may ð to ï be offered to roaming customers should therefore reflect a reasonable margin over the wholesale cost of providing a
roaming service, whilst allowing operators the freedom to compete by
differentiating their offerings and adapting their pricing structures to market
conditions and consumer preferences. ð Such safeguard caps should be set at
levels which do not distort the competitive benefits of structural solutions
and could be removed once the structural solutions have had an opportunity to
deliver concrete gains for customers. ï This regulatory approach should not apply to value added
services.

ê 717/2007
recital 20 (adapted)

(29)
This regulatory approach should be simple
to implement and monitor in order to minimise the administrative burden
both for the operators which are affected by its requirements and for the
national regulatory authorities charged with its supervision and enforcement.
It should also be transparent and immediately understandable to all mobile
customers within the Community Ö Union Õ . Furthermore
it should provide certainty and predictability to operators providing wholesale
and retail roaming services. The level in monetary terms of the maximum
per-minute charges at wholesale and retail level should therefore be specified
in this Regulation.

ê 717/2007
recital 21 (adapted)

(30)
The maximum average per-minute charge at
wholesale level so specified should take account of the different elements
involved in the making of a Community-wide Ö Union-wide Õ roaming call,
in particular the cost of originating and terminating calls over mobile
networks and including overheads, signalling and transit. The most
appropriate benchmark for call origination and for call termination is the
average mobile termination rate for mobile network operators in the Community Ö Union Õ, based on
information provided by the national regulatory authorities and published by
the Commission. The maximum average per-minute charge established by this
Regulation should therefore be determined taking into account the average
mobile termination rate, which offers a benchmark for the costs involved. The
maximum average per-minute charge at wholesale level should decrease annually
to take account of reductions in mobile termination rates imposed by national
regulatory authorities from time to time.

ê 717/2007
recital 22 (adapted)

(31)
The Ö transitory Õ Eurotariff
applicable at retail level should provide roaming customers with the assurance
that they will not be charged an excessive price when making or receiving a
regulated roaming call, whilst leaving the home operators sufficient margin to
differentiate the products they offer to customers.

ê 717/2007
recital 23 (adapted)

ð new

(32)
ð During the transitional period of
safeguard caps, ï Aall consumers should have the option of choosing without additional
charges or preconditions a simple roaming tariff which will not exceed
regulated rates. A reasonable margin between wholesale costs and retail prices
should ensure that operators cover all their specific roaming costs at retail
level including appropriate shares of marketing costs and handset subsidies and
are left with an adequate residual to yield a reasonable return. A Ö transitory Õ Eurotariff is
an appropriate means to provide both the consumer with protection and the
operator with flexibility. In line with the wholesale level the maximum levels
of the Eurotariff should decrease annually.

ê 717/2007
recital 24 (adapted)

ð new

(33)
ð During the transitional period of
safeguard caps, ï Nnew roaming customers should be fully informed of the range of
tariffs that exist for roaming within the Community Ö Union Õ , including
the tariffs which are compliant with the Ö transitory Õ Eurotariff.
Existing roaming customers should be given the opportunity to choose a new
tariff compliant with the Ö transitory Õ Eurotariff or
any other roaming tariff within a certain time frame. For existing roaming
customers who have not made their choice within this time frame, it is
appropriate to distinguish between those who had already opted for a specific
roaming tariff or package before the entry into force of this Regulation and
those who had not. The latter should be automatically accorded a tariff that
complies with this Regulation. Roaming customers who already benefit from
specific roaming tariffs or packages which suit their individual requirements
and which they have chosen on that basis should remain on their previously
selected tariff or package if, after having been reminded of their current
tariff conditions, they fail to express a choice within the relevant time
period. Such specific roaming tariffs or packages could include, for example,
roaming flat-rates, non-public tariffs, tariffs with additional fixed roaming
charges, tariffs with per-minute charges lower than the maximum Eurotariff or
tariffs with set-up charges.

ê 717/2007
recital 25

Providers of
retail Community-wide roaming services should have a period within which to
adjust their prices to comply with the limits laid down in this
Regulation.

ê 717/2007
recital 26

Similarly,
providers of wholesale Community-wide roaming services should have an
adaptation period to comply with the limits laid down in this Regulation.

ê 717/2007
recital 27 (adapted)

(34)
Since this Regulation provides that the
Directives making up the 2002 regulatory framework for electronic
communications are without prejudice to any specific measure adopted for the
regulation of Community-wide Ö Union-wide Õ roaming
charges for mobile voice telephony calls, and since providers of Community-wide Ö Union-wide Õ roaming
services may be required by this Regulation to make changes to their retail
roaming tariffs in order to comply with the requirements of this
Regulation, such changes should not trigger for mobile customers any right
under national laws transposing the 2002 regulatory framework for electronic
communications to withdraw from their contracts.

ê 717/2007
recital 28 (adapted)

ð new

(35)
This Regulation should not prejudice innovative
offers to consumers which are more advantageous than the maximum Ö transitory Õ Eurotariff as
defined in this Regulation, but rather should encourage innovative offers to
roaming customers at lower rates ð in particular in response to the
additional competitive pressure created by the structural provisions of this
Regulation ï . This Regulation does not require roaming charges to be
reintroduced in cases where they have been abolished altogether, nor does it
require existing roaming charges to be increased to the level of the Ö transitional
safeguard Õ limits set out
in this Regulation.

ê 544/2009 recital 12 (adapted)

(36)
Where charge limits are not denominated in euro,
the applicable charge limits for the initial limits and the revised values of
those limits should be determined in the relevant currency by applying the
reference exchange rates published in the Official Journal of the European
Union on the dates
specified in this Regulation. Where there is no publication on the date
specified, the applicable reference exchange rates should be those published in
the first Official Journal of the European Union following that date and
containing such reference exchange rates.

ê 544/2009
recital 14 (adapted)

(37)
The practice by some mobile network operators of
billing for the provision of wholesale roaming calls on the basis of minimum
charging periods of up to 60 seconds, as opposed to the per second basis
normally applied for other wholesale interconnection charges, creates a
distortion of competition between these operators and those applying different
billing methods and undermines the consistent application of the wholesale
price limits introduced by Ö this Õ Regulation (EC)
No 717/2007. Moreover it
represents an additional charge which, by increasing wholesale costs, has
negative consequences for the pricing of voice roaming services at retail
level. Mobile operators should therefore be required to bill for the wholesale
provision of regulated roaming calls on a per second basis.

ê 544/2009 recital 18 (adapted)

(38)
The ERG Ö , the
predecessor of the BEREC, Õ has estimated
that the practice of mobile operators of using charging intervals of more than
one second when billing for roaming services at retail level has added 24 % to
a typical Eurotariff bill for calls made and 19 % for calls received. They also
stated that these increases represent a form of hidden charge since they are
not transparent to most consumers. For this reason, the ERG recommended urgent
action to address the different billing practices at retail level applied to
the Eurotariff.

ê 544/2009
recital 19 (adapted)

(39)
While Regulation (EC) No 717/2007, by
introducing a Eurotariff in the Community Ö Union Õ , established
a common approach to ensuring that roaming customers are not charged excessive
prices for regulated roaming calls, the different billing unitisation practices
employed by mobile operators seriously undermines its consistent application.
This also means that, despite the Community-wide Ö Union-wide Õ , cross-border
nature of intra-Community Ö intra-Union Õ roaming
services, there are divergent approaches in relation to the billing of
regulated roaming calls which distort competitive conditions in the single
market.

ê 544/2009 recital 20 (adapted)

(40)
A common set of rules regarding unitisation of
Eurotariff bills at retail level should therefore be introduced in order to
further strengthen the single market and provide throughout the Community Ö Union Õ a common level
of protection to consumers of Community-wide Ö Union-wide Õ roaming
services.

ê 544/2009
recital 21

(41)
Providers of regulated roaming calls at the retail
level should therefore be required to bill their customers on a per second
basis for all calls subject to a Eurotariff, subject only to the possibility to
apply a minimum initial charging period of no more than 30 seconds for calls
made. This will enable operators to cover any reasonable set-up costs and to
provide flexibility to compete by offering shorter minimum charging periods.
However, no minimum initial charging period is justified in the case of
Eurotariff calls received, as the underlying wholesale cost is charged on a per
second basis and any specific set-up costs are already covered by mobile
termination rates.

ê 544/2009 recital 22

(42)
Customers should not have to pay for receiving
voice mail messages in a visited network, as they cannot control the duration
of such messages. This should be without prejudice to other applicable voice
mail charges, for example charges for listening to such messages.

ê 544/2009
recital 24 (adapted)

(43)
Ö With
regard to SMS roaming services, Õ Just as is the case for voice roaming calls, there is a significant risk
that imposing wholesale pricing obligations alone would not result
automatically in lower rates for retail customers. On the other hand, action to
reduce the level of retail prices without addressing the level of the wholesale
costs associated with the provision of these services could prejudice the
position of some operators, in particular smaller operators, by increasing the
risk of price squeeze.

ê 544/2009 recital 25

(44)
Furthermore, because of the particular structure
of the roaming market and its cross-border nature, the 2002 regulatory
framework has not provided national regulatory authorities with suitable tools
to address effectively the competitive problems underlying the high level of
wholesale and retail prices for regulated roaming SMS services. This fails to
ensure the smooth functioning of the internal market and should be corrected.

ê 544/2009 recital
27

ð new

(45)
Regulatory obligations should therefore be
imposed with regard to regulated roaming SMS services at wholesale level, in
order to establish a more reasonable relationship between wholesale charges and
the underlying costs of provision, and at retail level ð for a transitional period ï to protect the interests of roaming customers ð until the structural solution
becomes effective ï.

ê 544/2009
recital 29 (adapted)

ð new

(46)
ð Until the structural solution have
brought sufficient competition in the roaming market, ï Tthe most effective and proportionate approach to regulating the level
of prices for regulated roaming SMS messages at wholesale level is the setting
at Community Ö Union Õ level of a
maximum average charge per SMS sent from a visited network. The average
wholesale charge should apply between any pair of mobile operators within the Community Ö Union Õ over a
specified period.

ê 544/2009
recital 30

(47)
The wholesale price limit for regulated roaming
SMS should include all costs incurred by the provider of the wholesale service,
including, inter alia, origination, transit and the unrecovered cost of
termination of roaming SMS messages on the visited network. Wholesale providers
of regulated roaming SMS services should therefore be prohibited from
introducing a separate charge for the termination of roaming SMS messages on their
network, in order to ensure the consistent application of the rules established
by this Regulation.

ò new

(48)
In order to ensure
that the regulated caps for wholesale roaming SMS services are closer to levels
reflecting underlying costs of provision and that competition can develop at
the retail level, the wholesale price limits for regulated SMS should follow
subsequent reductions.

ê 544/2009
recital 31 (adapted)

ð new

(49)
Ö Regulation
(EC) No 544/2009 considered that, in the absence of structural elements introducing competition in
the roaming market, Õ Tthe most effective and
proportionate approach to regulating the level of prices for Community-wide Ö Union-wide Õ roaming SMS
messages at the retail level is Ö was Õ the
introduction of a requirement for mobile operators to offer their roaming
customers a Euro-SMS tariff which does not exceed a specified maximum price
limit.

(50)
ð Until the structural solutions
become effective, ï Tthe Ö transitory Õ Euro-SMS
tariff should be set Ö retained Õ at a Ö safeguard Õ level which ð , whilst ensuring that the existing
consumer benefits are preserved, ï guarantees a sufficient margin to operators while also more
reasonably reflecting the underlying retail costs.

ê 544/2009
recital 32 (adapted)

ð new

(51)
This regulatory
approach should ensure that retail charges for regulated roaming SMS messages
more accurately reflect the underlying costs involved in the provision of the
service than has previously been the case. The maximum Ö transitory Õ Euro-SMS
tariff that may be offered to roaming customers should therefore reflect a
reasonable margin over the costs of providing a regulated roaming SMS service,
whilst allowing operators the freedom to compete by differentiating their
offerings and adapting their pricing structures to market conditions and
consumer preferences. ð Such safeguard cap should be set at
level which do not distort the competitive benefits of structural solutions and
could be removed once the structural solution becomes effective. ï This regulatory approach should not apply to value-added SMS
services.

ê 544/2009
recital 33

(52)
Roaming customers should not be required to pay
any additional charge for receiving a regulated roaming SMS or voicemail
message while roaming on a visited network, since such termination costs are
already compensated by the retail charge levied for the sending of a roaming
SMS or voicemail message.

ê 544/2009 recital 34

(53)
A Euro-SMS tariff should automatically apply to
any new or existing roaming customer who has not deliberately chosen or does
not deliberately choose a special SMS roaming tariff or a package for roaming
services including regulated roaming SMS services.

ê 544/2009
recital 36

(54)
An SMS message is a Short Message Service text
message and is clearly distinct from other messages such as MMS messages or
e-mails. In order to ensure that the Regulation is not deprived of its
effectiveness and that its objectives are fully met, any changes to the
technical parameters of a roaming SMS message which would differentiate it from
a domestic SMS message should be prohibited.

ê 544/2009 recital 37 (adapted)

(55)
Data collected by national regulatory authorities
indicate that Ö high
prices for Õ average
wholesale charges for data roaming services levied by visited network operators
from roaming customers’ home providers Ö persist,
even if these wholesale prices Õ appear to be
on a downward trend, although high prices for wholesale data roaming
services persist.

ê 544/2009
recital 45 (adapted)

ð new

(56)
Moreover, tThe persistence of high wholesale
charges for data roaming services is primarily attributable to high wholesale
prices charged by operators of non-preferred networks. Such charges are caused
by traffic steering limitations which leave operators with no incentive to
reduce their standard wholesale prices unilaterally since the traffic will be
received irrespective of the price charged. This results in an extreme
variation in wholesale costs. In some cases the wholesale data roaming prices
applicable to non-preferred networks are 30 Ö 6 Õ times higher
than those applied to the preferred network. These excessively high wholesale
charges for data roaming services lead to appreciable distortions of
competitive conditions between mobile operators within the Community Ö Union Õ which
undermine the smooth functioning of the internal market. They also constrain
the ability of home providers to predict their wholesale costs and therefore to
provide their customers with transparent and competitive retail pricing
packages. In view of the limitations on the ability of national regulatory
authorities to deal with these problems effectively at national level, a
wholesale price limit on data roaming services should apply. The wholesale price limit should be set at a
safeguard level well above the lowest wholesale prices currently available
in the market, to enhance competitive conditions and permit the development of
a competitive trend in the market, while ensuring the better functioning of the
internal market for the benefit of consumers.
By eliminating the excessive wholesale data roaming charges that persist in
certain cases in the market, this safeguard level should prevent, throughout
the period of application of Regulation (EC) No 717/2007, the emergence of
distortions or restrictions on competition between mobile operators.
ð Regulatory obligations should
therefore be imposed with regard to regulated data roaming services at
wholesale level, in order to establish a more reasonable relationship between
wholesale charges and the underlying costs of provision, and at retail level to
protect the interests of roaming customers. ï

ê 544/2009 recital 39 (adapted)

(57)
Home pProviders Ö of roaming
services Õ should not charge
the roaming customer for any regulated data roaming service, unless and until
the roaming customer accepts the provision of the service.

ê 544/2009
recital 3 (adapted)

ð new

(58)
Furthermore, the Commission found that tThe scope of Ö this Õ Regulation (EC) No 717/2007 should be extended to cover the provision within the Community Ö Union Õ of SMS and ð retail ï data roaming services. The special characteristics exhibited by the
international roaming markets, which justified the adoption of Regulation (EC)
No 717/2007 and the imposition of obligations on mobile operators with
regard to the provision of Community-wide Ö Union-wide Õ voice roaming
calls Ö and SMS
messages Õ , apply
equally to the provision of Community-wide Ö Union-wide Õ SMS and ð retail ï data roaming services. Like voice roaming Ö and SMS Õ services, SMS and data roaming services are not purchased independently at national
level but constitute only part of a broader retail package purchased by
customers from their home provider, thereby limiting the competitive forces at
play. Likewise, because of the cross-border nature of the services concerned,
national regulatory authorities which are responsible for safeguarding and
promoting the interests of mobile customers resident within their territory are
not able to control the behaviour of the operators of the visited network,
situated in other Member States.

ò new

(59)
Similarly to the
regulatory measures already in place for voice and SMS services, until the
structural solution brings sufficient competition, the most effective and
proportionate approach to regulating the level of prices for Union-wide roaming
data services at the retail level for a transitional period is the introduction
of a requirement for mobile operators to offer their roaming customers a
transitory Euro-data tariff which does not exceed a specified maximum price
limit. The Euro-data tariff should be set at a safeguard level which, whilst
ensuring consumer protection until the structural solution becomes effective,
guarantees a sufficient margin to operators while also more reasonably
reflecting the underlying retail costs.

(60)
The transitory
Euro-data tariff that may be offered to roaming customers should therefore
reflect a reasonable margin over the costs of providing a regulated data
roaming service, whilst allowing operators the freedom to compete by
differentiating their offerings and adapting their pricing structures to market
conditions and consumer preferences. Such safeguard cap should be set at levels
which do not distort the competitive benefits of structural solutions and could
be removed once the structural solutions have had an opportunity to deliver
concrete gains for customers. Similar to the approach followed for voice and
SMS roaming services, given the reductions foreseen in the underlying costs for
the provision of retail data roaming services, the maximum regulated charges
for the transitory Euro-data tariff should follow a declining glide path.

(61)
A transitory Euro-data
tariff should automatically apply to any new or existing roaming customer who
has not deliberately chosen or does not deliberately choose a special data
roaming tariff or a package for roaming services including regulated data
roaming services.

(62)
In order to ensure
that consumers pay for the data services they actually consume and that the
similar problem observed with voice services after the introduction of
Regulation (EC) No 717/2007 of the hidden charges for the consumer due to the
charging mechanisms applied by operators, the transitory Euro-data tariff
should be billed on a per kilobyte basis. This is consistent with the charging
mechanism already applicable a the wholesale level.

ê 717/2007
recital 29 (adapted)

(63)
Home providers may offer a fair-use,
all-inclusive, monthly flat-rate to which no charge limits apply., This flat-rate Ö which Õ could cover Community-wide Ö all
Union-wide Õ roaming voice
and/or data communication services (including
Short Message Service (SMS) and Multimedia Messaging Service (MMS)) within
the Community.

ê 717/2007
recital 30 (adapted)

(64)
To ensure that all users of mobile voice
telephony may benefit from the provisions of this Regulation, the Ö transitory Õ retail pricing
requirements should apply regardless of whether roaming customers have a
pre-paid or a post-paid contract with their home provider, and regardless of
whether the home provider has its own network, is a mobile virtual network
operator or is a reseller of mobile voice telephony services.

ò new

(65)
In order
to ensure that regulatory obligations on wholesale and retail charges for
voice, SMS and data roaming services are not maintained longer than necessary
when the structural solutions are fully in place and competition is
sufficiently developed in the roaming market, conditions should be set for
non-application of maximum wholesale and retail charges already before the
deadlines foreseen. Such conditions should be based on a significant difference
between price caps and actual price levels. It is considered that a significant
difference will be reached if prices have on average in the Union reached 75%
of the price cap. For wholesale price caps the 75% criterion shall be based on
the unbalanced traffic between operators that do not belong to the same group.
In order to limit distortions between Member States, the 75% criterion for
retail price caps shall be calculated by averaging at the Union level the
national averages for each roaming service separately (voice, SMS or
data).

ê 717/2007
recital 31 (adapted)

(66)
Where Community Ö Union Õ providers of
mobile telephony services find the benefits of interoperability and end-to-end
connectivity for their customers jeopardised by the termination, or threat of
termination, of their roaming arrangements with mobile network operators in
other Member States, or are unable to provide their customers with service in
another Member State as a result of a lack of agreement with at least one
wholesale network provider, national regulatory authorities should make use,
where necessary, of the powers under Article 5 of the Access Directive to
ensure adequate access and interconnection in order to guarantee such end-to-end
connectivity and the interoperability of services, taking into account the
objectives of Article 8 of the Framework Directive, in particular the
creation of a fully functioning single market for electronic communications
services.

ê 717/2007
recital 32 (adapted)

ð new

(67)
In order to improve the transparency of
retail prices for making and receiving regulated roaming calls within the Community Ö Union Õ and to help
roaming customers make decisions on the use of their mobile telephones while
abroad, providers of mobile telephony services should enable their roaming
customers easily to obtain information free of charge on the roaming charges
applicable to them when making or receiving voice calls in a visited
Member State. Moreover, providers should give their customers, on request
and free of charge, additional information on the per-minute or per-unit data
charges (including VAT) for the making or receiving of voice calls and also for
the sending and receiving of SMS, MMS and other data communication services in
the visited Member State. ð Since certain customer groups might
be well informed about roaming charges operators should provide a possibility
to easily opt-out from this automatic message service. ï

ê 717/2007
recital 33

ð new

(68)
Transparency also requires that providers
furnish information on roaming charges, in particular on the Eurotariff and the
all-inclusive flat-rate should they offer one, when subscriptions are taken out
and each time there is a change in roaming charges. Home providers should
provide information on roaming charges by appropriate means such as invoices,
the internet, TV advertisements or direct mail. Home providers should ensure
that all their roaming customers are aware of the availability of regulated
tariffs ð for the period concerned ï and should send a clear and unbiased communication to these
customers describing the conditions of the Eurotariff and the right to switch
to and from it.

ê 544/2009
recital 40 (adapted)

(69)
However Ö Moreover Õ, measures
should be introduced to improve the transparency of retail prices for data
roaming services, in particular to eliminate the problem of ‘bill shock’ which
constitutes a barrier to the smooth functioning of the internal market, and to
provide roaming customers with the tools they need to monitor and control their
expenditure on data roaming services. Equally, there should be no obstacles to
the emergence of applications or technologies which can be a substitute for, or
alternative to, roaming services, such as WiFi, Voice over Internet Protocol
(VoIP) and Instant Messaging services.
Consumers should be provided with this information, thereby allowing them to
make an informed choice.

ê 544/2009
recital 41

(70)
In particular, mobile operators should provide
their roaming customers with personalised tariff information on the charges
applicable to those customers for data roaming services every time they
initiate a data roaming service on entering another Member State. This
information should be delivered to their mobile telephone or other mobile
device in the manner best suited to its easy receipt and comprehension.

ê 544/2009
recital 42

(71)
In order to facilitate customers’ understanding
of the financial consequences of the use of regulated data roaming services and
to permit them to monitor and control their expenditure, the home provider
should give examples for data roaming applications, such as e-mail, picture and
web-browsing, by indicating their approximate size in terms of data usage.

ê 544/2009
recital 43

(72)
In addition, in order to avoid bill shocks,
mobile operators should define one or more maximum financial and/or volume
limits for their outstanding charges for data roaming services, expressed in
the currency in which the roaming customer is billed, and which they should
offer to all their roaming customers, free of charge, with an appropriate
notification when this limit is being approached. Upon reaching this maximum
limit, customers should no longer receive and be charged for those services
unless they specifically request continued provision of those services in accordance
with the terms and conditions set out in the notification. Roaming customers
should be given the opportunity to opt for any of these maximum financial or
volume limits within a reasonable period or to choose not to have such a limit.
Unless customers state otherwise, they should be put on a default limit system.

ê 544/2009
recital 44

(73)
These transparency measures should be seen as
minimum safeguards for roaming customers, and should not preclude mobile
operators from offering their customers a range of other facilities which help
them to predict and control their expenditure on data roaming services. For
example, many operators are developing new retail flat rate roaming offers
which permit data roaming for a specified price over a specified period up to a
‘fair use’ volume limit. Likewise operators are developing systems to enable
their roaming customers to be updated on a real-time basis on their accumulated
outstanding data roaming charges. To ensure the smooth functioning of the internal
market, these developments on the domestic markets should be reflected in the
harmonised rules.

ò new

(74)
However,
since the entry into force of the amendments introduced by Regulation (EC) No
544/2009, it has been observed that it is less probable that customers under
pre-paid tariffs suffer from "bill shocks" for the use of data
roaming services, given that the amount of credit available is already chosen
in advance. In addition, with the transitory Euro-data tariff with regulated
rates for data roaming charges, these consumers will also benefit from
additional protection against high prices for these services. For these
reasons, the cut off limit provisions should not apply to customers under
pre-paid contracts.

ê 717/2007
recital 34 (adapted)

(75)
The national regulatory authorities which are
responsible for carrying out tasks under the 2002 regulatory framework for
electronic communications should have the powers needed to supervise and
enforce the obligations under this Regulation within their territory. They
should also monitor developments in the pricing of voice and data services for
mobile customers when roaming within the Community Ö Union Õ including,
where appropriate, the specific costs related to roaming calls made and
received in the outermost regions of the Community Ö Union Õ and the need
to ensure that these costs can be adequately recovered on the wholesale market,
and that traffic steering techniques are not used to limit choice to the
detriment of customers. They should ensure that up-to-date information on the
application of this Regulation is made available to interested parties and
publish the results of such monitoring every six months. Information should be
provided on corporate, post-paid and pre-paid customers separately.

ê 717/2007
recital 35 (adapted)

(76)
In-country roaming in the outermost regions of
the Community Ö Union Õ where mobile
telephony licences are distinct from those issued in respect of the rest of the
national territory could benefit from rate reductions equivalent to those
practised on the Community Ö Union Õ roaming
market. The implementation of this Regulation should not give rise to less
favourable pricing treatment for customers using in-country roaming services as
opposed to customers using Community-wide Ö Union-wide Õ roaming
services. To this end, the national authorities may take additional measures
consistent with Community Ö Union Õ law.

ê 717/2007
recital 36

In view of the
fact that, in addition to voice telephony, new mobile data communication
services are gaining ever more ground, this Regulation should make it
possible to monitor market developments in those services too. The Commission,
therefore, should also monitor the market for roaming data communication
services, including SMS and MMS.

ê 717/2007
recital 37

(77)
Member States should provide for a system of
penalties to be applied in the event of breach of this Regulation.

ê 717/2007
recital 38 (adapted)

ð new

(78)
Since the objectives of this Regulation, namely
to establish a common approach to ensure that users of public mobile telephone
networks when travelling within the Community Ö Union Õ do not pay
excessive prices for Community-wide Ö Union-wide Õ roaming
services when making or receiving voice calls, thereby achieving a high level of consumer protection while safeguarding ð by enhancing ï competition between mobile operators, cannot be sufficiently
achieved by the Member States in a secure, harmonised and timely manner
and can therefore be better achieved at Community Ö Union Õ level, the Community Ö Union Õ may adopt
measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty Ö on European
Union Õ . In
accordance with the principle of proportionality, as set out in that Article,
this Regulation does not go beyond what is necessary in order to achieve
those objectives.

ò new

(79)
Regulatory obligations
on wholesale charges for voice, SMS and data roaming services should be
maintained until the structural solutions has become effective and competition
in the wholesale markets has sufficiently developed. In addition, market trends
currently show that data services will progressively become the most relevant
segment of mobile services, and wholesale data roaming services currently
exhibit the highest level of dynamism, with prices reasonably below the current
regulated rates.

(80)
Retail safeguard caps
should be set at sufficiently high levels which do not distort the potential
competitive benefits of structural solutions and could be removed completely
once the structural approaches becomes effective and have enabled the
development of a genuine single market. Therefore, retail safeguard caps should
follow a downward trend and subsequently expire.

ê 717/2007
recital 39 (adapted)

This common approach should be established for a
limited time period. This Regulation may, in the light of a review to be
carried out by the Commission, be extended or amended. The Commission should
review the effectiveness of this Regulation and the contribution which it makes
to the implementation of the regulatory framework and the smooth functioning of
the internal market and also examine the
impact of this Regulation on the smaller mobile telephony providers in the
Community and their position in the Community-wide roaming market,

ê 544/2009
recital 49 (adapted)

(81)
The Commission should review the effectiveness
of Ö this Õ Regulation (EC)
No 717/2007 as amended by this Regulation in light of its objectives and the contribution to the
implementation of the regulatory framework and the smooth functioning of the
internal market. In this context, the Commission should consider the impact on
the competitive position of mobile communications providers of different sizes
and from different parts of the Community Ö Union Õ , the
developments, trends and transparency in retail and wholesale charges, their
relation to actual costs, the extent to which the assumptions made in the
impact assessment that accompanied this Regulation have been confirmed and the
costs of compliance of operators and the impact on the investments. The
Commission should also, in the light of technological developments, consider
the availability and quality of services which are an alternative to roaming
(such as VoIP Ö access
through WIFI Õ ).

ê 544/2009
recital 50 (adapted)

ð new

(82)
Prior to the abovementioned review, and in order
to ensure the continuous monitoring of roaming services in the Community Ö Union Õ , the
Commission should prepare an interim report to the European Parliament and the
Council ð every two years ï which includes a general summary of the latest trends in roaming
services and an intermediary assessment of the progress towards achieving the
objectives of Regulation (EC) No 717/2007 as amended by this Regulation and of the possible alternative options for
achieving these objectives.

ê 717/2007

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

ê 544/2009
Art. 1.2(a) (adapted)

ð new

1. This Regulation introduces a common
approach to ensuring that users of public mobile communications networks when
travelling within the Community Ö Union Õ do not pay
excessive prices for Community-wide Ö Union-wide Õ 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, thereby contributing 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.

ð It lays down rules to guarantee the
separate sale of roaming services from domestic mobile communications services
and the conditions for wholesale access to public mobile telephone networks for
the purpose of provision of roaming services. ï It Ö also Õ lays down Ö transitory Õ rules on the
charges that may be levied by mobile operators for the provision of Community-wide Ö Union-wide Õ roaming services
for voice calls and SMS messages originating and terminating within the Community Ö Union Õ and for packet
switched data communication services used by roaming customers while roaming on
a mobile communications network in another Member State. It applies both to
charges levied between network operators at wholesale level and, where appropriate, to charges levied by home providers at retail level.

ê 717/2007
(adapted)

2. This Regulation also lays down rules aimed
at increasing price transparency and improving the provision of
information on charges to users of Community-wide Ö Union-wide Õ roaming
services.

ê 717/2007

3. This Regulation constitutes a specific
measure within the meaning of Article 1(5) of the Framework Directive.

ê 544/2009
Art. 1.2(b)

ð new

4. The charge limits set out in this
Regulation are expressed in euro. Where charges governed by Articles 3, 4, 4a and 4b and Article 6a(3) and (4) 6, 7, 8,
9, ð 11 and12 ï are denominated in other currencies, the initial limits
pursuant to those Articles shall be determined in those currencies, in the case of
Articles 3 and 4 by applying the reference exchange rates
prevailing on 30 June 2007, and in the case of Articles 4a
and 4b and Article 6a(3) and (4) by
applying the reference exchange rates published on 6 May 2009
ð 30 May 2012 ï by the European Central Bank in the Official Journal of the
European Union.

For the purposes of the subsequent
reductions in those limits provided for in Articles 36(2), 47(2) and 6a(4) ð , 8(1), 11(1) and 12(2) ï , the revised values shall be determined by applying the reference
exchange rates so published one month preceding the date from which the revised
values apply. The same reference exchange rates shall be applied
to revise annually the value of the charges governed by Articles 4a
and 4b and Article 6a(3) where these charges are denominated in
currencies other than the euro.

ê 717/2007

Article 2

Definitions

1. For the purposes of this Regulation, the
definitions set out in Article 2 of the Access Directive,
Article 2 of the Framework Directive, and Article 2 of the Universal
Service Directive shall apply.

2. In addition to the definitions referred
to in paragraph 1, the following definitions shall apply:

(a)          ‘Eurotariff’ means any tariff not
exceeding the maximum charge, provided for in Article 47, which a home provider may levy
for the provision of regulated roaming calls in compliance with that Article;

ê 544/2009
Art. 1.3(a) (adapted)

ð new

(b)          ‘home provider’ means an
undertaking that provides a roaming customer
with ð Union-wide roaming services ï terrestrial public mobile communications services
either via its own network or as a mobile virtual network operator or reseller;

(c)          ‘home network’ means a
terrestrial public mobile communications network located within a Member State
and used by a home provider for the provision of terrestrial public mobile
communications services to a roaming customer;

ê 544/2009
Art. 1.3(a) (adapted)

(d)          ‘Community-wide Ö Union-wide Õ roaming’ means
the use of a mobile telephone or other device by a roaming customer to make or
receive intra-Community Ö intra-
Union Õ calls, to send
or receive SMS messages, or to use packet switched data communications, while
in a Member State other than that in which that customer's home network is
located, by means of arrangements between the operator of the home network and
the operator of the visited network;

(e)          ‘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 Community Ö Union Õ or received by
a roaming customer, originating on a public communications network within the Community Ö Union Õ and
terminating on a visited network;

(f)           ‘roaming customer’ means a
customer of a provider of terrestrial public mobile communications services, by
means of a terrestrial public mobile network situated in the Community Ö Union Õ , whose
contract or arrangement with his home provider permits the use of a mobile telephone
or other device to make or to receive
calls, to send or receive SMS messages, or to use packet switched data
communications on a visited network by means of arrangements between the
operator of the home network and the operator of the visited network;

ê 544/2009
Art. 1.3(a)

(g)          ‘visited network’ means a
terrestrial public mobile communications network situated in a Member State
other than that of the home network and permitting 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 operator of the home
network;

ê 544/2009
Art. 1.3(b)

(h)          ‘Euro-SMS tariff’ means any
tariff not exceeding the maximum charge provided for in Article 4b9, which a home provider may levy
for the provision of regulated roaming SMS messages in accordance with that
Article;

(i)           ‘SMS message’ means a Short
Message Service text message, composed principally of alphabetical and/or
numerical characters, capable of being sent between mobile and/or fixed numbers
assigned in accordance with national numbering plans;

ê 544/2009
Art. 1.3(b) (adapted)

(j)           ‘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 Community Ö Union Õ or received by
a roaming customer, originating on a public communications network within the Community Ö Union Õ and
terminating on a visited network;

ê 544/2009
Art. 1.3(b)

(k)          ‘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 telephone or other mobile device
while it is connected to a visited network. A regulated data roaming service
does not include the transmission or receipt of regulated roaming calls or SMS
messages, but does include the transmission and receipt of MMS messages.;

ò new

(l)           'Euro-data
tariff' means any tariff not exceeding the maximum charge provided for in
Article 12, which a home provider may levy for the provision of regulated data
roaming services in accordance with that Article;

(m)         'alternative
roaming provider' means a home provider, different from the operator providing
domestic mobile communication services, that provides a roaming customer with
roaming services via its own network or as a mobile virtual network operator or
reseller;

(n)          ‘wholesale roaming access’ means the making available
of facilities and/or services to another undertaking, under defined conditions,
for the purpose of providing roaming services to retail customers;

(o)          'European
Union (EU) roaming profile' means a preconfigured profile for the provision of
separate roaming services, which is provided in addition to a profile for the
provision of domestic mobile services on the same SIM card.

Article 3

Wholesale roaming access

1 Mobile network operators shall meet all reasonable
requests for wholesale roaming access, including those from mobile virtual
network operators and resellers. Rules on regulated wholesale roaming tariffs
laid down in Articles 6, 8 and 11 shall apply for the provision of wholesale
roaming access.

2. Wholesale
roaming access shall cover access to all network elements and associated
facilities, relevant services, software and information systems, necessary for
the provision of roaming services to customers.

3. Wholesale
roaming access request shall be granted within a two month period from the
receipt of the request by the network operator.

4. In order to
ensure a consistent regulatory approach to the wholesale access for the
provision of roaming services, BEREC in close co-operation with the Commission,
shall lay down guidelines for wholesale access conditions for the purpose of
providing roaming services.

Article 4

Separate sale of roaming services

1. Home providers
shall enable their subscribers to access voice, SMS and data roaming services
of any interconnected alternative roaming provider.

2. With effect
from 1 July 2014, home providers shall inform all their roaming customers of
the possibility to unsubscribe from their existing roaming services and to opt
for roaming services from an alternative roaming provider. The roaming
customers shall be given a period of two months within which to make their
choice known to their home provider. Roaming customers who have not expressed
their choice within that period shall have the right to opt for an alternative
roaming provider at any moment, in line with paragraphs 3 and 4.

3. The customer's
choice for an alternative roaming provider shall not entail any associated
subscription or other fixed or recurring charges by the home provider and shall
be possible with any retail tariff plan.

4. Any switch to
or from an alternative roaming provider shall be free of charge and shall not
entail conditions or restrictions pertaining to elements of the subscription
other than roaming, and shall be carried out within five working days, save
that where a roaming customer who has subscribed to a domestic package which includes
roaming prices other than the Eurotariff, Euro-SMS tariff or Euro-data tariff,
the home provider may delay the switch from the old to the new subscription
concerning roaming services for a specified period not exceeding three months.

5. At the time of
making or renewing a contract on mobile communication services, home providers
shall provide all customers individually with full information on the
possibility to choose an alternative roaming provider and facilitate the
conclusion of a contract with an alternative roaming provider. Customers
concluding a contract with the home provider for roaming services shall
explicitly confirm that they have been informed of such possibility. The
providers of mobile communications services shall not prevent retailers serving
as their points of sale to offer contracts for separate roaming services with
alternative roaming providers.

6. The home provider or the operator of a visited
network shall not alter the technical characteristics of roaming services
provided by an alternative roaming provider in such a way as to make them
differ from the technical characteristics, including the quality parameters, of
roaming services provided by the operator providing domestic mobile
communications services.

Article 5

Facility for separate sale of roaming services

In order to
ensure the development of the single market, implementation of the technical
solutions for the facility of separate sale of roaming services shall take
place simultaneously across the Union.

For the purpose
of separate sale of roaming services, operators shall make sure that facilities
are in place by 1 July 2014 at the latest, to ensure that the customer can use
domestic mobile services and separate roaming services offered by an
alternative roaming operator while keeping their mobile number. In order to
enable the separate sale of roaming services, operators may in particular allow
the use of a "EU roaming profile" on the same SIM card and the use of
the same terminal alongside domestic mobile services. Pricing for
interconnection related to the provision of this facility shall be
cost-orientated and there should be no direct charges to consumers for the use
of this facility.

BEREC, after
consulting stakeholders and in close co-operation with the Commission, shall
lay down within a reasonable period of time not exceeding three months after
the adoption of this Regulation guidelines with regard to harmonised technical
solutions relating to the facility for separate roaming services and to
harmonised procedures to change the provider of roaming services. Upon a
reasoned request from the BEREC, the Commission may extend that period.

If necessary, the
Commission could give a mandate to a European Standardisation Body for the
adaptation of the relevant standards that are necessary for the harmonised
implementation of the facility.

ê 717/2007
(adapted)

ð new

Article 36

Wholesale charges for the making of
regulated roaming calls

1. The average wholesale charge that the
operator of a visited network may levy from the operator of a roaming customer's home network Ö home
providerÕ for the
provision of a regulated roaming call originating on that visited network,
inclusive inter alia of origination, transit and termination costs, shall not
exceed EUR 0,30 ð 0,14 ï per minute ð as of 1 July 2012 ï .

ê 544/2009
Art. 1.4(a) (adapted)

ð new

2. The average wholesale charge referred to
in paragraph 1 shall apply between any pair of operators and shall be
calculated over a twelve-month period or any such shorter period as may remain
before the end of the period of application of a maximum average wholesale
charge as provided for in this paragraph or the expiry of this Regulation. The
maximum average wholesale charge shall decrease to EUR 0,28 and EUR 0,26, on
30 August 2008 and on 1 July 2009 respectively and shall further
decrease to EUR 0,22 ð 0,10 ï and EUR 0,18 ð 0,06 ï , on 1 July 2010 ð 2013 ï and on 1 July 2011 ð 2014 ï respectively. ð Without prejudice to Article 13, the
maximum average wholesale charge shall remain at EUR 0,06 for the duration of
this Regulation. ï

ê 717/2007
(adapted)

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 sold for the
provision of wholesale roaming calls within the Community Ö Union Õby the relevant
operator over the relevant period. The operator of the visited network shall be
permitted to make a distinction between peak and off-peak charges

ê 544/2009
Art. 1.4(b) (adapted)

However, with effect from 1 July 2009, tThe 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 Community Ö Union Õ 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.

ê 717/2007

Article 47

Retail charges for regulated
roaming calls

1. Home providers shall make available and
actively offer to all their roaming customers, clearly and transparently, a
Eurotariff as provided for in paragraph 2. This Eurotariff shall not
entail any associated subscription or other fixed or recurring charges and may be
combined with any retail tariff.

When making this offer, home providers
shall remind any of their roaming customers who,
before 30 June 2007,
had chosen a specific roaming tariff or package of the conditions applicable to
that tariff or package.

ê 544/2009
Art. 1.5(a)

ð new

2. The retail charge (excluding VAT) of a
Eurotariff which a home provider may levy from its roaming customer for the
provision of a regulated roaming call may vary for any roaming call but shall
not exceed EUR 0,49 ð 0,32 ï per minute for any call made or EUR 0,24 ð 0,11 ï per minute for any call received ð as of 1 July 2012 ï . The price ceiling for calls made shall decrease to EUR 0,46 ð 0,28 ï and EUR 0,43
ð 0,24 on 1 July 2013 and on 1 July
2014 respectively, ï and for calls received to EUR 0,22 and
EUR 0,19, on 30 August 2008 and on 1 July 2009 respectively. The
price ceiling for calls made shall further decrease to EUR 0,39 and
EUR 0,35 and for calls received to EUR 0,15 and EUR 0,11
ð 0,10 ï on 1 July 2010 and on
1 July 2011 respectively ð 2013 ï . ð Without prejudice to Articles 13 and
19 these regulated maximum retail charges for the Eurotariff shall remain valid
until 30 June 2016. ï

ê 544/2009
Art. 1.5(a) (adapted)

With effect from 1 July 2010, hHome providers shall not levy any charge from their roaming customers
for the receipt by them of a roaming voicemail message. This shall be without
prejudice to other applicable charges such as those for listening to such
messages.

With effect from 1 July 2009 eEvery home provider shall charge its roaming customers for the
provision of any regulated roaming call to which a Eurotariff applies, whether
made or received, on a per second basis.

ê 544/2009
Art. 1.5(a)

By way of derogation from the third
subparagraph, the home provider may apply an initial minimum charging period
not exceeding 30 seconds to calls made which are subject to a Eurotariff.

ê 717/2007

3. All roaming
customers shall be offered a tariff as set out in paragraph 2.

ê 717/2007
(adapted)

3. All existing roaming customers shall be given the opportunity by
30 July 2007 to opt deliberately
for a Eurotariff or any other roaming tariff, and shall be allowed a period of
two months within which to make their choice known to their home provider. The
requested tariff shall be activated no later than one month after receipt by
the home provider of the customer's request.

ê 717/2007

ð new

ð Home providers shall apply a
Eurotariff to all existing ï Rroaming customers who within that
period of two months have not expressed their choice shall
automatically be provided with a Eurotariff as set out in
paragraph 2.

ê 717/2007
(adapted)

ð new

However, Ö with the
exception of such Õ roaming
customers who before 30 June 2007 had
ð have ï already made a deliberate choice of a specific roaming tariff or
package other than the roaming tariff Ö by virtue
of Õ which Ö they
benefit from a different tariff for regulated roaming calls than Õ they would
have been accorded in the absence of such choice, and who
fail to express a choice pursuant to this
paragraph, shall remain on their previously chosen tariff or package.

ò new

4. Home providers
shall apply a Eurotariff to all new roaming customers who do not make a
deliberate choice to select a different roaming tariff or a tariff package for
roaming services which includes a different tariff for regulated roaming calls.

ê 544/2009
Art. 1.5(b)

54. Any roaming customer may
request, at any point after the process set out in
paragraph 3 has been completed, to switch to or
from a Eurotariff. Any switch must be made within one working day of receipt of
the request and free of charge and shall not entail conditions or restrictions
pertaining to other elements of the subscription, save that where a roaming
customer who has subscribed to a special roaming package which includes more
than one roaming service (namely, voice, SMS and/or data) wishes to switch to a
Eurotariff, the home provider may require the switching customer to forego the
benefits of the other elements of that package. A home provider may delay a
switch until the previous roaming tariff has been effective for a minimum
specified period not exceeding three months.

ê 544/2009
Art. 1.6 (adapted)

ð new

Article 4a8

Wholesale charges for regulated roaming
SMS messages

1. With effect from 1 July 2009 ð 2012 ï , the average wholesale charge that the operator of a visited
network may levy from the operator of a roaming customer's home network Ö home
provider Õ, for the
provision of a regulated roaming SMS message originating on that visited
network, shall not exceed EUR 0,04
ð 0,03 ï per SMS message. ð The maximum average wholesale charge
for the provision of a regulated roaming SMS message shall decrease to EUR 0,02
on 1 July 2014. Without prejudice to Article 13 the regulated wholesale charge
for the provision of regulated roaming SMS messages shall remain at EUR 0,02
for the duration of this Regulation. ï

ê 544/2009
Art. 1.6

2. The average wholesale charge referred to
in paragraph 1 shall apply between any pair of operators and shall be
calculated over a twelve-month period or any such shorter period as may remain
before the expiry of this Regulation.

ê 544/2009
Art. 1.6 (adapted)

3. The average wholesale charge referred to
in paragraph 1 shall be calculated by dividing the total wholesale revenue
received by the operator of the visited network from each operator of a home
network for the origination and transmission of regulated roaming SMS messages
within the Community Ö Union Õ in the
relevant period by the total number of such SMS messages originated and
transmitted on behalf of the relevant operator of a home network within that
period.

ê 544/2009
Art. 1.6

ð new

4. The operator of a visited network shall
not levy from the operator of a roaming customer’s home network any charge,
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 4b9

Retail charges for regulated
roaming SMS messages

1. Home providers shall make available to
all their roaming customers, clearly and transparently, a Euro-SMS tariff as
provided for in paragraph 2. The Euro-SMS tariff shall not entail any
associated subscription or other fixed or recurring charges and may be combined
with any retail tariff, subject to the other provisions of this Article.

2. With effect from 1 July 2009 ð 2012 ï , the retail charge (excluding VAT) of a Euro-SMS tariff which a
home provider may levy from its roaming customer for a regulated roaming SMS
message sent by that roaming customer may vary for any roaming SMS message but
shall not exceed EUR 0,11
ð 0,10 ï . ð Without prejudice to Articles 13 and
19, the regulated maximum retail charge for the Euro-SMS tariff shall remain at
EUR 0,10 until 30 June 2016. ï

3. Home providers shall not levy any charge
from their roaming customers for the receipt by them of a regulated roaming SMS
message.

ê 544/2009
Art. 1.6 (adapted)

4. From 1 July 2009 hHome providers shall apply a Euro-SMS tariff to all existing roaming
customers automatically, with the exception of such roaming customers who have
already made a deliberate choice of a specific roaming tariff or package by
virtue of which they benefit from a different tariff for regulated roaming SMS
messages than they would have been accorded in the absence of such a choice.

5. From 1 July 2009 hHome providers shall apply a Euro-SMS tariff to all new roaming
customers who do not make a deliberate choice to select a different roaming SMS
tariff or a tariff package for roaming services which includes a different
tariff for regulated roaming SMS messages.

ê 544/2009
Art. 1.6

6. Any roaming customer may request to
switch to or from a Euro-SMS tariff at any time. Any switch must be made within
one working day of receipt of the request and free of charge and shall not
entail conditions or restrictions pertaining to elements of the subscription
other than roaming. A home provider may delay such a switch until the previous
roaming tariff has been effective for a minimum specified period not exceeding
three months. A Euro-SMS tariff may always be combined with a Eurotariff.

7. No later than
30 June 2009, home providers shall inform all their roaming customers
individually about the Euro-SMS tariff, that it will apply from 1 July
2009 at the latest to all roaming customers who have not made a deliberate
choice of a special tariff or package applicable to regulated SMS messages, and
about their right to switch to and from it
in accordance with paragraph 6.

Article 4c10

Technical characteristics of
regulated roaming SMS messages

No home provider or operator of a visited
network shall alter the technical characteristics of regulated roaming SMS
messages in such a way as to make them differ from the technical
characteristics of SMS messages provided within its domestic market.

ò new

Article 11

Wholesale charges for regulated data roaming services

1. With effect
from 1 July 2012 the average wholesale charge that the operator of a visited
network may levy from the roaming customer's home provider for the provision of
regulated data roaming services by means of that visited network shall not
exceed a safeguard limit of EUR 0,30, EUR 0,20 as of 1 July 2013 and EUR 0,10 as
of 1 July 2014 per megabyte of data transmitted. Without prejudice to Article
13 the maximum average wholesale charge for the provision of regulated data
roaming services shall remain at EUR 0,10 per megabyte of data transmitted for
the duration of this Regulation.

2. The average
wholesale charge referred to in paragraph 1 shall apply between any pair of
operators and shall be calculated over a twelve-month period or any such
shorter period as may remain before the expiry of this Regulation.

3. The average
wholesale charge referred to in paragraph 1 shall be calculated by dividing the
total wholesale revenue received by the operator of the visited network from
each provider of roaming services 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.

Article12

Retail charges for regulated data roaming services

1. Roaming
providers shall make available to all their roaming customers, clearly and
transparently, a Euro-data tariff as provided for in paragraph 2. This Euro-data
tariff shall not entail any associated subscription or other fixed or recurring
charges and may be combined with any retail tariff.

When making this
offer, home providers shall remind any of their roaming customers who, before
30 June 2012, had chosen a specific roaming tariff or package of the conditions
applicable to that tariff or package.

2. With effect
from 1 July 2012, the retail charge (excluding VAT) of a Euro-data tariff which
a home provider may levy from its roaming customer for the provision of a
regulated roaming data shall not exceed EUR 0,90 per megabyte. The price
ceiling for data used shall decrease to EUR 0,70 and EUR 0,50, per megabyte
used on 1 July 2013 and on 1 July 2014 respectively. Without prejudice to
Articles 13 and 19, the regulated maximum retail charge shall remain at EUR
0,50, per megabyte used until 30 June 2016.

Every roaming
provider shall charge its roaming customers for the provision of any regulated
roaming data service to which a Euro-data tariff applies on a per kilobyte
basis.

3. From 1 July
2012 home providers shall apply a Euro-data tariff to all existing roaming customers
automatically, with the exception of such roaming customers who have already
made a choice of a specific roaming tariff or package by virtue of which they
benefit from a different tariff for regulated data roaming services than they
would have been accorded in the absence of such choice.

4. From 1 July
2012 home providers shall apply a Euro-data tariff to all new roaming customers
who do not make a deliberate choice to select a different roaming data tariff
or a tariff package for roaming services which includes a different tariff for
regulated roaming data services.

5. Any roaming
customer may request to switch to or from a Euro-data tariff respecting their
contractual conditions at any point in time. Any switch must be made within one
working day of receipt of the request and free of charge and shall not entail
conditions or restrictions pertaining to elements of the subscription other
than roaming. A home provider may delay such a switch until the previous
roaming tariff has been effective for a minimum specified period not exceeding
three months. A Euro-data tariff may always be combined with a Euro-SMS tariff
and a Eurotariff.

6. No later than
30 June 2012, home providers shall inform all their roaming customers
individually about the Euro-data tariff, that it will apply from 1 July 2012 at
the latest to all roaming customers who have not made a deliberate choice of a
special tariff or package applicable to regulated data services, and about
their right to switch to and from it in accordance with paragraph 5.

Article 13

Conditions for advance non-application of maximum
wholesale and retail charges

1. In order to
assess the competitive development in the roaming markets BEREC shall collect
regularly data on the development of retail and wholesale charges for voice,
SMS and data roaming services. These data shall be notified to the Commission,
at least twice a year. The Commission shall make them public.

2. If, after 30 June 2018, the average wholesale
charge for one of the roaming services (voice, SMS or data) for unbalanced
traffic between operators that do not belong to the same group falls to 75% or
less of the maximum wholesale charges provided for in Articles 6(2), 8(1) and
11(1), the maximum wholesale charges for the roaming service concerned shall no
longer apply. The Commission shall regularly verify, on the basis of the market
data collected by BEREC, whether this condition is met and, if so, it shall
publish without delay in the C series of the Official Journal of the European
Union the data proving that the maximum wholesale charges no longer apply for
the service concerned.

3. If, following
the implementation of the separate sale of roaming services referred to in
Article 5 and before 1 July 2016, the average retail charge at the Union level
falls to 75% or less of the maximum retail charges provided for in Articles
7(2), 9(2) and 12(2), the maximum retail charges for that roaming services
shall no longer apply. The Commission shall regularly verify, on the basis of
the market data collected by BEREC, whether this condition is met and, if so,
it shall publish without delay in the C series of the Official Journal of the
European Union the data proving that the maximum retail charges no longer apply
for the service concerned.

4. The relevant
maximum charges shall cease to apply as from the first day of the month
following the publication of the data proving that the conditions of paragraphs
2 or 3 respectively are satisfied.

ê 544/2009
Art. 1.8

ð new

Article 614

Transparency of retail charges for
regulated roaming calls and SMS messages

1. To alert a roaming customer to the fact
that he will be subject to roaming charges when making or receiving a call or
when sending an SMS message, each home provider shall, except when the customer
has notified his home provider that he does not require this service, provide
the customer, automatically by means of a Message Service, without undue delay
and free of charge, when he enters a Member State other than that of his home
network, 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.

This basic personalised pricing information
shall include the maximum charges the customer may be subject to under his
tariff scheme for:

(a)          making calls within the visited
country and back to the Member State of his home network, as well as for calls
received; and

(b)          sending regulated roaming SMS
messages while in the visited Member State.

It shall also include the free of charge
number referred to in paragraph 2 for obtaining more detailed information
and information on the possibility of accessing emergency services by dialling
the European emergency number 112 free of charge.

ð On the occasion of each message, a
customer shall have the opportunity to give notice to home provider, free of
charge and in an easy manner, that he does not require the automatic Message
Service. ï A customer who has given notice that he does not require the
automatic Message Service shall have the right at any time and free of charge
to require the home provider to provide the service again.

Home providers shall provide blind or
partially-sighted customers with this basic personalised pricing information
automatically, by voice call, free of charge, if they so request.

ê 544/2009
Art. 1.8 (adapted)

ð new

2. In addition to paragraph 1,
customers shall have the right to request and receive, free of charge, and
irrespective of their location within the Community Ö Union Õ , more
detailed personalised pricing information on the roaming charges that apply in
the visited network to voice calls, SMS, MMS and other data communication
services, and information on the transparency measures applicable by virtue of
this Regulation, by means of a mobile voice call or by SMS. Such a request
shall be to a free-of-charge number designated for this purpose by the home
provider. ð Obligations provided for in
paragraph 1 shall not apply to machine to machine (M2M) type of devices that
use mobile communication. ï

3. Home providers shall provide all users
with full information on applicable roaming charges, in particular on the
Eurotariff, and the
Euro-SMS tariff ð and the Euro-data tariff ï , 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.

Home providers shall take the
necessary steps to secure awareness by all their roaming customers of the
availability of the Eurotariff, and the Euro-SMS tariff ð and the Euro-data tariff ï . They shall in particular communicate to all roaming customers by
30 July 2007 the conditions
relating to the Eurotariff, and by 30 June 2009 the conditions relating to the Euro-SMS tariff ð and by 30 June 2012 the conditions
relating to the Euro-data tariff as defined in Article 12 ï , in each case in a clear and unbiased manner. They shall send a
reminder at reasonable intervals thereafter to all customers who have opted for
another tariff.

ê 544/2009
Art. 1.9 (adapted)

Article 6a15

Transparency and safeguard
mechanisms for regulated Ö retail Õ data
roaming services

ê 544/2009
Art. 1.9

ð new

1. Home providers shall ensure that their
roaming customers, both before and after the conclusion of a 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 3. ð The safeguard mechanisms referred to
in paragraph 3 shall not apply to pre-paid customers. ï

Where appropriate, home providers shall
inform their customers, before the conclusion of a contract and on a regular
basis thereafter, of the risk of automatic and uncontrolled data roaming
connection and download. Furthermore, home providers shall explain to their
customers, in a clear and easily understandable manner, how to switch off these
automatic data roaming connections in order to avoid uncontrolled consumption
of data roaming services.

ê 544/2009
Art. 1.9 (adapted)

2. From 1 July 2009 at the
latest, aAn automatic message from the home
provider shall inform the roaming customer that he is roaming and provide basic
personalised tariff information on the charges applicable to the provision of
regulated data roaming services to that roaming customer in the Member State
concerned, except where the customer has notified his home provider that he
does not require this information.

ê 544/2009
Art. 1.9

Such basic personalised tariff information
shall be delivered to the roaming customer’s mobile telephone or other device,
for example by an SMS message, an e-mail or a pop-up window on the computer,
every time the roaming customer enters a Member State other than that of his
home network and initiates for the first time a regulated 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 home provider
that he does not require the automatic tariff information shall have the right
at any time and free of charge to require the home provider to provide this
service again.

ê 544/2009
Art. 1.9 (adapted)

3. By 1 March 2010, eEach home provider shall grant to all their roaming customers the
opportunity to opt deliberately and free of charge for a facility which
provides 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 does not exceed a specified financial limit.

ê 544/2009
Art. 1.9

To this end, the home 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 these 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 home provider may
establish limits expressed in volume, provided that the customer is informed in
advance of the corresponding financial amounts. One of these 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 home provider may offer to
its roaming customers other limits with different, that is, higher or lower,
maximum monthly financial limits.

ê 544/2009
Art. 1.9 (adapted)

By 1 July 2010, tThe default limit in the second and third subparagraphs shall be
applicable to all customers who have not opted for another limit.

ê 544/2009
Art. 1.9

Each home provider shall also ensure that
an appropriate notification is sent to the roaming customer’s mobile telephone
or other device, for example by an SMS message, an e-mail or a pop-up window on
the computer, when the data roaming services have reached 80 % of the
agreed financial or volume limit. Customers shall have the right to require their
operators to stop sending such notifications and shall have the right at any
time and free of charge to require the home provider to provide the service
again.

When this financial or volume limit would
otherwise be exceeded, a notification shall be sent to the roaming customer’s
mobile telephone or other device. This notification 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 home 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.

ê 544/2009
Art. 1.9 (adapted)

From 1 November 2010, wWhenever a roaming customer requests to opt for or to remove a
‘financial or volume limit’ facility, the change must be made within one
working day of receipt of the request, free of charge, and shall not entail
conditions or restrictions pertaining to other elements of the subscription.

4. With effect from 1 July 2009:

ê 544/2009
Art. 1.9

(a)
the average wholesale charge that the operator of a visited network may levy
from the operator of a roaming customer’s home network for the provision of
regulated data roaming services by means of that visited network shall not
exceed a safeguard limit of EUR 1,00 on 1 July 2009, EUR 0,80 on
1 July 2010 and EUR 0,50 on
1 July 2011 per megabyte of data transmitted. The application of this
safeguard limit shall not lead to any distortion or restriction of competition
in the wholesale data roaming market in accordance with Article 8(2)(b) of
the Framework Directive;

(b) this average
wholesale charge shall apply between any pair of operators and shall be
calculated over a twelve-month period or any such shorter period as may remain
before the expiry of this Regulation;

(c)
the average wholesale charge referred to in point (a) shall be
calculated by dividing the total wholesale revenue received by the operator of
the visited network from each operator of a home network 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.

ê 717/2007

Article 716

Supervision and enforcement

1. National regulatory authorities shall
monitor and supervise compliance with this Regulation within their territory.

ê 544/2009
Art. 1.10(a)

ð new

2. National regulatory authorities shall
make up-to-date information on the application of this Regulation, in
particular Articles 36 to , 47, 4a8, 4b9, ð 11 ï and 6a ð 12 ï , publicly available in a manner that enables interested parties to
have easy access to it.

ê 717/2007

3. National regulatory authorities shall in
preparation for the review provided for in Article 11, 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 299(2) 349 of the Treaty. National regulatory authorities shall also be alert
to the particular case of involuntary roaming in the border regions of
neighbouring Member States and monitor whether traffic steering techniques are
used to the disadvantage of customers. They shall communicate the results of
such monitoring to the Commission, including separate information on corporate,
post-paid and pre-paid customers, every six months.

4. National regulatory 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 to the timescales and level of detail
required by the national regulatory authority.

ê 544/2009
Art. 1.10(b)

5. National regulatory authorities may
intervene on their own initiative in order to ensure compliance with this
Regulation. In particular, they shall, where necessary, make use of the powers
under Article 5 of the Access Directive to ensure adequate access and
interconnection in order to guarantee the end-to-end connectivity and
interoperability of roaming services, for example where subscribers are unable
to exchange regulated roaming SMS messages with subscribers of a terrestrial
mobile network in another Member State as a result of the absence of an
agreement enabling the delivery of those messages.

ê 717/2007

6. Where a national regulatory authority
finds 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 817

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 20 and 21 of the
Framework Directive shall apply.

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 34 of the
Universal Service Directive are available.

ê 544/2009
Art. 1.11

ð new

Article 918

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 must be effective, proportionate and dissuasive. Member States shall notify
those provisions to the Commission no later than
30 March 2008 or, in the case of the additional requirements introduced
in Article 3(2) and (3), Article 4(2) and (4) and
Articles 4a, 4b, 4c, 6, 6a and 7 by Regulation (EC) No 544/2009[15], no later than
30 March 2010 ð 2012 ï and shall notify it without delay of any subsequent amendment
affecting them.

ê 717/2007
(adapted)

Article 10

Amendment to Directive 2002/21/EC (Framework
Directive)

The following paragraph shall be added to
Article 1 of Directive 2002/21/EC (Framework Directive):

‘5. This Directive and the Specific Directives shall
be without prejudice to any specific measure adopted for the regulation of
international roaming on public mobile telephone networks within the
Community.’

ê 544/2009
Art. 1.12

ð new

Article 1119

Review

1. The Commission shall review the
functioning of this Regulation and, after a public consultation, shall report
to the European Parliament and the Council no later than 30 June 2011 ð 2015 ï . The Commission shall evaluate in particular whether the
objectives of this Regulation have been achieved. In so doing, the Commission
shall review, inter alia:

–
the developments in wholesale and retail charges
for the provision to roaming customers of voice, SMS and data communication
services, and the corresponding development in mobile communications services
at domestic level in the Member States, both for pre-paid and post-paid
customers separately, and in the quality and speed of these services,;

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

–
the extent to which consumers have benefited
through real reductions in the price of roaming services or in other ways from
reductions in the costs of the provision of roaming services and the variety of
tariffs and products which are available to consumers with different calling
patterns,;

–
the degree of competition in both the retail and
wholesale markets, in particular the competitive situation of smaller,
independent or newly started operators, including the competition effects of
commercial agreements and the degree of interconnection between operators.;

ò new

-           the
extent to which the structural solutions foreseen in Articles 3 and 4 have
produced results in developing competition in the roaming market.

ê 544/2009
Art. 1.12

The Commission
shall also assess methods other than price regulation which could be used to
create a competitive internal market for roaming and in so doing shall have
regard to an analysis carried out independently by a body of European
regulators for electronic communications. On the basis of this assessment the
Commission shall make appropriate recommendations.

ò new

2. If the report
shows that the structural measures provided for by the present Regulation are
not sufficient to promote competition in the roaming market for the benefit of
European consumers, the Commission shall make appropriate proposals to the
European Parliament and the Council to address this situation. The Commission
shall examine, in particular, whether it is necessary to modify the structural
measures or to extend the duration of any of the maximum retail charges
foreseen in Articles 7, 9 and 12.

ê 544/2009
Art. 1.12 (adapted)

ð new

3. In addition, the Commission shall, no later
than 30 June 2010 prepare
an interim report to the European
Parliament and the Council Ö on the
functioning of the Regulation every two years after the report foreseen
in paragraph 1. The report Õ , which shall include a summary of the monitoring of the provision of
roaming services in the Community Ö Union Õ and an
assessment of the progress towards achieving the objectives of this Regulation,
including by reference to the matters referred to in paragraph 1.

ê 717/2007

Article 1220

Notification requirements

Member States shall notify to the
Commission the identity of the national regulatory authorities responsible for
carrying out tasks under this Regulation.

ê

Article 21

Repeal

Regulation (EC) No 717/2007 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.

ê 717/2007

è1 544/2009 Art. 1.14

ð new

Article 1322

Entry into force and expiry

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

It shall expire on 30 June è1 2012 ç ð 2022 ï .

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

Done at [...]

For the European Parliament                       For
the Council

The
President                                                 The President

é

ANNEX I

Repealed Regulation with its
amendment
(referred to in Article 22)

Regulation (EC) No 717/2007 of the European Parliament and of the Council || (OJ L 171, 29.6.2007, p. 32) ||

|| Regulation (EC) No 544/2009 of the European Parliament and of the Council || (OJ L 167, 29.6.2009, p. 12)

_____________

ANNEX II

Correlation Table

Regulation (EC) No 717/2007 || This Regulation

Article 1 || Article 1

Article 2(1) || Article 2(1)

Article 2(2), introductory words || Article 2(2), introductory words

Article 2(2), points (a) to (k) || Article 2(2), points (a) to (k)

- || Article 2(2), points (l) to (o)

- || Articles 3, 4 and 5

Article 3(1) || Article 6(1)

Article 3(2) || Article 6(2)

Article 3(3), first subparagraph || -

Article 3(3), second subparagraph || Article 6(3)

Article 4(1) || Article 7(1)

Article 4(2) || Article 7(2)

Article 4(3), first paragraph || -

Article 4(3), second paragraph || Article 7(3)

Article 4(4) || Article 7(4)

Article 4a || Article 8

Article 4b || Article 9

Article 4b(7) || -

Article 4c || Article 10

- || Article 11

- || Article 12

- || Article 13

Article 6 || Article 14

Article 6a || Article 15

Article 6a(4) || -

Article 7 || Article 16

Article 8 || Article 17

Article 9 || Article 18

Article 10 || -

Article 11(1) introductory words || Article 19(1) introductory words

Article 11(1) first subparagraph first to fourth indent || Article 19(1) first subparagraph first to fourth indent

- || Article 19(1) fifth indent

Article 11(1) second subparagraph || -

Article 11(2) || Article 19(2)

Article 12 || Article 20

- || Article 21

Article 13 || Article 22

_____________

[1]               OJ C [...], [...], p. [...].

[2]               OJ C , , p. .

[3]               OJ L 171, 29.6.2007, p. 32.

[4]               OJ L 108, 24.4.2002, p. 7.

[5]               OJ L 108, 24.4.2002, p. 21.

[6]               OJ L 108, 24.4.2002, p. 33.

[7]               OJ L 108,
24.4.2002, p. 51.

[8]               OJ L 201,
31.7.2002, p. 37. Directive as amended by
Directive 2006/24/EC (OJ L 105, 13.4.2006, p. 54).

[9]               OJ L 114,
8.5.2003, p. 45.

[10]             OJ L 114,
8.5.2003, p. 45.

[11]             OJ C 165, 11.7.2002, p. 6.

[12]             OJ L 337,
18.12.2009, p. 1.

[13]             OJ L 344/65 28.12.2007, [unclear reference, please
redrart]

[14]             OJ C 285 E, 22.11.2006, p. 143.

[15]             OJ L 167, 29 June 2009, p. 12.