Judgment;Summary — ECLI:EU:C:2021:675
Date: 2021-09-02
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-854/19 - 1 
Case C-854/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 November 2019 
Referring court: 
Verwaltungsgericht Köln (Germany) 
Date of the decision to refer: 
18 November 2019 
Applicant: 
Vodafone GmbH 
Defendant: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
Telecommunications, mobile communications tariffs, data roaming, different 
arrangements for use domestically and in other EU countries  
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU  
Questions referred 
1. a) In a case where a mobile communications tariff which customers 
can use abroad and which provides a monthly inclusive data volume for mobile 
data traffic, after the consumption of which the transmission speed is reduced, can 
be extended by a free tariff option on the basis of which certain services of partner 
companies of the telecommunications company can be used domestically without 
the data volume consumed through the use of those services being offset against 
the monthly inclusive data volume of the mobile communications tariff, whereas 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-854/19 
 
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abroad the data volume in question is offset against the monthly inclusive data 
volume of the mobile communications tariff, is the concept of the regulated data 
roaming service within the meaning of Article 6a in conjunction with 
Article 2(2)(m) of Regulation No 531/2012 to be understood as meaning that the 
mobile communications tariff and the tariff option are to be jointly qualified as a 
single regulated data roaming service with the result that a non-offsetting of the 
data volume consumed through the use of the services of partner companies 
against the monthly inclusive data volume is impermissible only domestically? 
b) If Question 1 a) is to be answered in the affirmative: In a situation such as 
that in question in the present proceedings, is Article 6a of Regulation 
No 531/2012 to be interpreted as meaning that the offsetting of the data volume 
consumed through the use of the services of partner companies against the 
monthly inclusive data volume of the mobile communications tariff abroad is to 
be qualified as the charging of an additional fee? 
c) If Question 1 a) and Question 1 b) are to be answered in the affirmative: 
Does this also apply if, in a situation such as that in question in the present 
proceedings, a fee is demanded for the tariff option? 
2. a) If Question 1 a) is to be answered in the affirmative: In a situation 
such as that in question in the present proceedings, is the first subparagraph of 
Article 6b(1) of Regulation No 531/2012 to be interpreted as meaning that a fair 
use policy for the use of regulated roaming services at retail level can also be 
provided for the tariff option as such? 
b) If Question 1 a) is to be answered in the affirmative and Question 2 a) is to 
be answered in the negative: In a situation such as that in question in the present 
proceedings, is the first subparagraph of Article 6b(1) of Regulation No 531/2012 
to be understood as meaning that a common fair use policy for the use of 
regulated roaming services at retail level can be provided both for the mobile 
communications tariff and the tariff option with the result that the overall 
domestic retail price of the mobile communications tariff and/or the sum of the 
overall domestic retail prices of the mobile communications tariff and the tariff 
option is to form the basis of the calculation of the data volume to be provided 
within the scope of a common fair use policy? 
c) If Question 1 a) is to be answered in the affirmative and Question 2 a) and 
Question 2 b) are to be answered in the negative: In a situation such as that in 
question in the present proceedings, is the first subparagraph of Article 6b(1) of 
Regulation No 531/2012 in conjunction with the first subparagraph of Article 4(2) 
of Implementing Regulation No 2016/2286 applicable by analogy in such a way 
that a fair use policy can be provided for the tariff option as such? 
3. a) If Question 2 a) or c) is to be answered in the affirmative: Is the 
concept of the open data bundle for the purpose of the first subparagraph of 
Article 6b(1) of Regulation No 531/2012 in conjunction with the first 
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subparagraph of Article 4(2) and Article 2(2)(c) of Implementing Regulation 
No 2016/2286 to be interpreted as meaning that a tariff option for which a fee is 
demanded is to be qualified in itself as an open data bundle? 
b) If Question 3 a) is to be answered in the affirmative: In a situation such as 
that in question in the present proceedings, does this also apply if no fee is 
demanded for the tariff option? 
4. If Question 2 a) or c) is to be answered in the affirmative and Question 3 a) 
or b) is to be answered in the negative: In a situation such as that in question in the 
present proceedings, is the first subparagraph of Article 6b(1) of Regulation 
No 531/2012 in conjunction with the first subparagraph of Article 4(2) of 
Implementing Regulation No 2016/2286 to be interpreted as meaning that the 
overall domestic retail price of the mobile communications tariff is also to be used 
for calculating the volume which must be provided to roaming customers within 
the scope of a fair use policy based in isolation on the tariff option as such? 
Relevant provisions of EU law 
Regulation (EU) No 531/2012 of the European Parliament and of the Council of 
13 June 2012 on roaming on public mobile communications networks within the 
Union (OJ 2012 L 172, p. 10), specifically Article 6a and the first subparagraph of 
Article 6b(1)  
Commission Implementing Regulation (EU) 2016/2286 of 15 December 2016 
laying down detailed rules on the application of fair use policy and on the 
methodology for assessing the sustainability of the abolition of retail roaming 
surcharges and on the application to be submitted by a roaming provider for the 
purposes of that assessment (OJ 2016 L 344, p. 46), specifically Article 2(2)(c) 
and the first subparagraph of Article 4(2)  
Relevant provisions of national law 
Telekommunikationsgesetz (Law on Telecommunications) of 22 June 2004 
(BGBl. [Federal Law Gazette] I p. 1190), specifically Paragraph 126 
Brief summary of the facts and procedure 
1 The applicant is a telecommunications company which offers its customers 
inter alia mobile communications services at different tariffs. Since 26 October 
2017, customers can add what are known as Vodafone passes (‘Chat Pass’, ‘Social 
Pass’, ‘Music Pass’ and ‘Video Pass’) to the ‘Red’ and ‘Young’ tariffs that are 
offered by the applicant and that customers can use abroad; the tariffs provide a 
different monthly inclusive data volume in each case for mobile data traffic, after 
the consumption of which the transmission speed is reduced; however, the 
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applicant does not offer the Vodafone passes without an underlying mobile 
communications tariff. The first Vodafone pass is already included in the mobile 
communications tariffs in question. Further Vodafone passes can be added in 
return for an additional fee. The ‘Video Pass’ is only offered in the ‘Red S-L’ and 
‘Young M-XL’ tariffs. 
2 A Vodafone pass makes it possible to use the services of the applicant’s partner 
companies, with the particular feature that the data volume consumed through the 
use of those services is not offset against the inclusive data volume of the 
underlying mobile communications tariffs. However, the reduction in transmission 
speed provided after consumption of the inclusive data volume also covers the use 
of the partner companies’ services. The Vodafone passes are only valid 
domestically. Abroad, on the other hand, the data volume consumed for the use of 
the services of partner companies is offset against the inclusive data volume of the 
mobile communications tariff. Furthermore, the applicant reserves the right to also 
offer the Vodafone passes in other European countries in the future. In this event, 
a fair use policy with a maximum possible use of the Vodafone passes in other 
European countries of 5 GB of data volume per pass per month is to apply. 
3 On 15 June 2018, the Bundesnetzagentur (German Federal Network Agency) 
issued the decision that is the subject matter of the proceedings. In that decision, it 
found that, due to the offsetting of the use of the respectively covered apps abroad 
against the respectively included data volume, the Vodafone passes are in breach 
of Article 6a in conjunction with Article 2(2)(r) of Regulation No 531/2012, and 
prohibited the applicant from making further use of the corresponding tariffs and 
clauses. It also found that the fair use limit of 5 GB is in breach of Article 6b(1) of 
Regulation No 531/2012, in so far as this volume falls below the volume 
calculated under that provision, and prohibited the applicant from using the 
corresponding tariffs and clauses. 
4 The objection filed by the applicant against that decision was dismissed on 
23 November 2018. 
Principal arguments of the parties in the main proceedings 
5 The applicant claims that the Vodafone passes are an independent data 
communications service and not part of a single regulated data roaming service 
within the meaning of Article 6a of Regulation No 531/2012. This can be seen 
from the wording of Article 2(2)(m) of Regulation No 531/2012, the systematic 
relationship between Article 2(2)(m) and Article 6a of Regulation No 531/2012 
and the spirit and purpose of the provisions in question. Moreover, the Vodafone 
passes are add-ons within the meaning of the Guidelines of the Body of European 
Regulators for Electronic Communications (BEREC). Furthermore, the Vodafone 
passes are to be qualified as open data bundles within the meaning of the first 
subparagraph of Article 4(2) of Implementing Regulation 2016/2286, as they 
provide an unlimited data volume. A fixed fee within the meaning of 
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Article 2(2)(c) of Implementing Regulation 2016/2286 is also demanded. In any 
event, the first subparagraph of Article 4(2) of Implementing Regulation 
2016/2286 is to be applied by analogy in the case of the Vodafone passes, as add-
ons within the meaning of the BEREC Guidelines are involved. 
6 The defendant disputes the applicant’s arguments. 
Succinct presentation of the reasons for the reference 
7 The legal situation at the time of the last official decision, that is to say on 
23 November 2018, is decisive. 
First question referred 
8 In the opinion of the referring court, there are substantial grounds for thinking that 
the applicant’s tariffs are in breach of Article 6a of Regulation No 531/2012. 
9 The applicant’s mobile communications tariffs to which Vodafone passes can be 
added are undoubtedly regulated data roaming services within the meaning of 
Article 6a of Regulation No 531/2012 in conjunction with Article 2(2)(m) of 
Regulation No 531/2012, since these mobile communications tariffs enable within 
the meaning of Article 2(2)(m) of Regulation No 531/2012 roaming customers to 
use packet switched data communication while they are connected to a visited 
network. 
10 By contrast, the Vodafone passes offered by the applicant merely have the effect 
that the data volume consumed through the use of the services of partner 
companies is not included in the calculation of the inclusive data volume agreed in 
the underlying mobile communications tariff. This is because the Vodafone passes 
make it possible to use selected services of partner companies without consuming 
the included tariff data volume. 
11 This non-offsetting of the consumed data volume against the inclusive data 
volume agreed in the underlying mobile communications tariff is an obstacle to 
the applicant’s assumption that the Vodafone passes are exclusively domestic data 
communications services through which an additional data volume is provided. 
That stated above shows them to instead be part of the underlying mobile 
communications tariff. Accordingly, as part of a regulated data roaming service, 
the Vodafone passes also fall within the scope of application of Article 6a of 
Regulation No 531/2012. It is irrelevant here that, with the exception of the first 
Vodafone pass in the case of new contracts, the applicant demands an additional 
fee for Vodafone passes. 
12 As, according to the case-law of the Oberverwaltungsgericht (Higher 
Administrative Court) for the State of North Rhine-Westphalia, it is not possible 
to reconcile applying the ban on retail roaming surcharges only to direct roaming 
surcharges with the regulatory purpose of Article 6a of Regulation No 531/2012, 
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the applicant, with the current configuration of its mobile communications tariffs, 
is also in breach of Article 6a of Regulation No 531/2012. Based on the 
assumption that, in the scope of application of Article 6a of Regulation 
No 531/2012, the Vodafone passes are to be regarded as part of the underlying 
mobile communications tariff, the offsetting of the data volume for the use of the 
services of partner companies in other (European) countries against the data 
volume included in the underlying mobile communications tariff leads to a change 
in the fee charging mechanism that is impermissible under Article 6a of 
Regulation No 531/2012. This is because although roaming customers do not 
directly pay a higher fee for use in other (European) countries, they receive a 
reduced service for the same fee. On the other hand, the applicant is unconvincing 
in its argument that the Vodafone passes are advantageous precisely because there 
is no offsetting of the data volume consumed for the use of the services of partner 
companies against the inclusive data volume of the mobile communications tariffs 
domestically and therefore a greater inclusive data volume is available abroad. 
13 However, the referring court does not consider the view that the applicant is in 
breach of Article 6a of Regulation No 531/2012 to be so obviously correct that, 
according to the ‘acte-clair doctrine’, it is possible to consider dispensing with a 
referral to the Court of Justice of the European Union. 
The second to fourth questions referred 
14 The referring court assumes that the applicant is in breach of Article 6b of 
Regulation No 531/2012 in conjunction with the first subparagraph of Article 4(2) 
of Implementing Regulation 2016/2286. 
15 A permissible fair use policy within the meaning of the first subparagraph of 
Article 6b(1) of Regulation No 531/2012 cannot relate in isolation to the 
Vodafone passes offered by the applicant, since the Vodafone passes are — as set 
out above — to be regarded as part of the underlying mobile communications 
tariff and therefore of a regulated (data) roaming service within the meaning of the 
first subparagraph of Article 6b(1) of Regulation No 531/2012. For this reason, a 
fair use policy cannot in any event relate to the Vodafone passes as such. The first 
subparagraph of Article 6b(1) of Regulation No 531/2012 expressly only allows a 
fair use policy for the use of regulated (data) roaming services, but it does not do 
so for individual components of such services. For this reason alone, the applicant 
is in breach of the first subparagraph of Article 6b(1) of Regulation No 531/2012 
by providing a fair use policy with a maximum possible use of the Vodafone 
passes in other (European) countries of 5 GB of data volume per Vodafone pass 
per month in the event that the Vodafone passes are also offered in other 
(European) countries in the future. 
16 That outcome is not altered by the fact that, according to the BEREC Guidelines, 
in corresponding application of the first subparagraph of Article 4(2) of 
Implementing Regulation 2016/2286, what is known as an add-on should be able 
to be restricted by a fair use policy since, on the basis of the case-law of the 
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Higher Administrative Court for the State of North Rhine-Westphalia, an add-on 
only exists when additional data volume is added in return for a fee, after the 
initially available inclusive data volume has been consumed. This does not apply 
to the Vodafone passes offered by the applicant. 
17 It is therefore irrelevant in the present case whether the applicant is (also) in 
breach of the first subparagraph of Article 4(2) of Implementing 
Regulation 2016/2286 as a result of its fair use policy since, considering that a 
permissible fair use policy within the meaning of the first subparagraph of 
Article 6b(1) of Regulation No 531/2012 cannot relate in isolation to the 
Vodafone passes offered by the applicant, it is irrelevant whether the applicant 
calculated the data volume it provided in this respect in accordance with the 
provisions of the first subparagraph of Article 4(2) of Implementing 
Regulation 2016/2286. 
18 However, the referring court also does not consider a breach of the first 
subparagraph of Article 6b(1) of Regulation No 531/2012 to be so obvious that, 
according to the ‘acte-clair doctrine’, a referral to the Court of Justice of the 
European Union can be dispensed with.