EUROPEAN COMMISSION Brussels, 24.2.2021 COM(2021) 85 final 2021/0045(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) {SEC(2021) 90 final} - {SWD(2021) 27 final} - {SWD(2021) 28 final} - {SWD(2021) 29 final}



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal Introduction Regulation (EU) No 531/2012 expires on 30 June 2022, therefore the aim of this proposal is to extend it, while adjusting the maximum wholesale charges to ensure sustainability of the provision of retail roaming services at domestic prices, introducing new measures to increase transparency and ensuring a genuine ‘roam-like-at-home’ experience in terms of quality of service and access to emergency services while roaming. As Regulation (EU) No 531/2012 has been amended several times, the purpose of this proposal is to recast the Regulation to improve clarity and replace the multiple amending acts it contains. Background EU regulatory intervention on wholesale and retail roaming markets has been necessary for the last 14 years in order to improve the conditions for the functioning of the internal market for roaming services within the Union. The EU first adopted provisions to bring in a joint approach to regulating roaming on public mobile communications networks in the EU when it adopted Regulation (EC) No 717/2007. In 2009, following a first review of these provisions, their duration was extended and the scope was widened. Following a futher review of the rules, Regulation (EU) No 531/2012 was then adopted. That Regulation amended the previous rules by lowering roaming prices for calls and SMS and capping roaming prices for data across the EU. Regulation (EU) 2015/2120 amended Regulation (EU) No 531/2012 and required retail roaming surcharges to be abolished in the EU from 15 June 2017, subject to fair use of roaming services and the option to apply a sustainability derogation mechanism. These rules for retail roaming services in the Union are referred to in this explanatory memorandum as the ‘roam-like-at-home’ rules (or ‘RLAH’). Although necessary, regulation at retail level alone is not sufficient to implement RLAH. For the abolition of retail roaming surcharges to be sustainable throughout the Union and to avoid distorting competion in domestic markets, national wholesale roaming markets need incentives to act in a competitive manner and provide wholesale roaming prices that enable operators to offer sustainable retail roaming services without additional charges. To this end, the Commission carried out a review of the wholesale roaming market to assess the need for measures to enable retail roaming surcharges to be abolished. It adopted its report on the review of the wholesale roaming market on 15 June 2016. Following the review, the Commission adopted on 17 May 2017 Regulation (EU) 2017/920 amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets with the aim of abolishing retail roaming surcharges by 15 June 2017 without distorting the domestic visited and home markets. On 29 November 2019, the Commission published its first full review of the roaming market (the ‘Commission Review Report’), showing that travellers across the EU have benefited significantly from the end of roaming charges in June 2017. The use of mobile services (data, voice, SMS) while travelling in the EU has increased rapidly and massively, confirming the positive impact of roaming rules. At wholesale level, the sharp reduction in price caps has contributed to a further reduction in wholesale roaming prices, often significantly below the level of regulated caps, which in turn makes the end of roaming charges sustainable for almost all roaming providers. Although the Commission Review Report confirms that, on one hand the ‘roam-like-at-home’ rules have been a success and that, overall, the roaming market works well under such rules, on the other it concludes that, despite signs of some competition dynamics in both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed and are not likely to change in the foreseeable future. Therefore the current retail and wholesale regulation is still necessary and cannot be lifted. Reasons and objective of the proposal, the main amendments and the provisions that remain unchanged. The aim of this proposal is to extend the rules regulating the EU-wide roaming market beyond 2022, while amending the maximum wholesale charges, bringing in new measures to ensure a genuine RLAH experience while roaming, and repealing other measures that appear no longer necessary. The proposed amendments to the rules are described in detail below. In essence, the aim of the main amendments proposed is to ensure operators can provide RLAH and recover costs in a sustainable manner at wholesale level. The proposal is to set EU-wide wholesale roaming maximum charges for calls made, SMS messages and data at lower levels than those valid until 30 June 2022. To reconcile the above two objectives of ensuring sustainability and cost recovery, the proposal sets out a two-step glide path for the maximum wholesale charges applicable for data, voice and SMS. In line with the policy choice made in Regulation (EU) No 531/2012, the new maximum wholesale charges should act as a safeguard level and should ensure that operators can recover their costs. They should also enable the widespread and sustainable provision of RLAH, while leaving a margin for commercial negotiations between operators. By contrast, the provisions remain largely unchanged on fair use policy and sustainability (Article 6b and 6c of Regulation (EU) No 531/2012) as does the related implementing act (Commission Implementing Regulation (EU) 2016/2286), that will continue to apply, given that the safeguard rules at retail level continue to work adequately. However, reducing the maximum wholesale charges applicable would also improve the situation for end users, since it affects price components that are calculated depending on their level, in particular the ceiling for surcharges under the fair use policy mechanism, the sustainability derogations and the data allowance of the fair use policy on open data bundles and pre-paid limits.

The proposal also brings in new measures on transparency, quality of service and access to emergency communications. In particular, it includes amendments that aim to ensure a genuine RLAH for end users and to facilitate innovation and access to networks, while establishing a future-proof regulatory framework for consumers and operators. Specifically, the proposal aims to: (i)Increase transparency at retail level regarding (a) quality of service (by bringing in an obligation for operators to clarify in their contracts with customers the quality of service that they can reasonably expect when roaming in the EU); (b) communications on value-added services (by obliging operators to provide, in their contracts with customers, information on the type of services that may be subject to higher charges and similar information in the ‘welcome SMS’); (c) access to emergency services (by bringing in an obligation for operators to include information on the different possibilities to access emergency services when roaming in the ‘welcome SMS’). (ii)Give roaming customers a genuine RLAH experience in terms of quality of service (by obliging roaming providers to ensure, when technically feasible, that the roaming services are provided under the same conditions as if they were consumed domestically and mobile network operators to provide access to all available network technologies and generations). (iii)Increase the level of transparency at wholesale level with regard to value-added-service numbering ranges by creating a centralised EU database for value-added-service numbering ranges. The aim of the database is to provide a tool for transparency enabling NRAs and operators to have direct access to information on which numbering ranges can generate higher costs in the Member States. (iv)Ensure free-of-charge access to emergency services to customers while roaming by taking specific measures at wholesale level such as (a) the obligation for operators to provide in the wholesale agreement all regulatory and technical information needed to implement free-of-charge access to emergency services and free-of-charge caller location; (b) the obligation not to levy on the roaming provider any charge related to emergency communications and transmission of caller location information. Lastly, the proposal lifts regulatory obligations where they are no longer needed and includes several amendments that aim to simplify and reduce the regulatory burden. •Consistency with existing provisions in the policy area Abolishing retail roaming surcharges marked an essential step towards creating an EU-wide single market, and to making it function properly. In particular, regulating the roaming market to establish RLAH throughout the EU helped achieve the policy objective of ensuring that well-functioning markets provide access for European consumers to high-performance wireless broadband infrastructure at affordable prices across the EU. The co-legislators acknowledged the importance of this objective for the overall digital single market when the RLAH rules were adopted in 2015. Given the above, it is necessary to avoid undermining the achievements made when Regulation (EU) No 531/2012 expires on 30 June 2022. Therefore, the proposal to review the existing roaming rules was included in the 2020 Commission Work Programme under the headline ambition ‘A Europe fit for the Digital Age’ and the specific objective ‘Digital for consumers’. The proposal complements Directive (EU) 2018/1972 establishing the European Electronic Communications Code (EECC), which was to be transposed by the Member States by 21 December 2020. In particular, while promoting the sustainable provision of RLAH, cost recovery and maintaining the incentives to invest in visited networks, the proposal complements EECC’s measures that enable high connectivity and 5G deployment for the benefit of all Europeans, while promoting infrastructure competition and enabling operators to secure a return on investment. By promoting a genuine RLAH experience for end users, the proposal complements EECC provisions that provide effective consumer protection in the context of e-communications, boosting their choice by increasing the level of transparency of information and specific rules on maximum contract duration and number portability. The EECC also aims to provide end users with free-of-charge access to emergency services through emergency communications and to ensure that caller location information is available. The Commission has set as one of its main objectives to respond to the increased needs of the public and of business for connectivity and to benefit from the digital transformation to strengthen the social and economic resilience of the EU and the Member States, their sustainable growth potential and job creation. Gigabit connectivity, powered with secure fibre and 5G infrastructures, is vital to tap Europe’s potential for digital growth. These political objectives, included in the ‘Shaping Europe’s Digital Future’ communication, are also set out in the EU strategy ‘Towards a European Gigabit Society’, in the 5G action plan for Europe and confirmed with the connectivity flagship policy included in the annual sustainable growth strategy 2021 and linked to the Recovery and Resilience Facility. To this end, this proposal enables the seamless use of these infrastructures across borders. •Consistency with other Union policies The aim of the EU roaming rules is to contribute to the smooth functioning of the internal market to achieve a high level of consumer protection and maintain competition among mobile network operators. Although this proposal addresses the regulatory issues that arise from the specific details of EU roaming rules, it also complements other EU policies and laws in several areas. In particular, the proposal contributes to the creation of a ‘Europe Fit for the Digital Age’ and to the ambition to make the most out of the digital transition to give people greater opportunities to connect, communicate and do business. The proposal has the objective to ensure that barriers to the single market that were removed when retail roaming surcharges were abolished will not be reinstated. The ‘New Industrial Strategy for Europe’ underlines that a strong, integrated single market is both a springboard and a pre-condition for a competitive EU industry. To make the single market work for all, EU law puts in place common rules to remove barriers, facilitate the circulation of goods and services across the EU, and protect consumers. For example, the proposal complements the cross-border portability of online content. Thanks to these two initatives, Europeans are now able to travel in the EU without worrying about mobile roaming charges or losing access to music, games, films, entertainment programmes or sports events for which they have already paid. The proposal also facilitates access to European digital culture, learning tools, work platforms and health applications. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis The legal basis for this proposal is Article 114. This is the legal basis for measures adopted under the ordinary legislative procedure that aim to establish or improve the functioning of the internal market, as provided for in Article 26 TFEU. According to the case-law of the European Court of Justice, the object of measures adopted under Article 114 (ex-Article 95 TEC) must be to improve the conditions for the establishment and functioning of the internal market. The EU legislature may use this legal basis particularly where there are differences between national rules that obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market or cause significant distortions of competition. •Subsidiarity For the rules on EU roaming, as part of the internal market policy area and in line with Article 4 (2) of the TFEU, the EU has shared competence with the Member States. In this sector, only action by the EU is effective as the problems could not be solved at national, regional or local level. EU action is therefore essential to improve the single market for electronic communications. As observed by the Advocate General in the landmark case C-58/08 Vodafone, the differences in price between calls made within one’s own Member State and those made while roaming could reasonably be regarded as discouraging the use of cross-border services such as roaming. Such discouragement of cross-border activities has the potential to impede the establishment of an internal market in which free movement of goods, services and capital is ensured. Indeed, there is no clearer cross-border activity in the mobile telecoms sector than roaming itself. The fact that services are cross-border justifies action taken at EU level because Member States cannot by themselves address the issue effectively and national regulatory authorities have been unable to autonomously tackle the problems. In its judgment in the above case C-58/08 Vodafone, the Court of Justice found that, in the past, “the high level of retail charges had been regarded as a persistent problem by NRAs, public authorities and consumer protection associations throughout the Community and that attempts to solve the problem using the existing legal framework had not had the effect of lowering charges”. The proposal includes measures both at wholesale and at retail level. In the above judgment, the Court of Justice also found that wholesale regulation of the roaming market complies with the subsidiarity (and proportionality) principles given that “the interdependence of retail and wholesale charges for roaming services is considerable, so that any measure seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of Community-wide roaming services would have been liable to disrupt the smooth functioning of the Community-wide roaming market”. Similarly, the issues addressed by the new measures included in the proposal are also strictly linked to and affected by the cross-border character of roaming. Therefore they cannot be adequately addressed by the Member States autonomously and action at EU level would be more effective than action at national level. As a matter of fact, the underlying problems that the proposal seeks to remedy can potentially result in either discouraging the use of roaming, creating barriers in the use of mobile services and applications while travelling in the single market, or, in general, disrupting the smooth functioning of the EU-wide roaming market. According to the applicable case-law, this is an objective that must be pursued and is best achieved at EU level. •Proportionality The objective of the EU rules on roaming is to bring in a joint approach to ensure that users of public mobile communications networks, when travelling within the EU, do not pay excessive prices for EU-wide roaming services in comparison with competitive national prices, when making calls and receiving calls, when sending and receiving SMS messages and when using packet switched data communication services. This contributes to the smooth functioning of the internal market while achieving a high level of consumer protection, fostering competition and transparency in the market and offering both incentives for innovation and consumer choice. In addition, this proposal brings in additional measures that aim to remove persisting obstacles to a genuine ‘roam-like-at-home’ experience. Since these objectives cannot be sufficiently achieved by the Member States in a secure, harmonised and timely manner and can therefore be better achieved at EU level, the EU may adopt measures, in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality, also set out in that Article, the proposed regulation does not go beyond what is necessary to achieve those objectives. In particular, the regulation meets the proportionality criterion also because it is provided for a limited time period, as it has an expiry date (30 June 2032, i.e. an overall duration of 10 years). The 10-year duration of the proposed new rules was chosen considering that a decade is typical duration to widely roll out any new generation of mobile communication and develop new business models. Looking ahead, the Commission does not expect that the competition would change significantly on the market in the following 10 years. The aim of the 10-year duration is also to provide certainty in the market and minimise regulatory burden. The proposal also includes a flexible approach to revising the maximum wholesale charges, which, if necessary, will be carried out by adopting a delegated act. This would ensure that one of the key aspects of the functioning of the roaming market can be revised on the basis of reliable and updated data. In the case C-58/08 Vodafone, the Court of Justice of the EU recognised that, in the light of the importance of the objective of consumer protection within the context of Article 95(3) EC (now Article 114 TFEU), intervention that is limited in time in a market that is subject to competition, which makes it possible, in the immediate future, to protect consumers against excessive prices, such as that at issue, even if it might have negative economic consequences for certain operators, is proportionate to the aim pursued. Regulatory obligations on wholesale and retail charges for voice, SMS and data roaming services should be maintained to safeguard consumers as long as competition at the retail or wholesale level is not fully developed. The impact assessment accompanying this proposal discusses proportionality in detail in Section 7.3 - Coherence and proportionality. •Choice of the instrument

As mentioned above, the proposed new regulation is a recast of Regulation (EU) No 531/2012 that supersedes the multiple acts it contains and makes further amendments. It therefore takes the same legislative form. The review is an opportunity to simplify the current structure and content of Regulation (EU) No 531/2012 with a view to improving coherence and consistency with the regulatory fitness objective. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Ex-post evaluations/fitness checks of existing legislation The issues addressed by this proposal were identified in the 2019 Commission Review Report. It draws on a broad range of data to evaluate how Regulation (EU) No 531/2012 has performed and how the roaming market functioned after the RLAH rules came into force. In addition, the backward-looking questions of the public consultation which was held in 2020, and the findings of the joint online surveys by the Commission and the Body of European Regulators for Electronic Communications (BEREC) (in 2018, 2019 and 2020), both complete and complement the conclusions of the Commission Review Report. The Commission Review Report confirms that, overall, the roaming market functions well under the ‘RLAH’ rules and that the rules have been a success. The report concludes that, despite signs of some competition dynamics on both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed, and are not likely to change in the foreseeable future to warrant lifting the retail or wholesale regulation of the roaming market. In addition, the Commission Review Report’s findings and other evidence collected as part of the review identified unresolved issues in roaming services, in terms of quality of service, communications to value-added services and access to emergency services. This proposal tackles all these issues in the new measures it proposes. •Stakeholder consultations This proposal and the accompanying impact assessment were underpinned by a broad consultation of stakeholders. In particular, views were collected from the public and from consumer associations, national regulatory authorities (NRAs), BEREC, mobile network operators (MNOs), mobile virtual network operators (MVNOs), business stakeholders (including SMEs), government authorities, industry associations and from other stakeholders. The Commission ran a 12-week public consultation from 19 June to 11 September 2020. The purpose of the consultation was to collect views (1) on retail roaming services, in particular on the impact of the potential introduction of clarifications and measures related to quality of service, value-added services and emergency communications in a roaming scenario; (2) on the provision of wholesale roaming services; (3) on the administrative burden linked to Regulation (EU) No 531/2012 and the impact of potential simplification measures. A total of 175 replies were received via the online questionnaire. Other consultation activities were organised along the following streams, described overleaf under “Collection and use of expertise”: 1.The publication of the inception impact assessment to collect feedback for four weeks. 2.Joint Commission/BEREC online surveys. Market input was collected through annual online surveys of MNOs, MVNOs and NRAs. In June 2018 and March 2019, the surveys collected information on implementation of the fair use policy, the sustainability derogations and other aspects linked to implementing the EU roaming rules. In March 2020, the survey covered other aspects such as quality of service, value-added services, emergency communications, technology changes and machine-to-machine, cost of implementation and administrative burden. 3.BEREC was consulted and provided extensive input, including on forward-looking aspects. Of particular note are BEREC’s formal opinion on the functioning of the roaming market, the supplementary cost analysis, and the additional input to the impact assessment on the Commission’s request. In addition, the Commission took into account BEREC’s consultations and market monitoring reports: the BEREC semi-annual international roaming benchmark reports, based on a dedicated data collection and the BEREC annual report on the transparency and comparability of roaming tariffs. 4.Targeted interviews on developments of the roaming market as part of the Commission’s study entitled ‘Technological developments and roaming’. The contractor held several interviews with operators involved in the global connectivity value chain and carried out a targeted online survey on the potential impact of technological change on the roaming market. 5.Flash Eurobarometer Survey, conducted one year after abolishing the roaming charges. It included questions on the use of roaming when travelling in the EU, on the level of awareness among customers about the abolition of roaming charges, the perceived benefits, the perceived costs of roaming among non-travellers and the use of mobile services in other EU countries. The information and views gathered were taken into account in drafting the impact assessment accompanying this proposal. The data was used to evaluate Regulation (EU) No 531/2012, assess the unresolved problems in a roaming scenario and develop the policy options presented in the impact assessment. The public consultation confirmed the benefits that the Roaming Regulation aims to bring and the continued need for EU rules on roaming for EU consumers and businesses. The large majority of respondents to the public consultation, in all groups, replied that the EU rules on roaming had significantly promoted the interests of consumers and businesses in the EU/EEA.

•Collection and use of expertise In addition to the above forms of consultation, the Commission analysed independently the data collected by BEREC and carried out the following analysis using that data: 1.The report on the review of the roaming market, and the accompanying Staff Working Document (referred to as the Commission Review Report), collected and presented evidence on how Regulation (EU) No 531/2012 has performed against the expected objectives; 2.The interim report to the European Parliament and the Council on implementation of the ‘roam-like-at-home’ rules over the first 18 months; 3.The Staff Working Document on the findings of the review of the rules on fair use policy and the sustainability derogation. The Commission also drew on other external expertise in the following work streams: 1.Cost model for assessing the costs of providing wholesale roaming services in the EEA; 2.Commission study on Technological Developments and Roaming conducted between December 2018 and June 2019; 3.The Commission’s Joint Research Centre (JRC) analysis. The JRC provided extensive support in preparing the impact assessment, in particular by (a) developing the sustainability model and the counterfactual analysis to assess consumer benefits and by (b) measuring the quality of roaming services, through field tests. •Impact assessments The impact assessment accompanying this proposal was submitted to the Regulatory Scrutiny Board, which issued a positive opinion on 20 November 2020 Four options were considered: Option 1 – Baseline. This would entail extending beyond 2022 the rules of Regulation (EU) No 531/2012, maintaining its provisions unchanged, both at retail and at wholesale level. In particular, the level of maximum wholesale charges applicable on 30 June 2022 would continue to apply and the two safeguard mechanisms (fair use and sustainability) would also continue. No measures would be taken to remedy the unresolved problems regarding quality of service, value-added services or access to emergency services while roaming. Option 2 – Continuity with increased transparency. This would entail extending beyond 2022 the rules of Regulation (EU) No 531/2012 with clarifications, and taking additional measures to increase transparency and to strengthen competition. The maximum wholesale charges applicable on 30 June 2022 would continue to apply. To ensure a genuine ‘roam-like-at-home’ experience, it would involve taking measures to increase transparency on the quality of service, value-added services and access to emergency services. Measures would also be taken to ensure compliance with the obligation to provide technology-neutral access (in terms of network technology and generations) for wholesale roaming services and it would achieve a minimum level of simplification and reduction of the administrative burden. Option 3 – Sustainable and genuine RLAH. As this was the preferred option, the measures proposed under this option are described in detail above. Option 4 – Expanded wholesale and retail obligations for an enhanced RLAH experience. In addition to the measures taken under option 3, this option would increase the sustainability of RLAH and cost recovery at wholesale level. It would apply new obligations on quality of service also on visited operators, to ensure a genuine RLAH experience and on the home operator at wholesale level to request the same quality of service as offered at home, for all wholesale agreements, i.e. no preferred network. It would include an opt-in functionality for customers to receive additional information on the different possibilities to access emergency services. It would also envisage creating a single Union-wide database for value-added services’ numbering ranges, including tariff information, to give end users access to information on value-added services’ numbering ranges and the applicable charges. The option to let the current roaming rules expire was discarded at an early stage. On the basis of the analysis carried out in the impact assessment, option 3 is best suited to considerably improve sustainability and would reduce the number of operators with a negative roaming margin exceeding 3% of their domestic margin. It is expected to have a positive impact in terms of benefits for consumers since it reduces the need for operators to request a derogation to apply a surcharge under the sustainability mechanism, thus allowing more end users to fully benefit from RLAH. The aim is to create the preconditions for operators to provide the same quality of service while roaming as domestically and to enable consumers to take full advantage of future technological changes and 5G-driven innovation. It aims to address the lack of clarity at wholesale level on access to emergency services while roaming and provide useful tools to remedy the unresolved problems regarding the use of value-added services when roaming. This option aims to increase consumer awareness (i) of the possibility of being charged high prices when using value-added services, and (ii) about how to access emergency services when roaming. As a result, it can contribute substantially to providing a genuine RLAH experience to customers and have an overall positive social impact. The measures proposed are limited to the aspects that have proved to be insufficiently addressed at national level and for which a harmonised approach is necessary. By contrast, the measures included under option 1 (baseline) and option 2 were not considered effective in achieving the objectives of the review of the roaming rules.

Lastly, the measures included in option 4 were considered overly intrusive, burdensome and disproportionate. Any potential additional regulatory safeguards under option 4 would not outweigh the complexity of implementing the proposed measures. •Regulatory fitness and simplification (REFIT) The proposal includes the following measures to simplify the rules and reduce the burden: (i) Revising maximum wholesale charges by adopting a delegated act. This proposal envisages a streamlined procedure to revise the maximum wholesale charges by defining in detail the criteria for setting these charges and by empowering the Commission to subsequently amend them through a delegated act. The aim is to simplify and reduce the regulatory burden for the European Commission, the Council, the European Parliament and, to a lesser degree, BEREC and other stakeholders. (ii) Repealing the obligation for the separate sale of regulated retail roaming services. The provision obliging operators to provide separate sales of regulated retail roaming services will be repealed, including the related implementing act. This structural measure was tabled with a view to improving competition in the retail roaming market. The reason for repealing this measure is that the provisions became ineffective when the ‘roam-like-at-home’ rules were brought in and it would no longer be proportionate to oblige domestic providers to implement this type of service. Repealing these provisions will have a positive impact on operators by reducing the related maintenance costs and the burden of maintaining (largely obsolete) offers for separate sales of data roaming services. (iii) Repealing the implementing act on the weighted average of maximum mobile termination rates. Under Regulation (EU) No 531/2012, the surcharge applied in exceptional cases for regulated roaming calls received must not exceed the maximum mobile termination rates across the EU set out in an implementing act adopted every year by the European Commission, based on input provided by BEREC. With the definition of a single maximum EU-wide mobile voice termination rate, this implementing act becomes redundant and the adoption process would be an unnecessary regulatory burden. Therefore, any surcharge applied to regulated roaming calls received should not exceed the single maximum EU-wide mobile voice termination rate. This change would also reduce the burden on BEREC to provide input to the Commission, considering the already extensive reporting and data collection responsibilities it has under Regulation (EU) No 531/2012. (iv) Aligning the current provisions on how to set the maximum charges in currencies other than the euro. Regulation (EU) No 531/2012 sets out rules that oblige service providers in Member States whose currency is not the euro to annually revise the maximum wholesale charges and retail surcharges for regulated roaming services. The rule applied for intra-EU communications, under Regulation (EU) 2015/2120 as amended by Regulation (EU) 2018/1971, stipulates that the maximum charges in currencies other than the euro must be revised annually and apply from 15 May, using the average of the reference exchange rates published on 15 January, 15 February and 15 March the same year. The proposal is to align the provisions of Regulation (EU) No 531/2012 to the provisions on intra-EU communications defining the same date for revising the surcharge for roaming services (15 May instead of 1 May), and the same method for calculating those currencies. The proposed measure would bring clarity and reduce the administrative burden of operators outside the Eurozone that must publish their tariffs twice when the roaming surcharges or intra-EU communications tariffs are revised. It would also reduce the monitoring burden for NRAs in charge of monitoring the revised exchange rates. This measure is expected to have positive effects at retail level, with retail prices updated once a year, instead of twice, as is currently the case. This can considerably reduce the information obligation of operators for amended contract conditions. (v) Streamlining the monitoring and reporting obligations by BEREC. To reduce the regulatory burden on operators, NRAs and BEREC, the Commission proposes merging and streamlining the monitoring process and BEREC reporting obligations. Streamlining BEREC’s reporting process is expected to reduce the administrative burden for operators, for NRAs and for BEREC. •Fundamental rights The proposal’s impact on fundamental rights, such as the freedom to conduct a business, has been analysed. In this regard, taking into account that the proposed caps aim to address a market failure and ensure cost recovery, they do not constitute a disproportionate measure in relation to the objective pursued or an intolerable interference impairing on the very substance of this freedom. The possibility to opt out is also meant to increase parties’ freedom to conclude a wholesale agreement. 4.BUDGETARY IMPLICATIONS The budgetary implications of this proposal, and the human and administrative resources required, are indicated in detail in the accompanying legislative financial statement. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The proposal will enter into force on 1 July 2022 and its provisions will apply from that day, save as otherwise provided for in specific articles. In terms of the content of the monitoring and evaluation process, the review clause in Article 21 of this proposal indicates the criteria to assess each measure specific to this initiative. Article 21 states that there will be two review reports, the first to be submitted by 30 June 2025 and the second by 30 June 2029.

BEREC will continue to play an essential role in collecting data from national regulatory authorities to monitor developments in the roaming market and the impact of implementing the measures on EU roaming. BEREC will also continue to provide the Commission with the opinions needed, including for the review of the existing rules. •Detailed explanation of the specific provisions of the proposal The proposal amends the current regulation to make the following substantive changes: Article 1 defines the subject matter and scope of the regulation. This article amends the previous regulation to bring in the following substantive changes: (i)it repeals the reference to provisions to enable the separate sale of regulated roaming services as they become ineffective when the ‘roam-like-at-home’ rules came into force; (ii)it repeals the reference to transitory rules on the charges that may be levied by roaming providers as this became obsolete when retail roaming charges were abolished in the EU from 15 June 2017; (iii)the reference to the Framework Directive is repealed following the horizontal recast of the regulatory framework for electronic communications by Directive (EU) 2018/1972; (iv)it proposes changing the maximum charges denominated in currencies other than euro to align the current provisions to the provisions on intra-EU communications. Article 2 on definitions amends the current regulation by repealing two definitions, namely ‘alternative roaming provider’ and ‘separate sale of regulated retail data roaming services’ as they became unnecessary when the provisions to enable the separate sale of regulated roaming services were repealed. Article 3 includes provisions on wholesale roaming access, on the reference offer and on terminating wholesale roaming agreements. This article amends the current regulation to bring in the following substantive changes: (i)it makes explicit reference to the need that wholesale roaming access must also cover any network technology and generation available and to ensure that the roaming provider is allowed, at least, to replicate in roaming the retail mobile services offered domestically; (ii)it specifies that the reference offer must contain all the information needed for roaming providers to provide its customers with free-of-charge access to emergency services through emergency communications and free-of-charge transmission of caller location information when using roaming services. Article 5 on the provision of regulated retail roaming services now also includes the explicit obligation of the visiting operator, subject to technical feasibility, to provide regulated retail roaming services under the same conditions as domestically, in particular in terms of quality of service. Article 6 and 7 lay down rules on fair use policy and on sustainability derogations, which remain unchanged in substance since the previous regulation. With regard to fair use and the sustainability mechanism, Article 8 clarifies that Commission Implementing Regulation (EU) 2016/2286 continues to apply until the next implementing regulation is adopted. Article 9 regulates the exceptional application of retail surcharges for regulated retail roaming services and the provision of alternative tariffs. This article amends the previous regulation by (i)repealing the provision that states that the sum of the domestic retail price and any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent or regulated data roaming services must not exceed certain set limits. These provisions became redundant when the ‘roam-like-at home’ rules came into play in 15 June 2017, and would have a distorting effect, (ii)repealing the provision setting the obligation for the EU to adopt the implementing act on the weighted average of maximum mobile termination rates to set the limit for any surcharge applied for regulated roaming calls received, (iii)lastly, this provision regulates specifically the content of a contract including roaming services. It makes an explicit reference to the obligation to provide information on the quality of service that customers can reasonably expect when roaming. In addition, this article amends the previous regulation by making an obligation for roaming providers to ensure that the contract specifies information on the type of services that may be subject to increased charges. The aim of this provision is to increase customer awareness that they may incur high charges if they use value-added services when roaming. Articles 10, 11 and 12 on wholesale charges for making regulated roaming calls, wholesale charges for regulated roaming SMS messages and wholesale charges for regulated data roaming services amend the previous rules to bring in new levels of maximum wholesale charges. This ensures that wholesale operators can sustainably provide ‘roam-like-at-home’ services and recover costs. Article 13, which aims to ensure uninterrupted, effective and free-of-charge access to emergency communications, includes a new provision specifying that no charges may be levied on emergency communications initiated by roaming customers.

Article 14 amends the previous regulation to bring in an obligation to provide customers, through an SMS, with information on the potential risks of increased charges if they use value-added services. Article 16 brings in a new obligation for roaming providers to provide information to roaming customers on how to access emergency services in the visited Member State. Article 17 includes a new provision mandating BEREC to create and maintain a single Union-wide database for value-added services numbering ranges in the Member States. The aim is to create a transparency tool to give NRAs and operators direct access to information on numbering ranges that can generate higher costs and an intermediate step to increase transparency at retail level. Article 21 regulates the review process. The most significant change to the previous rules is to replace the ordinary legislative procedure for the revision of the maximum wholesale charges with an empowerment to the Commission to amend the charges by adopting a delegated act. Articles 22 and 23 include new provisions laying down detailed criteria and parameters for this delegated act and the conditions under which the Commission may exercise this delegated power. The proposal repeals Articles 4 and 5 of Regulation (EU) No 531/2012 on the separate sale of regulated retail roaming services and Article 11 of Regulation (EU) No 531/2012 on ‘Technical characteristics of regulated roaming SMS messages’ 🡻 531/2012 2021/0045 (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 on the Functioning of the European Union, and in particular Article 114 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, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedure, Whereas:

⇩ new (1)Regulation (EU) No 531/2012 of the European Parliament and of the Council has been substantially amended several times. Since further amendments are to be made, that Regulation should be recast in the interests of clarity. (2)In particular, in 2015 the European Parliament and the Council adopted Regulation (EU) 2015/2120, which amended Regulation (EU) No 531/2012 and required retail roaming surcharges to be abolished in the Union from 15 June 2017, subject to fair usage of roaming services and the possibility of applying a sustainability derogation mechanism for the abolition of retail roaming charges, also referred to as ‘roam-like-at-home’ (‘RLAH’). In addition, the Commission undertook a review of the wholesale roaming market, with a view to assessing measures necessary to enable the abolition of retail roaming surcharges, in accordance with Article 19 of Regulation (EU) No 531/2012. As a consequence, Regulation (EU) 2017/920 of the European Parliament and of the Council was adopted on 17 May 2017 with the aim to regulate the functioning of national wholesale roaming markets in order to abolish retail roaming surcharges by 15 June 2017 without distorting the domestic visited and home markets. (3)On 29 November 2019, the Commission published its first full review of the roaming market (the “Commission Report”), showing that travellers across the Union have benefited significantly from the abolition of the retail roaming surcharges. The use of mobile services (regulated voice, SMS or data roaming services) while travelling in the Union has increased rapidly and massively, confirming the impact of the Union’s roaming rules. However, it concludes that, despite signs of some competition dynamics in both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed and are not likely to change in the foreseeable future. Therefore the current retail and wholesale regulation is still necessary and cannot be lifted. In particular, the Commission Report found that, at wholesale level, the sharp reduction in price caps has contributed to a further reduction in wholesale roaming prices that has benefited net outbounder operators. The Commission Report took note of the recommendation by the Body of European Regulators for Electronic Communications (BEREC) to further lowering the wholesale roaming price caps. In assessing the impact of this Regulation the Commission has provided the necessary analysis and has documented the need for further lowering the wholesale roaming price caps and assessed the level of reduction that enables visited operators to recover the costs of providing wholesale roaming services. Regarding quality of service, the Commission Report recalls the requirement of Regulation (EU) No 531/2012 that the roaming customer has access to the same service abroad in the EU for the same price, as long as such service can be delivered on the visited network. The Commission Report takes note of the very recent development on new ways of trading wholesale roaming traffic, such as online trading platforms that have the potential to foster competition on the wholesale roaming market and facilitate the negotiation process between operators. It finally observes that the separate sale of data roaming services has not been used by the market. (4)As Regulation (EU) No 531/2012 expires on 30 June 2022, the aim of this Regulation is to recast it while introducing new measures to increase transparency, including on the use of value added services in roaming and ensure a genuine RLAH experience in terms of quality of service and access to emergency services while roaming. The duration of this new Regulation is set for 10 years, until 2032, to provide certainty in the market and minimise regulatory burden while introducing a mechanism for intervening at wholesale level in the interim if market developments so require. 🡻 531/2012 recital 1 (adapted) Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile communications networks within the Community has been substantially amended . Since further amendments are to be made, it should be recast in the interests of clarity 🡻 531/2012 recital 2 The objective of reducing the difference between national and roaming tariffs, which was included in the Commission’s Benchmarking Framework 2011-2015, endorsed by the i2010 High Level Group in November 2009, and included in the Commission Communication entitled ‘A Digital Agenda for Europe’, should also remain the goal of this Regulation. The envisaged separate sale of roaming services and domestic services should increase competition and therefore lower the prices for customers and create an internal market for roaming services in the Union with no significant differentiation between national and roaming tariffs. Union-wide roaming services can stimulate the development of an internal telecommunications market in the Union. 🡻 531/2012 recital 4 The high level of voice, SMS and data roaming prices payable by users of public mobile communication networks, such as students, business travellers and tourists, acts as an obstacle to using their mobile devices when travelling abroad within the Union and is a matter of concern for consumers, national regulatory authorities, and the Union institutions, constituting a significant barrier to the internal market. 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. Due to a lack of competition, 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 somewhat lower prices, there is still evidence that the relationship between costs and prices is far from what would prevail in competitive markets. 🡻 531/2012 recital 5 High roaming charges constitute an impediment to the Union’s efforts to develop into a knowledge-based economy and to the realisation of an internal market of 500 million consumers. Mobile data traffic is facilitated by allocating sufficient radio spectrum in order for consumers and businesses to use voice, SMS and data services anywhere in the Union. By providing for the allocation of sufficient and appropriate spectrum in a timely manner to support Union policy objectives and to best meet the increasing demands for wireless data traffic, the multiannual radio spectrum policy programme established by Decision No 243/2012/EU of the European Parliament and of the Council will pave the way for a development that will allow the Union to take the global lead on broadband speeds, mobility, coverage and capacity, facilitating the emergence of new business models and technologies, thereby contributing to reducing the structural problems at roaming wholesale level. 🡻 531/2012 recital 7 (adapted)

The Commission noted in its Communication entitled ‘On the interim report on the state of development of roaming services within the European Union’ that technological developments and/or the alternatives to roaming services, such as availability of Voice over Internet Protocol (VoIP) or Wi-Fi, may render the internal market for roaming services in the Union more competitive. While these alternatives, in particular VoIP services, are increasingly being used at the domestic level, there have been no significant developments in their use when roaming. 🡻 531/2012 recital 8 Given the rapid development of mobile data traffic and the increasing amount of customers using voice, SMS and data roaming services abroad, there is a need to increase the competitive pressure, to develop new business models and technologies. The regulation of roaming charges should be designed in a way that does not discourage competition towards lower price levels. 🡻 531/2012 recital 9 The creation of a European social, educational, cultural and entrepreneurial area based on the mobility of individuals and digital data should facilitate communication between people in order to build a real ‘Europe for Citizens’. 🡻 531/2012 recital 14 (adapted) (5)In addition, Tthe 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 visited network operators, 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. 🡻 2015/2120 recital 20 (6)The mobile communications market remains fragmented in the Union, with no mobile network covering all Member States. As a consequence, in order to provide mobile communications services to their domestic customers travelling within the Union, roaming providers have to purchase wholesale roaming services from, or exchange wholesale roaming services with, operators in a visited Member State. 🡻 531/2012 recital 3 (adapted) (7)An internal telecommunications market cannot be said to exist while there are significant differences between domestic and roaming prices. Therefore the ultimate aim should be to eliminate the difference between domestic charges and roaming charges ⌦ should be eliminated ⌫, thus establishing an internal market for mobile communication services. 🡻 531/2012 recital 20 (8)A common, harmonised approach should be employed for ensuring that users of terrestrial public mobile communication networks when travelling within the Union do not pay excessive prices for Union-wide roaming services, thereby enhancing competition concerning roaming services between roaming providers, achieving a high level of consumer protection 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 roaming providers can operate within a single coherent regulatory framework based on objectively established criteria.

🡻 531/2012 recital 6 ⇨ new (9)The widespread use of internet-enabled mobile devices means that data roaming is of great economic significance. This is a decisive criterion ⇨ relevant ⇦ for both users and providers of applications and content. In order to stimulate the development of this market, charges for data transport should not impede growth ⇨ , in particular considering that the deployment of 5G networks and services is expected to grow steadily ⇦ . 🡻 531/2012 recital 10 (adapted) ⇨ new (10)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), 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), 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), 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) 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) (hereinafter together referred to as ‘the 2002 regulatory framework for electronic communications’) aim ⌦ aimed ⌫ to create an internal market for electronic communications within the Union while ensuring a high level of consumer protection through enhanced competition. ⇨ Those Directives were repealed by Directive (EU) 2018/1972 of the European Parliament and of the Council. Directive (EU) 2018/1972 aims to stimulate investment in and take-up of very high capacity networks in the EU as well as to set new spectrum rules for mobile connectivity and 5G. Directive (EU) 2018/1972 also ensures that all citizens have access to affordable communication, including the internet. It increases consumer protection and security for users and facilitates regulatory intervention. ⇦ 🡻 531/2012 recital 19 (adapted) (11)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 ⌦ Directive (EU) 2018/1972 ⌫. 🡻 531/2012 recital 24 The policy objective laid down in Article 8 of the Framework Directive concerning end users’ ability to access and distribute information or run applications and services of their choice should be promoted by national regulatory authorities. 🡻 531/2012 recital 18 (adapted) (12)This Regulation should therefore allow for a departure from the rules otherwise applicable under the 2002 regulatory framework for electronic communications ⌦ Directive (EU) 2018/1972 ⌫ , in particular the Framework Directive, namely that prices for service offerings should in principle be determined by commercial agreement in the absence of significant market power, and to thereby accommodate ⌦ accommodating ⌫ the introduction of complementary regulatory obligations which reflect the specific characteristics of Union-wide roaming services. 🡻 531/2012 recital 51 (adapted) ⇨ new (13)⇨ To protect roaming customers against increasing retail prices for regulated roaming services (regulated voice, SMS or data roaming services) due to fluctuations in the reference exchange rate of currencies other than the euro, a Member State whose currency is not the euro should use an average of several reference exchange rates over time for determining the maximum applicable surcharges in its currency. ⇦ Where maximum charges are not denominated in euro, the applicable initial limits and the revised values of those limits should be determined in the relevant currency by applying the ⇨ average of several ⇦ reference exchange rates ⇨ over time ⇦ published in the Official Journal of the European Union on the date 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. ⇨ To align the determination of values in currencies other than the euro with the rule applied for intra-EU communications in accordance with Regulation (EU) 2015/2120, the maximum charges in currencies other than the euro should be determined by applying the average of the reference exchange rates published on 15 January, 15 February and 15 March of the relevant calendar year by the European Central Bank in the Official Journal of the European Union. Maximum charges calculated in this way for 2022 should apply from the entry into force of this Regulation until 15 May 2023. ⇦ To protect consumers against increasing retail prices for regulated roaming services (regulated voice, SMS or data roaming services) due to fluctuations in the reference exchange rate of currencies other than the euro, a Member State whose currency is not the euro should use an average of several reference exchange rates over time for determining the maximum retail charges in its currency

🡻 531/2012 recital 25 (adapted) ⇨ new (14)In order to allow for the development of a more efficient, integrated and competitive market for roaming services, there should be no restrictions that prevent ⌦ preventing ⌫ undertakings from effectively negotiating wholesale access for the purpose of providing roaming services. Obstacles to access to such wholesale roaming services, due to differences in negotiating power and in the degree of infrastructure ownership of undertakings, should be removed. ⇨ To that end, wholesale roaming access agreements should respect the principle of technology neutrality and ensure all operators an equal and fair opportunity to accessing all networks and technologies available and be negotiated in good faith allowing the roaming provider to offer retail roaming services equivalent to the services offered domestically. ⇦ Mobile virtual network operators (MVNOs) and resellers of mobile communication services without their own network infrastructure typically provide roaming services based on commercial wholesale roaming agreements with their host mobile network operators in the same Member State. Commercial negotiations, however, may not leave enough margin to MVNOs and resellers for stimulating competition through lower prices. The removal of those obstacles and balancing the negotiation power between MVNOs/resellers and mobile network operators by an access obligation and wholesale caps should facilitate the development of alternative, innovative and Union-wide roaming services and offers for customers. The rules of the 2002 regulatory framework for electronic communications ⌦ Directive (EU) 2018/1972 ⌫ , in particular of the Framework Directive and Access Directive,⌦ does not provide for a solution to this problem ⌫ do not allow this problem to be addressed via the imposition of obligations on operators with significant market powers. 🡻 531/2012 recital 26 (adapted) ⇨ new (15)Therefore rules should be introduced to lay down the ⌦ an ⌫ obligation to meet reasonable requests for wholesale access to public mobile communications networks for the purpose of providing roaming services ⌦ should be laid down ⌫ . Such access should be in line with the needs of those seeking access. ⇨ End-users of services requiring modern technologies and retail roaming services should be able to enjoy the same quality of service when roaming as domestically. A wholesale roaming access obligation should therefore ensure that access seekers can replicate the retail services offered domestically, unless mobile network operators requested to provide access can prove that it is technically unfeasible to do so.⇦ Access should be refused only on the basis of objective criteria, such as technical feasibility and the need to maintain network integrity. Where access is refused, the aggrieved party should be able to submit the case for dispute resolution in accordance with the procedure set out in this Regulation. 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 should contribute to avoiding distortions between Member States. BEREC should, in coordination with the Commission and in collaboration with the relevant stakeholders, issue guidelines for wholesale access for the purpose of providing roaming services. 🡻 531/2012 recital 27 (16)A wholesale roaming access obligation should include the provision of direct wholesale roaming services as well as the provision of roaming services on a wholesale basis for resale by third parties. The wholesale roaming access obligation should also cover mobile network operator’s obligation to enable MVNOs and resellers to purchase regulated wholesale roaming services from wholesale aggregators which provide a single point of access and a standardised platform to roaming agreements all over the Union. In order to ensure that operators provide access to all facilities necessary for direct wholesale roaming access and wholesale roaming resale access to roaming providers within a reasonable period of time, a reference offer should be published containing the standard conditions for direct wholesale roaming access and wholesale roaming resale access. The publication of the reference offer should not prevent commercial negotiations between access seeker and access provider on the price level of the final wholesale agreement or on additional wholesale access services that go beyond those necessary for direct wholesale roaming access and wholesale roaming resale access. 🡻 531/2012 recital 28 (17)A wholesale roaming access obligation should cover access to all the components necessary to enable the provision of roaming services, such as: network elements and associated facilities; relevant software systems including operational support systems; information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; number translation or systems offering equivalent functionality; mobile networks and virtual network services. 🡻 531/2012 recital 29 (18)If access seekers for wholesale roaming resale request access to facilities or services in addition to what is necessary for the provision of retail roaming services, mobile network operators may recover fair and reasonable charges for those facilities or services. Those additional facilities or services could, inter alia, be value-added services, additional software and information systems or billing arrangements. ⇩ new (19)In accordance with Article 109 of Directive (EU) 2018/1972, all end-users should have access to emergency services, free of charge, through emergency communications to the most appropriate public safety answering point (PSAP). Member States are also required to ensure that access for end-users with disabilities to emergency services is available through emergency communications and is equivalent to that enjoyed by other end-users. It is for the Member States to determine the type of emergency communications that are technically feasible to ensure roaming customers access to emergency services. In order to ensure that roaming customers have access to emergency communications under the conditions laid down in Article 109 of Directive (EU) 2018/1972, visited network operators should inform the roaming provider through the wholesale roaming agreement about what type of emergency communications are mandated under national measures in the visited Member State. In addition, wholesale roaming agreements should include information on the technical parameters for ensuring access to emergency services, including for roaming customers with disabilities, as well as for ensuring the transmission of caller location information to the most appropriate PSAP in the visited Member State. Such information should allow the roaming provider to identify and provide the emergency communication and the transmission of caller location free of charge.

🡻 2017/920 recital 12 (adapted) (20)The ⌦ Certain ⌫ conditions that may be included in the reference offers in order to allow mobile network operators to prevent permanent roaming or anomalous or abusive use of wholesale roaming access should be clarified. In particular, where the visited network operator has reasonable grounds for considering that permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place, it should be able to require the roaming provider to provide, in an aggregated manner and in full compliance with Union and national data protection requirements, information allowing the determination of whether a significant share of the roaming provider’s customers is in a situation of permanent roaming or whether there is anomalous or abusive use of wholesale roaming access, such as information on the share of customers with insignificant domestic consumption compared to the roaming consumption. Moreover, termination of wholesale roaming agreements with a view to preventing permanent roaming or anomalous or abusive use of wholesale roaming access should be effected only where less stringent measures have failed to address the situation. Such termination should be subject to prior authorisation by the national regulatory authority of the visited network operator, taking the utmost account of the opinion of the Body of European Regulators for Electronic Communications (BEREC) where it has been consulted. Less stringent measures could consist of setting higher wholesale charges not exceeding the maximum wholesale charges provided for in this Regulation for volumes exceeding an aggregated volume specified in the agreement. Such higher wholesale charges should be set in advance, or from the moment when the visited network operator has established and informed the home network operator that, based on objective criteria, permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place. Less stringent measures could also consist of a commitment by the home network operator to adopt or revise the fair use policies applicable to its customers in accordance with the detailed rules adopted pursuant to Article 6d 8 of ⌦ this ⌫ Regulation (EU) No 531/2012, or the possibility for the visited network operator to request that the wholesale roaming agreement be revised. In the interests of transparency, the national regulatory authority should make information concerning requests for authorisation to terminate wholesale roaming agreements available to the public, subject to business confidentiality. 🡻 2017/920 recital 11 (adapted) ⇨ new (21)In order to allow for the development of more efficient, integrated and competitive markets for roaming services, when negotiating wholesale roaming access for the purpose of providing retail roaming services, operators should be given the alternative ⌦ possibility ⌫ to negotiate innovative wholesale pricing schemes which are not directly linked to volumes actually consumed, such as flat payments, upfront commitments or capacity-based contracts, or pricing schemes that reflect variations of demand across the year. ⇨ Machine-to-machine communications, referred to in recital 249 of Directive (EU) 2018/1972, are not excluded from the scope of this Regulation and the relevant wholesale roaming access obligations. However, agreements on permanent roaming are subject to commercial negotiations and can be agreed by two roaming partners in the wholesale roaming contract. In order to allow the development of more efficient and competitive markets for machine-to-machine communications, it is expected that operators will increasingly respond to and accept all reasonable requests for roaming agreements on reasonable terms and explicitly allowing permanent roaming for machine-to-machine. They should be able to establish flexible roaming agreements enabling wholesale roaming services and to apply tariff schemes which are not based on the volume of consumed data but on alternative schemes, for example on the number of connected machines per month. In that context, in the event of a cross-border dispute, the parties involved should have recourse to the dispute resolution procedure laid down in Article 27 of Directive (EU) 2018/1972. ⇦ The negotiating parties should therefore have the option of agreeing not to apply maximum regulated wholesale roaming charges for the duration of wholesale roaming agreements. This ⌦ That ⌫ would exclude the possibility for either party to subsequently request the application of volume based maximum wholesale charges to actual consumption, as set out in ⌦ this ⌫ Regulation (EU) No 531/2012. This alternative should be without prejudice to obligations as regards the provision of regulated retail roaming services in accordance with that Regulation. ⇨ Furthermore, the Commission Report takes note of the very recent development of new ways of trading wholesale roaming traffic, such as online trading platforms, that have the potential to facilitate the negotiation process between operators. The use of similar instruments could contribute to enhancing competition in the wholesale roaming market and drive further down actual wholesale rates charged. ⇦ ⇩ new (22)Regulation (EU) No 531/2012 provides that end-users are not to be prevented by operators from accessing regulated data roaming services on a visited network offered by an alternative roaming provider. However, this structural measure, introduced by way of the obligation for the separate sale of data roaming services, has become ineffective following the introduction of RLAH. In addition, due to the lack of actual uptake in the market, this obligation no longer appears to be relevant. Therefore, the provisions obliging operators to provide separate sales of roaming data services at retail level should no longer apply. 🡻 531/2012 recital 31 (adapted) Consumer and business demand for mobile data services has increased significantly in recent years. However, due to high data roaming charges, the use of those services is severely constrained for consumers and businesses operating across borders in the Union. Given the infancy of the market and the rapidly increasing consumer demand for data roaming, regulated retail charges might only keep prices around the proposed maximum charges themselves, as experienced in relation to Regulation (EC) No 717/2007, instead of pushing them down further, which therefore confirms the need for further structural measures. 🡻 531/2012 recital 32 Customers should be able to switch easily, within the shortest possible time depending on the technical solution, without penalty and free of charge to an alternative roaming provider or between alternative roaming providers. Customers should be informed in a clear, understandable and easily accessible form about this possibility. 🡻 531/2012 recital 33 Consumers should have the right to opt, in a consumer-friendly way, for the separate sale of roaming services from their domestic mobile package. There are currently several ways in which the separate sale of regulated retail roaming services could be technically implemented, including dual International Mobile Subscriber Identity (IMSI) (two separate IMSI on the same SIM card), single IMSI (the sharing of one IMSI between the domestic and roaming providers) and combinations of dual or single IMSI together with the technical modality that does not prevent the customer from accessing regulated data roaming services provided directly on a visited network, by means of arrangements between the home network operator and the visited network operator.

🡻 531/2012 recital 34 High data roaming prices are deterring customers from using mobile data services when travelling in the Union. Given the increasing demand and importance of data roaming services, there should be no obstacles to using alternative data roaming services, provided directly on a visited network, temporarily or permanently, regardless of existing roaming contracts or arrangements with domestic providers and without any additional charge levied by them. When it is required, in order to offer data roaming services, provided directly on a visited network, domestic providers and providers of data roaming services should collaborate in order not to prevent customers from accessing and using those services and to ensure service continuity of other roaming services. 🡻 531/2012 recital 35 While this Regulation should not lay down any particular technical modalities for the separate sale of roaming services, but instead pave the way for the most effective and efficient solution, including a combined solution, to be developed by the Commission based on input from BEREC, criteria should be laid down with regard to the technical characteristics which should be met by the technical solution for the separate sale of roaming services. Those criteria should include, inter alia, the introduction of the solution in a coordinated and harmonised manner across the Union and should ensure that consumers are able to quickly and easily choose a different provider for roaming services without changing their number. Furthermore, roaming outside the Union or by third-country customers inside the Union should not be impeded. 🡻 531/2012 recital 36 Increased cooperation and coordination among mobile network operators should be established to technically enable a coordinated and sound technical evolution of the provision of separate roaming services, and not preventing access to data roaming services provided directly on a visited network. Therefore, the relevant basic principles and methodologies should be elaborated, in order to allow a rapid adaptation to changed circumstances and technological advancement. BEREC should, in collaboration with the relevant stakeholders, assist the Commission to develop technical elements in order to enable the separate sale of roaming services and in order not to prevent access to data roaming services provided directly on a visited network. If necessary, the Commission should give a mandate to a European standardisation body for the amendment of the relevant standards that are necessary for the harmonised implementation of the separate sale of regulated retail roaming services. 🡻 531/2012 recital 37 (adapted) In order to ensure uniform conditions for the implementation of the provisions of this Regulation, implementing powers should be conferred on the Commission in respect of detailed rules on information obligations of domestic providers and on a technical solution for the separate sale of roaming services. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers . 🡻 531/2012 recital 38 BEREC should be allowed, taking into account this Regulation and the implementing acts adopted pursuant hereto, to provide on its own initiative specific technical guidance on the separate sale of regulated retail roaming services or on other matters covered by this Regulation. 🡻 531/2012 recital 39 It is considered that, for the separate sale of regulated retail roaming services to be fully effective, such sale 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. That solution would avoid distortions between Member States by ensuring a consistent regulatory approach thereby contributing to the development of the internal market. However, the implementation of the separate sale of regulated retail roaming services will require a reasonable period for operators to adapt at the technical level, and therefore the structural measures will only result in a genuine internal market with sufficient competition after a certain period of time. For this reason, maximum wholesale charges for voice, SMS and data roaming services as well as safeguard caps for those services 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 measures. 🡻 2015/2120 recital 32 (adapted) ⇨ new

(23)In order to ensure uniform conditions for the implementation of the provisions of this Regulation, implementing powers should be conferred on the Commission in respect of setting out the weighted average of maximum mobile termination rates, and detailed rules on the application of the fair use policy and on the methodology for assessing the sustainability ⇨ of the provision of retail roaming services at domestic prices ⇦ of the abolition of retail roaming surcharges, as well as on the application to be submitted by a roaming provider for the purposes of that assessment. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. ⇩ new (24)Until the adoption of those implementing measures, Commission Implementing Regulation (EU) 2016/2286 should continue to apply. 🡻 531/2012 recital 40 (adapted) (25)With regard to the continuation of temporary price regulation, rRegulatory obligations should be imposed at both retail and wholesale levels 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 ⌦ those ⌫ services could risk disrupting the orderly functioning of the internal market for roaming services and would not allow a higher degree of competition. 🡻 2017/920 recital 4 (adapted) (26)The abolition of retail roaming surcharges set up by ⌦ in accordance with ⌫ Regulation (EU) 2015/2120, also referred to as ‘roam-like-at-home’ (RLAH), is ⌦ was ⌫ necessary to establish and ease the functioning of a digital single market across the Union. However, that Regulation alone ⌦ was ⌫ is not sufficient to ensure the proper functioning of the roaming market. This Regulation should therefore contribute to pricing models in domestic markets not being affected by the abolition of retail roaming surcharges. 🡻 2015/2120 recital 26 (27)The relevant domestic retail price should be equal to the domestic retail per-unit charge. However, in situations where there are no specific domestic retail prices that could be used as a basis for a regulated retail roaming service (for example, in case of domestic unlimited tariff plans, bundles or domestic tariffs which do not include data), the domestic retail price should be deemed to be the same charging mechanism as if the customer were consuming the domestic tariff plan in that customer’s Member State. ⇩ new (28)Roaming customers should, to the greatest extent possible, be able to use the retail services that they subscribe to and benefit from the same level of quality of service as at home, when roaming in the Union. To that end, roaming providers should take the necessary measures to ensure that regulated retail roaming services are provided under the same conditions as if such services were consumed domestically. In particular, the same quality of service should be offered to customers when roaming, if technically feasible. 🡻 2015/2120 recital 22 (adapted) ⇨ new (29)At the same time, rRoaming providers should be able to apply a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price. The ‘fair use policy’ is intended to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel. ⇨ Roaming providers should, in cases of force majeure caused by circumstances such as pandemics or natural catastrophes which involuntarily extend the period of temporary stay of the roaming customer in another Member State, consider extending the applicable fair use allowance for an appropriate period, upon a justified request by the roaming customer ⇦. Any fair use policy should enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans.

🡻 2015/2120 recital 23 (30)In specific and exceptional circumstances where a roaming provider is not able to recover its overall actual and projected costs of providing regulated retail roaming services from its overall actual and projected revenues from the provision of such services, that roaming provider should be able to apply for authorisation to apply a surcharge with a view to ensuring the sustainability of its domestic charging model. The assessment of the sustainability of the domestic charging model should be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. That may, for example, be the case for flat-rate domestic retail models of operators with significant negative traffic imbalances, where the implicit domestic unit price is low and the operator’s overall revenues are also low relative to the roaming cost burden, or where the implicit unit price is low and actual or projected roaming services consumption is high. Once both wholesale and retail roaming markets have fully adjusted to the generalisation of roaming at domestic price levels and its incorporation as a normal feature of retail tariff plans, such exceptional circumstances are no longer expected to arise. In order to avoid the domestic charging model of roaming providers being rendered unsustainable by such cost recovery problems, generating a risk of an appreciable effect on the evolution of domestic prices or so-called ‘waterbed effect’, roaming providers, upon authorisation by the national regulatory authority, should, in such circumstances, be able to apply a surcharge to regulated retail roaming services only to the extent necessary to recover all relevant costs of providing such services. 🡻 2015/2120 recital 24 (31)To that end, the costs incurred in order to provide regulated retail roaming services should be determined by reference to the effective wholesale roaming charges applied to the outbound roaming traffic of the roaming provider concerned in excess of its inbound roaming traffic, as well as by reference to reasonable provision for joint and common costs. Revenues from regulated retail roaming services should be determined by reference to revenues at domestic price levels attributable to the consumption of regulated retail roaming services, whether on a unit-price basis or as a proportion of a flat fee, reflecting the respective actual and projected proportions of regulated retail roaming services consumption by customers within the Union and domestic consumption. Account should also be taken of the consumption of regulated retail roaming services and domestic consumption by the roaming provider’s customers, and of the level of competition, prices and revenues in the domestic market, and any observable risk that roaming at domestic retail prices would appreciably affect the evolution of such prices. ⇩ new (32)Regulation (EU) No 531/2012 provides that, where a roaming provider applies a surcharge for the consumption of regulated retail roaming services in excess of any limits under any fair use policy, the sum of the domestic retail price and any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent or regulated data roaming services are not to exceed EUR 0,19 per minute, EUR 0,06 per SMS message and EUR 0,20 per megabyte used, respectively. Given the effective functioning of RLAH rules since 15 June 2017, that provision is no longer necessary. 🡻 2015/2120 recital 28 (adapted) ⇨ new (33)In accordance with the principle that the calling party pays, mobile customers do not pay for receiving domestic mobile calls and the cost of terminating a call in the network of the called party is covered in the retail charge of the calling party. The convergence of mobile termination rates across the Member States should allow the same principle to be applied to regulated retail roaming calls. ⇨ Pursuant to Article 75(1) of Directive (EU) 2018/1972, the Commission has established, by means of the delegated act adopted on 18 December 2020, a single maximum Union-wide voice termination rate for mobile services in order to reduce the regulatory burden in addressing the competition problems relating to wholesale voice termination consistently across the Union. The delegated act includes a three-year glide path: the maximum mobile voice termination rates is to be EUR 0.7 cent in 2021, EUR 0.55 cent in 2022, EUR 0.4 cent in 2023 and reaching the single maximum Union-wide mobile voice termination rate of EUR 0.2 cent from 2024 onwards. ⇦ However, since this is not yet the case, iIn situations set out in this Regulation where roaming providers are allowed to apply a surcharge for regulated retail roaming services, the surcharge applied for regulated roaming calls received should not exceed the weighted average of the maximum wholesale mobile termination rates set across the Union ⇨ the single maximum Union-wide mobile voice termination rate set by the Commission for the respective and corresponding year in the delegated act provided for in Article 75 of Directive (EU) 2018/1972. If the Commission, subsequently concludes that it is not longer necessary to set a Union-wide voice termination rate, any surcharge applied for regulated roaming calls received should not exceed the rate set by the latest delegated act adopted under Article 75 of Directive (EU) 2018/1972 ⇦. This is considered to be a transitional regime until the Commission addresses this outstanding issue. 🡻 2015/2120 recital 30 (adapted) ⇨ new (34)This Regulation should constitute a specific measure within the meaning of Article 1(5) of Directive 2002/21/EC. Therefore, Wwhere providers of Union-wide regulated roaming services make changes to their retail roaming tariffs and to accompanying roaming usage policies in order to comply with the requirements of this Regulation, such changes should not trigger for mobile customers any right under national laws transposing ⌦ Directive (EU) 2018/1972 ⌫ the regulatory framework for electronic communications networks and services to withdraw from their contracts. ⇩ new (35)A contract which includes any type of regulated retail roaming service should specify the characteristics of that regulated retail roaming service, including the expected level of quality of service. The provider should make available information on relevant factors that can affect the quality of service, such as availability of certain technologies, coverage or variation due to external factors such as topography.

(36)Roaming customers and home operators sometimes unwittingly incur large bills as a result of the lack of transparency on the numbers used for value added services across the Union and on the wholesale prices charged for value added services. Communications to certain numbers which are used for providing value added services, for example, premium-rate numbers, freephone numbers or shared cost numbers, are subject to particular pricing conditions at the national level. This Regulation should not apply to the part of the tariff that is charged for the provision of value added services but only to the tariffs for the connection to such services. Neverthelss, the RLAH principle might create an expectation for end-users that communications to such numbers while roaming should not incur any increased cost in comparison to the domestic situation. However, this is not always the case when roaming. End-users are confronted with increased costs, even when they call numbers that are free when called domestically. This could erode customers’ confidence in using their phones when roaming and could result in bill shocks, thus having a negative impact on a genuine RLAH experience. This is mainly caused, at retail level by the insufficient level of transparency on the higher charges which can be incurred because of communications to value added services numbers. Therefore measures should be introduced to increase the transparency on the conditions for communications to value added services numbers. To that end, roaming customers should be informed in their contract and notified and warned, in a timely manner and free of charge, that communications to value added services numbers in roaming can entail additional charges. 🡻 2017/920 recital 9 (37)The functioning of wholesale roaming markets should allow operators to recover all costs of providing regulated wholesale roaming services, including joint and common costs. This should preserve incentives to invest in visited networks and avoid any distortion of domestic competition in the visited markets caused by regulatory arbitrage by operators using wholesale roaming access remedies to compete in domestic visited markets. 🡻 2017/920 recital 13 (38)With regard to rules on wholesale charges, regulatory obligations at Union level should be maintained since any measure that enables RLAH across the Union without addressing the level of the wholesale costs associated with providing wholesale roaming services could risk disrupting the internal market for roaming services and would not encourage more competition. Wholesale charges at an appropriate level should facilitate sustainable competition, including by new entrants, small and medium-sized enterprises and start-ups. 🡻 2017/920 recital 14 (39)Maximum wholesale charges should act as a safeguard level and should ensure that operators can recover their costs, including joint and common costs. They should also enable the widespread sustainable provision of RLAH, while at the same time leaving a margin for commercial negotiations between operators. 🡻 531/2012 recital 52 (adapted) (40)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 those operators and those applying different billing methods, and undermines the consistent application of the maximum wholesale charges introduced by ⌦ laid down in ⌫ this Regulation. 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 network operators should therefore be required to bill for the wholesale provision of regulated roaming calls on a per-second basis. 🡻 531/2012 recital 64 (41)In order to ensure that the maximum charges for wholesale roaming SMS services are closer to levels reflecting underlying costs of provision and that competition can develop at the retail level, the maximum wholesale charges for regulated SMS should follow subsequent reductions. 🡻 531/2012 recital 11 (adapted) Regulation (EC) No 717/2007 is not an isolated measure, but complements and supports, insofar as Union-wide 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 Union and thus fails to ensure the smooth functioning of the internal market for roaming services. Regulation (EC) No 717/2007 was an appropriate means of correcting this situation.

⇩ new (42)To ensure that roaming customers have uninterrupted and effective access to emergency services, free of charge, visited networks should not levy any wholesale charge related to such emergency communications on the roaming providers. 🡻 531/2012 recital 82 ⇨ new (43)In order to improve the transparency of retail prices for roaming services and to help roaming customers make decisions on the use of their mobile devices while abroad, providers of mobile communication services should supply their roaming customers with information free of charge on the roaming charges applicable to them when using roaming services in a visited Member State. Since certain customer groups might be well informed about roaming charges, roaming providers should provide a possibility to easily opt-out from this automatic message service. ⇨ In addition, roaming customers should be provided with a text message including a link to a web page giving detailed information about the types of services (calls and SMS) that may be subject to increased costs.⇦ Moreover, providers should actively give their customers, provided that the latter are located in the Union, on request and free of charge, additional information on the per-minute, per-SMS or per-megabyte 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. 🡻 2015/2120 recital 31 (adapted) (44)In order to strengthen the rights of roaming customers laid down in Regulation (EU) No 531/2012, Tthis Regulation should in relation to regulated retail roaming services lay down specific transparency requirements aligned with the specific tariff and volume conditions to be applied once ⌦ applicable following the abolition of the ⌫ retail roaming surcharges are abolished. In particular, provision should be made for roaming customers to be notified, in a timely manner and free of charge, of the applicable fair use policy, when the applicable fair use volume of regulated voice, SMS or data roaming services is fully consumed, of any surcharge, and of accumulated consumption of regulated data roaming services. 🡻 531/2012 recital 58 (45)Customers living in border regions should not receive unnecessarily high bills due to inadvertent roaming. Roaming providers should therefore take reasonable steps to protect customers against incurring roaming charges while they are located in their Member State. This should include adequate information measures in order to empower customers to actively prevent such instances of inadvertent roaming. National regulatory authorities should be alert to situations in which customers face problems with paying roaming charges while they are still located in their Member State and should take appropriate steps to mitigate the problem. 🡻 531/2012 recital 84 (adapted) (46)Moreover, measures should be introduced ⌦ laid down ⌫ to improve ⌦ ensure ⌫ the transparency of retail charges for all 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,⌦ including but not limited to ⌫ such as Wi-Fi. 🡻 531/2012 recital 87 (adapted) (47)In addition, in order to avoid bill shocks, roaming providers 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, in a media format that can be consulted again subseq