WRITTEN QUESTION P-4158/00

by W. G. van Velzen (PPE-DE) to the Commission

(9 January 2001)

Subject: Discrimination in the conclusion of mobile telephone subscriptions

People, such as Members of the European Parliament, who work a few days a week in EU Member States other than the country in which they live, are unable to take out a subscription for a mobile telephone in some EU Member States, Belgium for instance, because they do not have a Belgian identity card or lease.

1. Does the Commission not agree that this is an infringement of the free movement of persons, goods and services enshrined in the EU Treaty?

2. Does the Commission not consider that any proof of identity with an indication of an address and bank or giro account in an EU Member State should be sufficient to allow a mobile telephone operator to conclude a contract?

3. What measures will the Commission take to stop this abuse and thus promote full freedom of movement in the EU in this sphere?

4. There is also one mobile operator in Belgium that first demands a guarantee and then does not allow customers to make calls with the EU and not just in Belgium until after three monthly bills have been paid:

(a) does the Commission consider that a mobile operator can be justified in imposing restrictions on customers with standard subscriptions with regard to mobile calls within the EU? If not, on what Treaty provisions or directives does the Commission base its opinion?

(b) what measures can the Commission take to remove restrictions of this kind?

Supplementary answer given by Mr Bolkestein on behalf of the Commission

(28 September 2001)

The Commission is aware that citizens from other Member States who are not officially resident in Belgium are facing some problems when seeking to take out a mobile telephone subscription when they do not hold a Belgian Identity card or have not signed a lease for property in Belgium. The Commission has investigated this matter and has obtained the following information. The telecommunications operators concerned justify these requirements by the need to prevent fraud (which they consider to be widely spread in this sector) and by the need to have some mechanism in order to guarantee the proper payment of invoices by clients who do not reside in Belgium.

One Belgian operator requires the applicant for a mobile telephone subscription to provide details of either a Belgian identity card or a valid credit card in addition to a copy of that person's gas, electricity or water bill as proof that the applicant resides in Belgium, even though the applicant is not officially registered there as a resident. This operator also offers pre-paid cards, which can be used in different Member States, depending on the type of card. The price per minute of pre-paid cards is higher than the price per minute offered by the company to holders of a subscription with them. In general, although the price for calls for pre-paid cards is higher, there is normally no subscription fee to be paid.

The other two Belgian operators on the market apply a different policy. One requires proof of an address in Belgium or a credit card account. The clients of that operator also have the possibility of being invoiced in their country of permanent residence, albeit with associated additional international transaction costs. Furthermore, the company offers international roaming to its clients and a service of pre-paid cards available to all irrespective of their country of residence. The third operator evaluates the risks of every subscription request on the basis of a scoreboard. The criteria used, amongst others, are reliability, permanent address or age. Once the applicant has been evaluated according to this system, the company offers that person different possibilities which may consist of a subscription or may not. Although in this case there is no formal distinction made between residents and non-residents, the key point would be to determine whether the absence of a permanent address in Belgium is, in most cases, a decisive factor for refusing an applicant a subscription. In addition, that operator offers access to international roaming to its clients on payment of a deposit and different pre-paid card services.

As a general principle, the Commission considers that a fair balance should be found between the right of consumers within the Community to take out subscriptions in different Member States and the right of operators to ensure the payment of invoices, the latter being more burdensome and more costly to operators where the client does not reside in the country where he has taken out the subscription. Furthermore, a consumer always has the possibility of choosing a different operator depending on his/her particular situation since it appears, as explained above, that the commercial practices of Belgian operators vary considerably.

Since the above mentioned practices are not imposed by Belgian Law but derive from the commercial choices of the telecommunications operators concerned, the Commission consider that there is no infringement of the free movement principles of the EC Treaty by Belgian Law. However, the Commission is concerned about the restriction to the free movement of services under Article 49 (ex Article 59) of the EC Treaty, which such private practice may represent. On a provision of the EC Treaty similarly mandatory in nature, the Court of justice recalled in a recent decision(1) that the abolition, as between Member States, of obstacles to freedom of movement for persons would be compromised if the abolition of Member State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. The Court therefore recalled that such a mandatory principle applied equally to all agreements including to contracts between individuals. As a consequence, contractual arrangements, such as the requirement of residence, proposed to mobile communications users which do not respect the principle of free movement of services of Article 49 of the EC Treaty would be considered nul and void.

The Commission also recalls that pursuant to the Parliament and Council Directive 98/10/EC of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment(2), mobile public telephone service providers are required to publish adequate and up-to-date information for consumers on their standard terms and conditions with regard to their services (Article 11.1).

The Commission considers that proof of identity with an indication of a bank, giro account, or credit card number could normally be sufficient for the operators concerned, a possibility which is being offered by at least one of the operators active on the Belgian market. Finally, it should be noted that complaints from individuals regarding their relations with Belgian telecommunication operators can be submitted to the Belgian Ombudsman for telecommunications matters (service de médiation des télécommunications) who is competent to treat them.

(1) See Roman Angonese v. Cassa di Risparmio di Bolzano SpA, Decision of 6 June 2000, case C-281/98, paragraphs 32 to 36.

(2) OJ L 101, 1.4.1998.