Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services {COM(2008) 579 final} {SEC(2008) 2489} {SEC(2008) 2490}
Date: 2008-09-23
Institutions: European Commission
Subjects: approximation of laws, communications systems, mobile phone, regulation of telecommunications, telecommunications, transmission network

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.9.2008 
COM(2008) 580 final 

2008/0187 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 717/2007 on roaming on public mobile telephone 
networks within the Community and Directive 2002/21/EC on a common regulatory 
framework for electronic communications networks and services 

{COM(2008) 579 final} 
{SEC(2008) 2489} 
{SEC(2008) 2490} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

telephone  networks  within 

In  response  to  persistent  concerns  over  the  lack  of  competitive  pressures  in  the  market  for 
international roaming services and the resulting high charges payable by European consumers 
for the provision of roaming services while travelling in the Community, on 27 June 2007 the 
European Parliament and the Council adopted Regulation (EC) No 717/2007 on roaming on 
public  mobile 
the  Community  and  amending  Directive 
2002/21/EC.  This  Regulation  introduced  a  common  approach  to  ensure  that  users  of  public 
mobile  telephone  networks  did  not  pay  excessive  prices  for  Community-wide  roaming 
services,  by  imposing  limits  on  the  charges  that  may  be  levied  by  mobile  operators,  at 
wholesale  and  retail  levels,  for  the  provision  of  voice  roaming  calls  originating  and 
terminating within the Community. The Regulation also laid down rules aimed at increasing 
price  transparency  and  improving  the  provision  of  customer  information  to  users  of 
Community-wide roaming services. 

The  European  Parliament  and  the  Council  decided  that  the  Commission  should  review  the 
functioning  of  Regulation  (EC)  No  717/2007  and  report  to  Parliament  and  Council  no  later 
than 30 December 2008 (Article 11 of the Regulation). 

Although Regulation (EC) No 717/2007 only imposed upper limits on the pricing of roaming 
voice calls, the Community legislators recognised that concerns persisted with regard to the 
level  of  prices  for  data  roaming  services  within  the  Community,  as  well  as  SMS.  They 
therefore specifically charged the Commission with reviewing developments in wholesale and 
retail  charges  for  the  provision  to  roaming  customers  of  voice  and  data  communication 
services, including SMS and MMS, and with making recommendations regarding the need to 
regulate those services, if appropriate. 

This proposal accompanies the Commission's Communication to the European Parliament and 
the Council, reporting on its review of the functioning of Regulation (EC) No 717/2007. 

Its  objective  is  to  amend  Regulation  (EC)  No  717/2007,  in  order  to  further  strengthen  the 
single market for electronic communications by ensuring that prices paid by users of public 
mobile  networks  for  Community-wide  roaming  services  when  travelling  within  the 
Community are not unjustifiably higher than the charges payable when calling, sending SMS 
messages or transferring data within their home country and that users have the information 
they need to understand and control their expenditure on roaming services. 

•  General context 

The Commission's Communication to the European Parliament and the Council on its review 
of the functioning of Regulation (EC) No 717/2007 concluded that, while implementation of 
the Regulation has in general been smooth, the structural problems that constrain competitive 
forces  in  the  roaming  market  have  remained.  These  are  principally  due  to  the  fact  that 
roaming  is  only  one  element  in  a  broader  mobile  bundle  purchased  by  customers  and 
therefore does not normally dictate their choice of operator. 

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In addition, data collected by the European Regulators Group  (ERG), which  includes  all  27 
EU  national  regulators  (NRAs),  show  that  prices  for  voice  roaming  calls  at  wholesale  and 
retail  level  do  not  vary  sufficiently  below  the  maximum  levels  set  by  the  Regulation  to 
provide  evidence  of  healthy  competition.  The  Commission  therefore  concluded  that  to 
preserve  its  benefits  the  Regulation  should  be  extended  for  a  further  period  of  three  years 
beyond 2010. 

The  Commission  also  noted  that  the  billing  practices  applied  by  mobile  operators  to  voice 
roaming  calls,  whereby  calls  are  often  charged  on  the  basis  of  units  of  up  to  60  seconds, 
represent a hidden charge to the consumer which the ERG has estimated adds around 24% to 
a typical Eurotariff roaming bill for calls made and 19% for calls received. 

The Commission's analysis of the SMS segment of the intra-Community roaming market also 
shows that prices at both wholesale and retail levels are not justified by underlying costs and 
that, for the same reasons as apply to voice roaming, there is insufficient competitive pressure 
on  operators  to  bring  these  prices  down.  Data  gathered  by  the  ERG  show  that  prices  at 
wholesale and retail levels remained stable and high in the run-up to this proposal.  

The Commission's review of the data roaming segment of the market concluded that prices for 
this service were high when compared to the charges for equivalent domestic services or to 
underlying costs of provision and that this problem was compounded by lack of transparency. 
This makes it difficult for consumers to understand how much they will pay for data roaming 
and  has  resulted  in  many  cases  of  "bill  shock",  where  travellers  unwittingly  incur  bills  of 
thousands of euros for downloading data while abroad. 

On the other hand, the Commission's review showed that while prices may be falling for data 
roaming  services,  they  continue  to  be  unjustifiably  high  for  wholesale  and  retail  when 
compared  to  domestic  prices  for  equivalent  services.  There  is  accordingly  a  clear  need  for 
measures  to  enable  roaming  customers  to  understand  and  control  their  expenditure  on  data 
roaming services more effectively and to prevent bill shocks, as well as to eliminate barriers 
to the utilisation of mobile data roaming services throughout the internal market and remove 
appreciable distortions of competition. 

•  Existing provisions in the area of the proposal 

The key existing provision in the area of this proposal is Regulation (EC) No 717/2007 itself, 
which this proposal will amend in order to extend its application in time and its scope.  

The existing 2002 regulatory framework for electronic communications, which was amended 
by  Regulation  (EC)  No  717/2007  to  take  account  of  the  need  for  specific  measures  on 
roaming  within  the  Community,  provides  a  mechanism  for  the  imposition  of  ex  ante 
regulatory  obligations  on  undertakings  within  the  electronic  communications  sector,  on  the 
basis of the definition of relevant markets susceptible to ex ante regulation, market analysis 
and findings of dominance by NRAs. However, for the reasons explained at the time of the 
proposal  for  Regulation  (EC)  No  717/2007,  the  specific  characteristics  of  the  markets  for 
international  roaming  and  the  cross-border  nature  of  those  services  mean  that  the  tools 
otherwise  available  under  the  framework  do  not  offer  NRAs  an  effective  means  of  tackling 
the  lack  of  competitive  pressure  and  the  resulting  high  prices.  These  reasons  are  equally 
relevant  to  the  extension  of  the  Regulation  in  time  and  in  scope,  to  cover  SMS  and  data 
roaming services. 

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National  consumer  protection  laws  in  some  Member  States  also  apply  to  activities  falling 
within Regulation (EC) No 717/2007. For example, a number of Member States have imposed 
requirements  on  mobile  operators  regarding  the  billing  of  voice  services  on  a  per  second 
basis.  This  creates  divergent  regulatory  conditions  for  operators  in  different  Member  States 
which,  in  the  context  of  a  cross-border  activity  subject  to  harmonised  rules  such  as 
Community-wide roaming, is not conducive to the smooth functioning of the single market. 

•  Consistency with the other policies and objectives of the Union 

This  proposal  is  in  line  with  the  renewed  Lisbon  Strategy  for  promoting  growth  and  jobs 
through  greater  competitiveness,  the  Commission's  associated  i-2010  initiative  and  the 
initiative of a "Europe of Results". 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The Commission departments launched a wide-ranging consultation in May 2008 asking for 
comments on the review of Regulation (EC) No 717/2007 and its possible extension to SMS 
and data roaming services. 39 questions were asked on the functioning of the Regulation as 
well  as  specific  issues  such  as  inadvertent  roaming,  the  effect  on  smaller  operators  and 
domestic prices and the issue of actual vs. billed minutes. 

The public consultation was made accessible via the "Your voice in Europe" website. 

Summary of responses and how they have been taken into account 

The consultation exercise demonstrated widespread support from Member States, NRAs, the 
ERG and consumer groups for prolonging the Regulation and extending it to SMS and data 
roaming  services.  Some  smaller  operators  also  favoured  extending  the  Regulation  to 
wholesale SMS and data roaming services. While most operators opposed the extension of the 
Regulation  and  hence  also  rejected  regulation  of  SMS  and  data  roaming  services,  many 
acknowledged the need to tackle bill shock for data roaming services. 

An open consultation was conducted over the internet from 7 May 2008 to 2 July 2008. The 
Commission received 44 response(s). The results are available at:  
http://ec.europa.eu/information_society/activities/roaming/regulation/consult08/contributions/
index_en.htm. 

•  Collection and use of expertise 

Scientific/expertise domains concerned 

The  Commission  commissioned  a  study  on  data  roaming  services  which  was  published  in 
June 2008. 

Methodology used 

The  study  looked  into  the  functioning  of  data  roaming  services  and  assessed  what 
technological requirements are necessary to offer such services. 

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Main organisations/experts consulted 

Connect2Roam 

Summary of advice received and used 

The  study  compared  prices  between  domestic  and  roaming  services  and  looked  at  the  cost 
components specific to the provision of data roaming services. 

Means used to make the expert advice publicly available 

The study was published at 
http://ec.europa.eu/information_society/activities/roaming/docs/study_data_roaming.pdf. 

•  Impact assessment 

The impact assessment for this proposal examined the following range of options: no policy 
change, self-regulation, co-regulation, soft law and targeted regulation in four specific areas: 
voice roaming, per second billing, SMS roaming and data roaming. 

Given the underlying remaining structural limitations on competition in the roaming markets, 
leaving the problems to be addressed by means of self-regulation or co-regulation would not 
be a viable solution. Given the relative lack of response from the industry to calls for lower 
SMS roaming charges, the potential for widely differing approaches at national level (to what 
is a cross-border problem) and the fact that no single NRA has the necessary regulatory tools 
to address the problem at both wholesale and retail levels, it was also considered unlikely that 
a soft law approach would suffice to address the enduring underlying problems. Consequently 
the options of self-regulation, co-regulation and soft law were discarded. 

Targeted regulation was therefore considered.  

With  regard  to  voice  and  SMS  roaming  it  was  considered  that  recourse  to  wholesale 
regulation  or  retail  regulation  alone  would  not  ensure  that  the  objectives  would  be  met.  A 
combination of wholesale and retail regulation was therefore examined. 

For per second billing, intervention was considered necessary to ensure consistency across the 
single  market.  At  retail  level  the  preferred  option  was  to  allow  operators  to  charge  a 
maximum set-up fee equivalent to the initial 30 seconds of a roaming call made, followed by 
per second billing. At the wholesale level it was deemed that per second billing should apply. 

For  data  roaming  services,  a  number  of  options  were  also  examined.  The  introduction  of 
strong transparency measures with an accompanying safeguard tariff mechanism at wholesale 
level  to  facilitate  predictability  for  operators  in  the  costs  to  be  incurred  was  considered  the 
best solution. 

The  Commission  carried  out  an  impact  assessment  as  listed  in  the  Work  Programme,  the 
report on which is available at: 
http://ec.europa.eu/information_society/activities/roaming/index_en.htm. 

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3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The proposal provides for the extension in time and scope of Regulation (EC) No 717/2007. 
As regards voice roaming, the proposal extends the existing Regulation for three more years 
and sets new maximum limits during the extended period for the charges that mobile network 
operators may levy for the wholesale provision of regulated roaming calls. In order to ensure 
that the benefits of these reductions are passed on to end-users the proposal also establishes 
new  maximum  limits  during  the  extended  period  for  charges  subject  to  a  Eurotariff.  In 
addition,  the  proposal  stipulates  that  per  second  billing  requirements  should  apply  at 
wholesale as well as retail level subject to a minimum charging period at retail level of up to 
30 seconds for roaming calls made. 

The proposal also extends Regulation (EC) No 717/2007 to cover intra-Community roaming 
SMS services, by establishing a maximum limit for the charges that mobile network operators 
may levy for the wholesale provision of roaming SMS messages sent within the Community 
and by requiring mobile operators to offer their roaming customers a "Euro-SMS tariff" which 
must not exceed a maximum price limit per SMS. 

The proposal promotes price transparency by extending the obligation on mobile providers to 
give their roaming customers personalised price information when entering another Member 
State, to include information on the cost of sending a regulated roaming SMS message. 

The date provided for the decrease in the price limits for regulated roaming calls at wholesale 
and  retail  levels  in  2009  is  brought  forward  from  30  August  to  1  July,  in  order  to  ensure 
consistency  with  the  obligations  regarding  the  pricing  of  regulated  SMS  messages.  In  this 
way,  users  of  both  voice  and  SMS  roaming  services  will  be  able  to  benefit  from  the  new 
tariffs during the period when there is the greatest demand for those services.  

In  addition,  the  proposal  introduces  price  transparency  and  safeguard  mechanisms  for  data 
roaming  services,  to  enable  customers  better  to  understand  and  control  their  expenditure  on 
these services and avoid bill shocks. In particular, when roaming customers first initiate a data 
roaming session  on entering another Member  State, their  operator will have to inform  them 
that they are roaming and provide personalised information on the applicable tariffs for that 
service. Operators will also be required, within approximately one year of entry into force of 
the amendments contained in the proposal, to offer all roaming customers free of charge an 
opportunity to specify in advance a maximum financial limit for data roaming. 

Also,  as  a  safeguard  mechanism  to  give  roaming  providers  a  level  of  assurance  as  to  the 
wholesale costs to be incurred and to avoid appreciable distortion of competition, given the 
persistence  of  high  wholesale  charges  (in  particular  on  non-preferred  networks)  and  traffic 
steering  limitations,  the  proposal  sets  a  limit  on  the  average  wholesale  charge  which  the 
operator  of  a  visited  network  may  levy  from  the  operator  of  a  roaming  customer's  home 
network for the provision of regulated data roaming services. 

Finally,  the  proposal  amends  the  term  "public  mobile  telephone  networks"  to  read  "public 
mobile communications networks" where it appears in Regulation (EC) No 717/2007 and in 
Article 1(5)  of  the  Framework  Directive,  to  ensure  continued  consistency  with  the 
terminology  used  elsewhere  in  the  regulatory  framework  for  electronic  communications,  in 

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the light of the revisions to the framework proposed by the Commission and currently under 
discussion in the European Parliament and Council. 

•  Legal basis 

Article 95 EC 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reason(s). 

The same special characteristics that apply to the voice roaming market and warranted action 
under Regulation (EC) No 717/2007 also apply to the provision of Community-wide SMS and 
data  roaming  services.  For  all  these  services  action  by  the  Member  States  would  not  be 
effective in resolving the underlying problem of lack of competitive pressure in the roaming 
market  and  the  resulting  high  prices  and  low  transparency,  given  the  cross-border  nature  of 
the services concerned and the limited regulatory tools otherwise available. 

Action by Member States alone to address the problems covered by this proposal would risk 
leading to divergent results, thereby jeopardising the smooth functioning of the single market. 

Community  action  will  better  achieve  the  objectives  of  the  proposal  for  the  following 
reason(s). 

The  provision  within  the  Community  of  mobile  roaming  services  such  as  voice  calls,  SMS 
and data transfers affects by its very nature all Member States and touches on the interests of 
parties  in  different  Member  States  simultaneously.  A  harmonised  approach  at  Community 
level  is  therefore  essential  to  guarantee  consistency  of  application  and  to  ensure  that  the 
interests of consumers and undertakings in all Member States are safeguarded. 

For  the  benefits  of  the  single  market  to  be  fully  realised  with  regard  to  Community-wide 
roaming services, users of those services should be able to expect the same level of protection 
and the same benefits regardless of where they are located within the Union.  

The establishment of further and/or additional safeguards for users of mobile voice telephony, 
SMS  and  data  roaming  services  and  for  operators  of  such  services  on  a  non-discriminatory 
basis  across  the  Community  cannot  be  achieved  by  the  Member  States  in  a  secure, 
harmonised  and  timely  manner  and  can  therefore  be  better  achieved  by  the  Community. 
Moreover, since the proposal requires the amendment of Regulation (EC) No 717/2007 and of 
Directive 2002/21/EC, this can only be achieved by action at Community level.  

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

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The  regulatory  action  proposed  involves  the  least  interference  possible  in  the  commercial 
behaviour  of  the  undertakings  affected.  The  setting  of  maximum  price  limits  for  roaming 
voice calls and roaming SMS messages at wholesale and retail levels and price transparency 
measures, as well as the safeguard mechanism introduced for wholesale data roaming charges, 
ensures the minimum distortion of competitive conditions consistent with the objectives, since 
it  preserves  the  freedom  of  operators  to  compete  and  differentiate  their  offerings  within  the 
limits provided. With regard to voice and SMS roaming services, retail regulation is necessary 
to ensure that the benefit of lower wholesale prices is passed through to retail customers. The 
proposed action continues to leave the task of monitoring and enforcement to the regulatory 
authority responsible for electronic communications in each Member State. 

Due to the nature and simplicity of the regulatory actions chosen in the proposal and the direct 
application of its obligations within the Community, the administrative and financial burden 
on the Community, national governments and authorities will be minimised. 

•  Choice of instrument 

Proposed instrument: regulation. 

Since it is proposed to amend Regulation (EC) No 717/2007 in a manner contemplated by the 
Regulation itself and to further amend Directive 2002/21/EC, an amending  regulation is the 
only appropriate instrument. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Review/revision/sunset clause 

The proposal includes a review clause. 

The proposal includes a sunset clause. 

•  European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  extend  to  the  European 
Economic Area. 

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2008/0187 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 717/2007 on roaming on public mobile telephone 
networks within the Community and Directive 2002/21/EC on a common regulatory 
framework for electronic communications networks and services 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
95 thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having consulted the Committee of the Regions, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty3, 

Whereas: 

(1) 

(2) 

Regulation  (EC)  No  717/2007  of  the  European  Parliament  and  of  the  Council  of  27 
June  2007  on  roaming  on  public  mobile  telephone  networks  within  the  Community 
and amending Directive 2002/21/EC4 imposed limits on the charges that may be levied 
by  mobile  operators,  at  wholesale  and  retail  levels,  for  the  provision  of  international 
roaming  services  for  voice  calls  originating  and  terminating  within  the  Community. 
That  Regulation  also  laid  down  rules  aimed  at  increasing  price  transparency  and 
improving  the  provision  of  information  on  charges  to  users  of  Community-wide 
roaming services.  

The Commission has carried out a review in accordance with Article 11 of Regulation 
(EC)  No  717/2007,  where  it  was  required  to  evaluate  whether  the  objectives  of  the 
Regulation had been achieved, to review developments in wholesale and retail charges 
for  the  provision  to  roaming  customers  of  voice  and  data  communications  services, 
including SMS and MMS, and to include, if appropriate, recommendations regarding 
the  need  to  regulate  those  services.  In  its  report  to  the  European  Parliament  and  the 

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OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 171, 29.6.2007, p. 32. 

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(3) 

(4) 

(5) 

(6) 

Council, contained in its Communication of [ ] 20085, the Commission concluded that 
it was appropriate to extend the validity of the Regulation beyond 30 June 2010  

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

For  this  reason  the  national  regulatory  authorities,  acting  within  the  European 
Regulators  Group  (ERG),  in  its  response  to  the  public  consultation  on  the  review  of 
Regulation  (EC)  No  717/2007,  once  again  called  on  the  Commission  to  act  at 
Community  level,  both  as  regards  the  extension  of  the  Regulation  in  time  and  with 
regard to the regulation of SMS roaming and data roaming services.  

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

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

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(7) 

(8) 

(9) 

The levels of the maximum average wholesale charges for regulated roaming calls set 
by  Regulation  (EC)  No  717/2007  should  continue  to  decline  over  the  extended 
duration of the Regulation to reflect declining costs, including decreases in regulated 
mobile  termination  rates  in  the  Member  States,  in  order  to  ensure  the  smooth 
functioning of the internal market while at the same time continuing to meet the dual 
objectives  of  eliminating  excessive  prices  while  allowing  operators  freedom  to 
compete and innovate.  

The date provided for the decrease in the maximum price limits for regulated roaming 
calls  at  both  wholesale  and  retail  levels  in  2009  should  be  brought  forward  from  30 
August  to  1  July,  in  order  to  ensure  consistency  with  the  introduction  of  the 
obligations  regarding  the  pricing  of  regulated  SMS  messages  provided  for  by  this 
Regulation. In this way, users of both voice and SMS roaming services will be able to 
benefit  from  the  new  tariffs  during  the  period  when  there  is  the  greatest  demand  for 
those services.  

As  compliance  with  the  wholesale  charge  limit  established  by  Regulation  (EC)  No 
717/2007 is measured by reference to the average wholesale price prevailing between 
any two operators over a 12 months period, it is appropriate to clarify that, the period 
can be shorter, for example where the date of a scheduled decrease in the level of the 
maximum average wholesale charge intervenes before the end of the 12 month period.  

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

(11)  The maximum levels of the Eurotariff, both for calls made and calls received, should 
continue  to  decrease  annually  during  the  extended  period  of  validity  of  Regulation 
(EC) No 717/2007 in a manner consistent with the decreases required during the initial 
period of application of that Regulation, to reflect the continuing declines in domestic 
mobile prices generally as well as the continuing decreases in the underlying costs of 
providing  regulated  roaming  calls.  In  this  way,  the  continuity  in  the  effects  of  the 
Regulation is maintained.  

(12)  The  increased  margins  between  maximum  wholesale  and  retail  charges  provided  for 
by this Regulation should allow increased scope for operators to compete on price at 
the  retail  level,  thereby  maximising  the  chances  that  a  properly  competitive  market 
will emerge. 

(13)  The  ERG  has  estimated  that  the  practice  of  mobile  operators  of  using  charging 
intervals of more than one second when billing for roaming services at retail level has 
added 24% to a typical Eurotariff bill for calls made and 19% for calls received. They 
also  stated  that  these  increases  represent  a  form  of  hidden  charge  since  they  are  not 

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transparent  to  most  consumers.  For  this  reason,  ERG  recommended  urgent  action  to 
address the different billing practices at retail level applied to the Eurotariff.  

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

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

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

(17)  As  regards  SMS  roaming  services,  the  market  data  collected  by  the  ERG  and  the 
Commission  since  the  entry  into  force  of  Regulation  (EC)  No  717/2007  have 
demonstrated  that  a  situation  persists  across  the  Community  in  which  wholesale 
charges  for  these  services  have  remained  broadly  stable  and  have  no  meaningful 
relationship  with  underlying  costs.  As  is  the  case  for  voice  roaming  services,  there 
appear to be insufficient competitive pressures on operators to bring wholesale prices 
down.  Retail  prices  for  SMS  roaming  services  have  also  remained  broadly  stable, 
subject  to  high  margins  and  priced  significantly  above  equivalent  domestic  SMS 
services with no clear justification.  

(18) 

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

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

(20)  The  ERG  also  stated  in  its  response  to  the  Commission's  public  consultation  on  the 
review  of  the  operation  of  Regulation  (EC)  No  717/2007  that  it  considered  that 

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regulation of SMS roaming was necessary, at both wholesale and retail levels, in order 
to bring prices more into line with costs and with domestic prices. It considered that 
arrangements  analogous  to  those  for  voice  roaming  would  be  suitable.  More 
specifically,  the ERG recommended introducing a cap on  the average  wholesale  rate 
charged  by  any  one  operator  to  any  other  operator  for  SMS  roaming,  as  well  as 
amending  the  Eurotariff  obligation  to  include an  offer  of  SMS  roaming  at  a  rate  not 
greater than a specified maximum cap.  

(21)  Regulatory obligations should therefore be imposed with regard to regulated roaming 
SMS services at wholesale level, in order to establish a more reasonable relationship 
between wholesale charges and the underlying costs of provision, and at retail level to 
protect the interests of roaming customers.  

(22)  These regulatory obligations should take effect as soon as possible, while allowing the 
operators  concerned  a  reasonable  period  to  adapt  their  prices  and  service  offers  to 
ensure compliance.  

(23)  The  most  effective  and  proportionate  approach  to  regulating  the  level  of  prices  for 
regulated roaming SMS messages at wholesale level is the setting at Community level 
of  a  maximum  average  charge  per  SMS  sent  from  a  visited  network.  The  average 
wholesale  charge  should  apply  between  any  pair  of  mobile  operators  within  the 
Community over a specified period.  

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

(25)  The  most  effective  and  proportionate  approach  to  regulating  the  level  of  prices  for 
Community-wide  roaming  SMS  messages  at  the  retail  level  is  the  introduction  of  a 
requirement for mobile operators to offer their roaming customers a Euro-SMS tariff 
which does not exceed a specified maximum price limit. The Euro-SMS tariff should 
be  set  at  a  level  which  guarantees  a  sufficient  margin  to  operators  while  also  more 
reasonably reflecting the underlying retail costs.  

(26)  This regulatory approach should ensure that retail charges for regulated roaming SMS 
messages provide a more reasonable reflection of the underlying costs involved in the 
provision  of  the  service  than  has  been  the  case.  The  maximum  Euro-SMS  tariff  that 
may  be  offered  to  roaming  customers  should  therefore  reflect  a  reasonable  margin 
over  the  costs  of  providing  a  regulated  roaming  SMS  service,  whilst  allowing 
operators the freedom to compete by differentiating their offerings and adapting their 
pricing  structures  to  market  conditions  and  consumer  preferences.  This  regulatory 
approach should not apply to value-added SMS services.  

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

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

(29) 

In order to ensure end-to-end connectivity and interoperability for roaming customers 
of regulated roaming SMS services, national regulatory authorities should intervene in 
a  timely  manner  in  accordance  with  the  provisions  of  Article  5  of  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) 6and on a coordinated basis, as well as in accordance with 
the  provisions  of  Article  8(1)  of  Regulation  (EC)  No  717/2007  and  Article  21  of 
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)7,  where  a  terrestrial  mobile  network  operator 
established in one Member State complains to its national regulatory authority that its 
subscribers  are  unable  to  send  or  receive  regulated  roaming  SMS  to  or  from 
subscribers of a terrestrial mobile network located in another Member State as a result 
of a failure of the two operators concerned to conclude an agreement.  

(30)  An  SMS  message  is  a  Short  Message  Service  text  message,  mainly  composed  of 
alphabetical  or  numerical  characters  but  also  capable  of  containing  pictorial 
characters,  which  can  be  sent  and  received  on  a  mobile  telephone  or  other  mobile 
device  between  mobile  numbers  assigned  in  accordance  with  a  national  numbering 
plan. An SMS message is clearly distinct from other messages such as MMS messages 
or  e-mails.  In  order  to  ensure  that  the  Regulation  is  not  deprived  of  its  effectiveness 
and  that  its  objectives  are  fully  met,  any  changes  to  the  technical  parameters  of  a 
roaming  SMS  message  which  would  differentiate  it  from  a  domestic  SMS  message 
should be prohibited.  

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

(32)  The  high  level  of  retail  prices  for  data  roaming  services  remains  a  concern  and 
indicates that competition in these services is still not sufficient However, unlike the 
case for voice and SMS roaming services, competitive constraints exist at retail level, 
as roaming customers have alternative means of accessing data services when abroad, 
such  as  public  wireless  access  to  the  internet,  without  associated  numbering 
constraints.      It  would  therefore  be  premature  at  this  stage  to  regulate  prices  at  the 
retail level. 

(33)  However, measures should be introduced to improve the transparency of retail prices 
for data roaming services, in particular to eliminate the problem of "bill shock" which 
constitutes a barrier to the smooth functioning of the internal market, and to provide 

6 
7 

OJ L 108, 24.4.2002, p. 7. 
OJ L 108, 24.4.2002, p. 33. 

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(34) 

(35) 

roaming customers with the tools they need to monitor and control their expenditure 
on data roaming services.  

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

In  addition,  in  order  to  avoid  bill  shocks,  mobile  operators  should  offer  all  their 
roaming customers, free of charge, an opportunity to specify in advance a maximum 
financial  limit  for  their  outstanding  charges  for  data  roaming  services,  with  an 
appropriate warning message when this limit is approached. Upon this maximum limit 
being  reached,  the  data  roaming  service  should  be  terminated  unless  the  customer 
specifically requests its continued provision. 

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

(37)  Moreover,  the  persistence  of  high  wholesale  charges  for  data  roaming  services  is 
primarily attributable to high wholesale prices charged by operators of non-preferred 
networks. Such charges are caused by traffic steering limitations which leave operators 
with no incentive to reduce their standard wholesale prices unilaterally since the traffic 
will be received irrespective of the price charged. This results in an extreme variation 
in wholesale costs. In some cases the wholesale data roaming prices applicable to non-
preferred networks are thirty times higher than those applied to the preferred network. 
These  excessively  high  wholesale  charges  for  data  roaming  services  lead  to 
appreciable distortions of competitive conditions between mobile operators within the 
Community which undermine the smooth functioning of the internal market. They also 
constrain the ability of home providers to predict their wholesale costs and therefore to 
provide  their  customers  with  transparent  and  competitive  retail  pricing  packages.  In 
view of the limitations on the ability of national regulatory authorities to tackle these 
problems effectively at national level, a wholesale price limit on data roaming services 
should apply. The wholesale price limit should be set at a safeguard level well above 
the lowest wholesale prices currently available in the market, to enhance competitive 
conditions  and  permit  the  better  functioning  of  the  internal  market  for  the  benefit  of 
consumers.  

(38) 

In  order  to  reflect  the  developments  in  the  market,  and  the  applicable  regulatory 
framework  for  electronic  communications  it  is  necessary  to  refer  to  "public 
communications  networks"  instead  of  "public  telephony  networks".  For  the  sake  of 
consistency  Article  1(5)  of  Directive  2002/21/EC  (Framework  Directive)  should  be 
amended accordingly. 

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(39)  Since  the  objectives  of  this  Regulation,  namely  to  amend  Regulation  (EC)  No 
717/2007  and  Directive  2002/21/EC  in  order  to  maintain  and  further  develop  a 
common set of rules to ensure that users of public mobile communications networks 
when  travelling  within  the  Community  do  not  pay  excessive  prices  for  Community-
wide  roaming  services  (be  it  in  respect  of  voice  calls,  SMS  messages  or  data 
transmissions), thereby contributing to the smooth functioning of the internal market, 
while  achieving  a  high  level  of  consumer  protection  and  safeguarding  competition 
between mobile operators, cannot be sufficiently achieved by the Member States in a 
secure,  harmonised  and  timely  manner  and  can  therefore  be  better  achieved  at 
Community  level,  the  Community  may  adopt  the  necessary  amending  measures,  in 
accordance  with the principle of subsidiarity as set out in Article 5 of the Treaty. In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is appropriate and necessary in order to achieve 
those objectives.  

(40)  This  common  approach  should  nevertheless  be  maintained  for  a  limited  time  period 
but  may,  in  the  light  of  a  review  to  be  carried  out  by  the  Commission,  be  further 
extended or amended. The Commission should review the effectiveness of Regulation 
(EC) No 717/2007 as amended by this Regulation and the contribution which it makes 
to the implementation of the regulatory framework and the smooth functioning of the 
internal  market,  while  keeping 
the  smaller  mobile 
communications  providers  in  the  Community  and  their  position  in  the  Community-
wide roaming market.  

impact  on 

in  mind 

its 

(41)  Regulation (EC) No 717/2007 and Directive 2002/21/EC should therefore be amended 

accordingly,  

HAVE ADOPTED THIS REGULATION: 

Article 1 

Amendments to Regulation (EC) No 717/2007/EC 

Regulation (EC) No 717/2007/EC is amended as follows: 

1. 

In  the  title  "public  mobile  telephone  networks"  is  replaced  by  "public  mobile 
communications networks".  

2. 

Article 1 is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

"1.  This  Regulation  introduces  a  common  approach  to  ensuring  that  users  of  public  mobile 
communications networks when travelling within the Community do not pay excessive prices 
for Community-wide roaming services when making calls and receiving calls, when sending 
and receiving SMS messages and when using packet switched data communication services, 
thereby contributing to the smooth functioning of the internal market while achieving a high 
level  of  consumer  protection,  safeguarding  competition  between  mobile  operators  and 
preserving both incentives for innovation and consumer choice.  

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It lays down rules on the charges that may be levied by mobile operators for the provision of 
international roaming services for voice calls and SMS messages originating and terminating 
within the Community and for packet switched data communication services used by roaming 
customers  while  roaming  on  a  mobile  network  in  another  Member  State.  It  applies  both  to 
charges  levied  between  network  operators  at  wholesale  level  and,  where  appropriate,  to 
charges levied by home providers at retail level." 

(b)  Paragraph 4 is replaced by the following: 

"4.  The  charge  limits  set  out  in  this  Regulation  are  expressed  in  euros.  Where  charges 
governed  by  Articles  3,  4,  4a,  4b  and  6a(4)  are  denominated  in  other  currencies,  the  initial 
limits  pursuant  to  those  Articles  shall  be  determined  in  those  currencies,  in  the  case  of 
Articles 3 and 4 by applying the reference exchange rates prevailing on 30 June 2007, and in 
the case of Articles 4a, 4b and 6a(4) by applying the reference exchange rates prevailing on [1 
May] 2009, in each case as published by the European Central Bank in the Official Journal of 
the European Union.  

For  the  purposes  of  the  subsequent  reductions in  the  limits  provided  for  in  Article  3(2)  and 
Article 4(2), the revised values shall be determined by applying the reference exchange rates 
so published one month preceding the date from which the revised values apply." 

3. 

In Article 2, paragraph 2 is amended as follows: 

(a) 

In point (b) the term "telephony" is replaced by "communications". 

(b) 

In  point  (c)  the  terms  "telephone"  and  "telephony"  are  replaced  by 
"communications". 

(c)  Point (d) is replaced by the following: 

"(d) 

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

(d) 

In point (e) the term "telephone" is replaced by "communications". 

(e)  Point (f) is replaced by the following: 

"(f) 

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

(f) 

Point (g) is replaced by the following:  

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"(g) 

'visited  network'  means  a  terrestrial  public  mobile  communications  network 
situated in a Member State other than that of the home network and permitting 
a roaming customer to make or receive calls, to send or receive SMS messages 
or  to  send  or  receive  packet  switched  data  communications,  by  means  of 
arrangements with the operator of the home network;"  

(g)  The following points (h), (i), (j) and (k) are added:  

"(h) 

'Euro-SMS  tariff'  means  any  tariff  not  exceeding  the  maximum  charge, 
provided for in Article 4a, which a home provider may levy for the provision 
of regulated roaming SMS messages in compliance with that Article; 

(i) 

(j) 

(k) 

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

'regulated roaming SMS message' means an SMS message sent by a roaming 
customer,  originating  on  a  visited  network  and  terminating  on  a  public 
communications  network  within  the  Community  or  received  by  a  roaming 
customer,  originating  on  a  public  communications  network  within  the 
Community and terminating on a visited network; 

'regulated  data  roaming  service'  means  a  roaming  service  enabling  the 
transmission or receipt of packet switched data communications by a roaming 
customer by means of his mobile telephone or other mobile device while it is 
connected  to  a  visited  network.  A  regulated  data  roaming  service  does  not 
include  the  transmission  or  receipt  of  regulated  roaming  calls  or  SMS 
messages,  but  does  include  the  transmission  and  receipt  of  Multimedia 
Messaging Service (MMS) messages." 

4. 

Article 3 is amended as follows: 

(a)  Paragraph 2 is replaced by the following: 

"2.  This  average  wholesale  charge  shall  apply  between  any  pair  of  operators  and  shall  be 
calculated over a twelve month period or any such shorter period as may remain before the 
end of the period of application of a maximum average wholesale charge as provided for in 
this paragraph or the expiry of this Regulation. The maximum average wholesale charge shall 
decrease to EUR 0.28 and EUR 0.26, on 30 August 2008 and on 1 July 2009 respectively and 
shall further decrease to EUR 0.23, EUR 0.20 and EUR 0.17 on 1 July 2010, on 1 July 2011 
and on 1 July 2012 respectively." 

(b) 

In paragraph 3 the following subparagraph is added: 

"However,  with  effect  from  1  July  2009,  the  average  wholesale  charge  referred  to  in 
paragraph 1 shall be calculated by dividing the total wholesale roaming revenue received by 
the total number of wholesale roaming minutes actually utilised for the provision of wholesale 
roaming  calls  within  the  Community  by  the  relevant  operator  over  the  relevant  period, 
aggregated on a per second basis." 

5. 

Article 4 is amended as follows: 

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(a)  Paragraph 2 is replaced by the following: 

"2. The retail charge (excluding VAT) of a Eurotariff which a home provider may levy from 
its roaming customer for the provision of a regulated roaming call may vary for any roaming 
call but shall not exceed EUR 0.49 per minute for any call made or EUR 0.24 per minute for 
any call received. The price ceiling for calls made shall decrease to EUR 0.46 and EUR 0.43, 
and  for  calls  received  to  EUR  0.22  and  EUR  0.19,  on  30  August  2008  and  on  1  July  2009 
respectively. The price ceiling for calls made shall further decrease to EUR 0.40, EUR 0.37, 
and EUR 0.34 and for calls received to EUR 0.16, EUR 0.13 and EUR 0.10, on 1 July 2010, 
on 1 July 2011 and on 1 July 2012 respectively.  

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

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

(b)  Paragraph 4 is replaced by the following: 

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

6. 

The following Article 4a is inserted: 

"Article 4a 

Wholesale charges for regulated roaming SMS messages 

1. With effect from 1 July 2009, the average wholesale charge that the operator of a visited 
network may levy from the operator of a roaming customer's home network, for the provision 
of  a  regulated  roaming  SMS  message  originating  on  that  visited  network,  shall  not  exceed 
EUR 0.04 per SMS message.  

2.  This  average  wholesale  charge  shall  apply  between  any  pair  of  operators  and  shall  be 
calculated over a twelve month period or any such shorter period as may remain before the 
expiry of this Regulation.  

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

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originated and transmitted on behalf of the relevant operator of a home network within that 
period. 

4.  The  operator  of  a  visited  network  shall  not  levy  from  the  home  provider  any  charge, 
separate from the charge referred to in paragraph 1, for the termination of a regulated roaming 
SMS message sent to a roaming customer while roaming on its visited network." 

7. 

The following Article 4b is inserted: 

"Article 4b 

Retail charges for regulated roaming SMS messages 

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

2.  With  effect  from  1  July  2009,  the  retail  charge  (excluding  VAT)  of  a  Euro-SMS  tariff 
which  a  home  provider  may  levy  from  its  roaming  customer  for  a  regulated  roaming  SMS 
message sent by that roaming customer may vary for any roaming SMS message but shall not 
exceed EUR 0.11.  

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

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

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

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

7.  Not  later  than  1  June  2009,  home  providers  shall  inform  all  their  roaming  customers 
individually about the Euro-SMS tariff, about the fact that it will apply from 1 July 2009 at 
the latest to all roaming customers who have not made a deliberate choice of a special tariff or 
package applicable to regulated SMS messages, and about their right to switch to and from it 
in accordance with paragraph 6 above." 

8. 

The following Article 4c is inserted: 

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"Article 4c 

Technical characteristics of regulated roaming SMS messages 

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

9. 

Article 5 is deleted. 

10. 

Article 6 is replaced by the following: 

"Article 6 

Transparency of retail charges for regulated roaming calls and SMS messages 

1.  To  alert  a  roaming  customer  to  the  fact  that  he  will  be  subject  to  roaming  charges  when 
making  or  receiving  a  call  or  when  sending  an  SMS  message,  each  home  provider  shall, 
except when the customer has notified his home provider that he does not require this service, 
provide the customer, automatically by means of a Message Service, without undue delay and 
free of charge, when he enters a Member State other than that of his home network, with basic 
personalised  pricing  information  on  the  roaming  charges  (including  VAT)  that  apply  to  the 
making  and  receiving  of  calls  and  to  the  sending  of  SMS  messages  by  that  customer  in  the 
visited Member State. 

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

(a)  making  calls  within  the  visited  country  and  back  to  the  Member  State  of  his 

home network, as well as for calls received; and  

(b) 

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

It shall also include the free-of-charge number referred to in paragraph 2 for obtaining more 
detailed information. 

A customer who has given notice that he does not require the automatic Message Service shall 
have  the  right  at  any  time  and  free  of  charge  to  require  the  home  provider  to  provide  the 
service again. 

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

2.  In  addition  to  paragraph  1,  customers  shall  have  the  right  to  request  and  receive,  free  of 
charge, more detailed personalised pricing information on the roaming charges that apply to 
voice calls, SMS, MMS and other data communication services, as well as information on the 
transparency  measures  applicable  by  virtue  of  this  Regulation,  by  means  of  a  mobile  voice 
call or by SMS. Such a request shall be to a free-of-charge number designated for this purpose 
by the home provider. 

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3.  Home  providers  shall  provide  all  users  with  full  information  on  applicable  roaming 
charges, in particular on the Eurotariff and the Euro-SMS tariff, when subscriptions are taken 
out.  They  shall  also  provide  their  roaming  customers  with  updates  on  applicable  roaming 
charges without undue delay each time there is a change in these charges.  

Home  providers  shall  take  the  necessary  steps  to  secure  awareness  by  all  their  roaming 
customers  of  the  availability  of  the  Eurotariff  and  the  Euro-SMS  tariff.  They  shall  in 
particular communicate  to  all roaming customers by 30 July 2007 the conditions relating to 
the Eurotariff and by 1 June 2009 the conditions relating to the Euro-SMS tariff, in each case 
in a clear and unbiased manner. They shall send a reminder at reasonable intervals thereafter 
to all customers who have opted for another tariff." 

11. 

The following Article 6a is inserted: 

"Article 6a 

Transparency and safeguard mechanisms for regulated data roaming services 

1. Home providers shall ensure that their roaming customers are kept adequately informed of 
the  charges  which  apply  to  their  use  of  regulated  data  roaming  services,  in  ways  which 
facilitate the customers' understanding of the financial consequences of such use and permit 
them  to  monitor  and  control  their  expenditure  on  regulated  data  roaming  services  in 
accordance with paragraphs 2 and 3. 

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

Such  personalised  tariff  information  shall  be  delivered  to  the  roaming  customer's  mobile 
telephone  or  other  device,  when  the  roaming  customer  initiates  a  regulated  data  roaming 
service  in  a  particular  Member  State  other  than  that  of  his  home  network  for  the  first  time 
after having entered that Member State. It shall be provided without undue delay and free of 
charge, by an appropriate means adapted to facilitate its receipt and easy comprehension.  

A customer who has notified his home provider that he does not require the automatic tariff 
information shall have the right at any time and free of charge to require the home provider to 
provide this service again.  

3.  By  1  July  2010  at  the  latest,  the  home  providers  shall  provide  a  'Cut-Off  Limit'  facility 
whereby  they  offer  and  keep  available  to  all  their  roaming  customers,  free  of  charge,  the 
possibility  to  specify  in  advance  a  maximum  financial  limit,  expressed  in  the  currency  in 
which the roaming customer is billed, for their outstanding charges for regulated data roaming 
services.  

When this Cut-Off Limit is reached, the home provider shall immediately cease to provide the 
roaming  customer  with  regulated  data  roaming  services,  unless  and  until  the  roaming 
customer requests the continued or renewed provision of those services. 

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The  home  provider  shall  also  ensure  that  an  appropriate  warning  message  is  sent  to  the 
roaming customer's mobile telephone or other device before one or more intermediate charge 
limits,  agreed  between  the  customer  and  the  home  provider  in  advance,  are  reached.  This 
warning  message  shall  inform  the  roaming  customer  that  the  Cut-Off  Limit  is  about  to  be 
reached  and  indicate  the  procedure  to  be  followed  by  the  customer  if  he  or  she  wishes  to 
request the continued or renewed provision of those services. 

4. With effect from 1 July 2009: 

(a)  The average wholesale charge that the operator of a visited network may levy 
from the operator of a roaming customer's home network for the provision of 
regulated  data  roaming  services  by  means  of  that  visited  network  shall  not 
exceed a safeguard limit of EUR 1.00 per megabyte of data transmitted.  

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

(c)  The  average  wholesale  charge  referred  to  in  point  a  shall  be  calculated  by 
dividing  the  total  wholesale  revenue  received  by  the  operator  of  the  visited 
network from each operator of a home network for the provision of regulated 
data roaming services in the relevant period by the total number of megabytes 
of data consumed by the provision of those services within that period."  

12. 

Article 7 is amended as follows: 

(a)  Paragraph 2 is replaced by the following: 

"2. National regulatory authorities shall make up-to-date information on the application of this 
Regulation,  in  particular  Articles  3,  4,  4a,  4b  and  6a,  publicly  available  in  a  manner  that 
enables interested parties to have easy access to it."  

(b)  Paragraph 5 is replaced by the following: 

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

13. 

Article 9 is replaced by the following: 

"Article 9 

Penalties 

Member  States  shall  lay  down  the  rules  on  penalties  applicable  to  infringements  of  this 
Regulation  and  shall  take  all  measures  necessary  to  ensure  that  they  are  implemented.  The 
penalties  provided  for  must  be  effective,  proportionate  and  dissuasive.  Member  States  shall 

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notify those provisions to the Commission no later than 30 March 2008 or, in the case of the 
additional  requirements  introduced  by  Regulation  [XXXX/YYYY],  no  later  than  the  date 
falling  nine  months  after  the  entry  into  force  of  that  Regulation  and  shall  notify  it  without 
delay of any subsequent amendment affecting them."  

14. 

Article 11 is replaced by the following: 

"Article 11 

Review 

1. The Commission shall review the functioning of this Regulation and report to the European 
Parliament and the Council no later than 31 December 2011. The Commission shall evaluate 
in  particular  whether  the  objectives  of  this  Regulation  have  been  achieved.  In  its  report  the 
Commission  shall  review  developments  in  wholesale  and  retail  charges  for  the  provision  to 
roaming customers of voice and data communication services, including SMS and MMS, and 
shall,  if  appropriate,  include  recommendations  regarding  the  need  further  to  regulate  these 
services.  For  this  purpose  the  Commission  may  use  the  information  supplied  pursuant  to 
Article 7(3). 

2.  In  its  report,  the  Commission  shall  assess  whether,  in  the  light  of  developments  in  the 
market  including  the  quality  of  service  provided,  and  with  regard  to  both  competition  and 
consumer protection, there is need to extend the duration of this Regulation beyond the period 
set out in Article 13 or to amend it further, taking into account the developments in charges 
for  mobile  voice  and  data  communication  services  at  national  level  and  the  effects  of  this 
Regulation across different parts of the Community and also on the competitive situation of 
smaller, independent or newly started operators. In the light of its findings, the Commission 
may submit a proposal to the European Parliament and the Council." 

15. 

16. 

In Article 12 the text "no later than 30 August 2007" is deleted. 

In Article 13 "2010" is replaced by "2013". 

Article 2 

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

In  Article  1(5)  of  Directive  2002/21/EC  (Framework  Directive)  "public  mobile  telephone 
networks" is replaced by "public mobile communications networks". 

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Article 3 

Entry into force 

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

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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