Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets
Date: 2016-06-15
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: consumer protection, price regulations, regulation of telecommunications, single market, telephone charges, transmission network, wholesale trade

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   EUROPEAN COMMISSION  Brussels, 15.6.2016  COM(2016) 399 final 2016/0185 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets  (Text with EEA relevance) {SWD(2016) 201 final} {SWD(2016) 202 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

EU  regulatory  intervention  on  wholesale and  retail  roaming  markets  has  been  necessary  for 
the last 10 years in order to improve the conditions for the functioning of the internal market 
for roaming services within the Union.1  
In  2015,  the  European  Parliament  and  the  Council  adopted  Regulation  (EU)  2015/2120,2 
which entered into force on 29 November 2015 and amended Regulation (EU) No 531/2012 
(the Roaming Regulation)3. 

Regulation (EU) 2015/2120  requires  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  of  the  abolition  of  retail  roaming  charges.  These  new 
rules for retail roaming services in the Union are referred to in this explanatory memorandum 
as the ‘roam-like-at-home’ (RLAH) rules. 

While necessary, the 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 not to 
distort competitive conditions in domestic markets, national wholesale roaming markets need 
to  be  competitive  and  deliver  wholesale  roaming  prices  that  enable  operators  to  sustainably 
offer retail roaming services without any additional charges. 

In  this  regard,  the  Commission  has  undertaken  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 (1) of the Roaming Regulation4. 

This  analysis  of  wholesale  markets  shows  that  a  number  of  market  failures  still  affect  the 
functioning of these markets (such as their oligopolistic character, combined with the bilateral 
nature of roaming agreements and the lack of wholesale substitutes). This analysis also shows 
that the negotiating position of the net senders of roaming traffic, including the weaker market 
players on wholesale roaming markets, may in fact deteriorate under RLAH if countervailing 
measures  are  not  applied.  This  could  in  turn  distort  the  functioning  of  the  home  operators’ 
domestic markets. 

At the same time, any rules on the wholesale market should ensure that visited operators are 
able to recover the costs incurred in providing wholesale roaming services, including joint and 
common  costs.  This  should  preserve  incentives  to  invest  in  visited  networks  and  avoid  any 
distortion  in  domestic  competition  in  the  visited  markets  caused  by  regulatory  arbitrage  by 

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4 

See judgment in Case C-58/08, EU:C:2010:321. 
Regulation  (EU)  2015/2120  of  the  European  Parliament  and  of  the  Council  of  25  November  2015 
laying  down  measures  concerning  open  internet  access  and  amending  Directive  2002/22/EC  on 
universal  service  and  users’  rights  relating  to  electronic  communications  networks  and  services  and 
Regulation  (EU)  No  531/2012  on  roaming  on  public  mobile  communications  networks  within  the 
Union 
Regulation  (EU)  No  531/2012  of  the  European  Parliament  and  of  the  Council  of  13  June  2012  on 
roaming on public mobile communications networks within the Union. 
See  for  details  the  Report  from  the  Commission  to  the  European  Parliaement  and  the  Council  on  the 
review of the wholesale roaming market [final reference] and the Commission Staff Working Document 
accompanying the Report from the Commission to the European Parliament and the the Council on the 
review of the wholesale roaming market. [final reference]. 

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operators  using  roaming  access  remedies  to  compete  in  otherwise  competitive  domestic 
visited markets.   

This  initiative  therefore  aims  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. 

• 

Consistency with existing policy provisions 

Abolishing retail roaming surcharges is an essential step towards ensuring that telecom rules 
support  the  establishment  and  functioning  of  a  digital  single  market  across  the  Union.  This 
target was also stressed in the Digital Single Market Strategy set out by the Commission on 
6 May 2015.5 In particular, regulating the wholesale roaming market to establish RLAH in the 
Union will help achieve the policy objective of ensuring that well-functioning markets deliver 
access to  high-performance wireless broadband infrastructure at affordable prices across the 
Union. 

The co-legislators acknowledged the importance of this objective for the overall digital single 
market  when  the  RLAH  rules  were  adopted  in  2015.  However,  given  the  interrelationship 
between the wholesale and retail roaming markets, the co-legislators made the application of 
RLAH  subject  to  the  adoption  of  the  legislative  measures  to  tackle  the  issues  at  wholesale 
level needed to enable the abolition of the retail roaming surcharges in the Union.  

This  proposal  for  a  regulation  is  therefore  meant  to  complete  the  rules  on  roaming,  in 
particular  with  regard  to  wholesale  roaming  markets,  and  enable  the  application  of  RLAH 
rules from 15 June 2017. This is in line with the policy objectives underpinning the Roaming 
Regulation and the wider Digital Single Market Strategy. 

In addition to the legislative measures proposed here, the establishment of RLAH will also be 
accompanied by implementing acts to be adopted by 15 December 2016 that will provide for 
detailed rules on the application of the fair use policy and the methodology for assessing the 
sustainability of the abolition of retail roaming surcharges. 

• 

Consistency with other Union policies 

The  Digital  Single  Market  Strategy  notes  that  information  and  communication  technology 
networks provide the backbone for digital products and services which have the potential to 
support all aspects of our lives and which drive Europe’s economic development. Regulating 
wholesale  roaming  markets  with  a  view  to  enabling  the  abolition  of  roaming  surcharges 
therefore helps develop a strong, competitive and dynamic telecoms sector, and helps create 
the right conditions for developing advanced digital networks and services which support all 
sectors of the economy, including small and medium-sized enterprises.    

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

EU regulatory intervention on wholesale roaming markets and on retail roaming markets has 
been  necessary  for  the  last  10  years,  on  the  basis  of  Article  114  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU).  Such  intervention  has  aimed  to  improve  the 

5 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  —  A  Digital  Single  Market 
Strategy for Europe COM(2015) 192. 

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conditions for the functioning of the internal market for roaming services within the Union6 
because  national  regulatory  authorities  have  acknowledged  that  they  were  unable  to 
autonomously tackle this problem due to the cross-border nature of the international roaming 
market.7  Following  the  adoption  of  Regulation  (EU) 2015/2120,  it  is  necessary  to  adopt 
appropriate  legislative  measures  to  ensure  the  proper  functioning  of  the  wholesale  roaming 
markets.  This  will  enable  the  provision  of  RLAH  across  the  Union,  as  demonstrated  by  the 
review  of  the  wholesale  roaming  market.  Measures  to  regulate  wholesale  roaming  markets 
pursuant  to  Article  114  TFEU  are  therefore  also  necessary  to  ensure  the  functioning  of  the 
internal market for roaming services, and in particular to ensure the sustainable provision of 
RLAH. 

• 

Subsidiarity  

A  Union  approach  for  regulating  wholesale  roaming  markets  would  prevent  individual 
Member  States  taking  different  approaches  to  dealing  with  the  problem  of  high  wholesale 
prices.  These  different  approaches  would  create  obstacles  to  the  internal  market  because 
Union  roaming  services  providers  would  be  subject  to  varying  regulatory  conditions 
depending on whether they were wholesale roaming providers (as visited operators) or buyers 
of wholesale roaming services (as home operators), in spite of roaming retail rules being laid 
down in the Roaming Regulation. 

A  common  approach  at  Union  level  is  also  needed  because  individual  Member  States  may 
have  insufficient  incentives  to  regulate  national  wholesale  markets  in  a  way  that  takes  into 
account the impact their rules may have on the possibility to provide RLAH in other Member 
States. An initiative at Union level would better take into account the general interest of all 
Member  States.  Failure  to  ensure  consistent  regulation  of  wholesale  roaming  markets  at 
Union level could make it more difficult to provide RLAH, in view of the increased risk of 
inconsistencies  between  the  wholesale  costs  incurred  in  other  Member  States  and  the  retail 
revenues. 

A  common  approach  at  EU  level  on  the  contrary  could  establish  the  necessary  regulatory 
conditions  and  ensure  that  national  wholesale  markets  support  the  objective  of  abolishing 
roaming surcharges in a sustainable way throughout the Union. Finally, a common approach 
will also take into account the interdependence between rules for retail and wholesale markets 
in ensuring the smooth functioning of Union roaming markets, as already emphasised by the 
Court.8  

• 

Proportionality 

The legislator is given broad discretion in ensuring its choices are proportionate. However, the 
Court clarified, in particular with regard to rules on roaming, that the legislator must base its 
choices on objective criteria.  

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8 

The  use  of  this  legal  basis  was  also  confirmed  in  the  judgment  in  Case  C-58/08,  EU:C:2010:321, 
paragraph 48. 
See  letter  of  December  2005  from  the  European  Regulators  Group  to  the  Director-General  of  the 
Commission’s Directorate General for Information Society. 
In  the  judgment  in  Case  58/08,  the  Court  considered  that  wholesale  regulation  of  roaming  market  is 
compliant  with  the  subsidiarity  principle  in  view  of  the  fact  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’ (paragraph 77). 

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In such a case, when assessing the burdens associated with various possible measures, it must 
be examined whether the  objectives pursued are such  as to justify even substantial  negative 
economic  consequences  for  certain  operators.9  Consequently,  the  proposed  regulatory 
measures take into account two elements in accordance with the criteria laid down in Article 
19 (1) of the Roaming Regulation, namely the need to ensure that visited operators are able to 
recover all costs, including joint and common costs, incurred in providing regulated wholesale 
roaming services and the need to prevent permanent roaming or anomalous or abusive use of 
wholesale roaming access for purposes other than the provision of  regulated roaming services 
to roaming providers' customers while the latter are periodically travelling within the Union.  

These  specific  requirements  ensure  that,  in  accordance  with  the  proportionality  principle, 
wholesale  roaming  rules  only  do  what  is  necessary  to  achieve  the  general  policy  objective. 
They must not, for example, create negative economic consequences which are not justified in 
achieving the objective, such as requiring efficient operators to provide services below cost or 
imposing  access  rules  which  visited  operators  cannot  limit  to  the  provision  of  roaming 
services.  

On the other hand, as highlighted by the Court, compliance with the proportionality principle 
does not preclude some operators possibly experiencing negative economic consequences in 
specific  cases,  such  as  a  reduction  in  profits  which  are  above  the  level  which  would  be 
incurred  in  fully  competitive  markets  for  wholesale  roaming  activities  or  losses  due  to 
inefficient  management  of  network  costs.  This  is  because  in  such  cases  these  negative 
consequences are indeed justified and necessary in order to achieve the objective pursued. 

• 

Choice of instrument 

The  proposed  measures  are  meant  to  define  directly  applicable  rules  for  the  provision  of 
wholesale  roaming  services,  by  amending  the  corresponding  provisions  laid  down  in  the 
Roaming Regulation. For this reason, a regulation is proposed. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS. 

EVALUATIONS, 

EX-POST 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The Commission has conducted a comprehensive review of the wholesale roaming market in 
the Union in view of the specific objectives laid down in the Roaming Regulation. 

The  review  shows  in  particular  that  wholesale  roaming  markets  do  not  always  function 
properly. The impact of these market failures on the functioning of wholesale markets results 
in prices substantially above estimated costs, in particular for data. However, any competitive 
dynamics that may be observed on the wholesale roaming markets in the Union are essentially 
linked  to  existing  wholesale roaming  regulated charges.  These  capped  charges  are often  the 
only  ones  available  to  operators  with  more  limited  bargaining  power  (smaller  operators  or 
mobile  virtual  network  operators).  The  review  also  concludes  that  it  is  not  possible  to 
anticipate  with  certainty  the  impact  of  the  future  RLAH  obligation,  and  in  particular  the 
expected increase of roaming traffic, on competition on national wholesale roaming markets. 
On the contrary, with persistent market failures affecting the wholesale roaming markets, the 
review  report  does  not  exclude  the  risk  that,  in  the  absence  of  countervailing  measures,  the 
position of a substantial number of market players would in fact deteriorate under RLAH. 

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Judgment of the Court in case C-58/08, EU:C:2010:321, paragraph 53. 

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• 

Stakeholder consultations 

The  Commission  ran  a  public  consultation  on  the  review  of  national  wholesale  roaming 
markets from 29 November 2015 to 18 February 2016. The purpose of the consultation was to 
gather views on how well roaming markets function in the EU and on the current regulation 
of national wholesale roaming markets in the Union in the light of obligation provided in the 
Roaming  Regulation  to  abolish  retail  roaming  surcharges  by  15  June  2017.  A  total  of  97 
replies were received (92 via the online questionnaire, 3 by email and 2 position papers) from 
25 Member States and Norway. 

Operators have differing perceptions of how well wholesale roaming markets are functioning. 
Certain  long-standing  incumbents  and  operators  with  a  large  footprint,  and  generally 
operators with large inbound roaming traffic, argue that there are some competitive dynamics, 
as shown by wholesale market charges often being below the current regulatory caps. Other 
operators,  in  particular  smaller  ones,  mobile  virtual  network  operators  and  operators  with 
large  outbound  roaming  traffic,  argue  that  the  prices  available  to  them  on  the  wholesale 
market are at or are close to the current caps and are substantially above costs. Views on the 
effect of RLAH on competition in the wholesale roaming markets are also split between these 
two groups of operators, the former arguing that RLAH will increase competition, the latter 
claiming the opposite.  

National  regulatory  authorities  and  governments  express  views  similar  to  those  of  the 
operators in their countries. Large inbound roaming countries consider that national wholesale 
roaming  markets  function  well,  while  large  outbound  roaming  countries  take  the  opposite 
view.  Finally,  consumers  and  consumer  associations  are  cautious  in  expressing  views  on 
wholesale roaming markets since they are not directly involved in these markets. 

A large majority of respondents are of the view that EU-wide wholesale roaming charges caps 
valid  in  all  Member  States  would  be  the  most  appropriate  regulatory  approach  to  enabling 
RLAH  in  2017.  However,  because  of  different  perceptions  of  how  the  wholesale  roaming 
market functions, operators are divided on the most appropriate level of such caps to enable 
sustainable RLAH. Some support confirming  current wholesale roaming charges caps while 
others are urging for a significant reduction in order to enable sustainable RLAH. Moreover, 
many  operators  noted  the  importance  of  the  level  of  termination  rates  to  roaming  traffic  in 
order to enable RLAH for voice calls. 

• 

Collection and use of expertise 

In  order  to  gather  the  evidence  needed  for  the  review  report,  and  in  addition  to  the  public 
consultation,  in  autumn  2015,  the  Commission  and  the  Body  of  European  Regulators  for 
Electronic  Communications  (BEREC)  collected  a  comprehensive  body  of  data  from 
operators.10  The  Commission  also  requested  an  external  study  to  estimate  the  cost  of 
providing  wholesale  roaming  services11  and  analysed  the  qualitative  and  quantitative  data 
received on wholesale and retail roaming markets.12   

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The  data  collected  were  analysed  in  collaboration  with  the  Joint  Research  Centre  (JRC).  JRC  is  the 
European Commission’s in-house science service employing scientists to carry out research in order to 
provide  independent,  evidence-based  scientific  advice  and  support  to  EU  policy.  For  further 
information, visit the JRC’s website at: https://ec.europa.eu/jrc/. 
SMART 2015/006 ‘Assessment of the cost of providing wholesale roaming services in the EU’, TERA 
Consultants.  
The analysis was developed by DG CONNECT in collaboration with the JRC’s Competence Centre on 

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Microeconomic Evaluation. For further information, visit the JRC’s website at: https://ec.europa.eu/jrc/ 

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Impact assessment 

• 
The  accompanying  Impact  Assessment  SWD13    was  submitted  to  the  Regulatory  Scrutiny 
Board, which provided a positive opinion on 15 April 2016. 

Four options were considered: 

Option 1 - no action at Union level (baseline scenario). RLAH would not be applicable from 
15 June 2017 and consumers would continue to pay retail roaming surcharges.  

Option 2 - set EU-wide wholesale roaming charges caps at the current level. In this option the 
current wholesale roaming charges caps laid down in the Roaming Regulation (EUR 0.05 per 
minute  of  call  made,  EUR 0.02  per  SMS,  EUR 0.05  per  MB)  would  be  confirmed  in  a 
legislative act, such that RLAH would enter into force as from 15 June 2017.  

Option 3 - set EU-wide wholesale roaming charges caps at a lower level than today. Under 
this option, legislation would reduce the current wholesale roaming charges caps to EUR 0.04 
per minutes of call made, EUR 0,01 per SMS and EUR 0,0085 per MB and would also ensure 
that RLAH enters into force. 

Option  4  -  set  country-specific  wholesale  roaming  charges  caps.  This  option  would  apply 
country-specific  wholesale  roaming  charges  caps  equal  to  cost  estimates  in  each  Member 
States  and  based  on  a  common  cost  model.  It  would  equally  enable  RLAH  from  15  June 
2017. 

In  addition  to  the  cap-based  option  among  options  2  to  4,  the  Commission  also  analysed  a 
complementary  measure  that  would  give  the  parties  to  a  wholesale  roaming  agreement  the 
possibility  to  negotiate  a  de-regulated  pricing  scheme,  thus  waiving  the  application  of 
maximum unit-based wholesale roaming charges caps provided in the Roaming Regulation. 

On the basis of the analysis carried out in the impact assessment, option 3 is best suited to 
enabling  sustainable  RLAH  in  the  Union,  including  for  operators  with  less  bargaining 
power.  It  ensures  that  visited  operators  can  recover  their  anticipated  costs  of  providing 
wholesale  roaming  services  and  will  keep  investment  incentives  in  the visited  markets.  The 
cap level under option 3 also leaves space for competition below the cap, allowing operators 
to derive economic advantages from scale, thus enabling them to negotiate lower tariffs.  

The analysis also shows that allowing the visited and visiting operators to agree together not 
to  apply  wholesale  caps  but  to  have  an  unregulated  contract,  e.g.  capacity-based  pricing  or 
any other contractual form, would impact positively on the wholesale roaming  market. This 
could therefore also be permitted as a complementary measure.  

On  the  contrary,  option  4  would  not  significantly  improve  the  sustainability  of  RLAH  at 
operator level compared to option 3, but would entail greater risks in terms of cost recovery at 
wholesale level and considerable implementation difficulties.  

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Commission  Staff  Working  Document  Impact  Assessment  Accompanying  the  Proposal  for  a 
Regulation of the European Parliament and of the Council on rules for wholesale roaming markets and 
amending  Regulation (EU) No  531/2012 on roaming on public communications networks within the 
Union. 

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Finally, option 1 and, to a lesser extent, option 2 would not achieve the objective of ensuring 
RLAH  across  the  Union.  This  is  because  option  1  would  not  ensure  the  abolition  of  retail 
roaming surcharges: in particular under option 1, the loss of consumer welfare would amount 
to EUR 1.4 billion. Nor would option 2 address the widespread unsustainability of RLAH for 
several  operators  (around  20 %  of  the  sample  analysed)  and  across  several  Member  States 
(more than 20 % of Member States). 

• 

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 proposal does not have budgetary implications for the EU. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The RLAH will become mandatory from June 2017, subject to the applicability on that date 
of the legislative act to be adopted following the present proposal. The Commission therefore 
proposes  linking  the  reporting  obligations  to  the  entry  into  force  of  RLAH  so  that  any  new 
retail and wholesale rules have a similar period of application. 

With  regard  to  the  content  of  the  monitoring  and  evaluation  exercise,  the  current  review 
clause  in  Article  19(3)  of  the  Roaming  Regulation  requires  the  Commission  to  assess  the 
‘degree  of  competition  in  both  the  retail  and  wholesale  roaming  markets,  in  particular  the 
competitive  situation  of  small,  independent  or  newly  started  operators,  including  the 
competition  effects  of  commercial  agreements  and  the  degree  of  interconnection  between 
operators’.  

This  is  therefore  directly  relevant  when  assessing  the  effects  of  the  rules  on  wholesale 
roaming considered in the context of this initiative. Within this existing reporting obligation, 
the Commission proposes using the following indicators to assess the measures specific to this 
initiative:  

the number of sustainability requests; 
total inbound and outbound roaming traffic volumes per quarter;  

 
 
  average wholesale prices and volumes for unbalanced and balanced traffic;  
 
the number and main features of capacity-based wholesale contracts; and 
 
the  wholesale  contractual  measures  adopted  to  tackle  large-scale  business  activities 
based  on  permanent  roaming  or  anomalous  or  abusive  use  of  wholesale  roaming 
access and their effective application. 

• 

Detailed explanation of the specific provisions of the proposal 

The  proposed  Regulation  is  composed  of  two  articles,  one  including  all  the  proposed 
amendments to the Roaming Regulation and another on entry into force. 

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Article 1 proposes the following amendments to the Roaming Regulation: 

  Point  1  modifies  Article 3  of  Roaming  Regulation  by  adding  the  possibility  for  the 
parties to a wholesale agreement to waive the application of maximum wholesale caps 
provided in Articles 7, 9 and 12 of the Roaming Regulation. 

  Points  2  to  4  introduce  amendments  to  the  existing  provisions  setting  the  maximum 
average wholesale roaming charges for calls, SMS and data, and modify the applicable 
values.  The  amendments  also  ensure  the  consistency  of  the  three  amended  Articles 
(Articles 7, 9 and 12). 

  Point 5 introduces an amendment to Article 17, with a view to ensure consultation of 
BEREC  in  disputes  concerning  inputs  necessary  for  the  provision  of  regulated 
wholesale roaming services. 

  Points 6 to 7 introduce amendments to the review clause in order to ensure consistency 
following the entry into force of RLAH and to clarify BEREC’s data-gathering powers 
in view of the review. 

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2016/0185 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets  

(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,1  
After consulting the Committee of the Regions,2  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

1 
2 
3 

4 

5 

Regulation (EU) No 531/2012 of the European Parliament and the Council3 introduces 
a common approach to the regulation of roaming on public communications networks 
within the Union. 
The  Digital  Single  Market  Strategy  set  out  by  the  Commission  on  6  May  20154 
considered 
  Regulation 
the  Telecom  Single  Market  package,  adopted  by 
(EU) 2015/2120 of the European Parliament and of the Council 5, a first step towards 
eliminating retail roaming surcharges, thereby supporting the establishment of a digital 
single market in the Union. 

Regulation  (EU)  2015/2120    establishes  a  new  retail  pricing  mechanism  for  Union-
wide regulated roaming services in order to abolish retail roaming surcharges without 
distorting domestic and visited markets. 

OJ C , , p. . 
OJ C , , p. . 
Regulation  (EU)  No  531/2012  of  the  European  Parliament  and  of  the  Council  of  13  June  2012  on 
roaming on public mobile communications networks within the Union, OJ L 172, 30.6.2012, p. 10. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  —  A  Digital  Single  Market 
Strategy for Europe, COM(2015) 192. 
Regulation  (EU)  2015/2120  of  the  European  Parliament  and  of  the  Council  of  25  November  2015 
laying  down  measures  concerning  open  internet  access  and  amending  Directive  2002/22/EC  on 
universal  service  and  users’  rights  relating  to  electronic  communications  networks  and  services  and 
Regulation  (EU)  No  531/2012  on  roaming  on  public  mobile  communications  networks  within  the 
Union, OJ L 310, 26.11.2015, p. 1. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

The  abolition  of  retail  roaming  surcharges  introduced  by  Regulation  (EU)  No 
2015/2120,  also  named  "roam-like-at-home’  (RLAH),  is  necessary  to  establish  and 
ease  the  functioning  of  a  digital  single  market  across  the  Union.  However,  that 
Regulation  alone  is  not  sufficient  to  ensure  the  correct  functioning  of  the  roaming 
market. 

The abolition of roaming surcharges as of 15 June 2017, as provided for in Regulation 
(EU)  No  531/2012,  is  therefore  subject  to  the  applicability  of  any  legislative  act 
proposed  by  the  Commission  that  provides  for  appropriate  measures  following  its 
review of the wholesale roaming markets. 

The  Commission  has  conducted  a  comprehensive  review  of  wholesale  roaming 
markets to assess which measures are necessary to enable retail roaming surcharges to 
be abolished by 15 June 2017.  

In light of the findings of the review, the Commission adopted its  report on the review 
of the wholesale roaming market6. In this regard, in order to ensure that retail roaming 
services can be provided at domestic retail prices, wholesale roaming inputs must be 
available  at  a  level  that  allows  home  operators  to  provide  RLAH.  Although  having 
fully competitive national wholesale roaming markets in which prices are in line with 
visited  networks’  underlying  costs  of  provision  would  clearly  make  RLAH  more 
sustainable, the review shows that this is not the case. The review also demonstrated 
that  the  future  retail  RLAH  obligation  alone  is  highly  unlikely  to  lead  to  well-
functioning wholesale roaming  markets that would enable the provision of RLAH in 
the Union by 15 June 2017.  

In  particular,  the  current  functioning  of  wholesale  roaming  markets  could  affect 
competition  and  investments  in  home  operators’  domestic  markets  due  to  excessive 
wholesale  roaming  charges  compared  to  the  domestic  retail  prices  applied  to  end-
users.  This  applies  in  particular  for  smaller  or  net  out-bound  operators,  thus  making 
RLAH structurally unsustainable. 

The functioning of the wholesale roaming market should allow that operators 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. 

In  light  of  the  problems  identified,  current  measures  applicable  on  the  wholesale 
roaming  markets  should  be  amended  to  ensure  that  the  level  of  wholesale  roaming 
charges enables the sustainable provision of RLAH in the Union.  

In order to allow for the development of a more efficient, integrated and competitive 
market  for  roaming  services,  when  negotiating  wholesale  access  for  the  purpose  of 
providing  retail  roaming  services,  operators    should  be  given  the  alternative  to 
negotiate innovative wholesale pricing schemes which are not directly linked to actual 
consumed  volumes,  such  as  flat  payments,  up-front  commitments  or  capacity-based 
contracts,  or  pricing  schemes  that  reflect  variations  of  demand  across  the  year. 
Therefore,  the  negotiating  parties  should  have  the  option  of  agreeing  not  to  apply 
maximum  regulated  wholesale  roaming  charges  for  the  duration  of  the  wholesale 

6 

Report  from  the  Commission  to  the  European  Parliaement  and  the  Council  on  the  review  of  the 
wholesale roaming market [final reference] 

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11 

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roaming agreements or any other pre-defined periods of time. This would exclude the 
possibility for either party to subsequently request the application of the volume-based 
maximum wholesale roaming charges based on actual consumption set in Regulation 
(EU) No 531/2012. This alternative is without prejudice to the obligations as regards 
the provision of regulated retail roaming services in accordance with Regulation (EU) 
No 531/2012. 

(12)  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  these  services 
could  risk  disrupting  the  internal  market  for  roaming  services  and  would  not 
encourage more competition. 

(13)  The  maximum  wholesale  charges  should  act  as  a  safeguard  level  and  ensure  that 
operators  can  recover  their  costs,  including  joint  and  common  costs.  It  should  also 
enable the widespread sustainable provision of RLAH, while at the same time leaving 
margin for commercial negotiations between operators. 

(14)  The cost estimates for the provision of wholesale roaming services, including joint and 
common costs, have been assessed on the basis of several sources. One source was a 
general  cost  model  for  wholesale  roaming  services  populated  with  national  data  and 
based  on  the  method  used  by  national  regulatory  authorities  to  determine  mobile 
termination rates caps in accordance with Union law. A second source was alternative 
cost  estimates  based  on  consistent  approaches  across  the  Union  on  the  regulation  of 
national  mobile  termination  rates.  The  assessment  also  drew  on  current  wholesale 
roaming charges for unbalanced traffic in the Union and evidence of current wholesale 
access charges in domestic markets. 

(15) 

In  considering cost estimates,  the potential  impact of the seasonal nature of roaming 
traffic  on  the  overall costs  of  providing  wholesale  roaming  services  at  national  level 
was  taken  into  consideration.  Such  estimates  noted  the  counterbalancing  effects  that 
would  mitigate  any  potential  increase  in  costs  caused  by  the  seasonality  of  roaming 
traffic.  In  particular  for  data  services,  increasing  domestic  demand  means  that  any 
seasonal traffic peak in a given year is likely to be exceeded by total domestic demand 
in  the  following  year(s).  Accordingly,  since  terrestrial  mobile  communications 
networks are dimensioned in  order to  cope with this general upward trend driven by 
domestic  demand,  any  peak  in  total  network  demand  caused  by  seasonal  roaming 
flows is unlikely to drive mobile network dimensioning costs. For voice calls, where 
demand is more stable, in some countries seasonal roaming peaks may have an impact 
on  overall  network  dimensioning  costs.  However,  such  localised  seasonal  peaks  in 
traffic are likely to also be driven by domestic users moving into tourist areas and be 
somewhat  mitigated  by  compensating  effect  of  roamers  on  capacity  usage  in 
metropolitan areas during the summer holiday season.  

(16) 

In setting the maximum wholesale charge for regulated data roaming services, all the 
access  components  needed  to  enable  the  provision  of  roaming  services  have  been 
taken into account, including the transit costs of delivering data traffic to an exchange 
point identified by the home network operator. 

(17)  The  portfolio  of  services  provided  by  each  wholesale  roaming  provider,  and  their 
expected  volumes  of  traffic  should  be  taken  into  account  when  considering  the 
safeguard  role  of  wholesale  roaming  charges  in  achieving  the  twin  objectives  of 
ensuring that wholesale providers recover all their relevant costs, while ensuring that 
the non-sustainability of RLAH remains exceptional. 

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(18)  Therefore, the existing maximum wholesale roaming charges for voice calls, SMS and 

data services should be lowered. 

(19)  While ensuring the confidentiality of business and commercial secrets and in order to 
monitor  and  supervise  the  application  of  Regulation  (EU)  No 531/2012  and 
developments in wholesale roaming markets, national regulatory authorities should be 
entitled to require information on wholesale roaming agreements that do not provide 
for the application of the maximum wholesale roaming charges. They should also be 
allowed  to  require  information  on  the  adoption  and  application  of  conditions  in 
wholesale agreements aimed at preventing permanent roaming and on any anomalous 
or  abusive  use  of  wholesale  roaming  access  for  purposes  others  than  providing 
regulated  roaming  services  to  roaming  providers’  customers  travelling  within  the 
Union. 

(20)  The specific price regulation  applicable to roaming  entails that  an overall Union cap 
applies  to  a  composite  product  which  may  also  include  other  wholesale  access  and 
interconnection inputs, including in particular those subject to national or, potentially, 
cross-border regulation. In this regard divergences across the Union in the regulation 
of these inputs are foreseen to decrease, in particular through the prospect of additional 
measures  taken  in  accordance  with  Directive  2002/21/EC  (Framework  Directive)7  
aiming at ensuring greater consistency of regulatory approaches. In the meantime, any 
dispute between visited network operators and other operators on the rates applied to 
those  regulated  inputs  necessary  for  the  provision  of  wholesale  roaming  services 
should  be  addressed  taking  into  account  the  opinion  to  be  issued  by  BEREC,  in 
accordance  with  the  specific  regulatory  obligations  applicable  to  roaming  as  well  as 
with  Directive  2002/21/EC 
(Framework  Directive),  Directive  2002/20/EC 
(Authorisation  Directive)8,  Directive  2002/19/EC  (Access  Directive)9  and  Directive 
2002/22/EC (Universal Service Directive)10..  

(21) 

(22) 

It is necessary to monitor and regularly review the functioning of  wholesale roaming 
markets and their interrelationship with the retail roaming market, taking into account 
competitive  and  technological  developments  and  traffic  flows.  In  order  to  properly 
assess  how  roaming  markets  will  adapt  to  RLAH  rules,  sufficient  data  should  be 
gathered on functioning of these markets after the implementation of these rules. 

In order to assess the competitive developments in Union-wide roaming markets and 
to  report  regularly  on  changes  in  actual  wholesale  roaming  charges  for  unbalanced 
traffic between roaming providers, BEREC should be given the task of collecting data 
from  national  regulatory  authorities  on  the  actual  charges  applied  for  balanced  and 
unbalanced traffic respectively. It should also collect data on cases where parties to a 
wholesale  agreement  have  opted  out  from  the  application  of  maximum  wholesale 

7 

8 

9 

10 

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), OJ 
L 108, 24.4.2002, p. 33.  
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), OJ L 108, 
24.4.2002, p. 21. 
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), OJ 
L 108, 24.4.2002, p. 7 
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), OJ L 108, 24.4.2002, p. 51.  

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roaming  charges  or  have  implemented  measures  at  wholesale  level  that  are  aimed  at 
preventing  permanent  roaming  or  anomalous  or  abusive  use  of  wholesale  roaming 
access for purposes other than the provision of regulated roaming services to roaming 
providers’ customers while the latter are periodically travelling within the Union. 

(23)  Regulation (EU) No 531/2012 should therefore be amended accordingly. 

(24)  The  objectives  of  this  Regulation  cannot  be  sufficiently  achieved  by  the  Member 
States  because  national  measures  cannot  ensure  that  rules  on  national  wholesale 
markets  are  consistent  with  EU  rules  on  retail  roaming  services.  Instead,  the  cross-
border  effects  of  national  wholesale  roaming  markets  on  the  provision  of  retail 
roaming  services  within  the  Union,  mean  the  objectives  can  be  better  achieved  at 
Union  level.  The  Union  may  therefore  adopt  measures,  in  accordance  with  the 
principle  of  subsidiarity  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary in order to achieve its objectives. 

(25)  This Regulation respects fundamental rights and observes the principles recognised in 

particular by the Charter of Fundamental Rights of the European Union, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Amendments to Regulation (EU) No 531/2012 

Regulation (EU) No 531/2012 is amended as follows: 

(1) 

In Article 3, paragraph 4 is replaced by the following: 

‘4.  Rules  on  regulated  wholesale  roaming  charges  laid  down  in  Articles  7,  9 
and  12  shall  apply  to  the  provision  of  access  to  all  components  of  wholesale 
roaming access referred to in paragraph 3, unless both parties to the wholesale 
roaming agreement explicitly agree that any average wholesale roaming charge 
resulting  from  the  application  of  the  agreement  should  not  be  subject  to  the 
maximum regulated wholesale roaming charge for a defined period of time.’ 

(2) 

In Article 7, paragraphs 1 and 2 are replaced by the following: 

 ‘1.The average wholesale charge that the visited network operator may levy on 
the roaming provider for the provision of a regulated roaming call originating 
on  that  visited  network,  inclusive,  among  others,  of  origination,  transit  and 
termination costs, shall not exceed a safeguard limit of EUR 0.04 per minute as 
of 15 June 2017 and shall, without prejudice to Article 19, remain at EUR 0.04  
until 30 June 2022  

 2.  The  average  wholesale  charge  referred  to  in  paragraph  1  shall  apply 
between any pair of operators and shall be calculated over a 12-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 
paragraph 1 or before 30 June 2022. ’  

(3) 

In Article 9 paragraph 1 is replaced by the following: 

‘1.  With  effect  from  15  June  2017,  the  average  wholesale  charge  that  the 
visited network operator may levy on the roaming provider for the provision of 
a regulated roaming SMS message originating on that visited network shall not 

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exceed  a  safeguard  limit  of  EUR 0.01  per  SMS  message  and  shall,  without 
prejudice to Article 19, remain at EUR 0.01 until 30 June 2022.’ 

(4) 

In Article 12 paragraph 1 is replaced by the following: 

‘1.  With  effect  from  15  June  2017,  the  average  wholesale  charge  that  the 
visited network operator may levy on the roaming provider for the provision of 
regulated  data  roaming  services  by  means  of  that  visited  network  shall  not 
exceed a safeguard limit of EUR 0.0085 per megabyte of data transmitted and 
shall, without prejudice to Article 19, remain at EUR 0.0085 per megabyte of 
data transmitted until 30 June 2022.’  

(5) 

In Article 17 ( 1) the following subparagraph is added: 

‘Disputes  between  visited  network  operators  and  other  operators  on  rates 
applied  to  inputs  necessary  for  the  provision  of  regulated  wholesale  roaming 
services  may  be  referred  to  the  competent  national  regulatory  authority  or 
authorities pursuant to Article 20 or 21 of the Framework Directive. In such a 
case,  the  competent  national  regulatory  authority  or  authorities  shall  consult 
BEREC, about  the action to be taken in accordance with the provisions of the 
Framework Directive,  the Specific Directives or this Regulation to resolve the 
dispute,  and  shall  await  BEREC's  opinion  before  taking  action  to  resolve  the 
dispute. ’ 

(6) 

Article 19 is amended as follows: 

(a) in paragraph 3 the first sentence is replaced by the following: 

‘In addition, the Commission shall submit a report to the European Parliament 
and the Council every two years after 15 June 2017.’ .  

(b) in paragraph 4  first subparagraph, the first sentence is replaced by the following: 

‘In  order  to  assess  competitive  developments  in  the  Union-wide  roaming 
markets,  BEREC  shall  regularly  collect  data  from  national  regulatory 
authorities  on  developments  in  retail  and  wholesale  charges  for  regulated 
voice, SMS and data roaming services, including wholesale charges applied for 
balanced and unbalanced roaming traffic respectively. It shall also collect data 
on  the  wholesale  agreements  not  subject  to  the  maximum  wholesale  roaming 
charges  provided  in  Articles  7,  9  or  12  and  on  the  implementation  of 
contractual  measures  at  wholesale  level  aimed  at  preventing  permanent 
roaming  or  anomalous  or  abusive  use  of  wholesale  roaming  access  for 
purposes  other  than  the  provision  of  regulated  roaming  services  to  roaming 
providers’  customers  while  the  latter  are  periodically  travelling  within  the 
Union.’ 

Article 2 

Entry into force 

This Regulation shall enter into force on the  twentieth 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. 

EN 

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Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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