COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the Proposal for a regulation of the european Parliament and of the Council on roaming on public mobile telecommunications networks within the Union (recast)
Date: 2021-02-24
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: consumer protection, cross-frontier data flow, mobile phone, price regulations, regulation of telecommunications, retail trade, roaming, telephone charges, transmission network, wholesale trade

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  EN 

   EUROPEAN COMMISSION  Brussels, 24.2.2021  SWD(2021) 29 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the   Proposal for a regulation of the european Parliament and of the Council on roaming on public mobile telecommunications networks within the Union (recast) {COM(2021) 85 final} - {SEC(2021) 90 final} - {SWD(2021) 27 final} - {SWD(2021) 28 final}  
 
1.  Can  the  EU  act?  What  is  the  legal  basis  and competence  of  the  EU’s  intended 

action? 

1.1  Which  article(s)  of  the  Treaty  are  used  to  support  the  legislative  proposal  or 
policy initiative? 

The  legal  basis  for  the  review  of  Regulation  (EU)  No  531/2012  is  Article  114  of  the 
Treaty on the Functioning of the European Union (TFEU). This covers measures adopted 
in  accordance  with  the  ordinary  legislative  procedure  aimed  at  establishing  or  ensuring 
the  proper  functioning  of  the  single  market  as  provided  for  in  Article  26 of  the  TFEU. 
The single market comprises an area without internal frontiers designed to allow goods, 
people,  services  and  capital  to  move  freely  in  accordance  with  the  provisions  of  the 
Treaties.  

This initiative is included in the 2020 Commission work programme under the headline 
ambition ‘A Europe fit for the Digital Age’ addressing the specific objective ‘Digital for 
consumers’.  It  is  a  follow-up  to  the  Commission’s  review  report  adopted  on  29 
November 20191. 

1.2  Is  the  EU  competence  represented  by  this  Treaty  article  exclusive,  shared  or 
supporting in nature? 

According to Article 4(2) of the TFEU, shared competence between the EU and Member 
States applies  in  the principle area of the single market.  In the case of  EU roaming, as 
part of the single market policy area, EU competence is shared.  

2.  Subsidiarity principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 2?2 

-  Has there been a wide consultation of stakeholders before proposing the act? 

- 

Is  there  a  detailed  statement  with  qualitative  and,  where  possible,  quantitative 
indicators allowing an appraisal of whether the action can best be achieved at EU 
level? 

This  proposal  and  the  accompanying  impact  assessment  are  supported  by  a  wide 
consultation  of  stakeholders.  The  Commission  collected  the  views  of  all  relevant 
stakeholder  groups,  in  particular  those  of  consumers  and  their  associations,  national 
regulatory  authorities  (NRAs),  the  Body  of  European  Regulators  for  Electronic 
Communications  (BEREC),  mobile  network  operators  (MNOs),  mobile  virtual  network 
operators  (MVNOs),  business  stakeholders  (including  small  and  medium-sized 
enterprises/SMEs), government authorities, industry associations and other stakeholders. 

1 Report on the review of the roaming market, COM(2019)616 final, available here. 
2 See https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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All these different stakeholder groups were expected to have important information and 
insights  to  help  prepare  the  impact  assessment.  Annex  2  to  the  impact  assessment 
outlines the consultation activities in detail. 

1.  A public consultation was carried out between 19 June and 11 September 2020, with 
175  replies  received.  In  particular,  the  consultation  served  to  collect  views  on  (i) 
retail  roaming  services,  in  particular  on  the  impact  of  the  possible  introduction  of 
various  clarifications  and  updates  relevant  for  consumers  on  the  quality  of  service, 
value added services and emergency communications in the Roaming Regulation; (ii) 
the provision of wholesale roaming services; and (iii) the administrative burden of the 
regulation and impacts of possible simplifications. 
2.  Consultation of BEREC and market monitoring 

  BEREC opinion on the functioning of the roaming market; 
  BEREC input on the Commission’s request for it to prepare a legislative proposal 

for the new roaming regulation3;BEREC data collection activities; 

  BEREC semi-annual international roaming benchmark reports4; 
  BEREC annual report on the transparency and comparability of roaming tariffs5; 
  data collection by BEREC;  
 

joint Commission/BEREC online survey.  

3.  Targeted  interviews  on  roaming  market  evolution  with  different  players  

involved in the global connectivity value chain. 

4.  Targeted  online  survey  on  the  potential  impact  of  technological  evolution  on  the 

roaming market6 (SMART study 2018/0012). 

5.  Flash Eurobarometer Survey7.  
The  impact  assessment  (section  3)  includes  a  section  on  the  principle  of  subsidiarity. 
Question 2.2 below expands on it.   

2.2 Does the explanatory memorandum (and any impact assessment) accompanying 
the Commission’s proposal contain adequate justification regarding conformity 
with the principle of subsidiarity? 

The  text  below  summarises  the  arguments  presented  in  section  3  of  the  impact 
assessment. 

In the roaming sector, EU action is more effective than action taken at national, regional 
or  local  level  and  not  only  provides  added  value  compared  to  individual  actions  by 
Member  States,  but  is  strictly  needed  for  the  completion  of  the  single  market  for 
electronic communications. EU regulatory intervention on wholesale and retail roaming 

3  BEREC  input  on  Commission  request  for  the  preparation  of  the  legislative  proposal  for  the  new  roaming 
regulation, 30 June 2020, BoR (20) 131. 
4 The last five benchmark reports (covering April 2017 to September 2019) can be found in the following links: 
20th benchmark report (April 2017 to September 2017),  21st benchmark report (October 2017 to March 2018), 
22nd benchmark report (April 2018 to September 2018), 23rd benchmark report (October 2018 to March 2019) 
and 24th benchmark report (April 2019 to September 2019). 
5 BEREC Report on Transparency and Comparability of International Roaming Tariffs, available for  2017, for 
2018 and for 2019. 
6 For more information on the online survey, see the final report of the study, available here. 
7 Flash Eurobarometer 468 ‘The end of roaming charges one year later’, June 2018, available here. 

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markets  has  been  necessary  for  over  a  decade  to  improve  the  conditions  for  the 
functioning of the single market for roaming services within the EU.  

As  observed  by  the  Advocate  General  in  the  landmark  case  C-58/08  Vodafone,  “the 
differences in price between calls made within one’s own Member State and those made 
while  roaming  could  reasonably  be  regarded  as  discouraging  the  use  of  cross-border 
services  such  as  roaming.  Such  discouragement  of  cross-border  activities  has  the 
potential to  impede the establishment of an internal  market  in  which free movement  of 
goods, services and capital is ensured. Indeed, there is no clearer cross-border activity in 
the mobile telecoms sector than roaming itself.”8 

The  cross  border  character  of  intra-EU  roaming  justifies  action  taken  at  EU  level.  It  is 
therefore important to highlight the need to keep regulating intra-EU roaming based on 
the  fact  that,  despite  signs  of  some  competition  dynamics  at  both  retail  and  wholesale 
level, the underlying basic competition conditions have not changed and are unlikely to 
change in  the foreseeable future to  such an extent that retail  or wholesale regulation  of 
the roaming market could be lifted after the Regulation expires in June 2022.  

In  addition  to  the  objective  of  maintaining  ‘roam  like  at  home’  (RLAH)  rules,  this 
proposal  also  aims  to  address  unresolved  issues  in  the  implementation  of  Regulation 
(EU) No 531/2012, in particular with regard to: (i) the quality of service while roaming; 
(ii) access to emergency services while roaming (especially for roamers with disabilities); 
(iii) use of value added services while roaming.  

All these limitations are strictly linked to the cross-border character of roaming and could 
result  either  in  discouraging  the  use  of  roaming,  or  more  generally  in  disrupting  the 
smooth functioning of the EU-wide roaming market. According to the relevant case-law, 
this is also an objective that must be pursued and could best be achieved at EU level9.  

2.3 Based on the answers to the questions below, can the objectives of the proposed 
action be achieved sufficiently by the Member States acting alone (necessity for 
EU action)? 

In  the  past,  NRAs  have  already  acknowledged  that  they  are  unable  to  autonomously 
tackle intra-EU roaming due to the cross-border nature of the roaming market. The Court 
of Justice also found that in the past ‘the high level of retail charges had been regarded as 
a  persistent  problem  by  NRAs,  public  authorities  and  consumer  protection  associations 
throughout  the  Community  and  that  attempts  to  solve  the  problem  using  the  existing 
legal framework had not had the effect of lowering charges’10.  

Because of the intrinsic cross-border nature of roaming services, actions at Member State 
level cannot address the issues linked to roaming in an effective manner.  

8  See  Opinion  Of  Advocate  General  Poiares  Maduro  delivered  on  1  October  2009  in  Case  C-58/08  available 
here: 
http://curia.europa.eu/juris/document/document.jsf?text=&docid=72636&pageIndex=0&doclang=EN&mode=re
q&dir=&occ=first&part=1&cid=2824416 
9 
here: 
CJEU 
http://curia.europa.eu/juris/document/document.jsf;jsessionid=D958030F3463C30DD21AD3EE7CACB774?tex
t=&docid=79665&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5993673 
10  C-58/08 Vodafone, CJEU judgment of 8 June 2010. 

Vodafone, 

judgment 

available 

C-58/08 

2010 

June 

of 

8 

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Against this background, Regulation (EU) No 531/2012 and the proposed review include 
measures at both wholesale and retail level. In this respect, in the applicable case-law the 
Court  of  Justice  of  the  European  Union  (CJEU)  found  that  wholesale  regulation  of  the 
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’11.  

As  demonstrated  in  the  roaming  review  report,  the  interim  review  and  the  public 
consultation on the review of Regulation (EU) No 531/2012, RLAH rules have provided 
individuals and businesses with tangible benefits. It is therefore necessary to ensure that 
mobile  customers,  both  consumers  and  businesses,  continue  benefitting  from  RLAH 
rules once Regulation (EU) No 531/2012 expires.  

A legislative initiative is justified in this area given that the Commission’s review report 
concludes  that  the  competitive  landscape  remains  largely  unchanged  and  it  is  not 
sufficient to ensure continuation of RLAH in the absence of regulation12.  

(a)  Are 

there  significant/appreciable 

transnational/cross-border  aspects 

to 

the 

problems being tackled? Have these been quantified? 

There is the clear cross-border character of intra-EU roaming that justifies action at EU 
level  and  implies  that  actions  at  Member  State  level  cannot  address  the  issue  in  an 
effective  manner.  In  the  past,  NRAs  have  acknowledged  that  they  are  unable  to 
autonomously tackle this problem due to the cross-border nature of the roaming market. 
Regulation  (EU)  No  531/2012  ensures  stronger  harmonisation  in  terms  of  how  EU 
mobile telecoms markets function. 

As  regards  the  size  of  the  overall  problem,  in  the  absence  of  regulation,  170  million 
roaming  customers13  would  lose  the  benefits  of  staying  connected,  like  at  home,  while 
travelling  in  the  EU/EEA.  Based  on  the  data  collected  in  the  International  Roaming 
BEREC Benchmark Report, in Q3 2019 (i.e. July-September 2019), they generated more 
than 6.4 billion minutes of voice traffic in total, more than 2.1 billion text messages and 
more than 240 million GB of data traffic. These were not subject to any kind of roaming 
surcharge.  There  would  be  a  risk  of  losing  the  consumer  surplus  causally  linked  to  the 
roaming rules as confirmed by the counterfactual analysis. 

In  addition,  BEREC,  in  its  input  on  the  Commission’s  request  for  it  to  prepare  this 
proposal,  has  not  only  defined  Regulation  (EU)  No  531/2012  and  the  introduction  of 
RLAH as ‘a clear success for the end-users and a substantial contribution to the further 
completion of the single market’, but has also identified room for further improvements, 

11 Ibid., paragraph 77. 
12  As  is  clear,  in  particular  from  recital  1  in  the  preamble  to  Regulation  No  717/2007  and  point  1  of  the 
explanatory  memorandum  to  the  proposal  which  led  to  the  adoption  of  Regulation  No  717/2007,  the  level  of 
retail charges  for international roaming  services, at  the time  of adoption of that  Regulation,  was  high and the 
relationship between costs and prices was not such as would prevail in fully competitive markets. The excessive 
retail charges therefore resulted both from wholesale charges levied by the foreign host network operator and, in 
many cases, from high retail mark-ups charged by the home provider. 
13 International Roaming BEREC Benchmark Report, in Q3 2019 (i.e. July-September 2019). 

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to be carried out in the context of the forthcoming review on existing roaming rules.  

improvements  requested  refer 

The 
the 
implementation  of  Regulation  (EU)  No  531/2012,  in  particular  on  the  regulation  of 
wholesale caps, quality of services and use of value added services.  

to  unresolved 

in  particular 

issues 

in 

The  Joint  Research  Centre  (JRC)  conducted  a  field  study  to  assess  the  technical 
performance  and  user  experience  of  EU  roaming  in  a  sub-set  of  EU  Member  States 
during the first 2 years of the RLAH rules (between October 2017 and October 2019)14. 
Analysis  of  these  results  shows  that  roaming  customers  experienced  a  lower  quality  of 
service than  at  home in  13 cases, and in  15  cases  a frequently lower quality of service 
compared  to  other  roaming  customers  on  the  visited  network.  6  of  these  roaming 
customers had a worse  experience in  both  respects.  This  indicates that in these 6  cases 
out  of  29  (in  5  out  of  13  different  Member  States),  the  quality  of  service  offered  was 
limited, even though a better quality of service was in practice offered to other roaming 
customers.  Furthermore  21  customers  often  had  a  worse  roaming  experience  than  at 
home and a worse experience than what  was technically possible on at least one of the 
networks they visited.  

The  public  consultation  results  confirm  that  30%  of  the  respondents,  including  MNOs, 
MVNO/Es  and  business  associations,  experience  difficulties  in  gaining  wholesale 
roaming access, in particular to 4G networks. 

Disabled end-users are charged for the means of access to emergency services employed 
by  home  operators:  56%  of  operators  for  text  messages  and  68%  of  operators  for 
emergency applications. The responses of the host MNOs confirm that a large proportion 
of roaming customers living with disabilities might be precluded from having access to 
emergency  services  through  the  alternative  means  of  access  deployed  in  the  visited 
Member States.  

The  joint  2020  Commission-BEREC  online  survey  shows  that  26.5%  of  the  operators 
that  responded  say  they  received  complaints  from  customers  about  communications 
related to value added services while roaming in the EEA. 20% of the operators (30% of 
MNOs and 12.4% of MVNOs) report that they have incurred extra costs resulting from 
unexpected wholesale charges for communications related to value added services used 
by  their  customers  while  roaming  in  the  EU/EEA.  Based  on  the  data  collected,  the 
median value of lost revenues is EUR 70 000. The first and third quartile values are EUR 
10 000  and  EUR  350 000  euros  respectively.  Few  operators  report  losses  in  excess  of 
EUR  1 000 000,  but  we  consider  these  values  as  outliers.  The  above  do  not  take  into 
account  indirect  non-financial  impacts  to  operators,  including  (as  reported  in  the 
questionnaire)  increased  resources,  loss  of  business  and  reputation  and  increased 
consumer complaints. 

(b) Would  national  action  or  the  absence  of  EU  level  action  conflict  with  core 
objectives of the Treaty15 or significantly damage the interests of other Member 
States? 

14 JRC quality of service study, SMART 2018/0011. 
15 See https://europa.eu/european-union/about-eu/eu-in-brief_en  

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Absence of action would damage the interests of consumers and would fail to enable a 
digital single market in e-commerce.  

In  the  past,  the  European  Court  of  Justice  found  that  the  EU  roaming  rules,  by 
establishing a common, coherent framework at EU level, genuinely had the objective of 
improving the conditions for the functioning of the single market and that they could be 
adopted  on  the  basis  of Article  95  of  the  Treaty  establishing  the  European  Community 
(TEC) (now Article 114 of the TFEU). The Court also found that, given the importance 
of the objective of consumer protection under Article 95(3) TEC (now Article 114 of the 
TFEU),  ‘intervention  that  is  limited  in  time  in  a  market  that  is  subject  to  competition, 
which makes it possible, in the immediate future, to protect consumers against excessive 
prices, such  as  that at  issue, even if it might  have negative  economic  consequences for 
certain operators, is proportionate to the aim pursued16.’ 

(c)  To  what  extent  do  Member  States  have  the  ability  or  possibility  to  enact 

appropriate measures? 

The  mobile  communications  market  remains  fragmented  in  the  EU,  with  no  mobile 
terrestrial  network  covering  all  Member  States.  As  a  result,  in  order  to  provide  mobile 
communications services to their domestic customers travelling within the EU, roaming 
providers  have  to  purchase  wholesale  roaming  services  from,  or  exchange  wholesale 
roaming services with, operators in a visited Member State.  

In  addition,  the  national  regulatory  authorities  responsible  for  safeguarding  and 
promoting the interests of mobile customers normally resident within their territory  are 
unable to control the behaviour of the visited network operators situated in other Member 
States  on  whom  customers  depend  when  using  international  roaming  services.  This 
obstacle could also diminish the effectiveness of measures taken by Member States based 
on their residual competence to adopt consumer protection rules.  

The  EU  has  taken  regulatory  action  on  wholesale  and  retail  roaming  markets  under 
Article 114 TFEU for over a decade, necessary  to  improve the conditions  for the EU’s 
single market for roaming services to work properly. 

A common, harmonised approach needs to be employed to ensure that users of terrestrial 
public  mobile  communication  networks  do  not  pay  excessive  prices  for  EU-wide 
roaming  services  when  travelling  within  the  EU.  This  will  boost  competition  between 
roaming providers of roaming services, achieve a high level of consumer protection and 
preserve  incentives  for  both  innovation  and  consumer  choice.  Given  the  cross-border 
nature  of  the  services  concerned,  this  common  approach  is  needed  so  that  roaming 
providers can operate within a single coherent regulatory framework based on objectively 
established criteria. 

The same common  approach is  necessary to intervene  on additional  aspects  (quality of 
service,  value  added  services,  emergency  communications)  considered  under  this 
proposal.  This  will  ensure  that  customers  can  have  a  genuine  ‘RLAH  experience’  and 
remove  any  obstacles  that  could  result  either  in  discouraging  the  use  of  roaming  or  in 
disrupting  the  smooth  functioning  of  the  EU-wide  roaming  market.  This  could  impede 

16 C-58/08 Vodafone, judgment of 8 June 2010. 

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the establishment of a single market in which free movement services is ensured. 

(d) How  does  the  problem  and  its  causes  (e.g.  negative  externalities,  spill-over 

effects) vary across the national, regional and local levels of the EU? 

The  EU  roaming  market  consists  of  several  national  wholesale  markets.  With  the 
introduction of RLAH roaming, wholesale prices have fallen and been capped at levels 
that  allowed  additional  retail  roaming  charges  to  be  abolished,  while  ensuring 
sustainability for roaming operators.  

Wholesale roaming rates are agreed in bilateral negotiations held twice a year between 
‘unequal’ contractors. Apart from size and multinational reach, the main driver in these 
negotiations is the capacity of each operator to exchange traffic, i.e. to balance the retail-
outbound traffic they buy with the wholesale-inbound traffic they can serve. This often 
depends on the country/region of the customer base.  

National  wholesale markets  are by nature  oligopolistic (dominated by a  small group of 
large  sellers)  as  only  MNOs  can  offer  roaming  services  in  visited  markets17.  This 
situation creates low competitive pressure and has not changed drastically, as confirmed 
by  the  study  on  technological  developments  and  roaming18]  (see  Annex  8  for  details). 
Wholesale  prices  provide  further  evidence  that  competition  remains  imperfect.  While 
they  are  generally  charged  well  below  wholesale  caps  across  Member  States,  there  are 
differences  in  the  wholesale  rates  charged  between  Member  States19,  which  can  be  the 
result  of  different  underlying  costs  and/or  different  competitive  environments.  At  the 
same  time,  a  number  of  operators  still  actually  pay  wholesale  prices  at  the  level  of 
wholesale caps. Operators with weaker negotiating power are therefore often obliged to 
pay prices at or close to wholesale caps20. 

The impact of RLAH on operators can vary markedly depending on the traffic flows of 
the  given  operator’s  customer  base.  Based  on  its  traffic  flows,  an  operator  can  be 
classified as an outbounder operator or inbounder operator. An outbounder operator has a 
customer  base  that  consumes  more  mobile  services  abroad  (i.e.  on  the  networks  of 
partner  operators  in  other  EU/EEA  countries)  than  those  consumed  by  the  partner 
operators’  customer  base  on  its  own  network.  Conversely,  an  inbounder  operator  has  a 
customer base that consumes fewer mobile services abroad than those consumed by the 
partner operators’ customer base on its own network. Due to tourist flows, operators in 
Northern  European  countries  are  typically  net  outbounder  operators  of  roaming  traffic, 
whereas  operators  in  Southern  European  countries  are  typically  inbounders  of  roaming 

17 Typically, each Member State has 3-4 MNOs. Among those, often not all of them can provide a full range of 
services  (such  as  full  geographic  or  service  coverage)  needed  to  provide  services  to  all  roamers.  All  failures 
were  already  presented  in  SWD  (2016)  202  final  (the  impact  assessment  for  Regulation  2017/92  amending 
Regulation (EU) 531/2012 as regards rules for wholesale roaming markets) and all still persist. 
18 SMART 2018/12 ‘Technological developments and roaming’ by WIK Consult, July 2019, available here. 
19 According to BEREC’s International  Roaming Benchmark Report,  in Q1 2019 the  average  wholesale  price 
for voice and data was 55% and 35% of the wholesale cap respectively. When looking at the price charged per 
operator, 3 out of 4 operators charge on average  up to 72% of the  wholesale  voice  cap and up to 60% of the 
wholesale data cap. 
20  The  established  caps  must  be  balanced,  ensuring  cost  recovery  for  the  visited  network  (supplying  the 
wholesale  service),  whilst  reducing  the  cost  to  the  home  operator  as  much  as  possible  (buying  the  wholesale 
service), as RLAH prevents the home operator from charging the retail customer for the used roaming services. 

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traffic.  According  to  data  presented  in  the  roaming  review  report,  16  out  of  the  29 
countries that provided data (i.e. 28 EU Member States plus Norway) on voice services 
are net inbounders of roaming voice traffic, while the remaining 13 are net outbounders.   

In addition, parts of the market, in particular MVNOs and smaller operators operating in 
one country and with large outbound roaming imbalances, often pay wholesale roaming 
prices at, or close to, the cap level. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The  mobile  communications  market  remains  fragmented  in  the  EU,  with  no  mobile 
network covering all Member States. The risk of losing the benefits of RLAH due to lack 
of competitive dynamics, market failures and regulator failures is a cross-border problem 
across the entire single market.  

(f)  Are  Member  States  overstretched  in  achieving  the  objectives  of  the  planned 

measure? 

The proposal is a recast of Regulation (EU) No 531/2012 aimed at maintaining EU rules 
on  roaming  while  introducing  some  amendments  to  the  existing  legislation.  Member 
States  are  not  overstretched  in  achieving  the  objectives  as  the  EU  roaming  rules  are 
already in place and the introduction of RLAH has proved successful.  

Regulation  (EU)  No  531/2012  faces  no  substantial  implementation  problems,  as 
confirmed  by  overall  compliance  of  mobile  operators  with  the  rules,  the  absence  of 
infringement  proceedings,  effective  enforcement  actions  at  national  level  and  the  small 
number  of  complaints.  As  a  result,  the  need  for  improvements  in  the  current  Roaming 
Regulation is limited. Many of the costs to implement these monitoring and transparency 
systems have already been incurred. Therefore, in many cases only the additional cost of 
maintaining those systems needs to be considered.  

The  proposal  includes  simplification  measures  to  reduce  the  administrative  and 
regulatory burden.  

Overall, additional administrative costs are limited compared to the sizeable benefits that 
RLAH brings to individuals and SMEs alike. 

(g) How  do  the  views/preferred  courses  of  action  of  national,  regional  and  local 

authorities differ across the EU? 

Since only 5 public authorities (3 NRAs and 2 government authorities) participated in the 
public  consultation,  it  is  not  possible  to  report  extensively  on  the  different  positions  of 
national  regional  and  local  authorities.  In  terms  of  the  Member  States’  approach  to  the 
roaming  issue,  the  fundamental  difference  lies  in  the  division  in  outbounder  and 
inbounder countries explained in 2.3(d).  

2.4 Based on the answer to the questions below, can the objectives of the proposed 
action be better achieved at EU level by reason of scale or effects of that action 

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(EU added value)? 

(a)  Are there clear benefits from action at EU level?  

Measures  at  EU  level  were  introduced  as  a  necessary  means  to  tackling  the  non-
effectiveness  of  national  interventions  due  to  the  cross-border  nature  of  the  roaming 
service, which represented an obstacle to a European single market.  

Measures  at  EU  level  have  helped  reduce  the  administrative  and  regulatory  burden, 
provide a high level of consumer protection that promotes trust and confidence and give 
consumers a wider choice. The rapid and massive increase in roaming traffic since June 
2017 has shown that the RLAH reform has met its objective of unleashing the untapped 
demand for mobile consumption by travellers in the EU. Specifically, between summer 
2016 and summer 2018, retail roaming traffic increased three-fold for voice and twelve-
fold for data. In this sense, the review confirms that the reform has been successful and 
that the roaming market functions well in general under the new rules. 

The  new  measures  included  in  the  proposal  will  improve  how  the  single  market 
functions,  also  contributing  to  the  possibility  for  end-users  to  have  a  genuine  ‘RLAH 
experience’ and addressing possible obstacles to this goal. 

Reviewed wholesale caps aim to ensure cost recovery for all operators and to address the 
sustainability challenge, thereby representing an adequate balance between the needs of 
the  different  Member  States  (inbounders  and  outbounders)  that  only  an  EU  instrument 
can  ensure.  The  solution  proposed  will  aim  to  also  ensure  flexibility  in  regulating  the 
caps and a future-proof approach.  

Measures  on  value  added  services  aim  to  establish  EU-level  solutions  to  satisfy 
transparency needs more efficiently than 27 separate national solutions.  

Measures on quality of service clarifications: the value added of EU action is primarily 
related  to  the  cross-border  nature  of  the  underlying  problems,  as  explained  in  the 
previous sections. A national solution would not be relevant since the quality of service 
depends on the connectivity/service provided by the visited network. EU action not only 
has relevant added value and is desirable, but is also necessary to address these issues.     

Measures  on  access  to  emergency  services:  the  value  added  of  EU  action  is  strictly 
related  to  the  cross-border  nature  of  the  underlying  problems,  as  explained  in  the 
previous sections. A national solution alone would not be viable or effective. EU action 
not only has relevant added value and is desirable, but is also necessary to address these 
issues.     

(b) Are there economies of scale? Can the objectives be met more efficiently at EU 
level (larger benefits per unit cost)? Will the functioning of the single market be 
improved? 

As  underlined  in  the  Commission’s  review  report  of  29  November  2019,  the  overall 
success  of  the  RLAH  reform  is  shown  by  the  rapid  and  massive  increase  in  roaming 

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consumption, a high level of consumer satisfaction, a largely unchanged overall domestic 
tariff  structure,  MVNOs  maintaining  their  position  on  the  market  and  a  continuous 
decline in average roaming prices in the rest of the world. This indicates that there are no 
waterbed effects linked to the introduction of RLAH in EU countries. The effectiveness 
of the measures to ensure sustainable RLAH is confirmed by the findings of the roaming 
review  that  RLAH  has  not  affected  domestic  price  structures,  as  reported  both  in  the 
BEREC opinion on the roaming market and in the Commission study ‘Mobile Broadband 
Prices in Europe’, which indicates that there was no trend of increasing domestic prices 
between  2018  and  2019.  At  wholesale  level,  the  regulation  has  triggered  considerable 
reductions in wholesale prices that have benefited net outbounder operators and increased 
roaming demand, which has benefited net inbounder operators and the recovery of costs 
in providing wholesale roaming. 

If  Regulation  (EU)  No  531/2012  already  contributed  to  the  functioning  of  the  single 
market,  there  is  a  clear  need  to  maintain  EU  rules  on  roaming  by  introducing  the 
necessary  amendments  to  make  sure  that  the  advantages  that  have  already  materialised 
can be kept, that the results already obtained do not go lost and that the residual obstacles 
to a full RLAH experience described above can be lifted.  

(c)  What  are  the  benefits  in  replacing  different  national  policies  and  rules  with  a 

more uniform policy approach? 

For the reasons explained above, national policies and rules alone are unable to tackle the 
issue  of  high  roaming  charges.  Regulation  (EU)  No  531/2012  provides  direct 
applicability  and  ensures  greater  harmonisation  on  this  cross-border  aspect  of  the 
functioning of mobile telecoms markets. Given the tangible benefits that individuals and 
businesses currently enjoy as a result of the RLAH rules (as demonstrated in the roaming 
report  and the interim review), it is  necessary to  ensure that end-users, both  consumers 
and businesses, will continue benefitting from RLAH after June 2022. 

With regard to these measures, a uniform approach is once again justified by the cross-
border nature of the underlying problems.  

(d) Do  the  benefits  of  EU-level  action  outweigh  the  loss  of  competence  of  the 
Member  States  and  the  local  and  regional  authorities  (beyond  the  costs  and 
benefits of acting at national, regional and local level)? 

One of the policy options considered in assessing the impact of the previous reviews of 
Regulation  (EU)  No  531/2012  was  to  set  country-specific  wholesale  roaming  caps 
instead  of  EU-wide  caps.  Many  stakeholders  felt  that  this  option  fragmented  the 
wholesale roaming market. They found country-specific regulation to be contrary to the 
objective  of  a  digital  single  market,  and  as  such  to  represent  a  step  backwards.  It  was 
found to be more complex and less transparent than EU-wide caps.  

In  addition,  such  an  option  was  also  found  to  lead  to  some  fragmentation  of  the  retail 
roaming  market.  Operators  considered  that  country-specific  wholesale  roaming  caps 
would  lead  to  differentiation  of  retail  roaming  offers  as  the  latter  would depend  on  the 
country visited by the roaming customer; this would produce a very complex, fragmented 

10 

 
 
 
and unfavourable outcome for the consumer. 

The impossibility or impracticability of country-specific solutions substantially leads to a 
lack of specific competences at national and local level in the roaming sector. Problems 
with loss of competences for Member States therefore do not arise. 

(e)  Will there be greater legal clarity for those having to implement the legislation? 

No  significant  changes  are  expected  in  the  monitoring  and  implementation  of  the 
Roaming Regulation. However, the measures on quality of service may bring some legal 
clarity in terms of implementation and monitoring obligations. 

3. Proportionality: How should the EU act? 

3.1  Does 

the 

explanatory  memorandum 

impact  assessment) 
accompanying the Commission’s proposal contain adequate justification on the 
proportionality of the proposal and a statement that allows appraisal of how the 
proposal complies with the principle of proportionality? 

(and  any 

The objective of the proposal is to bring a joint approach to ensure that users of public 
mobile communications networks, when travelling within the EU, do not pay excessive 
prices  for  EU-wide  roaming  services  in  comparison  with  national  prices  when  making 
calls  and  receiving  calls,  sending  and  receiving  text  messages  and  when  using  packet 
switched  data  communication  services.  This  would  help  ensure  that  the  single  market 
functions  smoothly  while  achieving  a  high  level  of  consumer  protection,  boosting 
competition  and transparency in  the market  and  offering incentives for both  innovation 
and  consumer  choice.  In  addition,  the  proposal  brings  additional  measures  that  aim  to 
remove persisting obstacles to an authentic RLAH experience.  

Since these objectives cannot be sufficiently achieved by the Member States in a secure, 
harmonised and timely manner and can therefore be better achieved at EU level, the EU 
may adopt measures in accordance with the principle of subsidiarity set out in Article 5 
of the EU Treaty.  In accordance with  the principle of proportionality, as set  out  in that 
Article, the proposed regulation  does not  go beyond what  is  necessary to  achieve those 
objectives. 

In particular, the regulation meets the proportionality criterion because it is provided for 
a limited time period, as it has an expiry date (June 2032, i.e. a duration of 10 years). The 
regulation  would  be  proposed  for  10  years  given  that  a  decade  is  a  typical  duration 
needed to roll out a new generation of mobile communications and develop new business 
models.  The  chosen  duration  was  established  in  a  forward-looking  manner  given  that 
market competition is not expected to change significantly in the next 10 years. This is 
also based on the fact that the rollout of 5G ‘software-defined networks’, which allows 
slices  and  could  have  a  profound  impact  on  business  models,  requires  core  network 
elements  to  be  replaced  and  is  expected  to  take  more  time  than  the  first  5G  rollouts. 
Furthermore, the assessment of the possible impact of technological changes on roaming 
services carried out in the impact assessment was made based on a medium-term timeline 

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of 5-10 years. Finally, this 10-year duration aims to provide certainty in the market and 
minimise the regulatory burden. 

In a landmark decision on roaming (C-58/08), the European Court of Justice recognised 
that,  given  the  importance  of  the  objective  of  consumer  protection  under  Article  95(3) 
TEC  (now  Article  114  TFEU),  ‘intervention  that  is  limited  in  time  in  a  market  that  is 
subject  to  competition,  which  makes  it  possible,  in  the  immediate  future,  to  protect 
consumers against excessive prices, such as that at issue, even if it might have negative 
economic consequences for certain operators, is proportionate to the aim pursued.’ 

Regulatory obligations on wholesale and retail charges for voice, text messaging and data 
roaming services should be maintained to protect consumers until competition at retail or 
wholesale level is fully developed. The proposed measure would also include a flexible 
approach  to  revising  the  wholesale  caps,  which  can  be  carried  out  by  adopting  a 
delegated  act.  This  would  ensure  that  one  of  the  key  aspects  of  the  functioning  of  the 
roaming market can be revised on the basis of reliable and updated data.  

This  underlines  the  EU  legislator’s  efforts  to  create  the  conditions  for  competition  to 
develop on the intra-EU roaming market so that competitive pressure will be sufficient to 
guarantee low retail prices with less constraining regulation or even without regulation. 

3.2 Based on the answers to the questions below and information available from any 
impact  assessment,  the  explanatory  memorandum  or  other  sources,  is  the 
proposed action an appropriate way to achieve the intended objectives? 

A regulation is the only legislative instrument capable of effectively tackling the issues 
mentioned  above  simultaneously  in  the  EU,  imposing  obligations  on  all  operators  and 
fostering legal certainty. 

Regulatory  intervention  in  the  form  of  a  recast  of  Regulation  (EU)  No  531/2012  is 
therefore  necessary  and  seems  most  appropriate  to  ensure  that  roaming  rules  are 
maintained  at  EU  level  and  that  the  a  single  telecoms  market  across  the  EU  functions 
properly.  

In addition  to  the  above considerations,  considering that Regulation (EC) No 531/2012 
has been substantially amended several times, now that new amendments should be made 
to  the Regulation,  the new proposal  should take the form of  a recast  in  the interests of 
clarity and rationality.  

(a)  Is  the  initiative  limited  to  aspects  that  Member  States  cannot  achieve 

satisfactorily on their own, and where the EU can do better? 

The proposed measures are limited to aspects that have not be insufficiently addressed at 
national level and for which a harmonised approach is necessary.  

In particular:  

-  RLAH  can  only  be  maintained  with  wholesale  rates  that  enable  the  sustainable 
provision of retail roaming services. With the proposed two-step glide path reduction of 

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wholesale rates, sustainability would improve significantly.  

-  On  quality  of  service,  the  proposal  aims  to  ensure  that  roaming  customers  enjoy  a 
similar  level  of  quality  of  service  while  roaming  like  at  home  (which  is  currently  not 
always  the  case).  Access  to  roaming  services,  and  therefore  the  quality  of  service 
provided, depends on the connectivity/service provided by the visited network. Member 
States’ authorities do not have the competence to monitor the compliance of a network in 
a  different  Member  State.  The  proposal  also  aims  to  ensure  that  the  wholesale  access 
obligation can facilitate innovation and technology developments.  

-  Access  to  emergency  services  while  roaming  is  not  ensured  for  all  end-users  in  the 
same  way  in  the  EU  as  at  home.  The  current  situation  indicates  that  Member  States’ 
authorities  do  not  have  the  competence,  capacity  and  jurisdiction  to  ensure  free  access 
through alternative means to  emergency services  and free-of-charge caller location in  a 
cross-border setting.  

(b) Is  the  form  of  EU  action  (choice  of  instrument)  justified,  as  simple  as  possible 
and  coherent  with  the  satisfactory  achievement  of  and  compliance  with  the 
objectives  pursued  (e.g.  choice  between  regulation,  (framework)  directive, 
recommendation, or alternative regulatory methods such as co-legislation, etc.)? 

This  objective  is  unlikely  to  be  achieved  by  less  restrictive  means  than  the  legislative 
instrument proposed. It ensures simultaneous application in the entire EU, imposing the 
same obligations  on all  operators, impacting cross-border negotiations at  business  level 
(wholesale roaming agreements between operators) and tackling the cross-border aspects 
of retail offers for consumers (quality of service, transparency). 

(c)  Does  EU  action  leave  as  much  scope  for  national  decisions  as  possible,  while 
achieving  the  objectives  set?  (e.g.  is  it  possible  to  limit  EU  action  to  minimum 
standards or use a less stringent policy instrument or approach?) 

Yes,  the  proposal  is  limited  to  imposing  rules  necessary  to  achieve  the  objectives,  but 
which aim at being the least intrusive instrument to achieve the desired result and being 
proportional to the interests to be protected. 

(d) Does  the  initiative  create  financial  or  administrative  costs  for  the  EU,  national 
governments,  regional  or  local  authorities,  economic  operators  or  individuals? 
Are these costs commensurate with the objective to be achieved? 

Annex  3  to  the  impact  assessment  accompanying  the  proposal  presents  the  costs  and 
benefits of the initiative in detail.  

For operators, the regulation seeks to strike a balance between ensuring cost recovery for 
those  that  provide  wholesale  inbound  roaming  services  and  minimising  sustainability 
challenges  for  outbounder  operators  and  MVNOs.  Compliance  costs  are  minor  in 
general, with the exception of measures to ensure access to emergency communications 

13 

 
 
 
while roaming. However, these are justified by the importance of the relevant objective. 
The increase in administrative costs is small and is in any case balanced by the savings 
achieved thanks to the REFIT measures. Those costs are considered commensurate with 
the objective of ensuring RLAH in the digital single market. 

NRAs incur costs related to  monitoring and supervision. However,  given that EU rules 
on roaming are already in place, many of the costs to implement these requirements have 
been  already  incurred.  BEREC  will  incur  implementation  costs  as  it  is  tasked  with 
implementing and maintaining a European database with number ranges of value added 
services. However, this is fully supported by stakeholders in the public consultation, and 
especially operators, who consider this an important tool. 

(e)  While  respecting  EU  law,  have  special  circumstances  that  apply  in  individual 

Member States been taken into account? 

Not applicable. 

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