LegalizeRegulation (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 (Text with EEA relevance)
Article 1
Subject matter and scope
Article 2
Definitions
For the purposes of this Regulation, the definitions set out in Article 2 of Directive 2002/21/EC apply.
The following definitions also apply:
(1) ‘provider of electronic communications to the public’ means an undertaking providing public communications networks or publicly available electronic communications services;
(2) ‘internet access service’ means a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used;
(3) ‘regulated intra-EU communications’ means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of another Member State, and which is charged wholly or partly based on actual consumption;
(4) ‘number-based interpersonal communications service’ means number-based interpersonal communications service as defined in point (6) of Article 2 of Directive (EU) 2018/1972 of the European Parliament and of the Council (1);
(5) ‘number-independent interpersonal communications service’ means number-independent interpersonal communications service as defined in Article 2, point (7), of Directive (EU) 2018/1972 of the European Parliament and of the Council (2);
(6) ‘domestic communications’ means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of the same Member State;
(7) ‘intra-EU communications’ means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of another Member State.
Article 3
Safeguarding of open internet access
This paragraph is without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services.
The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.
Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to:
(a) comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers;
(b) preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users;
(c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.
Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users.
Article 4
Transparency measures for ensuring open internet access
Providers of internet access services shall ensure that any contract which includes internet access services specifies at least the following:
(a) information on how traffic management measures applied by that provider could impact on the quality of the internet access services, on the privacy of end-users and on the protection of their personal data;
(b) a clear and comprehensible explanation as to how any volume limitation, speed and other quality of service parameters may in practice have an impact on internet access services, and in particular on the use of content, applications and services;
(c) a clear and comprehensible explanation of how any services referred to in Article 3(5) to which the end-user subscribes might in practice have an impact on the internet access services provided to that end-user;
(d) a clear and comprehensible explanation of the minimum, normally available, maximum and advertised download and upload speed of the internet access services in the case of fixed networks, or of the estimated maximum and advertised download and upload speed of the internet access services in the case of mobile networks, and how significant deviations from the respective advertised download and upload speeds could impact the exercise of the end-users’ rights laid down in Article 3(1);
(e) a clear and comprehensible explanation of the remedies available to the consumer in accordance with national law in the event of any continuous or regularly recurring discrepancy between the actual performance of the internet access service regarding speed or other quality of service parameters and the performance indicated in accordance with points (a) to (d).
Providers of internet access services shall publish the information referred to in the first subparagraph.
This paragraph shall apply only to contracts concluded or renewed from 29 November 2015.
Article 5
Supervision and enforcement
National regulatory authorities shall publish reports on an annual basis regarding their monitoring and findings, and provide those reports to the Commission and to BEREC.
Article 5a
Retail charges for regulated intra-EU communications
National regulatory authorities shall monitor the market and price developments for regulated intra-EU communications and shall report to the Commission.
Where a provider of regulated intra-EU communications establishes that, due to specific and exceptional circumstances distinguishing it from most other Union providers, the application of the cap referred to in paragraph 1 would have significant impact on that provider’s capacity to sustain its existing prices for domestic communications, a national regulatory authority may, upon that provider’s request, grant a derogation from paragraph 1 only to the extent necessary and for a renewable period of one year. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the provider of regulated intra-EU communications, as well as the level of domestic prices and revenues.
Where the applicant provider has discharged the applicable evidentiary burden, the national regulatory authority shall determine the maximum price level in excess of one or both of the caps set out in paragraph 1 which would be indispensable in order to ensure the sustainability of the provider’s domestic charging model. BEREC shall publish guidelines on the parameters to be taken into account by national regulatory authorities in their assessments.
The assessment referred to in paragraph 9 shall include:
(a) the evolution of the wholesale costs related to the provision of intra-EU communications;
(b) the evolution of competition in the market for the provision of number-based interpersonal communications services and the trend of the retail prices of intra-EU communications within the different Member States;
(c) the evolution of consumer preferences and choice of special offers and bundles not charged on the basis of actual consumption of intra-EU communications;
(d) the possible impact on the national markets for the provision of number-based interpersonal communications services and in particular on the retail prices charged to consumers at large, taking into account the costs of providing intra-EU communications, and the potential impact of the measures on revenues for the providers and, if possible, investment capacity of the providers, in view in particular of the future roll-out of networks in line with the connectivity targets set out in Decision (EU) 2022/2481 where additional charges for intra-EU communications are not already applied;
(e) the extent of the usage, availability and competitiveness of number-independent interpersonal communications services or any alternatives to intra-EU communications;
(f) the evolution of tariff plans as regards the intra-EU communications, and in particular, the extent to which the implementation of the measures provided for in paragraph 8, has produced results in the direction of the elimination of retail price differences for consumers between domestic and intra-EU communications.
Article 5b
Committee procedure
Article 6
Penalties
Member States shall lay down the rules on penalties applicable to infringements of Articles 3, 4 and 5 and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. Member States shall notify the Commission of those rules and measures by 30 April 2016 and shall notify the Commission without delay of any subsequent amendment affecting them.
Member States shall lay down the rules on penalties applicable to infringements of Article 5a and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify the Commission of the rules and measures laid down to ensure the implementation of Article 5a by 15 May 2019 and shall notify the Commission without delay of any subsequent amendment affecting them.
Article 7
Amendments to Regulation (EU) No 531/2012
Regulation (EU) No 531/2012 is amended as follows:
(1) In Article 2, paragraph 2 is amended as follows: (a) points (i), (l) and (n) are deleted; (b) the following points are added: ‘(r) ‘domestic retail price’ means a roaming provider’s domestic retail per-unit charge applicable to calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and to data consumed by a customer; in the event that there is no specific domestic retail per-unit charge, the domestic retail price shall be deemed to be the same charging mechanism as that applied to the customer for calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and data consumed in that customer’s Member State; (s) ‘separate sale of regulated retail data roaming services’ means the provision of regulated data roaming services provided to roaming customers directly on a visited network by an alternative roaming provider.’.
(2) In Article 3, paragraph 6 is replaced by the following: ‘6. The reference offer referred to in paragraph 5 shall be sufficiently detailed and shall include all components necessary for wholesale roaming access as referred to in paragraph 3, providing a description of the offerings relevant for direct wholesale roaming access and wholesale roaming resale access, and the associated terms and conditions. That reference offer may include conditions 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. If necessary, national regulatory authorities shall impose changes to reference offers to give effect to obligations laid down in this Article.’.
(3) Article 4 is amended as follows: (a) the title is replaced by the following: ‘Separate sale of regulated retail data roaming services’; (b) in paragraph 1, the first subparagraph is deleted; (c) paragraphs 4 and 5 are deleted.
(4) Article 5 is amended as follows: (a) the title is replaced by the following: ‘Implementation of separate sale of regulated retail data roaming services’; (b) paragraph 1 is replaced by the following: ‘1. Domestic providers shall implement the obligation related to the separate sale of regulated retail data roaming services provided for in Article 4 so that roaming customers can use separate regulated data roaming services. Domestic providers shall meet all reasonable requests for access to facilities and related support services relevant for the separate sale of regulated retail data roaming services. Access to those facilities and support services that are necessary for the separate sale of regulated retail data roaming services, including user authentication services, shall be free of charge and shall not entail any direct charges to roaming customers.’; (c) paragraph 2 is replaced by the following: ‘2. In order to ensure consistent and simultaneous implementation across the Union of the separate sale of regulated retail data roaming services, the Commission shall, by means of implementing acts and after having consulted BEREC, adopt detailed rules on a technical solution for the implementation of the separate sale of regulated retail data roaming services. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2).’; (d) in paragraph 3, the introductory words are replaced by the following: ‘3. The technical solution to implement the separate sale of regulated retail data roaming services shall meet the following criteria:’.
(5) The following Articles are inserted: ‘Article 6a Abolition of retail roaming surcharges With effect from 15 June 2017, provided that the legislative act to be adopted following the proposal referred to in Article 19(2) is applicable on that date, roaming providers shall not levy any surcharge in addition to the domestic retail price on roaming customers in any Member State for any regulated roaming calls made or received, for any regulated roaming SMS messages sent and for any regulated data roaming services used, including MMS messages, nor any general charge to enable the terminal equipment or service to be used abroad, subject to Articles 6b and 6c.
Article 6b
Fair use
Roaming providers may apply in accordance with this Article and the implementing acts referred to in Article 6d a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in order to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel.
Any fair use policy shall enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans.
Article 6e shall apply to regulated retail roaming services exceeding any limits under any fair use policy.
Article 6c
Sustainability of the abolition of retail roaming surcharges
In specific and exceptional circumstances, with a view to ensuring the sustainability of its domestic charging model, where a roaming provider is not able to recover its overall actual and projected costs of providing regulated roaming services in accordance with Articles 6a and 6b, from its overall actual and projected revenues from the provision of such services, that roaming provider may apply for authorisation to apply a surcharge. That surcharge shall be applied only to the extent necessary to recover the costs of providing regulated retail roaming services having regard to the applicable maximum wholesale charges.
Where a roaming provider decides to avail itself of paragraph 1 of this Article, it shall without delay submit an application to the national regulatory authority and provide it with all necessary information in accordance with the implementing acts referred to in Article 6d. Every 12 months thereafter, the roaming provider shall update that information and submit it to the national regulatory authority.
Upon receipt of an application pursuant to paragraph 2, the national regulatory authority shall assess whether the roaming provider has established that it is unable to recover its costs in accordance with paragraph 1, with the effect that the sustainability of its domestic charging model would be undermined. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. The national regulatory authority shall authorise the surcharge where the conditions laid down in paragraph 1 and this paragraph are met.
Within one month of receipt of an application pursuant to paragraph 2, the national regulatory authority shall authorise the surcharge unless the application is manifestly unfounded or provides insufficient information. Where the national regulatory authority considers that the application is manifestly unfounded, or considers that insufficient information has been provided, it shall take a final decision within a further period of two months, after having given the roaming provider the opportunity to be heard, authorising, amending or refusing the surcharge.
Article 6d
Implementation of fair use policy and of sustainability of the abolition of retail roaming surcharges
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