Regulation (EU) 2022/612 of the European Parliament and of the Council of 6 April 2022 on roaming on public mobile communications networks within the Union (recast) (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,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) Regulation (EU) No 531/2012 of the European Parliament and of the Council (3) has been substantially amended several times (4). Since further amendments are to be made, that Regulation should be recast in the interests of clarity.

(2) In particular, Regulation (EU) 2015/2120 of the European Parliament and of the Council (5) amended Regulation (EU) No 531/2012 and required retail roaming surcharges to be abolished in the Union from 15 June 2017, subject to the fair usage of roaming services and the possibility of applying a derogation mechanism for the sustainability of the abolition of retail roaming surcharges, also referred to as ‘roam-like-at-home’ (RLAH). In addition, the Commission undertook 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 of Regulation (EU) No 531/2012. Following that review, Regulation (EU) 2017/920 of the European Parliament and of the Council (6) was adopted with the aim of regulating national wholesale roaming markets in order to abolish retail roaming surcharges by 15 June 2017 without distorting the domestic or the visited markets.

(3) On 29 November 2019, the Commission published its first full review of the roaming market (the ‘Commission Report’), showing that travellers across the Union have benefited significantly from the abolition of retail roaming surcharges. The use of mobile services, namely regulated voice, SMS or data roaming services, while travelling in the Union has increased rapidly and massively, confirming the impact of the Union’s roaming rules. The Commission Report concluded that, despite signs of some competition dynamics in both the retail and wholesale roaming markets, the underlying basic competition conditions have not changed and are not likely to change in the foreseeable future. The regulation of the retail and wholesale markets therefore remains necessary and should not be abandoned. In particular, the Commission Report found that, at the wholesale level, the sharp reduction in price caps has contributed to a further reduction in wholesale roaming prices, which has benefited net outbounder operators, that is, operators with a customer base that consumes more mobile services on the networks of partner operators in other Member States than those consumed by the partner operators’ customer base on its own network. The Commission Report took note of the recommendation of the Body of European Regulators for Electronic Communications (BEREC) to further lower wholesale roaming price caps. The Commission also analysed and documented the need to further lower wholesale roaming price caps and assessed the level of reduction that enables visited operators to recover the costs of providing wholesale roaming services. The Commission Report referred to the requirement of Regulation (EU) No 531/2012 that roaming customers have access to the same services in other Member States, for the same price, provided that those services can be delivered on the visited network. The Commission Report took note of the very recent development of new ways of trading wholesale roaming traffic, such as online trading platforms that have the potential to foster competition on the wholesale roaming market and facilitate negotiation between operators. Finally, it observed that the separate sale of data roaming services has not been taken up by the market.

(4) Regulation (EU) No 531/2012 expires on 30 June 2022 and the aim of this Regulation is to recast it while introducing new measures to increase transparency, including transparency with regard to the use of value-added services while roaming and the use of roaming on non-terrestrial public mobile communications networks, and to ensure a genuine RLAH experience in terms of quality of service and access to emergency services while roaming. The validity of this Regulation is set for 10 years, until 2032, in order to provide certainty in the market and minimise regulatory burdens. This Regulation introduces a requirement that the Commission carry out reviews and submit reports to the European Parliament and to the Council in 2025 and 2029, followed, if appropriate, by a legislative proposal to amend this Regulation, where market developments so require. Because of rapid market developments and the rapid roll-out of new technologies, the Commission should assess, in particular, whether it is appropriate to make a legislative proposal to amend this Regulation when issuing its first report in 2025.

(5) The national regulatory authorities or other competent authorities that are responsible for safeguarding and promoting the interests of mobile customers who normally reside within their territory are not able to control the behaviour of the visited network operators situated in other Member States on whom those customers depend when using international roaming services. That lack of control could diminish the effectiveness of measures taken by Member States based on their residual competence to adopt consumer protection rules.

(6) The mobile communications market remains fragmented in the Union, with no mobile network covering all Member States. As a consequence, in order to provide mobile communications services to their domestic customers travelling in other Member States, roaming providers purchase wholesale roaming services from, or exchange wholesale roaming services with, operators in visited Member States.

(7) An internal telecommunications market cannot be said to exist while there are differences between domestic and roaming prices. Therefore, differences between domestic charges and roaming charges should be eliminated in order to establish an internal market for mobile communication services.

(8) A common, harmonised approach should be employed to ensure that users of terrestrial public mobile communications networks when travelling within the Union do not pay excessive prices for Union-wide roaming services, thereby enhancing competition concerning roaming services between roaming providers, achieving a high level of consumer protection and preserving both incentives for innovation and consumer choice. In view of the cross-border nature of the services concerned, such a common approach is needed to ensure that roaming providers can operate within a single coherent regulatory framework, based on objectively established criteria.

(9) The widespread use of internet-enabled mobile devices means that data roaming is of great economic significance. This is relevant for both users and providers of applications and content. In order to stimulate the development of this market, charges for data transport should not impede growth, in particular considering that the development and deployment of next generation, high-speed networks and services are expected to accelerate steadily.

(10) Directives 2002/19/EC (7), 2002/20/EC (8), 2002/21/EC (9), 2002/22/EC (10) and 2002/58/EC (11) of the European Parliament and of the Council aimed to create an internal market for electronic communications within the Union, while ensuring a high level of consumer protection through enhanced competition. With the exception of Directive 2002/58/EC, those Directives were repealed by Directive (EU) 2018/1972 of the European Parliament and of the Council (12). Directive (EU) 2018/1972 aims to stimulate investment in and take-up of very high capacity networks in the Union as well as to set new spectrum rules for mobile connectivity and 5G. Directive (EU) 2018/1972 also provides for national regulatory authorities and other competent authorities, as well as BEREC, the Commission and the Member States, to pursue, inter alia, the objectives of contributing to the development of the internal market and promoting the interests of the citizens of the Union. That Directive ensures, inter alia, that all end-users have access to affordable communication, including the internet. It increases consumer protection and security for users, and facilitates regulatory intervention.

(11) The retail and wholesale roaming markets exhibit unique characteristics which justify exceptional measures which go beyond the mechanisms otherwise available under Directive (EU) 2018/1972.

(12) This Regulation should allow for a departure from the rules otherwise applicable under Directive (EU) 2018/1972, namely that prices for service offerings are to be determined by commercial agreement in the absence of significant market power, thereby accommodating the introduction of complementary regulatory obligations which reflect the specific characteristics of Union-wide roaming services.

(13) To protect roaming customers against increasing retail prices for regulated roaming services, namely regulated voice, SMS or data roaming services, due to fluctuations in the reference exchange rate of currencies other than the euro, a Member State whose currency is not the euro should use an average of several reference exchange rates over time to determine the maximum applicable surcharges in its currency. Where maximum charges are not denominated in euro, the applicable values should be determined in the relevant currency by applying the average of several reference exchange rates over time published in the Official Journal of the European Union (Official Journal) on the date specified in this Regulation. Where there is no publication on the date specified, the applicable reference exchange rates should be those published in the first Official Journal following that date and containing such reference exchange rates. To align the determination of values in currencies other than the euro with the rule applied to intra-EU communications in accordance with Regulation (EU) 2015/2120, the maximum charges in currencies other than the euro should be determined by applying the average of the reference exchange rates published by the European Central Bank on 15 January, 15 February and 15 March of the relevant calendar year in the Official Journal. Maximum charges calculated in this way for 2022 should apply from the date of entry into force of this Regulation until 15 May 2023.

(14) In order to allow for the development of a more efficient, integrated and competitive market for roaming services, there should be no restrictions that prevent undertakings from effectively negotiating wholesale access for the purpose of providing roaming services, including for machine-to-machine communications. Obstacles to access to such wholesale roaming services due to differences in negotiating power and in the degree of infrastructure ownership of undertakings should be removed. To that end, wholesale roaming agreements should respect the principle of technology neutrality and ensure that all operators have an equal and fair opportunity to access all available networks and technologies and should respect the principle that such agreements be negotiated in good faith to allow roaming providers to offer retail roaming services equivalent to the services they offer domestically. This Regulation does not impose an obligation on roaming providers to conclude wholesale roaming agreements only with those operators that have the most advanced networks, subject to compliance with the retail quality of service requirements laid down in this Regulation. The operators seeking wholesale roaming access should have the freedom to negotiate their wholesale roaming agreements according to their own commercial needs and the best interests of their end-users. Therefore, in the course of making the transition towards next generation mobile communications networks and technologies, roaming providers should gradually ensure wholesale roaming access that enables the provision of retail roaming services in other Member States under equivalent contractual conditions as in their home Member State, in accordance with the objectives of RLAH. Roaming providers should offer retail roaming services that are equivalent to mobile communication services that they offer domestically where there is widespread coverage or when there are competitive offers for access to such next generation mobile communications networks and technologies in the visited Member State, in accordance with the BEREC guidelines for wholesale roaming access. Mobile virtual network operators (MVNOs) and resellers of mobile communication services without their own network infrastructure typically provide roaming services based on commercial wholesale roaming agreements with their host mobile network operators in the same Member State. Commercial negotiations, however, may not leave enough margin to MVNOs and resellers for stimulating competition through lower prices. The removal of those obstacles and balancing the bargaining power between MVNOs or resellers and mobile network operators by an access obligation and wholesale caps should facilitate the development of alternative, innovative and Union-wide roaming services and offers for customers. Directive (EU) 2018/1972 does not provide for a solution to this problem via the imposition of obligations on operators with significant market power.

(15) An obligation to meet reasonable requests for wholesale access to public mobile communications networks for the purpose of providing roaming services should therefore be provided for. Such access should be in line with the needs of those seeking access. End-users of services requiring modern technologies and retail roaming services should be able to enjoy the same quality of service when roaming as they do domestically. A wholesale roaming access obligation should therefore ensure that access seekers can replicate the retail services offered domestically, unless visited network operators that are requested to provide access can prove that it is technically unfeasible to do so. The parameters under which mobile services are offered by the visited network operator to its own domestic customers are understood to be technically feasible. Subject to the relevant wholesale roaming agreement and without prejudice to the retail obligations laid down in this Regulation, the visited network operator should ensure that roaming customers on its network are not subject to conditions that are less advantageous than those it offers to its domestic customers, for example in terms of quality of service, such as the available speed. Access should be refused only on the basis of objective criteria, such as technical feasibility and the need to maintain network integrity. The visited network operator should not refuse or limit access on the basis of commercial considerations in such a way that the provision of competing roaming services is restricted. Where access is refused, the aggrieved party should be able to submit the case for dispute resolution in accordance with the procedure set out in this Regulation. In order to ensure a level playing field, wholesale access for the purpose of providing roaming services should be granted in accordance with the regulatory obligations laid down in this Regulation applicable at the wholesale level and should take into account the different cost elements necessary for the provision of such access. A consistent regulatory approach to the wholesale access for the provision of roaming services should contribute to avoiding distortions between Member States. BEREC should, in coordination with the Commission and in collaboration with the relevant stakeholders, issue guidelines for wholesale access for the purpose of providing roaming services.

(16) A wholesale roaming access obligation should include the provision of direct wholesale roaming services as well as the provision of roaming services on a wholesale basis for resale by third parties. The wholesale roaming access obligation should also cover the mobile network operator’s obligation to enable MVNOs and resellers to purchase regulated wholesale roaming services from wholesale aggregators which provide a single point of access and a standardised platform to roaming agreements all over the Union. In order to ensure that operators provide access to all facilities necessary for direct wholesale roaming access and wholesale roaming resale access to roaming providers within a reasonable period of time, a reference offer should be published containing the standard conditions for direct wholesale roaming access and wholesale roaming resale access. The publication of the reference offer should not prevent commercial negotiations between access seeker and access provider on the price level of the final wholesale agreement or on additional wholesale access services that go beyond those necessary for direct wholesale roaming access and wholesale roaming resale access.

(17) A wholesale roaming access obligation should cover access to all the components necessary to enable the provision of roaming services, such as network elements and associated facilities; relevant software systems including operational support systems; information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; number translation or systems offering equivalent functionality; mobile networks and virtual network services.

(18) If access seekers for wholesale roaming resale request access to facilities or services in addition to what is necessary for the provision of retail roaming services, mobile network operators may recover fair and reasonable charges for those facilities or services. Those additional facilities or services could, inter alia, be value-added services, additional software and information systems or billing arrangements.