Tuesday, 16 May 2017

New roaming rules in books and in action - several insights from Poland

How did this all come about?

Reduction of roaming surcharges in the EU is one of the European legislator's flagship projects, perceived as a much-needed positive signal in the times of growing euroscepticism. Indeed, against a background of continuous setbacks and crises, bringing down prices of foreign calls, text messages and data transfers within the EU appears to be a success story. The process began in 2007 with the adoption of Regulation 717/2007 introducing the so-called Eurotariff. Not surprisingly, even this rather modest regulatory intervention in the roaming market met with resistance from the telecom operators and was challenged before the Court of Justice. However, the effects were opposite to the ones intended: after the regulation was upheld by the CJEU, the European legislator felt encouraged to regulate the roaming prices even further. Over time, Regulation 717/2007 was substantially amended and eventually replaced with Regulation 531/2012 on roaming on public mobile communications networks within the Union, which also today is one of the key EU acts in this domain.

What brought the issue of roaming back on the front pages is the adoption of Regulation 2015/2120 in November 2015. The act introduced a number of amendments to Regulation 531/2012 and set as its aim the (almost) complete abolishment of retail roaming surcharges by 15 June 2017. 

Two further steps needed to be taken, however, before the objective set in new regulation could be reached:
  • the adoption of implementing rules concerning possible limitations to the "roam like at home" principle, namely the so-called fair use policies and exceptional authorisations which telecom operators may obtain in order to apply a surcharge - the Commission Implementing Regulation 2016/2286 to that end was adopted on 15 December 2016, and
  • the adoption of a further regulation imposing new caps on roaming charges in the wholesale market, i.e. prices which operators are charging from their foreign counterparts for using their networks. Unlike regulation 2016/2286, imposition of the lower wholesale caps had to be adopted in the ordinary legislative procedure pursuant to Art. 114 TFEU and thus required an interinstitutional agreement. As for now, everything seems to indicate that also this last hurdle will soon be overcome. The Commission tabled the respective proposal in June 2016 and after approx. 6 months, on 31 January 2017, a provisional agreement between the Council and the European Parliament was reached. The EP voted on the regulation in its April session and the Council is expected to follow suit very soon.

What are the new rules...

Following the recent reform, Article 6a was added to Regulation 531/2012, which reads as follows: 

With effect from 15 June 2017, provided that the legislative act to be adopted following the proposal referred to in Article 19(2) [new rules on the wholesale charges] 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.

From the user's perspective, Articles 6b and 6c are, of course, a fly in the ointment. The provisions lay down the two instances in which the "roam like at home" principle might be limited.

Article 6b refers to the so-called fair use policy, which roaming providers may apply 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. Fair use policies shall, however, 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.

Example: mobile data 

Operators may, for instance, impose a certain limit on data use during roaming if a subscriber has unlimited mobile data or very affordable data package (a so-called 'open data bundle', cf. Article 4(2) of the implementing regulation). Roaming providers who decide to apply such a fair use policy, must inform the subscribers about this fact and alert them once the limit is reached. Beyond this threshold, subscribers can continue to use mobile data abroad, subject to a charge of maximum €7.70/GB + VAT. The charge will decreased gradually to reach €2.50/GB as of 2022.

Furthermore, Article 6c stipulates that 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

Specifics of both limitations are set out in the implementing regulation mentioned above.

... and how telecom operators read them?

First indications about the impact of the new law on the market practice can already be observed in several countries, for example in Poland, where telecom operators have just disclosed their new tariffs. Rather unsurprisingly, each of the four major telecom operators decided to impose certain limits on data use during roaming (from 1 to 8 GB depending on the subscriber's tariff plan). Interestingly, only one operator decided to apply the "roam like at home" principle without any significant limitations as regards the number of incoming and outgoing calls as well as text messages sent. The remaining three players established yearly limits, which would also be applicable to subscribers whose plans provide for unlimited domestic calls and SMS. Such an interpretation of the fair use policy appears to be at odds with what the European Commission had in mind.

The proposed price lists are currently being reviewed by the Polish telecom regulator, the President of the Office of Electronic Communications (UKE). What is already known today is that the new tariffs had not been welcomed in the Polish consumer protection agency, the Office of Competition and Consumer Protection (UOKiK), as well as in the EC, which may call upon the UKE to take action. It thus seems that interesting developments are still ahead!

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