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The European Commission today adopted Commissioner Reding's proposal to make use of the unusual instrument of a Regulation to address wholesale charges and retail tariffs for international roaming on public mobile networks.

The full text of the 'Proposal for a Regulation of the European Parliament and of the Council on roaming on public mobile networks within the Community and amending Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services' can be accessed by clicking here.

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The essence of the proposal is as follows:

Wholesale level

Article 3: Wholesale charges for the making of regulated roaming calls

The total wholesale charge that the operator of a visited network may levy from the operator of the roaming customer’s home network for the provision of a regulated roaming call, including inter alia origination, transit and termination, shall not exceed the applicable amount per minute determined in accordance with Annex I.

ANNEX I

The total wholesale charges that the operator of a visited network may levy from the operator of the roaming customer’s home network for the making of a regulated roaming call originating on that visited network shall not exceed, on a per-minute basis, an amount equal to the average mobile termination rate published pursuant to Article 10(3) multiplied:

a) by a factor of two, in the case of a regulated roaming call to a number assigned to a public telephone network in the Member State in which the visited network is located; or

b) by a factor of three, in the case of a regulated roaming call to a number assigned to a public telephone network in a Member State other than that in which the visited network is located. The charge limits in this Annex shall include any fixed elements, such as call set-up charges.

Retail level

Article 4: Retail charges for the making of regulated roaming calls

Subject to Article 5, the total retail charge, excluding VAT, which a home provider may levy from its roaming customer for the provision of a regulated roaming call may not exceed 130% of the applicable maximum wholesale charge for that call determined in accordance with Annex I. The charge limits in this Article shall include any fixed elements associated with the provision of regulated roaming calls, such as call set up charges or opt-in fees.

Article 5: Timing of application of maximum retail charge limits for regulated roaming calls

The obligations in Article 4 shall take effect six months after the entry into force of this Regulation.

Article 6: Retail charges for the receipt of calls while roaming in the Community

The total retail charge, excluding VAT, which a home provider may levy from its roaming customer in respect of the receipt by that customer of voice telephony calls while roaming on a visited network shall not exceed, on a per minute basis, 130% of the average mobile termination rate published pursuant to Article 10(3). The charge limits in this Article shall include any fixed elements associated with the provision of regulated roaming calls, such as one-off charges or opt-in fees.

T-REGS Note: As will be seen from the text above, the proposal is that only voice calls would be subject to wholesale and retail price regulation. However, a role is reserved for the National Regulatory Authorities for messaging services, expressed as follows:

Article 8.6 National regulatory authorities shall monitor developments in wholesale and retail prices for the provision to roaming customers of voice and data communications services, including the Short Message Service (SMS) and the Multimedia Messaging Service (MMS), in particular in the outermost regions of the Community, and shall communicate the results of such monitoring to the Commission on request.

An interesting aspect going forward will be the implementation and enforcement. In this regard, we draw attention to the following:

Article 9: Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission not later than six months following the entry into force of this Regulation and shall notify it without delay of any subsequent amendment affecting them.

As regards the inclusion of the wholesale international mobile roaming market in the Revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation (this market is included in the list in Annex of the Consultation Document), page 10 of the explanatory document associated with today's proposal contains a statement as follows:

[...] Indeed the proposal will lighten the administrative burden on national regulators in as much as it will remove the need for those authorities periodically to analyse and review the national wholesale market for international roaming on public mobile networks within their territory. [...]

For an in-depth discussion of this key development, please contact Yves Blondeel.