The rules proposed by the Commission to fight permanent roaming do not have the support of the national regulators. In its opinion, published on Thursday 13 October, the Body of European Regulators of Electronic Communications (BEREC) lamented the absence of stricter limits and calls for clearer definitions.
In response, the European Commission said that it would take account of the this opinion when it drafts the final act before the end of this year, but it points out that the BEREC opinion is non-binding. BEREC's role is to provide technical opinions, not a legal interpretation of European legislation, the Commission states, even though it was the one that asked for it.
Regulation 2015/2120 provides that from June 2017 onwards, telephone operators will no longer be able to bill their customers travelling in another member state for extra costs incurred (roaming charges). Against this backdrop, the Commission presented an initial draft regulation featuring a limit of 90 days of travel a year in order to prevent permanent roaming (for instance, a consumer using a SIM card purchased in a member state with rates lower than his or her own member state). However, it swiftly revised its copy, replacing the criterion of duration with a criterion of suspicious behaviour and situations that could lead to an imbalance of the national market (see EUROPE 11629).
The BEREC opinion does not explicitly refer to the first draft of the implementing regulation. However, it is no secret that this was more to the liking of the national regulators, which have openly lamented the absence of clear limits and, in particular, the ban on operators applying volume limits above which surcharges would automatically apply. More generally, BEREC criticises the lack of clarity in the terms used in the draft implementing regulation, particularly regarding 'fixed lines', 'usual residence' or 'regular travel'. It feels that the threshold of 5% of losses in relation to overall revenue, which may be used to justify an in-depth examination by the national authorities, is too high. It also states that it is concerned by the risk of an uneven application of the rules on fair use in the European Economic Area and fears that it could lead to an increased workload for the national regulators. It suggests including provisions to define the level of surcharges that could be applied by the operators, recommending that these be limited to those applicable on the wholesale roaming markets.
The European Parliament and the Council must both sign off the draft implementing regulation before the Commission can adopt the final act, by 15 December.
The BEREC opinion can be consulted at:
http://berec.europa.eu/eng/document_registrer/subjet_matter/berec/opinions/6527-berec-input-to-the-european-commission-implementing-act-on-fair-use-policy-and-sustainability-of-the-abolition-of-retail-roaming-surcharges . (Original version in French by Sophie Petitjean)