It never rains but it pours. On 8 December, the Commission presented a third casting of its proposal to prevent permanent roaming. This time there is no limit on days but a four-month observation period that helps to identify the abuses relating to data downloading.
The 2015/2120 regulation stipulates that telephone operators cannot invoice surcharges to customers who temporarily travel to another member state as from 15 June 2015 (roaming costs). The Commission has so far presented three draft regulations that are supposed to clarify the modalities for applying this principle: in the first casting presented at the beginning of September, it proposed to set a 90-day travel cap a year in order to prevent consumers obtaining services in the member states with the lowest rates (see EUROPE 11616). A second casting was presented on 21 September, which proposed to replace the duration criteria with increased monitoring of suspicious behaviour and situations that threaten to distort national market balance (see EUROPE 11629). The third casting was discussed on 7 December at the College of Commissioners and was presented to the press on the following day. This sought to strike the right balance between the two points of view. Andrus Ansip, the Estonian Commissioner explained, “We have listened, we have consulted, we have refined our proposals; I believe we provide legal certainty”.
New safeguards
Overall, the Commission is retaining the idea that the subscriber travelling abroad should not have to pay surcharges when they call, send a message or download data. Telephone operators will be able to, however, apply slight surcharges for downloading data when they observed instances of irregular behaviour. To do this, they will have to respect a minimum four-month observation period during which they will have to assess the presence and consumption of data in the country of residency and abroad. As a principle, the new definition of the “stable link” excludes frontier workers, posted workers, students and retired people who have stable links with a country without officially residing in that country can benefit from offers in the country where they work, study or spend substantial time. If the doubts of the operators are borne out, they will have to alert the consumer and provide them with a 14 day period in which they can justify themselves before applying a surcharge below the caps being discussed for the wholesale market (€8.5 per gigabyte of data according to the Commission, between €10 and €6, for the Council and between €4 and €1, for the Parliament).
This third casting includes a new duration clause that is lower than the one envisaged in the second version. Therefore, operators that are able to prove that they have incurred losses equivalent to at least 3% of their overall income (instead of the previous 5%) will be able to exceed the caps set out in this regulation. According to Commission’s calculations, 7% of operators may be able to invoke this clause.
Finally, the new draft implementation regulation tackles unlimited packages, which are very common in Scandinavia. Mr Ansip affirmed, “In exceptional circumstances it will be necessary to introduce data caps for these offers in order to avoid negative repercussions and ensure that they continue to be proposed in the future”. He also explained that the new proposal would have limited effects in this regard (Finland, Denmark, Austria and the Baltic countries will be affected). The draft text stipulates that customers using unlimited data packages in their country of residency will receive twice the data volume equivalent in their monthly contract on the basis of future wholesale tariff caps.
The proposal is expected to be put to a vote on 12 December at the Communications Committee (COCOM). (Original version in French by Sophie Petitjean)