TSM Regulation (2015/2120 of 25 November 2015)

The main objectives of the Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015https://www.anacom.pt/render.jsp?contentId=1373317, laying down measures concerning the European single market for electronic communications and seeking creation of a connected continent are as follows:

• abolition of roaming charges within the European Union (EU) in June 2017, subject to a fair use policy;
• introduction of safeguard net neutrality standards within the EU;
• increased protection of consumers through measures which ensure that users are properly informed about their rights regarding roaming and net neutrality.

In the case of roaming communications between EEA countries¹, since 15 June 2017, operators have been required to implement Roam Like at Home (RLAH)².

Therefore, the price of your communications in roaming cannot exceed the tariffs you pay for your national communications (in the case of calls, SMS, MMS and outgoing video-calls, the roaming price must not exceed the price paid for communications made in your home country to other national networks). If you have subscribed to a national tariff whose monthly charge includes a certain volume of free national calls/SMS/MMS, the same volumes must be discounted from roaming traffic, free of charge and up to the same limits.

However, despite this rule, operators are allowed to implement a Fair Use Policy (FUP) for the roaming service. If customers exceed the limits or rules of this Fair Use Policy, the price of roaming communications may be increased by certain maximum surcharges, also fixed by the European Commission.

In the case of roaming communications within the EEA¹, as from 15 Jun 2017, operators have been required to implement Roam Like At Home (RLAH)². However, operators are allowed to implement a Fair Use Policy (FUP) for the roaming service between EEA countries - this may take the following three forms:

i) Setting a specific limit on the consumption of data in roaming between EEA countries. This limit must be calculated in accordance with the criteria³ defined in Regulation (EU) 2016/2286 of 15 December 2016https://www.anacom.pt/render.jsp?contentId=1401619; and can only be applied where tariffs comply with certain conditions, also set forth in this regulation (tariffs classified as "open data bundles" and pre-paid tariffs charged per unit of consumption). From this limit, when setting the price of data communications in roaming, the operator may, as a rule, add a specified surcharge to the national price of data communications.

Customers should check whether, as from 15 June 2017, the tariff subscribed to at a national level has specific limits for data communications in roaming.

For other communications, the operator may not set specific consumption limits for roaming between EEA countries and therefore, if the customer has subscribed to a national tariff whose monthly charge includes a certain volume of free national calls or SMS/MMS messages, the same volume should also be discounted and be free of charge when roaming, until the corresponding limit is reached.

For details on maximum prices, surcharges and consumption limits allowed for different types of roaming communications under different types of tariffs, see Table 1 (below).

ii) Establishment of control mechanisms, based on objective indicators, to prevent abusive or anomalous usage of the roaming service outside the context of periodic EEA travel. Indicators may include measures to determine whether customers exhibit consumption patterns which are typical of roaming, and include indicators to determine whether a customer's prevailing presence is within the national territory or is in other EEA countries. These indicators of presence and consumption must be observed for a period of at least four months. Where an operator concludes that there is objective and reasoned evidence indicating abusive or anomalous usage of the roaming service by a customer, the operator must warn the customer about the situation before applying any surcharge.

For details of maximum prices and surcharges for calls, SMS and data applicable to cases where there is breach of these rules on abusive or anomalous usage of the roaming service between EEA countries, see Table 2 (below).

iii) Request of evidence from roaming customers to prove that they are habitually resident in or have stable ties with the Member State of their roaming provider.

For details of maximum prices and surcharges for calls, SMS and data applicable to cases where customers decline to provide evidence that they are habitually resident in or have stable ties with the Member State of their roaming provider, see table 2 (below).

In their contracts with roaming customers, the operator must include all terms and conditions associated with the Fair Use Policy, where the operator chooses to implement one. Therefore, customers should check that, as from 15 June 2017, this information is included in their contract. If your operator requires you to prove stable links which involve frequent and significant presence in the Member State where it is based and/or that you meet certain non-abusive/non-permanent usage patterns, these rules should be included in your roaming contract or in the conditions of use which govern roaming services (communicated to you in a timely manner).

In addition to tariffs subject to the limits indicated in the previous tables, operators may offer other alternative tariffs for roaming communications between EEA countries. If these alternative tariffs are available, you can always choose to subscribe to them.

Notes

1 European Union countries and Iceland, Norway and Liechtenstein.
2 Unless they demonstrate to the regulator that they are unable to recover the costs incurred in connection with the provision of roaming services.
3 In tariffs classified as "open data bundles" in accordance with Regulation (EU) 2016/2286 of 15 December 2016, customers of roaming services should have the possibility, when periodically travelling in the EEA, to consume at least a certain volume of retail data services in roaming, paying the national price. This volume is equivalent, as a minimum, twice the volume which is obtained by taking the national retail price of this "open data bundle" excluding VAT for the entire billing period, and dividing this price by the maximum roaming tariff regulated at wholesale level (6.00 euros/Gb, as from 1 January 2018), as referenced in article 12 of Regulation (EU) no. 531/2012 of the European Parliament and of the Council of 13 June 2012https://www.anacom.pt/render.jsp?contentId=1132567. In the case of pre-paid tariffs charged per unit of consumption, the operator may establish that the consumption of roaming data services in the EEA is to be charged at the national retail price only up to a certain volume equivalent to at least the volume which is obtained by taking the total amount (excluding VAT) of the remaining credit available and already paid by the customer to the operator and dividing this value by the maximum roaming tariff regulated at wholesale level (6.00 euros/Gb, as from 1 January 2018), as referenced in article 12 of Regulation (EU) no. 531/2012.
4 Maximum surcharge.
5 Except when the national price is higher. In this case, no surcharge is applicable, and the roaming price may not exceed the domestic price.
6 Based on the price for domestic calls originated and terminated on different communications networks.
7 Based on the price for national SMS messages originated and terminated on different communications networks.
8 Use was made of the conversion rule whereby 1Gb = 1000 Mb, as under the Roaming Recommendation Guidelines and recital 17 of Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017https://www.anacom.pt/render.jsp?contentId=1411654.

In cases where the operator has no means of recovering costs, Regulation no. 2015/2120 of the European Parliament and of the Council of 25 November 2015 provides for an exception; under this exception, operators may, subject to authorisation by the national regulatory authority of the country in question, charge their roaming customers an additional amount to that charged for national communications, even where the limits of fair use have not been exceeded.

The main beneficiary of the rules will be customers of the European Economic Area (EEA)¹ operators travelling within the EEA and making intra-EEA roaming communications. It is expected that the abolition of roaming charges will lead to increased use of electronic communications services abroad (within the EU); this will benefit businesses and citizens, who will be able to use their devices more regularly when travelling.

The European Commission will submit an interim report to the European Parliament and to the Council by 15 December 2018. This report will summarise the effects of abolishing retail roaming surcharges.

Subsequently, the Commission will present a biennial report (the first by 15 December 2019), giving an assessment of availability and quality of services, competition levels in the wholesale and retail markets, retail tariff plans, the assessment of consumption patterns and the ability of operators to support the charging model in question. This report will be accompanied, where appropriate, by a legislative proposal to amend the wholesale charges for roaming services.

Furthermore, the European Commission will publish the data compiled by the Body of European Regulators for Electronic Communications (BEREC) on trends in retail and wholesale charges for regulated roaming services (voice, SMS and data) and on roaming agreements that are not subject to wholesale roaming charges.  It will also publish data on the application of contractual measures at a wholesale level, aimed at preventing permanent roaming and at preventing anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to customers of roaming service providers traveling periodically in the European Union.

The Commission also has implementation powers as regards the establishment of the weighted average of maximum mobile termination prices and rules governing application of the fair use policy.

As is already the case, NRAs (ANACOM in Portugal) will be responsible for monitoring and supervising mobile network operators, ensuring that they comply with the new rules, particularly as regards the application of fair use and sustainability measures for the abolition of roaming charges (roaming tariffs) at retail level.