109. As previously mentioned, the Roaming Regulation (as amended by the TSM Regulation) and Implementing Regulation (EU) 2016/2286 have established a set of rules which underlie the application of the “Roam Like at Home” (RLAH) principle when users establish roaming communications between EEA countries.
110. According to the Recitals in the preamble to Implementing Regulation (EU) 2016/2286: "With the abolition of retail roaming surcharges in the Union, the same tariff conditions apply for the use of mobile services while roaming abroad in the Union and at home (i.e. in the country of the mobile subscription of the customer) (...)" (Recital 5) and that "(...) the roaming provider should as a general rule not impose a limit on the volumes of mobile services available to the roaming customer other than the domestic limit, when that customer is periodically travelling in the Union (...)" (Recital 12).
111. The Regulation also sets out, among other obligations, that "A roaming provider shall provide regulated retail roaming services at domestic price to its roaming customers (...), while they are periodically travelling in the Union "and that "any fair use policy applied by a roaming provider in order to prevent abusive or anomalous usage of regulated retail roaming services shall be subject to the conditions set out in Articles 4 and 5, and shall ensure that all such roaming customers have access to regulated retail roaming services at domestic price during such periodic travel in the Union, under the same conditions as if such services were consumed domestically. "(Emphasis added) (Article 3);
112. As demonstrated by the description of the offers given in point III.2., in most situations, the IAS providers state on their websites that the traffic of certain applications included in their offers is valid "for use in the Portuguese territory", thereby preventing the use of such applications in roaming in the EEA under conditions equivalent to those applicable in Portugal.
113. Given the specificities inherent to the different offers, analysis of the situation described above in light of the RLAH rules must be carried out separately in relation to:
a. offers, such as MEO's "Smart Net" offer, which, as mentioned above, consists of specific data allowances, which can only be acquired by those who have access to the mobile Internet and can be added to the customer's base Internet allowance upon payment of a specific monthly amount (referred to below as "Type 1 offers");
b. offers in which the tariff itself includes (without additional payment) access to certain specific content/applications with an additional traffic limit above the general data cap of the tariff subscribed to by the customer (e.g. "Vodafone Plus", "Yorn"1, “M5O Giga" and "Moche Legend" tariffs2)3 (referred to below as "Type 2 offers");
c. offers, which include a general data allowance but where the traffic associated with the use of certain specific applications are zero-rated, i.e. it is not deducted from that limit, and is of unlimited use (e.g.: "NOS Cinco" tariff4) (referred to below as "Type 3 offers");
d. offers covered by (b) and (c) above (e.g. "WTF" and "NOS Indie" tariffs) (referred to below as "Type 4 offers").
III.2.3.1. Type 1 offers
114. Type 1 offers are, in practice, data add-ons (not free) for access to certain specific applications. Thus, that fact that this additional data traffic cannot be used in roaming in the EEA according to the same conditions which apply to use in the Portuguese territory constitutes an infringement of the rules of the Roaming Regulation (in particular, the RLAH principle). Indeed, even where additions of this kind are classifiable as open data bundles5, customers should be able to use these add-ons in roaming in the EEA, even if subject to a possible fair use policy.
115. It should also be noted that the BEREC Guidelines on "Retail Roaming"6 ("Roaming Guidelines"), of 27 March 2017 set out that the use, in roaming in the EEA, of add-ons purchased by the customer is to be treated under terms equivalent to their domestic use.
116. In the example of MEO, and contrary to what was found in relation to traffic included in the "Smart Net" offers (which, on the company's website, is indicated as "valid for use in the Portuguese territory"), for other paid data add-ons (e.g. "Internet for the whole family" or "Internet for 15 days"), it is explicitly stated that it is possible to use these roaming data allowances in the EEA, while the company reserves the right to apply a surcharge to roaming traffic in those countries, in accordance with the rules of the fair use policy applied in the same countries (which are not yet implemented).
III.2.3.2 Type 2, 3 and 4 offers
117. What these three types of offers have in common is the fact that, in the national territory, the price of the contracted tariff includes specific additional limits for certain applications and/or unlimited traffic also for certain applications.
118. In these type 2, 3 and 4 offers, the fact that it is impossible to use the additional specific allowances for certain applications and/or unlimited traffic for certain applications in roaming in the EEA under conditions equivalent to those applicable when within the Portuguese territory, constitutes, as in the case of type 1 offers, an infringement of the rules of the Roaming Regulation (in particular the RLAH principle). In the case of Type 2, 3 and 4 offers, customers should be able to use the add-on allowances in roaming in the EEA, even if, where they fall under the definition of an open data bundle, they may be subject to possible application of a fair use policy which is also specific for roaming use in the EEA, instead of each specific application data limit included in the offer. In the case of offers which include zero-rated applications (type 3 or type 4 offers), traffic with "unlimited" use in the Portuguese territory falls under the concept of open data bundle, in which case a specific fair use policy for roaming applications in the EEA may be applied.
119. Such fair use policies which the IAS provider intends to implement, specifically for the use of roaming applications in the EEA, are always additional to any fair use policy applicable to general roaming data usage in the EEA which the IAS provider may have implemented, whereas the respective minimum limits are to be calculated in accordance with the rules outlined above (see Annex, calculation of minimum thresholds of applicable fair use policies).
120. The impossibility referred to in section 118 constitutes a breach of the Roaming Regulation as well as of the basic principle set out in Article 3 of Implementing Regulation 2016/2286 under which IAS providers are required to provide "regulated retail roaming services [(including the data service)] at domestic price" (Article 3 of Implementing Regulation (EU) 2016/2286).
121. It should also be noted that BEREC Roaming Guidelines 51 and 527, set out that the use, in EEA Roaming, of add-ons purchased by customers shall be subject to treatment equivalent to their domestic use and that any application of a fair use policy to the roaming data contained in these add-ons, as well as the value, shall be separate from the fair use policy applied to roaming data as may be applicable to the customer's bundle, but shall both be calculated in a similar manner and in accordance with Article 4(2) of Implementing Regulation (EU) 2016/2286.
III.2.3.3. Conclusions on offers
122. In light of the above, providers of internet access services which have offers with zero-rated applications and/or offers with add-on data limits (whether or not included in the price of the contracted tariff) for access to specific applications, are to amend their procedures, where applicable, in particular as regards the offers identified above, as well as any others not identified in this analysis but where the same type of practices are applied, in order to ensure compliance with the Roaming Regulation. To that purpose, providers shall in particular ensure that, while roaming in the EEA, their customers are able to use such zero-rated applications or applications with specific traffic allowances in a manner which is equivalent to domestic usage.
123. In the case of add-ons purchased by customers (whether or not included in the tariffs contracted) for use of certain specific applications and/or subscription by the customer of offers which include unlimited traffic for certain applications, it must be possible to use these zero-rated add-ons and/or applications under the same conditions when the customer is roaming in the EEA. In the event that these add-ons fall within the definition of open data bundles, and in the case of zero-rating offers, IAS providers may8, nevertheless, implement a fair use policy to apply when the customer uses those applications in roaming in the EEA. The minimum limit of this fair use policy shall be calculated in accordance with Article 3 of Implementing Regulation (EU) 2016/2286.
124. In the case of offers with different charging mechanisms depending on whether the customer, when in the Portuguese territory, uses the data service in general and/or certain specific applications (e.g. tariffs with a certain cap for the use of data in general and with one or more additional specific caps for access to certain applications), these different charging mechanisms (e.g., general data allowance and additional data allowance for the use of specific applications) are to be applied under similar conditions when the customer is roaming in the EEA. Where the tariff subscribed to by the client includes tariffs applicable to data in general and/or the use of certain specific applications that are considered open data bundles, the IAS providers may apply a fair use policy to the customer when roaming in the EEA, relating to each of those tariff components considered as an open data bundle, whereas the minimum limit of each of these fair use policies is to be calculated in accordance with the law. The specific fair use policies for applications used in roaming in the EEA which the IAS provider intends to implement are always additional to the fair use policies for general roaming data usage in the EEA which the IAS provider may have already implemented.
125. IAS providers are also required to adapt the conditions of offer and use governing their services, accordingly, as posted on their websites and points of sale.
1 In the Yorn tariffs, although a set of "apps without spending data" is disclosed, in notes a limit of 10 GB/month (Fair Use Policy) is indicated for the use of these apps. In this way, all the applications included in these tariffs have a specific limit, whereby they are type 2 offers.
2 In the" Moche Legend" tariffs, although a set of "apps without spending data" is disclosed, in notes a limit of 15 GB/month (Fair Use Policy) is indicated for the use of these apps. In this way, all the applications included in these tariffs have a specific limit, whereby they are type 2 offers.
3 Available, as of 01 January 2018, at https://www.vodafone.pt/main/particulares/tarifarios/plus/detalhes.html
4 Available at https://www.nos.pt/particulares/pacotes/todos-os-pacotes/Paginas/pacotes.aspx
5 According to the definition given in Article 2(c) of Implementing Regulation (EU) 2016/2286, "open data bundle", means "a tariff plan for the provision of one or more mobile retail services which does not limit the volume of mobile data retail services included against the payment of a fixed periodic fee, or for which the domestic unit price of mobile data retail services, derived by dividing the overall domestic retail price, excluding VAT, for mobile services corresponding to the entire billing period by the total volume of mobile data retail services available domestically, is lower than the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012" (Roaming Regulation).
6 Available at http://berec.europa.eu/eng/document_register/subject_matter/berec/regulatory_best_practices/guidelines/7005-berec-guidelines-on-regulation-eu-no-5312012-as-amended-by-regulation-eu-20152120-and-commission-implementing-regulation-eu-20162286-retail-roaming-guidelines
.. “When customers purchase an add-on to their bundle for additional mobile retail services beyond the allowances included in their bundle, such an add-on shall be subject to a separate but similar treatment as the bundle for the purposes of determining whether the roaming provider may apply limits to the consumption of data roaming services, consistent with Article 4 (2) CIR” (Guide Line no. 51);
.. “When an operator provides additional add-ons e.g. in terms of volume to the customer (e.g. specific promotion), the customer shall be able to consume this allowance under the same conditions as at home. "(Guideline no. 52).
7 .. “When customers purchase an add-on to their bundle for additional mobile retail services beyond the allowances included in their bundle, such an add-on shall be subject to a separate but similar treatment as the bundle for the purposes of determining whether the roaming provider may apply limits to the consumption of data roaming services, consistent with Article 4 (2) CIR” (Guide Line no. 51);
.. “When an operator provides additional add-ons e.g. in terms of volume to the customer (e.g. specific promotion), the customer shall be able to consume this allowance under the same conditions as at home.” (Guideline no. 52).
8 In accordance with Article 4 of Implementing Regulation (EU) 2016/2286.
