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17 May 2015
The Presidency’s non-paper with a view to the preparation for the third informal
trilogue
on the Proposal for a Regulation of the European Parliament and of the Council
laying down measures concerning the European single market for electronic
communications and to achieve a Connected Continent, and amending Directives
2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009
and (EU) No 531/2012

With a view to the meeting of the Working Party on Telecommunications and
Information Society (WP TELE) of 19 May 2015, the Delegations will find enclosed
Presidency’s informal suggestions for a possible draft compromise on roaming and
open internet/net neutrality elements, based on the compromise proposal of the
European Parliament discussed in the WP TELE meeting of 12 May 2015.
The Presidency would like to examine article-by-article these informal suggestions, as
set out in the Annex I and Annex II, in the WP TELE meeting of 19 May 2015
(sequence of examination – Annex II (open internet/net neutrality), followed by
Annex I (roaming)), in order to determine whether and to what extent these informal
suggestions could be acceptable to the Delegations. The presented views would allow
the Presidency to prepare a new compromise text with a view to the third informal
trilogue.

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 ANNEX I
Article 6a
Abolition of retail roaming surcharges
With effect from 15 December 2016 2018, roaming providers shall not levy any
surcharge in comparison to the charges for mobile communications services at
domestic level on roaming customers in any Member States for any regulated roaming
call made or received, for any regulated roaming SMS/MMS message sent and for
any regulated data roaming services used, nor any general charge to enable the
terminal equipment or service to be used abroad.

Article 6b
Fair usage
1. By way of derogation from Article 6a, roaming providers may apply a "fair use
clause limit" to the consumption of regulated retail roaming services provided at the
applicable domestic price level by reference to fair use criteria.
The application of the fair use limit shall meet the following criteria:
(a) These criteria shall be applied in such a way that ensure that roaming providers'
end-users customers are in a position to confidently replicate their own typical
average domestic consumption pattern of the Union while periodically travelling
within the Union;
(b) ensure that roaming providers are able to recover costs of providing regulated
retail roaming services;
(c) The application of fair use criteria shall not result in ensure as a minimum the
provision of a smaller the volume of regulated retail roaming services provided at the
applicable domestic price level than within the transitional roaming allowance fair
use limit set out in Article 6d;
(d) taking into account (i) the evolution of pricing and consumption patterns in the
Member States; (ii) the degree of convergence of domestic price levels across the
Union; (iii) any observable effect of roaming at domestic retail prices on the
evolution of such rates; and (iv) the evolution of effective wholesale roaming rates
for unbalanced traffic between roaming providers.
2. In accordance with Article 20 of Directive 2002/22/EC, r Roaming providers shall
publish and include in their contracts covering regulated retail roaming services
detailed quantified information on how any fair use criteria are limit is applied, by
reference to the main pricing, volume or other parameters of the retail package in
question.
3. By 15 March 2016, BEREC shall, after consulting stakeholders and in close
cooperation with the Commission, lay down general guidelines for the application of
fair use criteria in retail contracts provided by roaming providers.
BEREC shall have regard in particular to the evolution of pricing and consumption
patterns in the Member States, to the degree of convergence of domestic price levels
across the Union, to any observable effect of roaming at domestic service rates on the
evolution of such rates, and to the evolution of effective wholesale roaming rates for
unbalanced traffic between roaming providers. In addition, BEREC's guidelines may
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 also have regard to relevant objective variations between Member States or between
roaming providers in respect of factors such as domestic price levels, typical volumes
included in retail packages or the average period during which customers travel within
the Union.
3 4. In order to ensure consistent and simultaneous implementation across the Union
of the application of the fair use criteria limit by roaming providers and subject to
the criteria referred to in the second subparagraph of paragraph 1, the Commission
shall, by means of implementing acts and based on after having consulted the
BEREC guidelines referred on paragraph 3, adopt, by 30 June 2016 15 March 2018,
detailed rules on the application of fair use criteria limit. Those implementing acts
shall be adopted in accordance with the examination procedure referred to in
Article 6c(2) and shall apply from 15 December 2018.
4 5. The competent national regulatory authority shall strictly monitor and supervise
the application of fair use limit criteria as defined by the Commission implementing
act referred on paragraph 4, taking utmost account of the BEREC general guidelines,
of relevant objective factors specific to its Member State and of relevant objective
variations between roaming providers, and shall ensure that unreasonable terms are
not applied.
5 6. The retail surcharges laid down in Article 6cd(2) (a) of this Regulation shall
apply for to regulated retail roaming services exceeding any fair use limit applied in
accordance with this Article.
Article 6c
Committee procedure
1. The Commission shall be assisted by the Communications Committee
established by Article 22 of the Framework Directive. That committee shall be a
committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No
182/2011 shall apply.

Article 6cd
Transitional retail roaming charges
1. From 15 December 2015 30 April 2016 until 14 December 2016 2018, roaming
providers shall include in may apply to all tariff plans containing regulated roaming
services a roaming allowance transitional fair use limit referred to in Article 6e. For
consumption not exceeding the transitional fair use limit, roaming providers shall not
levy any surcharge in comparison to the domestic retail price for mobile
communications services on roaming customers in any Member State for any
regulated roaming call made or received, for any regulated roaming SMS/MMS
message sent and for any regulated data roaming services used, nor any general
charge to enable the terminal equipment or service to be used abroad.
2. Where roaming providers apply a surcharge for the consumption of regulated
roaming services in excess of the transitional roaming allowance, it shall meet the
following requirements:
(a) any surcharge applied for regulated roaming calls made, regulated roaming SMS
messages sent and regulated data roaming services shall not exceed the maximum
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 wholesale charges provided for in Articles 7(2) [5 cents], 9(1) [2 cents] and 12(1) [5
cents], respectively.
(b) the sum of the domestic retail price and any surcharge applied for regulated
roaming calls made, regulated roaming SMS messages sent or regulated data roaming
services shall not exceed EUR 0,19 per minute, EUR 0,06 per SMS message and EUR
0,20 per megabyte used, respectively.
(c) any surcharge applied for regulated roaming calls received shall not exceed the
weighted average of maximum mobile termination rates across the Union set out in
accordance with paragraph 3.
Roaming providers may implement usage policies necessary to prevent anomalous or
abusive usage of calls received.
Roaming providers shall not apply any surcharge to a regulated roaming SMS
message received or to a roaming voicemail message received. This shall be without
prejudice to other applicable charges such as those for listening to such messages.
Roaming providers shall charge roaming calls made and received on a per second
basis. Roaming providers may apply an initial minimum charging period not
exceeding 30 seconds to calls made. Roaming providers shall charge its customers for
the provision of regulated data roaming services on a per-kilobyte basis, except for
Multimedia Messaging Service (MMS) messages which may be charged on a per-unit
basis.
This paragraph shall not preclude offers which provide roaming customers, for a per
diem or any other fixed periodic charge, a certain volume allowance consistent with
ordinary domestic usage and typical travel periods provided that the amount of the
consumption of the full amount of the volume included in the offer leads to a unit
price per regulated roaming calls made, calls received, SMS messages sent and data
roaming services which does not exceed the respective domestic retail price and the
maximum surcharge as set out in the first subparagraph.
3. By 15 31 December 2015, BEREC shall set out the weighted average of maximum
mobile termination rates referred to in point (b) of paragraph 2 on the basis of (i) the
maximum level of mobile termination rates imposed in the market for wholesale voice
call termination on individual mobile networks by the national regulatory authorities
in accordance with Articles 7 and 16 of the Framework Directive and Article 13 of
Directive 2002/19/EC, and (ii) total number of subscribers in Member States. At the
request from BEREC, national regulatory authorities shall communicate to BEREC
the information referred to in (ii). BEREC shall review the average of maximum
mobile termination rates set out in accordance with this Article every year from the
date of application of this Regulation.
Decisions taken by the Board of Regulators of BEREC for the purposes of this
paragraph may be subject of proceedings before the Court of Justice of the European
Union.
4. Roaming providers may offer and roaming customers may deliberately choose a
roaming tariff other than the one set out in paragraphs 1 and 2, by virtue of which
roaming customers benefit from a different tariff for regulated roaming service than
they would have been accorded in the absence of such a choice. The roaming provider
shall remind those roaming customers of the nature of the roaming advantages which
would thereby be lost.
Without prejudice to the previous subparagraph, roaming providers shall apply the
tariff set out in paragraphs 1 and 2 to all existing and new roaming customers
automatically.
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 When roaming customers deliberately choose to switch from or back to the tariff set
out in paragraphs 1 and 2, any switch shall be made within one working day of receipt
of the request and shall be free of charge. Roaming providers may delay a switch until
the previous roaming tariff has been effective for a minimum specified period not
exceeding two months.
Article 6de
Transitional roaming allowance fair use limit
1. The roaming allowance transitional fair use limit referred to in Article 6d(1) shall
include, for the period from 15 December 2015 until 14 December 2016, at least 100
40 minutes of regulated roaming voice calls made, 100 40 minutes of regulated
roaming voice calls received, 100 40 regulated roaming SMS messages sent and 200
80 megabytes of regulated data roaming services per calendar year.
2. Roaming providers may implement usage policies concerning active domestic use
of pre-paid subscriptions in order to prevent anomalous or abusive usage of the
transitional roaming allowance. The competent national regulatory authority shall
supervise the application of such usage policies, taking account of local commercial
practices, and shall ensure that no unreasonable terms are applied.
3. Roaming providers shall publish and include in their contracts detailed quantified
information on how the transitional roaming allowance is applied, by reference to its
main pricing or volume parameters.
In order to prevent abusive usage of the transitional fair use limit by roaming
customers, roaming providers may offer the transitional fair use limit as a daily,
weekly, monthly or any other periodic allowance, provided that the following
requirements are met:
a) the sum of these periodic allowances in a calendar year shall not be lower than
the minimum yearly consumption set out in the first subparagraph, and
b) the consumption limits set out by the roaming provider for a chosen period other
than a calendar year shall at least allow a roaming customer to fulfil his basic
communication needs.

Article 19
Wholesale review
1. Upon entry into force of this Regulation, the Commission shall initiate a review of
the wholesale roaming market with a view to assessing the measures necessary to
enable abolition of retail roaming surcharges by 15 December 2016 2018. The
Commission shall review, inter alia, the degree of competition in national wholesale
markets, and in particular assess the level of wholesale costs incurred and wholesale
charges applied, and the competitive situation of operators with limited geographic
scope, including the effects of commercial agreements on competition as well as the
ability of operators to take advantage of economies of scale. The Commission shall
also assess the competition developments in the retail roaming markets.
2. The Commission shall, by 15 June December 2016 2017 submit a report to the
European Parliament and the Council on the findings of the review referred to in
paragraph 1. That report shall be accompanied by an appropriate legislative proposal
to amend the maximum wholesale roaming charges set out in this Regulation or to
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 provide for another solution to address the issues identified at wholesale level with a
view to abolishing retail roaming surcharge by 15 December 2018.
4. In addition, the Commission shall submit a report to the European Parliament and
the Council every two years after the report referred to in paragraph 2. Each report
shall include, inter alia, an assessment of:
(a) the availability and quality of services including those which are an alternative to
voice, SMS and data roaming services, in particular in the light of technological
developments;
(b) the degree of competition in both the retail and wholesale markets, in particular
the competitive situation of smaller, independent or newly started operators, including
the competition effects of commercial agreements and the degree of interconnection
between operators;
(c) the extent to which the implementation of the structural measures provided for in
Articles 3 and 4 has produced results in developing competition in the internal market
for roaming services.
5. In order to assess the competitive developments in the Union-wide roaming
markets, BEREC shall regularly collect data from national regulatory authorities on
the development of retail and wholesale charges for regulated voice, SMS and data
roaming services. Those data shall be notified to the Commission at least twice a year.
The Commission shall make them public.
On the basis of collected data, BEREC shall also report regularly on the evolution of
pricing and consumption patterns in the Member States both for domestic and
roaming services and the evolution of actual wholesale roaming rates for unbalanced
traffic between roaming providers.
BEREC shall also annually collect information from national regulatory authorities on
transparency and comparability of different tariffs offered by operators to their
customers. The Commission shall make those data and findings public.

New text suggested by Commission to address issue of arbitrage at wholesale
level, which could be acceptable following further explanation
[Article 3(6): The reference offer referred to in paragraph 5 shall be sufficiently
detailed and shall include all components necessary for wholesale roaming access as
referred to in paragraph 3, providing a description of the offerings relevant for direct
wholesale roaming access and wholesale roaming resale access, and the associated
terms and conditions. The reference offer referred to in paragraph 5 may include
conditions to prevent permanent roaming or anomalous or abusive use of wholesale
roaming access for purposes other than provision of regulated roaming services to
roaming providers' end-users while the latter are periodically travelling within the
Union. If necessary, national regulatory authorities shall impose changes to reference
offers to give effect to obligations laid down in this Article.]

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 ANNEX II

Article 1 – Objective and scope
1. This Regulation establishes common rules on aiming at ensuring to ensure open
internet access offered by providers of electronic communications to the public,
safeguarding end-users' rights and ensuring non-discriminatory treatment of traffic.

Article 2 – Definitions
For the purposes of this Regulation, the definitions set out in Directive 2002/21/EC
shall apply.
The following definitions shall also apply:
(1) 'net neutrality' means the principle according to which all internet traffic is treated
equally, without discrimination, restriction or interference, independently of its
sender, recipient, type, content, device, service or application;
(2 1) “internet access service” means a publicly available electronic communications
service that provides access to the internet in accordance with the principle of net
neutrality, and thereby connectivity between virtually all end points of the internet,
irrespective of the network technology or terminal equipment used;
(2) “provider of electronic communications to the public” means an undertaking
providing public electronic communications networks or publicly available
electronic communications services.

Article 3 - Safeguarding of open internet access
1. End-users shall have the right to access and distribute information and content, use
and provide applications and services and to use terminal equipment of their choice
irrespective of the end-user’s or provider’s location or the location, origin or
destination of the service, information or content, via their internet access service.
This paragraph is without prejudice to Union law or national law, in compliance
with Union law, related to the lawfulness of the information, content, application or
services.
2. Providers of internet access services and end-users may agree on the commercial
conditions for internet access services related to price, data volumes or speed. Such
agreements, and any commercial practices conducted by providers of internet access
services, shall [be non-discriminatory and shall] not limit the exercise of the right of
end-users set out in paragraph 1.
3. Subject to this paragraph and in accordance with the principle of net neutrality,
providers of internet access services shall treat all traffic equally when providing
internet access services.
Providers of internet access services may implement reasonable traffic management
measures. In order to be deemed reasonable and compliant with the principle of equal
treatment, such measures shall be transparent, non-discriminatory, proportionate and
shall not constitute anti-competitive behaviour, account being taken of and shall be
based on objectively different technical quality of service requirements of specific
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 categories classes of traffic, whereas such a distinction can only be made on the basis
of the packet header. Such measures shall not be maintained longer than necessary.
Providers of internet access services shall not engage in traffic management measures
going beyond the reasonable measures set out in sub-paragraph 2, and in particular
shall not block, slow down, alter, degrade or discriminate between specific content,
applications or services, or specific categories or entire classes of traffic, except as
necessary, and only for as long as necessary, to:
a) comply with legal obligations, to which the internet access service provider is
subject, that are laid down in Union legislation or national legislation, in compliance
with Union law, or in measures giving effect to such Union or national legislation,
including orders by courts or public authorities vested with relevant powers;
b) preserve the integrity and security of the network, services provided via this
network, and the end-users' terminal equipment;
c) prevent impending network congestion and or mitigate the effects of temporary
and or exceptional network congestion, provided that equivalent types of traffic are
treated equally.
d) subject to a prior explicit consent of the end-users concerned,
(i) prevent the transmission of unsolicited communications within the
meaning of Article 13 of Directive 2002/58/EC or
(ii) implement parental control measures.
The end-user shall be given the possibility to withdraw this consent at any time.
Any T traffic management measures may only entail processing of personal data that
is necessary and proportionate to achieve the objectives of this paragraph 3 (a – d).
Such processing shall be carried out in accordance with Directive 95/46. Traffic
management measures shall also comply with Directive 2002/58.
4. End-users shall be provided with complete information in accordance with Article
20(2), Article 21(3) and Article 21a of Directive 2002/22/EC, including information
on any traffic management measures applied that might affect access to and
distribution of information, content, applications and services as specified in this
Article.
45. Providers of electronic communications to the public, including providers of
internet access services, and end users, including providers of content, applications
and services shall be free to offer individual agree on the provision of services which
are distinct from internet access services and which are optimised for specific content,
applications or services, or a combination thereof, in order to meet their requirements
for a specific level of quality.
Such services Providers of electronic communications to the public, including
providers of internet access services, and providers of content, applications and
services shall only be offered such services only if the network capacity made
available by providers of electronic communications services to the public, including
providers of internet access services, is sufficient to provide them in addition to
internet access services, they are not marketed or usable as substitute for internet
access services and are not to the material detriment of the availability or quality of
internet access services for other end-users.

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 Article 4 – Safeguards for quality of service and the availability of Supervision
and enforcement of open internet access services
1. National regulatory authorities shall closely monitor and ensure compliance with
Article 3, and shall promote the continued availability of non-discriminatory internet
access services at levels of quality that reflects advances in technology and are not
impaired by services referring to Article 3(5). For those purposes national regulatory
authorities may impose technical characteristics and minimum quality of service
requirements. National regulatory authorities shall publish reports on an annual basis
regarding their monitoring and findings, and provide those reports to the Commission
and BEREC.
2. Providers of electronic communication services to the public, including providers
of internet access services, shall make available, at the request of the national
regulatory authority, information relevant to their obligations under Article 3 and 4,
in particular information about how their network traffic and capacity are managed,
as well as justifications for any traffic management measures applied. Those
providers shall provide such information promptly on request and in accordance
with time limits and the level of detail required by the national regulatory authority.
Article 5 of the Framework Directive shall apply, mutatis mutandis, in respect of the
provision of information under this Article.
3. Providers of internet access services shall ensure that a contract which includes
an internet access service shall specify the following information:
(a) information on how traffic management measures applied by that provider
could impact on internet access service quality;
(b) a clear and comprehensible explanation as to how any volume limitation, speed
and other quality of service parameters may in practice have an impact on internet
access services, in particular the use of content, applications and services.
Providers of internet access services shall publish the information referred to in
first subparagraph.
4. Providers of internet access services shall put in place transparent, simple and
efficient procedures to address complaints of end-users relating to rights and
obligations under Article 3.
3 5. No later than nine months after this Regulation enters into force, in order to
contribute to the consistent application of this Regulation, BEREC shall, after
consulting stakeholders and in close cooperation with the Commission, lay down
guidelines for the implementation of the obligations of national competent authorities
under this Article, including with respect to the application of traffic management
measures set out in Article 3(4) and for monitoring of compliance.

Article 4a (new)- Supervision and enforcement
1. National regulatory authorities shall monitor and supervise compliance with this
Regulation within their territories.
2. National regulatory authorities shall make up-to-date information on the application
of this Regulation publicly available in a manner that enables interested parties to
have easy access to it.
3. National regulatory authorities shall have the power to require undertakings subject
to obligations under this Regulation to supply all information relevant to the
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 implementation and enforcement of this Regulation. Those undertakings shall provide
such information promptly on request and in accordance with time limits and the level
of detail required by the national regulatory authority.
4. National regulatory authorities may intervene on their own initiative in order to
ensure compliance with this Regulation.
5. National regulatory authorities shall put in place appropriate, clear, open and
efficient procedures aimed at addressing complaints alleging breaches of Article 3. To
this end, all users of internet access services shall be entitled to make use of such
complaint procedures in front of the relevant authority. National regulatory authorities
shall respond to complaints within a reasonable time.
6. Where a national regulatory authority finds that a breach of the obligations set out
in this Regulation has occurred, it must require the immediate cessation of such a
breach.

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