(fra kommisjonsforordningen)

(1) The retail price caps for intra-EU communications established in Article 5a(1) of Regulation (EU) 2015/2120, which entered into force in all Member States on 15 May 2019, were set at a level that allowed providers of publicly available number-based interpersonal communications services to recoup their costs, thus ensuring a proportionate intervention on both the mobile and fixed communications market. Those measures, which were set to expire on 14 May 2024 pursuant to Article 10 of Regulation (EU) 2015/2120 as amended by Regulation (EU) 2018/1971 of the European Parliament and of the Council, aimed at ensuring that consumers were not charged excessive prices for intra-EU communications. 

(2) Article 10(5) of Regulation (EU) 2015/2120 extends the application of the retail price caps for intra-EU communications until 30 June 2032. Pursuant to Article 5a(9) of the same Regulation, by 30 June 2027, the Commission should review Article 5a and may, if appropriate, decide to submit a legislative proposal with a view to amend it. 

(3) Pursuant to Article 5a(8) of Regulation (EU) 2015/2120, providers that voluntarily decide not to apply different retail prices to consumers for domestic and intra-EU communications are to be exempt from applying the maximum retail price caps set for intra-EU communications, subject to a fair use policy. In such case, they are to be exempt from regulated prices for intra-EU communications. A fair use policy is a safeguard that should allow providers to deviate from the converged prices and apply surcharges, if consumers’ usage of intra-EU communications exceeds the conditions that the provider has set to define typical usage of intra-EU communications in a given Member State. 

(4) First, the conditions defining typical usage should specify volumes of intra-EU communications that allow consumers to consume a number of units for intra-EU calls and SMS messages, charged at the applicable domestic retail prices, that are consistent with their respective tariff plans and that are sufficient to cover a broad range of usage patterns of consumers, including in particular consumers with a relatively high consumption of intra-EU communications per month that continue to rely on traditional communications such as telephone calls or SMS messages. Second, the conditions defining typical usage should specify their application period. This defined application period should be equal to one billing period at the minimum, but it could extend to several billing periods specified by the provider. Providers may fix volume consumption limits applicable to one or several period within the application period. Third, the same conditions defining typical usage should apply across all tariff plans of the provider in a Member State. 

(5) The fair use policy should, on the one hand, provide consumers with appropriate volumes of intra-EU calls and SMS messages and, on the other hand, allow for future adjustments based on market conditions and consumers’ behaviour. Typical usage of intra-EU calls and SMS messages may vary, inter alia, depending on the type of consumer, the provider, or the Member State. 

(6) Therefore, the typical usage conditions should allow providers sufficient margin of flexibility to set a fair use policy they consider suitable and that is compliant with this Implementing Regulation and at the same time, allow for future adjustments based on market conditions and consumers’ behaviour. 

(7) Intra-EU communications are different in nature from roaming and their intended usage is different. Contrary to intra-EU communications, regulated roaming is a crossborder service intended for periodic travelling and not for permanent use. Therefore, roaming is at risk of anomalous and abusive usage for purposes other than intended, while intra-EU communications are at risk of usage beyond typical usage. The notion of usage exceeding typical usage of intra-EU communications is hence different from the notion of “anomalous and abusive” usage of retail roaming services at domestic prices, as defined in Article 5 of Regulation (EU) 2022/612 of the European Parliament and of the Council that refers to the usage of regulated retail roaming services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel and for which a fair use policy can be applied. 

(8) The fair use policy should not affect the right of providers to take measures to tackle anti-fraud measures if the voluntary decision not to apply retail prices to consumers for intra-EU communications different than for domestic communications leads to fraudulent usage. Providers of electronic communications service to the public should be allowed to detect and prevent that third parties exploit the fair use policy for price arbitrage to gain an economic advantage (e.g. International Revenue Share Fraud, abusive use of SIM cards). Such measures should be proportionate and may include, inter alia, the monitoring of traffic patterns to detect anomalies that may indicate fraudulent or abusive use, or the temporary suspension of the service pending verification of the usage. 

(9) At the same time, consumers should be protected from measures that may affect in any manner their ability to use intra-EU communications. In this respect, all consumer rights deriving from Directive 2011/83/EU of the European Parliament and of the Council on consumer rights are applicable. In accordance with Article 102 of Directive (EU) 2018/1972 of the European Parliament and of the Council, contractual clauses providing for a fair use policy are to be clearly communicated to consumers before they become applicable. 

(10) In addition, before a consumer’s consumption of intra-EU communications exceeds the typical usage, providers should alert consumers of such usage in the manner detailed in advance in the consumers’ contracts. In any event, such measures should minimise administrative burden for consumers and limit the number of unnecessary alerts. 

(11) For the purposes of this Act, consumers should be understood as defined in Article 2 (15) of Directive (EU) 2018/1972 of the European Parliament and of the Council. 

(12) The Body of European Regulators for Electronic Communications was consulted as per Article 5a(8) of Regulation (EU) 2015/2120. 

(13) The measures provided for in this Regulation are in accordance with the opinion of the Communications Committee.