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Exceptional application of retail surcharges for the consumption of regulated retail roaming services and provision of alternative tariffs

1. Without prejudice to the third subparagraph, where a roaming provider applies a surcharge for the consumption of regulated retail roaming services in excess of any limits under any fair use policy, it shall meet the following requirements, excluding VAT:

(a) any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent and regulated data roaming services shall not exceed the maximum wholesale charges provided for in Articles 9(2), 10(1) and 11(1), respectively;

(b) any surcharge applied for regulated roaming calls received shall not exceed the single maximum Union-wide mobile voice termination rates set for that year in accordance with Article 75(1) of Directive (EU) 2018/1972. With regard to point (b) of the first subparagraph of this paragraph, where the Commission decides, following its review of the delegated act adopted pursuant to Article 75(1) of Directive (EU) 2018/1972, that setting a Union-wide voice termination rate is no longer necessary and decides not to impose a maximum mobile voice termination rate, any surcharge applied for regulated roaming calls received shall not exceed the rate set by the most recent delegated act adopted pursuant to Article 75 of that Directive. 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 their customers for the provision of regulated data roaming services on a per-kilobyte basis, except for MMS messages, which may be charged on a per-unit basis. In such a case, the retail charge which a roaming provider may levy on its roaming customer for the transmission or receipt of a roaming MMS message shall not exceed the maximum retail charge for regulated data roaming services set out in the first subparagraph.

2. Roaming providers may offer, and roaming customers may deliberately choose, a roaming tariff other than one set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article, by virtue of which roaming customers benefit from a different tariff for regulated roaming services 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 first subparagraph, roaming providers shall apply a tariff set in accordance with Articles 4 and 5, and paragraph 1 of this Article to all existing and new roaming customers automatically. Any roaming customer may, at any time, request to switch to or from a tariff set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article. When roaming customers deliberately choose to switch from or back to a tariff set in accordance with Articles 4, 5, 6 and paragraph 1 of this Article, any switch shall be made within one working day of receipt of the request, shall be free of charge and shall not entail conditions or restrictions pertaining to elements of the subscriptions other than roaming. Roaming providers may delay a switch until the previous roaming tariff has been effective for a minimum specified period not exceeding two months.

3. Without prejudice to Part III, Title III of Directive (EU) 2018/1972, roaming providers shall ensure that a retail contract which includes any type of regulated retail roaming service specifies the characteristics of that regulated retail roaming service provided, including in particular:

(a) the specific tariff plan or tariff plans and, for each tariff plan, the types of services offered, including the volumes of communications;

(b) any restrictions imposed on the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in particular quantified information on how any fair use policy is applied by reference to the main pricing, volume or other parameters of the provided regulated retail roaming service concerned;

(c) clear and comprehensible information on the conditions and the quality of the roaming service when roaming within the Union in accordance with the BEREC guidelines referred to in paragraph 6.

4. Roaming providers shall ensure that a retail contract which includes any type of regulated retail roaming services provides information about the types of services that may be subject to increased charges when roaming, without prejudice to Article 97 of Directive (EU) 2018/1972.

5. Roaming providers shall publish the information referred to in paragraphs 3 and 4. In addition, roaming providers shall publish information about reasons why the roaming service is potentially offered under conditions that are less advantageous than those offered domestically. That information shall include factors that can have an impact on the quality of the roaming service to which the roaming customer subscribes, such as network generations and technologies available to the roaming customer in a visited Member State.

6. For the purpose of ensuring the consistent application of this Article, by 1 January 2023, after consulting stakeholders and in close cooperation with the Commission, BEREC shall update its retail roaming guidelines, in particular in regard to the implementation of this Article and the transparency measures referred to in Articles 13, 14 and 15.