Article 92a
1. Providers of publicly available number based interpersonal communication services shall not apply tariffs to intra-Union fixed and mobile communications services terminating in another Member State which are higher than tariffs for services terminating in the same Member State, unless it is justified by the difference in direct costs, including origination, transmission, and termination rates.
Where providers apply higher tariffs to intra-Union communication services, justified by the difference in direct costs pursuant to the first subparagraph, they shall clearly disclose the additional charges in the end-user’s bill for the relevant billing period.
2. By ... (six months after the entry into force of this Directive), BEREC after consulting stakeholders and in close cooperation with the Commission shall adopt guidelines on the recovery of such objectively justified different costs pursuant to paragraph 1. Such guidelines shall ensure that any differences are strictly based on existent direct costs that providers incur by providing the cross-border services;
3. By ... (one year after the entry into force of this Directive and annually thereafter), the European Commission shall provide a report on the application of the obligations of paragraph 1, including an assessment of the evolution of intra-Union communication tariffs.
Recitals:
229a.Users of intra-EU communications services face prices that are often considerably higher than domestic tariffs without any justifiable reason for such difference. While higher volume users might identify and avail of alternative offers from their number-based interpersonal communications service provider, lower volume users are often subject to excessive and discriminatory charges for intra-EU communications services. End-users are rarely aware of the actual price of such services and, due to a common cross-border element, some appear to assume that the same prices apply to intra-EU communications services as to roaming like-at-home while travelling.
229bAgainst this background and in order to avoid "bill shocks", any additional charge for intra-EU communications services compared to tariffs for domestic communication services should be limited to the additional direct costs that a provider bears for the intra-EU communication service. Providers, if they so choose, should be able to recover these additional direct costs from end-users by way of a surcharge to the tariff applied to an equivalent domestic communication. Therefore the maximum tariff for an intra-EU communication would be equal to the domestic tariff plus the difference in direct costs between a domestic and intra-EU communication.[1]
229cThis directive does not fix a single maximum Union price for an intra-EU communication. As domestic tariffs, due to market conditions, differ between Member States, the tariff for an intra-EU communication will correspondingly differ. Providers, subject to the conditions set down in this directive, remain able to freely set their domestic tariff rates and domestic tariff packages, including so-called [“calling minute bundles”]. Equally as domestic tariff rates and packages are not fixed at direct costs, providers would continue to be able to receive a reasonable rate of return on their investments, which would be the same for both domestic and intra-EU communications services.
229dDirect costs should mean the costs related to the origination, transmission and termination of a publicly available number-based interpersonal communication, excluding all other costs. BEREC should adopt guidelines on the recovery of such objectively justified different costs for intra-EU communications services and should further, in close cooperation with the Commission, define which direct costs may be justified.
[1] Maximum Intra-EU Tariff = Domestic Tariff + ((Intra-EU Direct costs - Domestic Direct costs) if greater than zero)