Proposal for a regulation
Article 1 – point 5 a (new)
Regulation (EU) No 531/2012
Article 17 – paragraph 2 a (new)
(5a) In Article 17 the following paragraph is added: ‘(2a) To prevent the risk of abuses on the wholesale market, taking the form of the appearance of commercial opportunities based on circumventing the law, an appeal mechanism shall be established. This mechanism shall open up an appeal channel direct to BEREC where an operator suspects the existence on its domestic market of unfair competition consisting in substance of an offer from a non-domestic operator based on permanent roaming. BEREC, with the support of the national regulatory authorities concerned, shall determine whether the non-domestic operator in question is carrying out substantial activities in the electronic communications sector, other than merely internal management or administrative activities, on its own home market. To that end, BEREC shall make an overall assessment over a significant period of all factual elements characterising the activities carried out by the non-domestic operator in the Member State in which it is established and, on a proportional and comparative basis, in the Member State visited. Such elements may include: (a) the place where the operator has its registered office and administration, or where the operator has offices, pays taxes and social security contributions; (b) the law applicable to contracts concluded by the operator with its staff, on the one hand, and with its customers. on the other; (c) the place where the operator performs its substantial business activity and where it employs administrative staff; (d) the investments made, the number of contracts performed and/or the proportion of the turnover realised in the Member State of establishment and in the visited Member State. During this evaluation, the operator which lodged the appeal may take safeguard measures, up to and including the immediate suspension of roaming, subject to the supervision of its national regulatory authority;’