BETA

23 Amendments of Malcolm HARBOUR related to 2013/0309(COD)

Malcolm HARBOUR

Proposal for a regulation
Recital 40

(40) Disparities in the national implementation of sector-specific end- user protection rules create significant barriers to the single digital market, in particular in the form of increased compliance costs for providers of electronic communications to the public wishing to offer services across Member States. Moreover, fragmentation and uncertainty as to the level of protection granted in different Member States undermines end-users' trust and dissuades them from purchasing electronic communications services abroad. In order to achieve the Union's objective to remove barriers to the internal market it is necessary to replace existing, divergent national legal measures with a single and fully harmonised set of sector-specific rules which create a high common level of end- user protection. Such full harmonisation of the legal provisions should not prevent providers of electronic communications to the public from offering end-users contractual arrangements which go beyond that level of protection.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 41

(41) ~~As t~~This Regulation ~~harmonises only certain sector-specific rules, it~~ should be without prejudice to the general consumer protection rules, as established by Union acts and national legislation implementing them, in particular Directive 2011/83/EU of the European Parliament and of the Council24a. __________________ 24a Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 42

(42) Where the provisions in Chapters 4 and 5 of this Regulation refer to end- users, such provisions should apply not only to consumers but also to other categories of end-users, primarily micro enterprises. At their individual request, end-users other than consumers should be able to agree, by individual contract, to deviate from certain provisions.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 43

(43) The completion of the single market for electronic communications also requires the removal of barriers for end- users to have access to electronic communications services across the Union. Public authorities should therefore not raise or maintain obstacles to the cross-border purchase of such services. Providers of electronic communications to the public should not deny or restrict access or discriminate against end-users on the basis of their nationality or Member State of residence. Differentiation should, however, be possible on the basis of objectively justifiable differences in costs, risks and market conditions such as demand variations and pricing by competitors.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 44

(44) Very significant price differences continue to prevail, both for fixed and mobile communications, between domestic voice and SMS communications and those terminating in another Member State. While there are substantial variations between countries, operators and tariff packages, and between mobile and fixed services, this continues to affect more vulnerable customer groups and to pose barriers to seamless communication within the Union. This occurs in spite of a very significant reduction, and convergence in absolute terms, of termination rates in the different Member States, and low prices on transit markets. Moreover, the transition to an ‘all-IP’ electronic communications environment should in due course bring additional cost reductions. Any significant retail tariff differences between domestic fixed long- distance communications which are communications other than those within one local area identified by a geographic area code in the national numbering plan, and fixed communications terminating in another Member State, should therefore be justified by reference to objective criteria. Retail tariffs for international mobile communications should not exceed the euro-voice and euro-SMS tariffs for regulated roaming calls and SMS messages, respectively, provided for in Regulation (EU) No 531/2012 unless justified by reference to objective criteria. Such criteria may include additional costs and a reasonable related margin. Other objective factors may include differences in related price elasticity and the easy availability to all end users of alternative tariffs from providers of electronic communications to the public which offer cross-border communications within the Union at little or no extra charge, or of information society services with comparable functionalities, provided that end users are actively informed of such alternatives by their providers.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 51

(51) National regulatory authorities play an essential role in ensuring that end-users are effectively able to exercise this freedom to avail of open internet access. To this end national regulatory authorities should have monitoring and reporting obligations, and ensure compliance of providers of electronic communications to the public and the availability of non-discriminatory internet access services of high quality which are not impaired by specialised services. In their assessment of a possible general impairment of internet access services, national regulatory authorities should take account of quality parameters such as timing and reliability parameters (latency, jitter, packet loss), levels and effects of congestion in the network, actual versus advertised speeds, performance of internet access services compared with specialised services, and quality as perceived by end-users, taking utmost account of any guidelines issued by BEREC on the methods for measuring the speed of internet access services, the quality of service parameters to be measured and on the application of reasonable traffic management measures. National regulatory authorities should be empowered to impose minimum quality of service requirements on all or individual providers of electronic communications to the public if this is necessary to prevent general impairment/degradation of the quality of service of internet access services.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 53

(53) End-users should be adequately informed of the price and the type of service offered before they purchase a service. This information should also be provided immediately prior to connection of the call when a call to a specific number or service is subject to particular pricing conditions, such as calls to premium rate services which are often subject to a special rate. Where such an obligation is disproportionate in view of the duration and cost of the tariff information for the service provider compared to the average call duration and the cost risk to which the end-user is exposed, national regulatory authorities may grant a derogation. End-users should also be informed if a free-phone number is subject to additional charges.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 58

(58) In order to avoid bill shocks, end- users in tariffs billed by the time of usage or per unit used should be able to ~~define~~set maximum financial limits for the charges related to their usage of calls and internet access services. This facility should ~~be available free of charge, with~~include an appropriate notification that can be consulted again subsequently, when the limit is being approached. Upon reaching the maximum limit, end-users should no longer receive or be charged for those services unless they specifically request the continued provision as agreed with the provider.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 59

(59) Experience from Member States and from a recent study commissioned by the Executive Agency for Consumers and Health has shown that long contract periods and automatic or tacit extensions of contracts constitute significant obstacles to changing a provider. It is thus desirable that end-users should be able to terminate, without incurring any costs, a contract six months after its conclusion. In such a case, end-users may be requested to compensate their providers for the residual value of subsidised terminal equipment or for the pro rata temporis value of any other promotions. Contracts which have been tacitly extended should be subject to termination with a one-month notice period.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 61

(61) Bundles comprising electronic communications and other services such as linear broadcasting have become increasingly widespread and are an important element of competition. Where divergent contractual rules on contract termination and switching apply to the different services composing such bundles, end-users are effectively prevented from switching to competitive offers for the entire bundle or parts of it. The provisions of this Regulation regarding contract termination and switching should, therefore~~, apply to all elements of such a bundle~~ at least apply jointly to those elements of a bundle comprising the connection to an electronic communications network and electronic communications services, and should furthermore apply independently from any contract termination and switching rules applicable to linear broadcasting services.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 63

(63) In order to ~~support the provision of one-stop-shops and to~~ facilitate a seamless switching experience for end-users, ~~the switching process should be led by the receiving provider of electronic communications to the public. T~~BEREC should be mandated to lay down guidelines setting out the respective responsibilities of the receiving and transferring provider in the switching and porting process, ensuring inter alia that the transferring provider of electronic communications to the public ~~should~~does not delay or hamper the switching process~~. Automated processes should be used as widely~~, that the process is automated as much as possible and that a high level of protection of personal data ~~should be ensured~~is ensured. The guidelines should also address the question of how to ensure continuity in the experience of end-users, including through identifiers such as email addresses through, for instance, the opportunity to opt for an email forwarding facility. Availability of transparent, accurate and timely information on switching should increase the end-users' confidence in switching and make them more willing to engage actively in the competitive process.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 64

(64) Contracts with transferring providers of electronic communications to the public should be cancelled automatically after switching without any additional steps being required from end-users. In the case of pre-paid services any credit balance which has not been spent should be refunded to the switching consumer.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Recital 65

(65) End-users need to experience continuity when changing important identifiers such as email addresses. To this end, and to ensure that email communications are not lost, end-users should be given the opportunity to opt, free of charge, for an email forwarding facility offered by the transferring internet access service provider in cases where the end-user has an email address provided by the transferring provider.deleted

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 23 – paragraph 1 – subparagraph 1 a (new)

Internet access service providers shall not restrict or prevent the use by end-users of any terminal equipment to access and distribute information and content via their internet access service. This is without prejudice to the rights of Member States to grant individual rights of use under Article 5 of Directive 2002/20/EC.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 23 – paragraph 2 – subparagraph 2 a (new)

For national authorities to be able to assess such potential detriment, providers of electronic communication services or providers of content, applications and services shall transmit to the national authorities, upon request, precise information regarding the capacities assigned to the two types of services.

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 b (new)

Directive 2002/22/EC
Article 20 – paragraph –1 a (new)

(1b) In Article 20, the following paragraph is inserted: “-1a. Member States shall ensure that the information referred to in paragraphs 1 and 1a is provided in a clear, comprehensive and easily accessible manner and without prejudice to the requirements of the Consumer Rights Directive* regarding off-premises/ distance contracts. The consumer and other end-user so requesting shall have access to a copy of the contract as a minimum in electronic form and, where requested, in writing. Member States may maintain or introduce in their national law language requirements regarding the contractual information, so as to ensure that such information is easily understood by the consumer or other end-user so requesting. _________________ * Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).”

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 c (new)

Directive 2002/22/EC
Article 20 – paragraph 1

(1c) Article 20(1) is replaced by the following: "1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify ~~in a clear, comprehensive and easily accessible~~ at least the following inform at ~~least:~~ion. (a) the identity ~~and~~, address of the undertaking; (b) the services provided, including in particular, — whether or not access to emergency services and caller location information is being provided, and any limitations on the provision of emergency services under Article 26, — information on any other conditions limiting access to and/or use of services and applications, where such conditions are permitted under national law in accordance with Community law, — the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities, — information on any procedures put in place by the undertaking to measure and shape traffic so as to avoid filling or overfilling a network link, and information on how those procedures could impact on service quality, — the types ofand contact information of the undertaking and, if different, the address and contact information for any complaints; (b) the main characteristics of the services provided, including in particular, — the specific tariff plan or tariff plans to which the contract applies and, for each such tariff plan, the types of services offered, including the volumes of communications; — whether and in which Member State access to emergency services and caller location information is being provided, and any limitations on the provision of emergency services under Article 26, — the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities, — the types of after-sales services, maintenance service ~~offered~~ and customer support services provided, ~~as well as~~the conditions and charges for these services, and the means of contacting these services, — any restrictions imposed by the provider on the use of terminal equipment supplied, including information on unlocking the terminal equipment and any charges involved if the contract is terminated; (c) where an obligation exists under Article 25, the subscriber's options as to whether or not to include his or her personal data in a directory, and the data concerned; (d) details of prices and tariffs including taxes and additional charges that may possibly be levied, the means by which up- to-date information on all applicable tariffs and maintenance charges may be obtained,; (da) payment methods offered and any differences in costs due to payment method, and available facilities to safeguard bill transparency and monitor the level of consumption; (e) the duration of the contract and the conditions for renewal and termination of services and of the contract, including: — any minimum usage or duration required to benefit from promotional terms, — any charges related to switching and portability of numbers and other identifiers, including compensation arrangements for delay or abuse of switching; — any charges due on termination of the contract, including any cost recovery with respect to terminal equipment, (f) any compensation and the refund arrangements which apply if contracted service quality levels are not met; (g) the means of initiating procedures for the settlement of disputes in accordance with Article 34 (on the basis of customary depreciation methods) and other promotional advantages (on a pro rata temporis basis), (f) any compensation and the refund arrangements, including, where applicable, an explicit reference to statutory rights of the consumer which apply if contracted service quality levels are not met; (g) the means of initiating procedures for the settlement of disputes, including cross- border disputes, in accordance with Article 34; (ga) details on how disabled end-users can obtain information on products and services designed for them; (h) the type of action that might be taken by the undertaking in reaction to security or integrity incidents or threats and vulnerabilities. Member States may also require that the contract include any information which may be provided by the relevant public authorities for this purpose on the use of electronic communications networks and services to engage in unlawful activities or to disseminate harmful content, and on the means of protection against risks to personal security, privacy and personal data, referred to in Article 21(4) and relevant to the service provided." ~~lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002L0022:20091219:EN:PDF)~~Or. en (http://eur-

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 d (new)

Directive 2002/22/EC
Article 20 – paragraph 1 a (new)

(1d) In Article 20, the following paragraph is inserted: “1a. In addition to the information referred to in paragraph 1, if the contract includes the provision of internet access and data services, that contract shall also include the following information: (a) details of unit data pricing plans, pricing plans for bulk data and any applicable thresholds related to the specific tariff plan or tariff plans to which the contract applies. For data volumes above thresholds, unit or bulk pricing on an ad hoc or lasting basis and any data speed limitations that may be applied to the specific tariff plan or tariff plans to which the contract applies; (b) how end-users can monitor the current level of their consumption, and set any voluntary limits; (c) for fixed data links, the estimated available download and upload data speeds at the location of the end-user; (d) for mobile data, the average estimated download and upload speeds that might be experienced from normal wireless network coverage, and the speed ranges that might be experienced; (e) other quality of service parameters, as defined in Article 24 (2) of Regulation (XXX)*; (f) information on any procedures put in place by the provider to measure and shape traffic including an indication of the underlying communication inspection methods used for reasonable traffic management measures and information on how those procedures could impact on service quality, end-users' privacy and the protection of personal data; and (g) a clear and comprehensible explanation as to how any volume limitation, the actually available speed ranges and other quality of service parameters, and the simultaneous use of specialised services, may in practice have an impact on the use of content, applications and services. __________________ * Regulation (EU) No XXX/20XX of the European Parliament and of the Commission of ...... 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 (OJ L XXX, XX.XX.20XX, p. X).”

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 g (new)

Directive 2002/22/EC
Article 20 a (new)

(1g) The following Article is inserted: "Article 20a Contract duration and termination 1. Member States shall ensure that the maximum duration of contracts concluded between consumers and providers of electronic communications to the public is 24 months. Providers of electronic communications to the public shall offer consumers the possibility of 12 month contracts. 2. The consumer shall have the right to withdraw from a distance or off premises contract within 14 days after its conclusion in accordance with Directive 2011/83/EU. 3. Where a contract or national law provides for contract periods with a fixed term (as opposed to a minimum term) to be automatically rolled over, the provider of electronic communications to the public shall inform the consumers, in due time so that the consumer has at least one month to oppose such automatic roll-over. If the consumer does not oppose such automatic roll-over, the contract shall be deemed to be a permanent rolling contract which can be terminated by the consumer, at any time with a one-month notice period and without incurring any costs save for those of providing service during the notice period. 4. Member States shall ensure that consumers have the right to terminate their contract without incurring any costs upon receiving notice of changes in the contractual conditions proposed by the provider of electronic communications to the public which are to their material detriment. Providers shall give consumers adequate notice, not less than one month, of any such change, and shall inform them at the same time of their right to terminate their contract without incurring any costs if they do not accept the new conditions. Paragraph 2 shall apply mutatis mutandis. 5. Any significant, regularly recurring, discrepancy between the actual performance regarding speed or other quality parameters and the performance indicated by the provider of electronic communications to the public in accordance with Article 20 shall be deemed to constitute non-conformity of performance for the purpose of determining the remedies of the consumer in accordance with national law. 6. Member States shall ensure that a subscription to additional services provided by the same provider of electronic communications to the public shall not re-start the initial contract period unless the price of the additional service(s) significantly exceeds that of the initial services or the additional services are offered at a special promotional price linked to the renewal of the existing contract. 7. Member States shall ensure that providers of electronic communications to the public apply conditions and procedures for contract termination which do not raise obstacles to or disincentives against changing service providers.' 8. If a bundle of services offered to consumers comprises at least a connection to an electronic communications network or an electronic communications service, the above provisions shall apply, where relevant jointly, to those elements of the bundle, and shall furthermore apply distinctly from any switching and contract termination rules concerning the bundled linear broadcasting service.”

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 j (new)

Directive 2002/22/EC
Article 21 – paragraph 2 a (new)

(1j) In Article 21, the following paragraph is inserted: “2a. Member States shall ensure that national regulatory authorities, under guidance from BEREC, establish a voluntary certification scheme for interactive comparison websites, guides or similar tools, based on objective, transparent and proportionate requirements, including in particular independence from any provider of electronic communications to the public.”

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 1 l (new)

Directive 2002/22/EC
Article 21 a (new)

(1l) The following Article is inserted: “Article 21a Control of consumption 1. Member States shall ensure that where National Regulatory Authorities consider it appropriate, providers of electronic communications offer consumers and end-users the facility to monitor and control their usage of post-paid electronic communications services billed based on time or volume consumption. These facilities must include: (a) access to timely information on their service consumption; (b) the ability to set a financial cap on their usage, to request notification when an agreed proportion of their cap has been reached, the procedure to be followed to continue usage if the cap is exceeded, and the applicable pricing plans; (c) itemised bills on a durable medium. 2. BEREC shall lay down guidelines for the implementation of paragraph 1, indicating whether any cost-related charges are justified or not and providing guidance in which market segments these measures on control of consumption are proportionate to the objectives pursued.”

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 2 f (new)

Directive 2002/22/EC
Article 30 – paragraph 4

(2f) Article 30(4) is replaced by the following: "4. Porting of numbers and their subsequent activation shall be carried out within the shortest possible time. ~~In any case, subscrib~~For end- users who have concluded an agreement to port a number to a new ~~undertaking shall have~~provider that number shall be activated within one working day from the conclusion of such agreement. Without prejudice to the first subparagraph, competent national authorities may establish the global process of switching and porting of numbers, taking into account national provisions on contracts, technical feasibility and the need to maintain continuity of service to the subscriber. In any event, loss of service during the process of porting shall not exceed one working day. Competent national authorities shall also take into account, where necessary, measures ensuring that subscribers are protected throughout the switching process and are not in accordance with the BEREC guidelines. They shall take into account necessary end-user protection throughout the switching process, the need to ensure the efficiency of such a process for the end user, and the need to ensure that switching processes are not harmful to competition. In any event, loss of service during the process of porting shall not exceed one working day. End-users shall not be switched to another provider against their will. Member States shall ensure that appropriate sanctions on undertakings are provided for, including an obligation to compensate subscribers in case of delay in porting or abuse of porting by them or on their behalf." ~~lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002L0022:20091219:EN:PDF)~~Or. en (http://eur-

2013/12/06
Committee: IMCO

Malcolm HARBOUR

Proposal for a regulation
Article 36 – paragraph 1 – point 2 i (new)

Directive 2002/22/EC
Article 30 – paragraph 5 a (new)

(2i) In Article 30, the following paragraph is added: “5a. If a bundle of services offered to consumers comprises at least a connection to an electronic communications network or an electronic communications service, this Article shall apply, where relevant jointly, to those elements of the bundle, and shall furthermore apply distinctly from any relevant corresponding rules concerning the bundled linear broadcasting service.”

2013/12/06
Committee: IMCO