WRITTEN QUESTION E-0808/02

by Emilia Müller (PPE-DE) to the Commission

(25 March 2002)

Subject: Purchase of mobile phones in Italy

A German family bought a mobile phone for use with prepaid cards in Italy and registered it at their address in Germany. The phone worked perfectly at first, but when the family went to stay in Italy again, it was blocked by the network operator concerned. When they queried this with the network operator, they were told that foreigners cannot buy mobile phones in Italy.

Will the Commission therefore state:

1. Whether the Italian network operator is justified in denying all foreign citizens the right to buy mobile phones for use with prepaid cards?

2. If so, what grounds does it have for acting as it has, and how are its actions justified?

3. If not, what can be done to remedy this deplorable state of affairs?

4. What action it recommends the purchaser to take in this case?

Answer given by Mr Bolkestein on behalf of the Commission

(11 June 2002)

The Commission is aware of the existence of different regimes used by the operators with respect to mobile phones which can be used with a pre-paid card:

- Blocked phones. These phones, which have a SIMlock can only be used with a pre-paid card of the same telecoms operator within the same or in different Member States. For example, if somebody buys a blocked pre-paid mobile phone from a German operator and he wants to use it in Italy he will have to use his German pre-paid card. This means that the service will be provided by an Italian operator with whom the German operator has previously concluded a roaming agreement, and the user will be charged a roaming tariff which may be higher than that of an international call whether he calls Germany, Italy or other countries. The Commission conducted a sector inquiry into roaming which found that prices were generally high and unrelated to costs. The Commission is now engaged in a follow up action under the competition rules.

- Non-blocked phones. These can be used with pre-paid cards from different operators within the same or in different Member States. For example, if somebody buys a non-blocked pre-paid mobile phone from a German operator and he wants to use it in Italy, it is to his advantage to use a pre-paid card from an Italian operator. This means that the service will be entirely provided by an Italian operator and the user would be charged the price applicable to national calls if he calls another number in Italy, or the price applicable to international calls if he is calling abroad.

The issue of blocked and non-blocked mobile phones is not regulated at Community level. On the national level, for the moment, only Belgium has introduced legislation which prohibits operators from blocking mobile phones. In other Member States the decision to block is either left entirely to the operators or they are obliged to offer at least non-blocked phones. In other words, they have to offer at least mobile phones at their real price letting the consumers have the choice of what pre-paid card regime they want to have. In practice, most companies offer both. Consequently, the regime applicable to pre-paid mobile phones remains a question of commercial practice of the operators and a question of consumer choice. It is not a measure imposed by Member States' governments. Where private economic actors apply rules or pursue practices which might not be consistent with internal market principles, it is first and foremost for the national courts to enforce those principles.

Furthermore, this is a question which is not particular to the provision of services between Member States. The problems that may arise from the possibility of blocking mobile phones equally concern operators in the same Member State.

The Commission recalls that the European Directives on consumer protection and its implementing legislation in the Member States apply in any case, in particular, Council Directive 93/13/CEE of 5 April 1993, on unfair terms in consumer contracts(1), which sets out an obligation for Member States to ensure that contracts concluded with consumers do not contain unfair terms and Parliament and Council Directive 98/10/EC of 26 February 1998 on the application of open network provision to voice telephony and on universal service for telecommunications in a competitive environment(2), which establishes that mobile public telephone service providers are required to publish adequate and up-to-date information for consumers on the terms and conditions applying to their services (Article 11.1). The same principles are included in the new regulatory framework adopted on 7 March 2002 (Article 21.1 of Directive 2002/22/EC of the Parliament and of the Council of 7 March 2002, on universal service and users rights, relating to electronic communications networks and services(3)).

(1) OJ L 95, 21.4.1993.

(2) OJ L 101, 1.4.1998.

(3) OJ L 108, 24.4.2002.