Request for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 22 November 2019 — Vodafone GmbH v Federal Republic of Germany

(Case C-854/19)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Vodafone GmbH

Defendant: Federal Republic of Germany

Questions referred

(a)    In a case where a mobile communications tariff which customers can use abroad and which provides a monthly inclusive data volume for mobile data traffic, after the consumption of which the transmission speed is reduced, can be extended by a free tariff option on the basis of which certain services of partner companies of the telecommunications company can be used domestically without the data volume consumed through the use of those services being offset against the monthly inclusive data volume of the mobile communications tariff, whereas abroad the data volume in question is offset against the monthly inclusive data volume of the mobile communications tariff, is the concept of the regulated data roaming service within the meaning of Article 6a in conjunction with Article 2(2)(m) of Regulation No 531/2012 1 to be understood as meaning that the mobile communications tariff and the tariff option are to be jointly qualified as a single regulated data roaming service with the result that a non-offsetting of the data volume consumed through the use of the services of partner companies against the monthly inclusive data volume is impermissible only domestically?

(b)    If Question 1 (a) is to be answered in the affirmative: In a situation such as that in question in the present proceedings, is Article 6a of Regulation No 531/2012 to be interpreted as meaning that the offsetting of the data volume consumed through the use of the services of partner companies against the monthly inclusive data volume of the mobile communications tariff abroad is to be qualified as the charging of an additional fee?

(c)    If Question 1 (a) and Question 1 (b) are to be answered in the affirmative: Does this also apply if, in a situation such as that in question in the present proceedings, a fee is demanded for the tariff option?

(a)    If Question 1 (a) is to be answered in the affirmative: In a situation such as that in question in the present proceedings, is the first subparagraph of Article 6b(1) of Regulation No 531/2012 to be interpreted as meaning that a fair use policy for the use of regulated roaming services at retail level can also be provided for the tariff option as such?

(b)    If Question 1 (a) is to be answered in the affirmative and Question 2 (a) is to be answered in the negative: In a situation such as that in question in the present proceedings, is the first subparagraph of Article 6b(1) of Regulation No 531/2012 to be understood as meaning that a common fair use policy for the use of regulated roaming services at retail level can be provided both for the mobile communications tariff and the tariff option with the result that the overall domestic retail price of the mobile communications tariff and/or the sum of the overall domestic retail prices of the mobile communications tariff and the tariff option is to form the basis of the calculation of the data volume to be provided within the scope of a common fair use policy?

(c)    If Question 1 (a) is to be answered in the affirmative and Question 2 (a) and Question 2 b) are to be answered in the negative: In a situation such as that in question in the present proceedings, is the first subparagraph of Article 6b(1) of Regulation No 531/2012 in conjunction with the first subparagraph of Article 4(2) of Implementing Regulation No 2016/2286 2 applicable by analogy in such a way that a fair use policy can be provided for the tariff option as such?

3.    (a)    If Question 2 (a) or (c) is to be answered in the affirmative: Is the concept of the open data bundle for the purpose of the first subparagraph of Article 6b(1) of Regulation No 531/2012 in conjunction with the first subparagraph of Article 4(2) and Article 2(2)(c) of Implementing Regulation No 2016/2286 to be interpreted as meaning that a tariff option for which a fee is demanded is to be qualified in itself as an open data bundle?

(b)    If Question 3 (a) is to be answered in the affirmative: In a situation such as that in question in the present proceedings, does this also apply if no fee is demanded for the tariff option?

4.    If Question 2 (a) or (c) is to be answered in the affirmative and Question 3 (a) or (b) is to be answered in the negative: In a situation such as that in question in the present proceedings, is the first subparagraph of Article 6b(1) of Regulation No 531/2012 in conjunction with the first subparagraph of Article 4(2) of Implementing Regulation No 2016/2286 to be interpreted as meaning that the overall domestic retail price of the mobile communications tariff is also to be used for calculating the volume which must be provided to roaming customers within the scope of a fair use policy based in isolation on the tariff option as such?

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1 Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ 2012 L 172, p. 10).

2 Commission Implementing Regulation (EU) 2016/2286 of 15 December 2016 laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment (OJ 2016 L 344, p. 46).