European Court of Justice interprets for the first time the regulation on “internet neutrality”
The Court of Justice in the judgment in Joined Cases C-807/18 and C-39/19 Telenor Magyarország Zrt. Nemzeti Média- és Hírközlési Hatóság Elnöke, interprets for the first time the regulation of the Union which guarantees the “neutrality of the internet”
The requirements for the protection of the rights of internet users and non-discriminatory traffic treatment are opposed to the privileged treatment, by an internet access provider, of certain applications and certain services, through offers under which such applications and services are subject to ” zero fee “, and for the use of other applications and services, measures of obstruction or deceleration are applied.
Hungary-based Telenor provides, among other things, internet access services. Among the services it offers to its customers are two preferential access packages (called “zero fee”), the peculiarity of which is that data traffic due to the use of certain services and applications is not included in the consumption of the volume of data purchased by customers.
In addition, once the aforementioned data volume is exhausted, customers can continue to use these specific applications and services without restriction, while data traffic is slowed down or impeded in relation to other available applications and services. The Hungarian media and communication body, after initiating two procedures to verify whether these two service packages were compatible with Regulation 2015/2120 laying down measures on open internet access [1], issued two decisions by which considered that those packages were incompatible with the general obligation to treat traffic on an equal and non – discriminatory basis imposed by Article 3 (3) of that Regulation and that Telenor should have ceased to have them.
Two appeals brought by Telenor, the Fővárosi Törvényszék (Capital District Court, Hungary) decided to refer the matter to the Court of Justice for clarification on the interpretation and application of paragraphs 1 and 2 of Article guarantee certain rights [2] to end-users of Internet access services and prohibit such service providers from concluding agreements or conducting commercial practices that restrict the exercise of those rights – as well as paragraph 3 of the same Article 3, which imposes a general obligation on equal and non-discriminatory traffic treatment.
In its judgment of 15 September 2020, the Grand Chamber of the Court interpreted for the first time Regulation No 2015/2120, which establishes the basic principle of the open internet (commonly known as ‘network neutrality’). As regards, first, the interpretation of Article 3 (2) of Regulation No 2015/2120 in conjunction with Article 3 (1) of that Regulation, the Court has held that the second of those provisions provides that the rights guarantees that end-users of Internet access services are exercised “through their Internet access service”, and that the first of these provisions requires that such service does not restrict the exercise of those rights.
Furthermore, it is clear from Article 3 (2) of that regulation that the services of an internet access provider must be assessed in the light of the abovementioned requirement by national regulatory authorities [3] and under the jurisdiction of the competent national courts, taking into account taking into account both the agreements concluded by the provider with the end users and the commercial practices applied by that provider.
In this context, the Court, having provided some general clarifications on the concepts of “agreements”, “commercial practices” and “end-users” [4] of Regulation 2015/2120, ruled that the conclusion of agreements the customer chooses a package of services that combines “zero fee” and measures to prevent or slow down traffic, depending on the use of applications and services other than the specific services and applications subject to this “zero fee”, may restrict the exercise end-users’ rights within the meaning of Article 3 (2) of that Regulation in a significant part of the market.
Indeed, such service packages are capable of increasing the use of privileged applications and services and, consequently, of reducing the use of other available applications and services, taking into account the measures taken by the internet service provider to make use of this is technically more difficult or even impossible.
In addition, the larger the number of customers who enter into such agreements, the cumulative impact of such agreements, due to their scale, can cause a significant restriction on the exercise of end-users’ rights, or even affect the substance itself. of these rights. Secondly, as regards the interpretation of Article 3 (3) of Regulation No 2015/2120, the Court has held that, in order to establish incompatibility with that provision, no assessment of the impact of the measures to impede or slow down the movement is required end-user rights. That provision does not provide for such a requirement in order to assess compliance with its general obligation to treat traffic on an equal and non – discriminatory basis.
In addition, the Court held that, since measures to impede or slow down traffic are not based on objectively different technical quality requirements for services for specific traffic categories, but on commercial grounds, those measures must in themselves be regarded as incompatible with the abovementioned layout. Consequently, service packages such as those examined by the referring court may, as a general rule, be contrary to both Article 3 (2) of Regulation No 2015/2120 and Article 3 (3) of the same Article, specifying that the competent national authorities and the competent national courts may consider them first in the light of the second of these provisions. (curia.europa.eu)