THE COURT INTERPRETS, FOR THE FIRST TIME, THE EU REGULATION ENSHRINING ‘INTERNET NEUTRALITY’

18.09.2020

In the present case, the company established in Hungary provides internet access services offered to its customers include two packages with preferential access (known as “Zero Tariff”) and the specific feature of those packages is that the data traffic generated by certain specific applications and services does not count towards the consumption of the data volume purchased by customers. In addition, once that volume of data has been used up, those customers may continue to use those specific applications and services without restriction, while measures blocking or slowing down data traffic are applied to the other available applications and services.

The Hungarian National Media and Communications Office found that those packages did not comply with the general obligation of equal and non-discriminatory treatment of traffic laid down in Article 3(3) of that regulation and that Telenor had to put an end to those measures.

Upon this decision, the Budapest High Court decided to refer the matter to the Court of Justice for a preliminary ruling, in order to ascertain how to interpret and apply Article 3(1) and (2) of Regulation 2015/2120 which safeguards a number of rights for end users of internet access services, and Article 3(3), which lays down a general obligation of equal and non-discriminatory treatment of traffic.

In Today’s judgment, the Court interpreted for the first time Regulation 2015/2120, which enshrines the fundamental principle of a net neutrality.

Firstly, The Court stated that the conclusion of agreements, by which given customers subscribe to a package combining a ‘zero tariff’ and measures blocking or slowing down the traffic linked to the use of ‘non-zero tariff’ services and applications, is liable to limit the exercise of end users’ rights, within the meaning of Article 3(2) of Regulation 2015/2120, on a significant part of the market.

Secondly, the Court for the interpretation of Article 3(3), found that where measures blocking or slowing down traffic are based not on objectively different technical quality of service requirements for specific categories of traffic, but on commercial considerations, those measures must in themselves be regarded as incompatible with Article 3(3).

You can find the press release text of the decision here.

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Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr