On October 27th, 2015, the European Parliament adopted Regulation No. (EU) 2015/2120 “laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union” (the “New Regulation”).

This new so-called “Telecom Package” had been approved by the European Commission on June 30th, 2015, in a context of global revision of the current EU regulatory framework for the telecom sector (please refer to our previous post on the public consultation launched by the European Commission for the evaluation of the legal and regulatory framework for electronic communications networks and services ).

Among its main innovations, the New Regulation states the principle of open internet access or “net neutrality” for the first time under European law. It is worth noting that this principle was actually already mentioned — though indirectly — in Directive 2009/136/EC which requires that internet users “should in any case be fully informed of any limiting conditions imposed on the use of electronic communications services by the service and/or network provider”.

The New Regulation clarifies the set of rights and obligations associated with this principle:

  • End-users must have the right to access and distribute information and content, to use and provide applications and services, and to use any terminal equipment of their choice to access internet. Agreements between providers of internet access services and end-users shall not limit the exercise of these rights. Moreover, providers of internet access services must treat all types of internet traffic equally when providing internet access services.
  • Providers of internet access services have the right to implement reasonable traffic managements measures subject to such measures being non-discriminatory and proportionate. Nevertheless, providers can go beyond that and adopt measures to block, slow down or discriminate between specific contents, applications or services when strictly necessary, for example, to comply with EU law or to preserve the integrity and security of the network.
  • Providers of internet access services must ensure that contracts for the provision of internet access services specify several mandatory information detailing, e.g., how traffic management measures applied by the provider could impact on the quality of the services, or how any volume limitation, speed and/or other quality of service parameters may have an impact on the services. In addition, providers must put in place procedures to address end users’ complaints in relation to open internet access.
  • National regulatory authorities in charge of the telecom sector have to monitor compliance with all requirements relating to the open internet access principle and can impose on any providers of electronic communications services to the public (including providers of internet access services) additional technical requirements, including in relation to minimum quality of service requirements and/or other necessary measures. Furthermore, upon request from the national regulatory authorities, all information relevant to their obligations relating to open internet access must be made available by providers of electronic communications services.
  • Member States have to lay down penalties applicable in case of violation of any open internet access related requirements.

The New Regulation, including the above requirements, will enter in force on April 30th, 2016.

To access the text of Regulation No. (EU) 2015/2120 dated October 27th, 2015 “laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union”, please use the following link: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2015:310:FULL&from=EN.