New EU Rules on Net Neutrality apply The new EU provision on net neutrality took effect on 30 April 2016. These rules are set out in Regulation (EU) 2015/2120, which is directly applicable in all EU Member States. The Regulation essentially stipulates that internet service providers (ISPs) shall, when providing internet access services, treat all traffic equally without discrimination, restriction or interference. This means that ISPs are prohibited from, among other things, blocking users' access to specific content, slowing users' transmission speed with respect to specific content/applications, prioritizing certain traffic or interfering with or altering content. Nevertheless, ISPs are entitled to implement so-called "reasonable traffic management measures" with the aim to secure an efficient use of network resources and to optimize overall transmission quality. These measures must not be based on commercial considerations and must be transparent, non-discriminatory and proportionate. Any traffic management practices that go beyond such "reasonable traffic management" are only allowed if covered by the exceptions explicitly set out in the Regulation. Providers must inform their customers about traffic management measures and their impact on the internet access service and privacy. Furthermore, ISP are free to agree with customers on tariffs for specific data volumes and speeds of internet access services. However, such agreements as well as the ISPs' commercial practices must not circumvent the provisions of the Regulation, in particular with respect to customer choice. In addition, the Regulation allows providers to offer services other than internet access services which are optimized for specific content, applications or services if such optimization is necessary to achieve a specific level of quality. Such "special services" may be offered only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users. The Regulation also establishes that ISPs have to ensure that contracts regarding the provision of internet access services contain certain information. This includes, inter alia, a clear and comprehensible explanation of the (i) minimum, (ii) normally available, (iii) maximum and (iv) advertised download and upload speed of the internet access services. Although the approved regulation – on its face – enshrines the principle of net neutrality, critics claim that there are legal "loopholes" enabling ISPs to favor certain categories of traffic, such as the permission to implement traffic management measures and to offer "special services". Also, the lack of clear definitions for important terms and concepts (such as the term "special service") have been criticized. The Body of European Regulatory for Electronic Communications, BEREC, plans to issue implementation guidelines, which will be published as a consultation draft in June 2016 and will presumably provide more clarity regarding the implementation of the EU net neutrality rules. For more information, please contact Caroline Heinickel or Joachim Scherer.