By November 2015 the European Parliament and the Council had co- adopted Regulation (EU) 2015/2120 (the “Regulation“) aiming at ensuring open internet access and putting further restrictions on roaming surcharges.
In the last 20 years the internet has had a tremendous impact on society and in particular on the globalisation of commercial activities. Accordingly, the internet access services (“IAS“) industry has become a multi-billion euro business. The deployment of powerful broadband technologies has enabled more and more services to be performed using the communication function of the internet. On the other hand, as a result, other “classic” communication offerings have been put under pressure. An often-quoted example of this is of a provider of voice and data transmission services, including IAS over a mobile net-work. Given a very attractive price for these data transmission services, subscribers tend to use a voice-over-IP application instead of a voice service to make phone calls. But what if that provider reacts by blocking or throttling access to all, or certain VoIP applications, except for his own VoIP offer?
New EU regulatory framework on open internet – Right to open internet access
The previous EU legislative framework only provided for information obligations applicable to the service quality of IAS providers.1 The introduction of further measures on “net neutrality” or “open internet” was left to the Member States and their national regulatory authorities (“NRA“). While in Austria, politics and NRA refrained from introducing specific regulations, other member states, such as the Netherlands, adopted far-reaching restrictions on possible blocking, throttling or activities such as “zero-rating offerings” by IAS providers.
EU Regulation 2015/2120 (“Regulation“), directly applicable since April 30th 2016, has established a common legal framework on open internet access. It has also commissioned BEREC, the body of European Regulators for Electronic Communication, to adopt guidelines for the implementation of this legislation (“BEREC guidelines“). In August 2016 the guidelines were published and provide comments on the individual articles of the Regulation and the associated recitals.2
Under the Regulation, any “end-user” of an IAS is granted a “right” to access and distribute information and content via that service, and to use and provide all applications and services. Moreover, the IAS providers are specifically banned from restricting or interfering with the data traffic – mainly by blocking or throttling – or treating it unequally or discriminatorily. That obligation applies irrespective of the sender and receiver, the used terminal equipment, or the specific – naturally lawful – content accessed or distributed.
Permitted conditions of an IAS service – lawful traffic management
However, the new legal framework specifies that IAS providers are free to agree with end-users on the “commercial and technical conditions and characteristics” of the provided service, such as price, data volume or upload/download speed. The regulatory authorities are, however, asked to supervise, in particular, that the essence of the obligation to treat all traffic equally is not undermined by an IAS provider by conditions and/or characteristics of this sort. Hence, price differentiations for certain applications will, according to the BEREC guidelines, not necessarily undermine the user’s rights for open internet.
Still, the Regulation allows “reasonable” traffic management measures which are proportionate and non-discriminatory, eg the application of another bandwidth or latency for so-called “real-time” (eg certain online games) or mere network stability management traffic which can both be objectively different from other applications. Beyond such “reasonable” measures, only traffic management, in order to comply with legislative provisions, preserves network integrity and security, and the preventing or mitigating of temporary network congestion is permitted.
Offering of “special services”
In addition to IAS, providers are entitled to offer “services optimised for specific content”, applications or services in general requiring a specific level of service quality. Such quality might be necessary, particularly for advanced machine-to-machine communications or health applications in the public interest. However, in order to avoid any circumvention of end-users’ rights to an open internet, the NRA must closely monitor whether such offerings are objectively necessary, with priority over other content.
While the BEREC guidelines consider broadcasting IPTV services or Voice-over-LTE as examples of special services, they do not do so for a mere VPN offer for businesses.
In any event, the providers offering such services have to ensure that the network capacity is sufficient to provide such services in addition to any IAS provided. The BEREC guidelines thus require that the NRA monitor how “specialised services” affect other IAS offered by the same provider (for instance with regard to increased delays or packet losses).
More targeted information for end-users
Under previous EU and national legislation, IAS providers were obliged to publish adequate and up-to-date information for end-users on the quality of their service. In particular, they had to inform subscribers of any conditions limiting their access to and/or use of services and/or applications.
Now, additional information has to be given as to how traffic management measures, but also how any volume or speed limitation could “impact the quality” of the IAS. Moreover, subscribers have to be informed about the minimum, maximum, normally available, and advertised download and upload speeds (in case of mobile networks: the estimated maximum and advertised download and upload speed) and again its impact on the end users’ rights.
Administrative enforcement – Adaptation of existing contracts for IAS
Art 5 of the Regulation entitles NRA to order IAS providers to ensure compliance with requirements for open internet access and information obligations. However, for non-compliance with such an order based on directly applicable EU law) or any other provision of the Regulation (, no administrative penalty under the Austrian Telecommunications Act 2003 (Telekommunikationsgesetz 2003, “TKG”) could be imposed yet. The federal government, however, announced draft amendments to TKG with regard to the Regulation still for this year.
The Regulation requires, if necessary, adapting existing contracts to the extended transparency obligations. It goes without saying that the end user rights and/or the prohibition of restricting or interfering with data traffic may affect provisions in existing contracts which do not satisfy these requirements. Thus, it should be noted that according to art 20 para 2 USD and art 25 para 3 TKG, subscribers have the right to withdraw from a contract on an ECS without penalty in the event that the provider modifies the “contractual conditions”, unless such modifications are operating entirely and exclusively to the subscribers benefit.
At present, subscribers may, depending on the individual contract, claim price reduction or even a rescission of the contract if certain contractual performance commitments in relation to the IAS are not fulfilled.
A new legal framework as to open internet now directly applies throughout the entire EU. It to a large extent bans practices such as throttling or blocking access to certain applications or content, and extends the information to be given to users.