This article is part of a series. Click here to read part 1 (The basics). Click here to read part 2 (Exceptions, Justifications and Special Services).
In summary, it can be said that regarding net neutrality, the entire TSM Regulation is characterised by imprecise legal wording. Hardly any part of the regulation is free from vagueness, and hardly any outcome of a practical can be predicted right now, only on the basis of the Regulation´s wording. This results in legal insecurity for all participants.
Who will specify and enforce the regulations?
The competence for the enforcement of the Regulation lies with the “national regulatory authorities” in accordance with Art. 5. This term refers to Art. 2 g) Framework Directive (PDF, see Art. 2 sentence 1 of the Regulation). Therefore “national regulatory authorities” are the special regulatory authorities for the telecommunication sector.
Under Article 5 para. 1, “national regulatory authorities” have the following mandate:
“(1) National regulatory authorities shall closely monitor and ensure compliance with Articles 3 and 4, and shall promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. For those purposes, national regulatory authorities may impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services.”
In order to be able to implement this mandate, “national regulatory authorities” have a right of information (Art. 5 para. 2). Furthermore Art. 5 para. 3 assigns a task to BEREC, the Body of European Regulators for Electronic Communications. BEREC shall support the implementation of net neutrality regulations by developing guidelines.
The consumer protection law: Transparency regulation
In addition to these rules, which are part of public law, the Regulation uses another regulatory measure. The Regulation empowers the consumers to a right to transparency, so they can decide for themselves how “neutral” they want their internet access to be. In this matter, internet access providers are committed to inform their customers in detail about the characteristics of the internet access (Art. 4 para. 1).
This information obligation is, on the one hand, directed at the quality of the internet access. The network providers shall describe the offered download and upload capacity in four categories:
- The “minimum”,
- the “normally available”,
- the “maximum” and
- the “advertised” download and upload speed (Art. 4 para. 1 lit. d)
On the other hand, the providers must characterise in detail how they interfere with net neutrality (Art. 4 para. 1 a) to d)). The consumers must even get an explanation of the remedies available.
The internet access providers are also obligated to prepare their complaint management for net neutrality issues (Art. 4 para. 2). A “significant, continuous or regularly recurring discrepancy” between the internet access service and the transparency specifications is considered as “trigger” of remedies.
What will happen next?
The Regulation was announced on November 26, 2015 (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2120&from) and entered into force three days later (Art. 10 para. 1). However, the net neutrality part of the Regulation will become effective only on April 30, 2016 (Art. 10 para 2). From that date on, all rules of the Regulation must be observed and can be enforced by the national regulatory authorities. An exception from this starting date exists only for states which have already issued rules on net neutrality before. These states can maintain their existing rules until year-end 2016, but must abolish it afterwards.
This effectively means that the Regulation has become effective in most EU member states at the beginning of May – even though the meaning of some core parts of these rules has yet to be defined. It is also unclear whether all internet access providers were quick enough to change all their internal processes as requested by the Regulation. The Regulation does not only affect contracts and terms & conditions, but also the way the network and the services are managed at the technical level. Particularly network traffic management in relation to cybersecurity is an issue in itself, since there are also many new legal I(C)T security obligations, and the service providers are still in the process of implementing them.
The Regulation provides the possibility for national regulatory authorities to issue specifying rules (Art. 5 para. 1). It is yet unclear if and possibly when the regulatory authorities will engage in such an activity. Another clearer obligation of this kind exists for BEREC, who is obliged to consult “stakeholders” and then issue “guidelines” no later than 30 August 2016.
While it can be expected that this guidelines bring clarity in some respects, they will be issued much later than the effective starting date of the new Regulations´ rules. During the last months, both the regulatory authorities of the member states and BEREC have held workshops and public consultations on some of the most pressing issues. BEREC is now planning to publish a first draft of net neutrality guidelines after its next general assembly, which will be June 2/3, 2016. After that, there will be a consultation period. The final version will be published shortly before the end of August 2016.