On 2 September, the Court of Justice of the European Union (CJEU) ruled in two German cases concerning "zero tariff" offers by Internet Service Providers (ISPs). The Court ruled that this practice is contrary to the EU regulation on open Internet access, for the second time in a year.

A "zero tariff" is the practice of an ISP to make free the volume of data consumed via a partner application.

In this case the CJEU points to the additional option, Stream On, offered by Telekom Deutschland to its users. Vodafone, on the other hand, offers a myriad of options under the name Vodafone Pass, which are only valid in Germany. The data consumed by the applications concerned are only taken into account when they are consumed from abroad.

Maryant Fernández Pérez, head of digital policy at the European consumer protection organisation BEUC said "When companies like Vodafone use these zero tariffs, they are essentially locking consumers in and limiting what the internet can offer them,. "Zero tariffs" are detrimental to consumer choice, competition, innovation, media diversity and freedom of information".

It also welcomed the Court's ruling that "such a commercial practice is contrary to the general obligation of equal treatment of traffic, without discrimination or interference, as required by the Open Internet Access Regulation".

The German Federal Network Agency, which filed the complaint together with a consumer association, believes that the offers "cannot be maintained in their current form". Vodafone Germany said it is "carefully examining the decisions and will update its current offer if necessary in accordance with the judgments".

The ruling is based on the EU net neutrality regulation, which was passed in 2015 and came into force in 2016. The text was criticised at the time for its weakness. The US Federal Communication Commission had taken a much stronger measure on the same subject the year of the European vote, clearly prohibiting "zero rating".

Since then, the situation has ironically been reversed. The Trump administration repealed the net neutrality measure, which his successor is trying to reinstate. In Europe, the CJEU clarified its position in September 2020 via its ruling on the offers of the operator Telenor. A decision confirmed today.

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Source : Siècle Digital

Five years after the adoption of the regulation enshrining net neutrality on the Old Continent, the Court of Justice of the European Union is beginning to give it a legal interpretation. It validates the analysis that "free traffic" (or "zero rating") as applied by operators constitutes a violation of net neutrality.

In 2016, the Body of European Regulators for Electronic Communications (BEREC) published guidelines on net neutrality which are binding on all its members. These guidelines make it very difficult in practice to use zero rating, even if it is not formally prohibited.

"Free traffic" is a commercial practice whereby an operator does not charge or account for the use of certain online services, even if they are used by the Internet user.

Although at first sight these offers may seem attractive, they pose various problems: the internet user does not have control over the choice of services selected. Above all, however, the zero rating could hinder or block access to rival platforms, thus distorting competition, according to the logic of commercial agreements between Internet access providers and content providers.

In this case, everything starts from Hungary with the Norwegian ISP Telenor, which proposed two access bundles with zero rating. Once the mobile data had been exhausted, Internet users could continue to use their access for the zero-rated services, while the other solutions were subject to a technical restriction by the operator.

After monitoring by the Hungarian Communications and Media Authority, it found that these subscriptions were in breach of the general obligation of equal and non-discriminatory treatment of traffic. It therefore naturally demanded that Telenor put an end to them.

However, the Norwegian ISP appealed to the court in Budapest and the latter asked the EUJC during the investigation to find out how to correctly read the European regulation establishing measures relating to open Internet access.

In the summary of the judgment, the ECJ stated that "the requirements of protection of the rights of Internet users and of non-discriminatory treatment of traffic preclude an ISP from favouring certain applications and services by means of offers which make those applications and services benefit from a zero tariff and subject the use of other applications and services to blocking or slowing down measures".

Nevertheless, is the European Court of Justice slashing the zero rating once and for all? Not really: the CJEU's call to order concerns very specifically decisions based on commercial considerations". Where measures to slow down or block traffic are based not on objective differences between the technical requirements in terms of quality of service for specific categories of traffic, but on commercial considerations, such measures are to be regarded, as such, as incompatible with the said provision", writes the CJEU Press Service.

A zero rating on a category of traffic or use may be envisaged by an operator. However, what is prohibited is selective zero rating.

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Source : Numerama