2023-

2024

Introduction to Technology Law

Open Internet Regulation (EU 2015/2120)

Article 1
Subject matter and scope
1. This Regulation establishes common rules to safeguard equal and non-discriminatory treatment of
traffic in the provision of internet access services and related end-users’ rights.
2. This Regulation sets up a new retail pricing mechanism for Union-wide regulated roaming services in
order to abolish retail roaming surcharges without distorting domestic and visited markets.

Article 2
Definitions
For the purposes of this Regulation, the definitions set out in Article 2 of Directive 2002/21/EC apply.
The following definitions also apply:
(1) ‘provider of electronic communications to the public’ means an undertaking providing public
communications networks or publicly available electronic communications services;
(2) ‘internet access service’ means a publicly available electronic communications service that provides
access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective
of the network technology and terminal equipment used.

Article 3
Safeguarding of open internet access
1. End-users shall have the right to access and distribute information and content, use and provide
applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or
provider’s location or the location, origin or destination of the information, content, application or service,
via their internet access service.
This paragraph is without prejudice to Union law, or national law that complies with Union law, related to
the lawfulness of the content, applications or services.
2. Agreements between providers of internet access services and end-users on commercial and technical
conditions and the characteristics of internet access services such as price, data volumes or speed, and any
commercial practices conducted by providers of internet access services, shall not limit the exercise of the
rights of end-users laid down in paragraph 1.
3. Providers of internet access services shall treat all traffic equally, when providing internet access
services, without discrimination, restriction or interference, and irrespective of the sender and receiver,
the content accessed or distributed, the applications or services used or provided, or the terminal
equipment used.
The first subparagraph shall not prevent providers of internet access services from implementing
reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be
transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations
but on objectively different technical quality of service requirements of specific categories of traffic. Such
measures shall not monitor the specific content and shall not be maintained for longer than necessary.
Providers of internet access services shall not engage in traffic management measures going beyond those
set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere
with, degrade or discriminate between specific content, applications or services, or specific categories
thereof, except as necessary, and only for as long as necessary, in order to:
(a) comply with Union legislative acts, or national legislation that complies with Union law, to which
the provider of internet access services is subject, or with measures that comply with Union law
giving effect to such Union legislative acts or national legislation, including with orders by courts or
public authorities vested with relevant powers;
(b) preserve the integrity and security of the network, of services provided via that network, and of the
terminal equipment of end-users;
(c) prevent impending network congestion and mitigate the effects of exceptional or temporary network
congestion, provided that equivalent categories of traffic are treated equally.
4. Any traffic management measure may entail processing of personal data only if such processing is
necessary and proportionate to achieve the objectives set out in paragraph 3. Such processing shall be
carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council. Traffic
management measures shall also comply with Directive 2002/58/EC of the European Parliament and of
the Council.
5. Providers of electronic communications to the public, including providers of internet access services,
and providers of content, applications and services shall be free to offer services other than internet access
services which are optimised for specific content, applications or services, or a combination thereof,
where the optimisation is necessary in order to meet requirements of the content, applications or services
for a specific level of quality.
Providers of electronic communications to the public, including providers of internet access services, may
offer or facilitate such services 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.

Article 4
Transparency measures for ensuring open internet access
1. Providers of internet access services shall ensure that any contract which includes internet access
services specifies at least the following:
(a) information on how traffic management measures applied by that provider could impact on the
quality of the internet access services, on the privacy of end-users and on the protection of their
personal data;
(b) a clear and comprehensible explanation as to how any volume limitation, speed and other quality of
service parameters may in practice have an impact on internet access services, and in particular on
the use of content, applications and services;
(c) a clear and comprehensible explanation of how any services referred to in Article 3(5) to which the
end-user subscribes might in practice have an impact on the internet access services provided to that
end-user;
(d) a clear and comprehensible explanation of the minimum, normally available, maximum and
advertised download and upload speed of the internet access services in the case of fixed networks,
or of the estimated maximum and advertised download and upload speed of the internet access
services in the case of mobile networks, and how significant deviations from the respective
advertised download and upload speeds could impact the exercise of the end-users’ rights laid down
in Article 3(1);
(e) a clear and comprehensible explanation of the remedies available to the consumer in accordance
with national law in the event of any continuous or regularly recurring discrepancy between the
actual performance of the internet access service regarding speed or other quality of service
parameters and the performance indicated in accordance with points (a) to (d).
Providers of internet access services shall publish the information referred to in the first subparagraph.
2. Providers of internet access services shall put in place transparent, simple and efficient procedures to
address complaints of end-users relating to the rights and obligations laid down in Article 3 and paragraph
1 of this Article.
3. The requirements laid down in paragraphs 1 and 2 are in addition to those provided for in Directive
2002/22/EC and shall not prevent Member States from maintaining or introducing additional monitoring,
information and transparency requirements, including those concerning the content, form and manner of
the information to be published. Those requirements shall comply with this Regulation and the relevant
provisions of Directives 2002/21/EC and 2002/22/EC.
4. Any significant discrepancy, continuous or regularly recurring, between the actual performance of the
internet access service regarding speed or other quality of service parameters and the performance
indicated by the provider of internet access services in accordance with points (a) to (d) of paragraph 1
shall, where the relevant facts are established by a monitoring mechanism certified by the national
regulatory authority, be deemed to constitute non-conformity of performance for the purposes of
triggering the remedies available to the consumer in accordance with national law.
This paragraph shall apply only to contracts concluded or renewed from 29 November 2015.

Article 5
Supervision and enforcement
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.
National regulatory authorities shall publish reports on an annual basis regarding their monitoring and
findings, and provide those reports to the Commission and to BEREC.
2. At the request of the national regulatory authority, providers of electronic communications to the
public, including providers of internet access services, shall make available to that national regulatory
authority information relevant to the obligations set out in Articles 3 and 4, in particular information
concerning the management of their network capacity and traffic, as well as justifications for any traffic
management measures applied. Those providers shall provide the requested information in accordance
with the time-limits and the level of detail required by the national regulatory authority.
3. By 30 August 2016, in order to contribute to the consistent application of this Regulation, BEREC
shall, after consulting stakeholders and in close cooperation with the Commission, issue guidelines for the
implementation of the obligations of national regulatory authorities under this Article.
4. This Article is without prejudice to the tasks assigned by Member States to the national regulatory
authorities or to other competent authorities in compliance with Union law.

Article 6
Penalties
Member States shall lay down the rules on penalties applicable to infringements of Articles 3, 4 and 5 and
shall take all measures necessary to ensure that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive. Member States shall notify the Commission of those rules and
measures by 30 April 2016 and shall notify the Commission without delay of any subsequent amendment
affecting them.
[…]
Joined Cases C‑807/18 and C‑39/19 Telenor Magyarország

[…]
The disputes in the main proceedings and the questions referred for a preliminary ruling

9 Telenor, which is established in Hungary, is a major player in the information and communication
technology sector. It provides internet access services in particular. The services offered to its potential
customers include two packages known as ‘MyChat’ and ‘MyMusic’, respectively.

10 ‘My Chat’ is a package which enables subscribing customers, first, to purchase 1 GB of data and
use it without restriction until that data has been used up, accessing freely the available applications and
services. Moreover, the use of six specific online communication applications, namely Facebook,
Facebook Messenger, Instagram, Twitter, Viber and Whatsapp, which are covered by a ‘zero tariff’, is not
deducted from that 1 GB data limit. Secondly, the ‘My Chat’ package provides that once the 1 GB of data
has been used up, subscribers may continue to use those six specific applications without restriction,
whereas measures slowing down data traffic are applied to the other available applications and services.

11 ‘MyMusic’ is a package available in three different formats, ‘MyMusic Start’, ‘MyMusic Nonstop’
and ‘MyMusic Deezer’, respectively, which are accessible to customers with a pre-existing internet-
access services package. Those formats enable subscribers, first, to listen to music online using four
music streaming applications in particular – Apple Music, Deezer, Spotify and Tidal – and six radio
services, and the use of those ‘zero tariff’ applications and services is not deducted from the data volume
included in the format purchased. Secondly, the ‘MyMusic’ package provides that once that data volume
has been used up, subscribers may continue to use those specific applications and services without
restriction, whereas measures blocking or slowing down data traffic are applied to the other available
applications and services.

12 After initiating two procedures to ascertain whether ‘MyChat’ and ‘MyMusic’, respectively,
complied with Article 3 of Regulation 2015/2120, the Nemzeti Média- és Hírközlési Hatóság (National
Media and Communications Office, Hungary; ‘the Office’) adopted two decisions in which it found that
those packages introduced traffic-management measures which did not comply with the obligation of
equal and non-discriminatory treatment laid down in Article 3(3) of that regulation and that Telenor had
to put an end to those measures.

13 Those two decisions were subsequently upheld by two decisions of the President of the Office, who
found, in particular, that in order to examine whether the traffic-management measures were compatible
with Article 3(3) of Regulation 2015/2120 it was not necessary to assess the effect of those measures on
the exercise of end users’ rights set out in Article 3(1) of that regulation.
14 Telenor brought proceedings against both those decisions of the President of the Office before the
Fővárosi Törvényszék (Budapest High Court, Hungary).

15 In that context, Telenor submits, in essence, that the ‘MyChat’ and ‘MyMusic’ packages form part
of agreements concluded with its customers and may, as such, be covered only by Article 3(2) of
Regulation 2015/2120, to the exclusion of Article 3(3) of that regulation which is directed solely at
traffic-management measures implemented unilaterally by providers of internet access services.
Furthermore, in any event, in order to ascertain whether those packages are compatible with Article 3(3)
of Regulation 2015/2120, Telenor argues that it is necessary, as when examining whether they are
compatible with Article 3(2) of that regulation, to assess their effects on the exercise of end users’ rights.
Consequently, the packages cannot be considered to be incompatible with Article 3(3) of Regulation
2015/2120 solely because they establish traffic-management measures which do not comply with the
obligation of equal and non-discriminatory treatment, laid down in that provision, as the President of the
Office found.

16 The President of the Office counters, in particular, that the question which is the provision of
Article 3 of Regulation 2015/2120 in the light of which a given form of conduct must be examined
depends not on the formal nature of that conduct, but on its content. In addition, the President contends
that, unlike Article 3(2) of that regulation which requires an assessment to be made of the effects, on the
exercise of end users’ rights, of the agreements and commercial practices put in place by providers of
internet access services, Article 3(3) prohibits all unequal or discriminatory traffic-management measures,
and it is irrelevant to distinguish between such measures introduced through an agreement between an end
user and a provider and those based on a provider’s commercial practice. Furthermore, all such unequal or
discriminatory measures are prohibited in themselves, and there is, therefore, no need to assess their
effects on the exercise of end users’ rights.

17 Having noted that Regulation 2015/2120 is intended to ensure internet neutrality and is of
considerable importance in that respect, the referring court considers, in essence, that the disputes pending
before it raise two sets of novel legal issues relating to a central provision of that regulation.

18 In that regard, it notes, first, that while Article 3(1) and (2) of Regulation 2015/2120 safeguards a
number of rights for end users of internet access services and prohibits providers of such services from
putting in place agreements or commercial practices limiting the exercise of those rights, Article 3(3) lays
down a general obligation of equal and non-discriminatory treatment of traffic. However, it cannot be
determined from the wording of that regulation whether packages made available by a provider of internet
access services through agreements concluded with its customers and which provide (i) that those
customers may benefit from a ‘zero tariff’ enabling them to use certain specific applications and services
without restriction, without that use being deducted from the data volume purchased, and (ii) that once
that data volume has been used up, measures blocking or slowing traffic are to be applied to the other
applications and services available, fall within the scope of Article 3(2), Article 3(3) or Article 3(2) and
(3) of that regulation.
19 Secondly, the referring court notes that it cannot also be ascertained from the wording of Article
3(2) and (3), once it has been determined which of those paragraphs 2 and 3 are applicable to such
conduct, what methodology must be applied in order to determine whether that conduct is compatible
with Regulation 2015/2120.

20 In those circumstances the Fővárosi Törvényszék (Budapest High Court, Hungary) decided to stay
the proceedings and to refer the following questions, which are worded identically in Cases C‑807/18 and
C‑39/19, to the Court of Justice for a preliminary ruling:
[…]

In the present case, first, the conduct at issue in the main proceedings includes measures blocking or
slowing down traffic related to the use of certain applications and services, which fall within the scope of
Article 3(3) of Regulation 2015/2120, irrespective of whether those measures stem from an agreement
concluded with the provider of internet access services, from that provider’s commercial practice or from
a technical measure of that provider unrelated either to an agreement or a commercial practice. Those
measures blocking or slowing down traffic are applied in addition to the ‘zero tariff’ enjoyed by the end
users concerned, and make it technically more difficult, if not impossible, for end users to use
applications and services not covered by that tariff.

52 Consequently, those measures appear to be based not on objectively different technical quality of
service requirements for specific categories of traffic but on commercial considerations.

53 Secondly, there is no evidence in the file before the Court that those measures fall within one of the
three exceptions exhaustively listed in the third subparagraph of Article 3(3) of Regulation 2015/2120.

54 In the light of all the foregoing considerations, the answer to the questions referred is that Article 3
of Regulation 2015/2120 must be interpreted as meaning that packages made available by a provider of
internet access services through agreements concluded with end users, and under which (i) end users may
purchase a tariff entitling them to use a specific volume of data without restriction, without any deduction
being made from that data volume for using certain specific applications and services covered by ‘a zero
tariff’ and (ii) once that data volume has been used up, those end users may continue to use those specific
applications and services without restriction, while measures blocking or slowing down traffic are applied
to the other applications and services available:

– are incompatible with Article 3(2) of Regulation 2015/2120, read in conjunction with Article 3(1)
of that regulation, where those packages, agreements, and measures blocking or slowing down traffic
limit the exercise of end users’ rights, and

– are incompatible with Article 3(3) of that regulation where those measures blocking or slowing
down traffic are based on commercial considerations.
[…]

On those grounds, the Court (Grand Chamber) hereby rules:

Article 3 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November
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
must be interpreted as meaning that packages made available by a provider of internet access services
through agreements concluded with end users, and under which (i) end users may purchase a tariff
entitling them to use a specific volume of data without restriction, without any deduction being made
from that data volume for using certain specific applications and services covered by ‘a zero tariff’ and
(ii) once that data volume has been used up, those end users may continue to use those specific
applications and services without restriction, while measures blocking or slowing down traffic are applied
to the other applications and services available:

– are incompatible with Article 3(2) of Regulation 2015/2120, read in conjunction with Article 3(1)
of that regulation, where those packages, agreements, and measures blocking or slowing down traffic
limit the exercise of end users’ rights, and

– are incompatible with Article 3(3) of that regulation where those measures blocking or slowing
down traffic are based on commercial considerations.