ECJ: Internet tariffs with unlimited data consumption for certain apps violate net neutrality

Nov 20, 2020 Benn-Ibler Rechtsanwälte

For the first time, the European Court of Justice (ECJ) is addressing the question of whether Internet tariffs that do not include data consumption for certain applications in the tariff-agreed volume violate the open nature of the Internet (net neutrality).

In the initial case, a Hungarian Internet service provider (defendant) offers tariffs where customers receive a monthly data volume of 1 GB, which they can use without restrictions. In addition, the data consumption of six particular apps (Facebook, Facebook Messenger, Instagram, Twitter, Viber and WhatsApp) is not counted towards their data volume. After consuming the 1 GB, users can continue to use these six apps without restriction, while data traffic is slowed down for all other apps and websites.

The ECJ has now ruled that such tariffs violate net neutrality:

Under Art. 3 (2) of the Regulation on Measures Concerning Open Internet Access (Regulation 2015/2120), agreements (tariffs) between Internet providers and end users on commercial and technical conditions such as price, data volume or speed may not restrict the rights of end users (which include not only tariff customers but also providers of apps etc.).

According to the ECJ, tariffs which offer certain apps at "zero tariff" in combination with measures to block or slow down data traffic when the other apps not subject to the "zero tariff" are used violate Art 3 (2) of Regulation 2015/2120, as the conclusion of such agreements is likely to restrict the rights of end users (namely the providers of all apps not subject to the "zero tariff") on a substantial part of the market. Such tariffs can increase the use of preferred apps and decrease it for non-preferred apps. Moreover, the greater the number of customers, the more the cumulative effect of the agreements leads to a significant restriction of the rights of end-users or even undermines the very essence of those rights.

ECJ C-807/19 und C-39/19 (15 September 2020)