The principle of net neutrality was examined and interpreted for the first time in joined cases C-807/18 and C-39/19 before the Court of Justice of the European Union (CJEU). The applicable law (Regulation 2015/2120) prevents internet access service providers (such as Telenor) from blocking or slowing down traffic and requires them to treat internet traffic equally. Net neutrality rules aim to enhance end-users' right to use applications and services of their choice regardless of the application or the service provider.
The CJEU was asked to give a preliminary ruling in relation to two service packages of Telenor Magyarország Zrt. (Telenor). The service provider Telenor offered two internet packages that the Hungarian National Media and Infocommunications Authority (NMHH) found in breach of the general obligation of equal and non-discriminatory treatment of traffic, which Telenor disputed in front of the Budapest High Court. The Budapest High Court decided to refer the case for a preliminary ruling to the CJEU.
The packages in question offered the customers preferential access to certain applications (known as "zero tariff"), and the specific feature of those packages was that the data traffic generated by selected applications and services did not count towards the consumption of the data volume purchased by the customers. In addition, once that volume of data had been used up, those customers were able to continue to use those specific applications and services without restriction, while measures of blocking or slowing down data traffic were applied to other available applications and services.
The CJEU affirmed the NMHH's decision that the conclusion of agreements, by which customers subscribe to a package combining a "zero tariff" and measures blocking or slowing down the traffic linked to the use of "non-zero tariff" services and applications, is liable to limit the exercise of end-users' rights on a significant part of the market. Such packages are liable to increase the use of the favoured applications and services and, accordingly, to reduce the use of other applications and services available, with regard to the measures by which the provider of the internet access services makes that use technically more difficult, if not impossible.
Furthermore, the greater the number of customers concluding such agreements, the more likely it is that, given its scale, the cumulative effect of those agreements will result in a significant limitation of the exercise of end-users' rights, or even undermine the very essence of those rights.
In addition, the Court held that, where measures blocking or slowing down traffic are not based on objectively different technical quality of service requirements for specific categories of traffic, but on commercial considerations, those measures must in themselves be regarded as incompatible with the Regulation.
To conclude, Telenor's service packages that limited access to specified mobile applications after a data volume was reached, while continuing to allow unlimited access to other applications, violates the principle of net neutrality and therefore the Open Internet Regulation.
The case is returned to the Budapest High Court for a decision in light of the CJEU's preliminary ruling.
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