Bastiaan Bruyndonckx
Information Communication Technology
Information Governance & Data Protection
Telecommunications, Media & Technology
Commercial law
Dispute Resolution
Intellectual Property (IP)
bastiaan.bruyndonckx@lydian.be
A zero tariff option is a commercial practice whereby an internet access provider applies a ‘zero tariff’ (or a tariff that is more advantageous) to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that internet access provider. Those data are therefore not counted towards the data volume purchased as part of the basic package.
The European Court of Justice (ECJ) has issued a position on zero tariff options in three recent decisions, all dated 2 September 2021.
The ECJ was given the opportunity to do so after it received requests for preliminary rulings in the three following cases concerning the ‘Vodafone Pass’ provided by Vodafone GmbH and/or the ‘Stream On’ option provided by Telekom Deutschland GmbH:
In all three cases, the ECJ observed that the questions were based on the assumption that the zero tariff option itself is compatible with EU (telecommunications) law.
In its decisions, the ECJ reminds the parties of Article 3 of Regulation 2015/2120, which enshrines the principles of an open internet and net neutrality, and summarises its key principles:
The ECJ stresses the importance of equal and non-discriminatory treatment of traffic in the provision of internet access services and recalls that Article 3 (3) of Regulation 2015/2120 precludes any measure which runs counter to the obligation of equal treatment of traffic where such a measure is based on commercial considerations.
It subsequently concludes that a zero tariff option, such as the ‘Vodafone Pass’ and/or the ‘Stream On’ option, draws a distinction within internet traffic, on the basis of commercial considerations, by not counting traffic to partner applications towards the basic package. Such a commercial practice does not satisfy the general obligation of equal treatment of traffic, without discrimination or interference, and is therefore incompatible with Article 3 (3) of Regulation 2015/2120.
Since the zero tariff option is contrary to the obligations arising from Regulation 2015/2120 and incompatible with Article 3 (3) altogether, it follows that limitations on bandwidth, tethering or use when roaming, on account of the activation of such an option, are also incompatible with EU law.
It is now up to the referring courts to apply the clear input from the ECJ to the disputes before them. These decisions will undoubtedly have an impact on other disputes (in other Member States and with other authorities) as well.
Lydian is of course at your disposal in case of questions.
Information Communication Technology
Information Governance & Data Protection
Telecommunications, Media & Technology
Commercial law
Dispute Resolution
Intellectual Property (IP)
bastiaan.bruyndonckx@lydian.be