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An Open Internet? The Court of Justice of the European
Union between Network Neutrality and Zero Rating
ECJ (Grand Chamber) 15 September 2020, Joined Cases C-807/18
and C-39/19, Telenor Magyarország Zrt vNemzeti Média- és
Hírközlési Hat´oság Elnöke
Marta Maroni*
I
Internet Service Providers (ISPs) provide access to the Internet. Their role is cen-
tral to the future development of the Internet, fundamental rights, and the infor-
mation society as a whole. ISPs could block, slow down or favour applications or
services. These practices are harmful because they can be deployed to alter the way
in which content is transmitted on the Internet, which has repercussions on com-
petition, diversity and pluralism. The EU has laid down measures concerning
*Research Fellow at the Erik Castrén Institute of International Law and Human Rights, and
member of the Legal Tech Lab, Faculty of Law, University of Helsinki. I am particularly endebted
to Dennis Brouwer who has commented on the paper and generously discussed the case with me. I
would also like to thank Suvi Sankari and Tuomas Ojanen for their comments on an early draft of
this paper and the University of Helsinki Legal Tech Lab for engaging with me on the topic of
network neutrality. Also, this note has benefited from the constructive comments of the anonymous
reviewer and the editors of the journal. This research has received financial support from Niilo
Helanderin säätiö and these Academy of Finland projects: AlgoT -Potential and Boundaries of
Algorithmic Transparency (decision n 324116) and POP - Is this Public or Private? (decision n
321995). The usual disclaimers apply.
European Constitutional Law Review, page 1 of 21, 2021
© The Author(s), 2021. Published by Cambridge University Press on behalf of European Constitutional
Law Review doi:10.1017/S1574019621000341
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open internet access and reformed the roaming system within the Union by
adopting the ‘Open Internet’Regulation 2015/2120.1
In the case under consideration, the Court of Justice of the European Union
has ruled on the Regulation for the first time.2The Court was called on to inter-
pret whether the commercial practices of a Hungarian ISP, which zero-rated,
slowed down and blocked applications and services, were allowed under the
Regulation.3
The principle of network neutrality is an important concept for shaping power
relations within the Internet as it attempts to protect the way the Internet works
by limiting the opportunity for a few actors to take control of its use.
Traditionally, network neutrality provisions attempt to ‘positivise’a technical
principle, namely the end-to-end principle, which, with other features of the net-
work in its early years, has fostered the idea of an open Internet. Technically, the
end-to-end principle dictates that the communication network does not perform
any function beyond transmitting the content, and the intelligence of the network
is located at the end-points.4Beyond the end-to-end principle, the other consti-
tutive qualities of the early network were that the network had no knowledge of
what was transmitted (applications-blind), was a general-purpose network (every
application could join) with low access barriers5and worked on a best-effort basis.
The last of these ensured that data packets enjoyed the same best effort of the
1Regulation (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. More properly, what the EU introduced is a network neutrality regulation, not an open
Internet one. Although network neutrality is essential for maintaining the openness of the Internet,
ensuring openness requires looking at the practices of the various actors behind the functioning of
the Internet.
2ECJ 15 September 2020, Joined Cases C-807/18 and C-39/19, Telenor Magyarország Zrt v
Nemzeti Média- és Hírközlési Hat´oság Elnöke ECLI:EU:C:2020:708.
3The case deals with a particular zero-rating practice, the one which zero-rates applications
which offer different services (e.g. Facebook, WhatsApp), as opposed to zero-rating which does
not count data consumption of the same category of applications (e.g. all social media applications):
see BEREC, Guidelines on the Implementation of the Open Internet Regulation (BoR (20) 112, 11 June
2020) (the one from 2020), paras 40-43; and D. Brouwer, ‘Zero-rating and net neutrality in the
European Union: What legal approach should the EU legislator adopt with respect to zero-rating
offers where applications do not count towards the data cap of the consumer?’(Master’s Thesis,
Tilburg University, 2015).
4M. Ziewitz and I. Brown, ‘A prehistory of internet governance’, in I. Brown (ed.), Research
Handbook on Governance of the Internet (Edward Elgar 2013) p. 19.
5See also the seminal work on network neutrality by Barbara van Schewick, Internet Architecture
and Innovation (MIT Press 2010).
2Marta Maroni EuConst 17 (2021)
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router to deliver the content. These elements have become central tenets of an
open Internet, in which open symbolically stands for ‘the absence of centralized
points of control’.6The debate on network neutrality embodies both these archi-
tectural principles and the symbolism associated with it. At the core of network
neutrality provisions lies both the protection of the internet infrastructure and the
protection of equal access to the Internet. At the practical level, network neutrality
stipulates that ISPs should not block, throttle or prioritise content.7
Today it would be anachronistic to reproduce the early internet design features
in their pure forms. This is because the internet ecosystem has changed following
the processes of privatisation of network services (‘transaction of ownership in the
network infrastructure’8) and its commercialisation, which entails that myriad
new applications and services require different technical treatments (different
services have different needs). ISPs can control what they are transmitting through
new technological development (e.g., Deep Packet Inspections) and they have
actively engaged with the transmission of the data packets. This happens either
because ISPs need to guarantee efficient delivery to ensure good quality of service
or, more problematically, because ISPs seek new venues to increase their profits by
favouring or disfavouring services and applications. These commercial and tech-
nical practices discriminate between applications and services and interfere ‘with
users’choices regarding the use of the network’.9We should also consider that the
actors operating within the Internet ecosystem strive for monopolisation: the eco-
nomic model intertwined with the Internet works on network effect, data advan-
tage, economies of scale and high switching costs from one service to another.10
6Ziewitz and Brown, supra n. 4, p. 15.
7This paper uses the term ‘ISP’because this is the term that is generally deployed when discus-
sing network neutrality. Also, the BEREC Guidelines uses the term ‘ISP’to refer to providers of
internet access services: BEREC Guidelines, supra n. 3. Nonetheless the Regulation uses the term
‘providers of internet access services’. To be sure, para. 4 of the Regulation states that ‘an internet
access service provides access to the internet, and in principle to all the end-points thereof, irrespec-
tive of the network technology and terminal equipment used by end-users’. Technically speaking,
Internet service providers are ones which ‘can offer both an electronic communications service, such
as access to the internet, and services not covered by this Directive, such as the provision of web-
based and not communications-related content’:see Council Directive 2018/1972 establishing the
European Electronic Communications Code [2018] OJ L321/36, para. 10.
8See M. Carr, US Power and the Internet in International Relations: The Irony of the Information
Age (Palgrave 2016) p. 57.
9B. van Schewick, ‘Network Neutrality and Zero rating’Report filed with the Federal
Communications Commission (FCC) along with an ex parte letter 19 February 2015, p. 1.
10Digital markets Subcommittee on Antitrust, Commercial and Administrative Law,
‘Investigation of Competition in Digital Market’(US 2020) 〈https://judiciary.house.gov/
uploadedfiles/competition_in_digital_markets.pdf?utm_campaign=4493-519〉, visited 9 October
2021.
An Open Internet? 3
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In light of the abovementioned risks, EU Regulation 2015/2120 on the open
internet11 has adopted non-discriminatory principles stating that when providing
internet access, service providers should treat all traffic equally. Nonetheless, a few
unclear points in the final text of the Regulation and some loopholes concerning
commercial practices such as zero-rating might undermine the Regulation’s scope.
Zero-rating is considered to be a practice against an open and neutral Internet, as
it distorts fair competition and threatens innovation.12 Zero-rating refers to the
practice of not counting the users’consumption of data of a specific application13
and, as such, it is a preferential treatment reserved to data coming from specific
digital actors, and is deployed to influence consumers’behaviour.14 Even if the
Regulation prohibits traffic management techniques based on commercial consid-
erations,15 at the same time there is no explicit and categorical ban of zero-rating
practices.16 Likewise, in line with regulation, the Body of European Regulators for
Electronic Communication (BEREC) Guidelines,17 which contain a list of crite-
ria to assess zero-rating schemes, also present some degree of ambiguity and do
not exhaustively address all the violations which could occur.
In light of this, the Telenor judgment18 discussed in this case note intersects
with these problematic facets and offers much needed conceptual clarification.
Furthermore, it focuses on the importance of network neutrality for equal access
to the Internet. This case can be considered to be a ‘definitional case’. According to
Lindroos-Hovinheimo, in this category of cases the Court explains meanings,
11Regulation (EU) 2015/2120, supra n. 1.
12L.C. Audibert and A.D. Murray, ‘A Principled Approach to Network Neutrality’, 13(2)
SCRIPTed (2016) p. 118.
13‘Zero-rating’is when an ISP applies a price of zero to the data traffic associated with a particular
application or class of applications: see 〈www.berec.europa.eu/eng/netneutrality/zero_rating/〉, vis-
ited 9 October 2021.
14See B. van Schewick, ‘B.T-Mobile’s Binge on Violates Key Net Neutrality Principles’(2016)
〈https://cyberlaw.stanford.edu/downloads/vanSchewick-2016-Binge-On-Report.pdf〉, visited 9
October 2021 The BEREC Guidelines also acknowledge that commercial conditions or practices
influence end users’choice: see BEREC Guidelines, supra n. 3, paras. 39 and 48. Marc Peeters dis-
cusses how in the Netherlands, Bits of Freedom challenged the Court’s decision in Autoriteit
Consument en Markt, in which it refused to take action against two mobile companies’zero-rating
practices. In the words of Peeters, one of Bits of Freedom’sarguments was that zero-rating provides
‘an artificial incentive to choose only or mostly for services that are zero-rated, to the determent of
other services’. However, the Dutch court has not upheld a categorical ban on zero-rating because it
would have stood against the EU Regulation: M. Peeters, ‘EU Net Neutrality: Harmonised
Enforcement and Judicial Review’,2Tijdschrift voor Internetrecht (2019) p. 62 at p. 65.
15See Art. 3(3).
16The Dutch approach initially regarded zero-rating as being in contrast to the scope of the
Network Neutrality Regulation itself: see Peeters, supra n. 14; Brouwer, supra n. 3.
17BEREC Guidelines, supra n. 3.
18Joined Cases C-807/18 and C-39/19, supra n. 2.
4Marta Maroni EuConst 17 (2021)
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concepts and the correct interpretation of the legal instrument at stake.19 Th e
judgment resonated as a victory for network neutrality and, to some extent, rein-
forces its underlying principles. However, some cause for criticism remains, as the
Court did not address all the facets of zero-rating practices and failed to engage
with two fundamental rights that are primarily subsuming the scope of the regu-
lation, namely freedom to conduct a business and freedom of expression.20
Specifically, the Court was required to interpret whether the commercial prac-
tices of Hungarian ISPs, which zero-rated, slowed down and blocked applications
and services, were compatible with the Regulation.21 The Court was asked to clar-
ify whether the foregoing practices should be interpreted under Article 3(2) on
agreements or Article 3(3) on equal treatment of the traffic. The difference mat-
tered because Article 3(2) entails an assessment of the violation of end users’rights
which is not required by Article 3(3). In practice, the question is whether such
practices are considered to fall under Article 3(2) and might be allowed, or
whether they are considered to be practices prohibited by Article 3(3) of the
Open Internet Regulation.
This commentary offers a constitutional law reading of the case. The first part
introduces the factual background, the Advocate General’s opinion and the final
judgment. The second part discusses the judgment in light of the Open Internet
Regulation and network neutrality principles. It further focuses on the signifi-
cance of the case for settling the importance of openness as a normative concept
of the Internet. This analysis highlights the choices that the Court makes in assess-
ing the practices in violation of network neutrality (i.e. technical interference with
the cap on consumption of data). This commentary concludes by asking why the
Court did not juxtapose users’rights with fundamental rights, given that today the
latter are greatly dependent on the openness of the Internet and are constitutional
principles for the EU.
19Lindroos-Hovinheimo distinguishes between two types of cases, definitional cases and balanc-
ing cases, in which the Court recognises the need to balance fundamental rights: see S. Lindroos-
Hovinheimo, ‘Who Controls Our Data? The Legal Reasoning of the European Court Of Justice In
Wirtschaftsakademie Schleswig-Holstein And Tietosuojavaltuutettu V Jehovan Todistajat’, 28(2)
Information & Communications Technology Law (2019) p. 225 and Private Selves: Legal
Personhood in European Privacy Protection (Cambridge University Press 2021) p. 14.
20See van Schewick, supra n. 9. Several scholars have provided an analysis of the relationship
between fundamental rights and network neutrality: see L. Belli and M. van Bergen, Protecting
Human Rights through Network Neutrality (Council of Europe, Steering Committee on Media
and Information Society 2013); Audibert and Murray supra n. 12.
21Joined Cases C-807/18 and C-39/19, supra n. 2, paras. 10-11, 20.
An Open Internet? 5
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F
The preliminary reference concerned the practices of Telenor, one of the main
internet service providers in Hungary. Telenor offered two service packages to
its consumers that zero-rated data consumption for a few applications. The first
package, ‘MyChat’,offered the option to purchase 1GB of data and use it without
restriction to the subscribing consumer. The package included the free use of six
popular applications, such as Facebook, Viber and Twitter as the data used on
these applications did not count against the data quota of the package.
Moreover, once the monthly data limit had been reached, it was still possible
to use those six applications without restriction, whereas other applications
and services would have been slowed down. Similarly, the ‘MyMusic’package
offered a zero-tariffplan for streaming music through Apple Music, Deezer,
Spotify Tidal applications and six radio services. Again, the zero-rating plan
applied to these applications whether the data volume of the package was available
or not, while other data use would have been blocked.22
The Hungarian National Media and Communications Office found that the
Telenor packages did not comply with the provisions of equal and non-discrimi-
natory treatment contained in Article 3(3) of the Regulation. Article 3 grants end
users the right ‘to access and distribute information and content, use and provide
applications and services, and use terminal equipment of their choice’.23 The case
concerned the application and the interpretation of Article 3(2) and 3(3), which
respectively state
2. Agreements between providers of internet access services and end-users on com-
mercial 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.
Telenor challenged the decision of the Hungarian National Media and
Communications Office before the Budapest High Court. Telenor submitted
that the case should be decided by applying solely Article 3(2) of Regulation
22Joined Cases C-807/18 and C-39/19, supra n. 2, paras. 9-11.
23Art. 3, Regulation (EU) 2015/2120, supra n. 1.
6Marta Maroni EuConst 17 (2021)
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2015/2120 to it. According to Telenor, Article 3(3) was not applicable because
the two packages were parts of agreements concluded with its customers, whilst
Article 3.3 concerned ‘Traffic-management measures implemented unilaterally
by providers of internet access services’.24 Telenor also claimed that because
the case fell within the scope of Article 3(2), an assessment of how packages influ-
enced the exercise of end users’rights was needed.25
The Budapest High Court considered that because of the wording of Article 3,
it was not possible to assess explicitly whether packages made available by the ISP
to its customers fall within the scope of Article 3(2) and 3(3). Being unclear which
methodology should be applied to assess the compatibility of Telenor’s practices
with the network neutrality regulation, the Budapest High Court decided to stay
proceedings and refer the following questions to the European Court of Justice:26
Should a commercial agreement between an ISP and an end user, under which
the ISP engages in discrimination, be interpreted in the light of article 3(2)? If not,
must article 3(3) be interpreted as meaning that an assessment of whether there is
an infringement requires an impact and market-based evaluation which deter-
mines whether and to what extent the ISP measures limit the rights of the
end user under article 3(1)?
Moreover, additional questions concern the scope of the prohibition under
article 3(3). Should this prohibition cover any traffic management measure,
regardless of whether the ISP distinguishes between forms of internet content
on the basis of an agreement, a commercial practice or some other form of con-
duct? And if so, is the existence of a discrimination sufficient to identify a violation
of article 3(3) without the need for a market and impact evaluation?27
T A G’O
Advocate General Campos Sánchez-Bordona began his Opinion by focusing on
the main objective of the Regulation, which he argues to be the openness of the
Internet.28 The Advocate General understood that even if there are two main aims
in the Regulation, namely ensuring open internet access and protecting end users,
the first bears more weight. According to the Advocate General, the title of the
24Joined Cases C-807/18 and C-39/19, supra n. 2, para. 15.
25Ibid.
26Ibid., para. 20.
27Ibid., paras. 20-21.
28Opinion of Advocate General Campos Sánchez-Bordona, 4 March 2020, Joined Cases C-807/
18 and C-39/19 Telenor Magyarország Zrt vNemzeti Média- és Hírközlési Hat´oság Elnöke ECLI:EU:
C:2020:154
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Regulation is indicative of this priority, as it starts with the wording ‘open internet
access’rather than end users rights.29 He built his interpretation on the consider-
ation that the Regulation is primarily about open Internet because an equal treat-
ment of the traffic is the precondition for the availability of the services and
applications and thus for end users’rights.
The Advocate General pointed out that the guarantee of open Internet access
goes hand-in-hand with the opportunity that ‘end-users can access all content,
applications and services, as well as supply and distribute the like without
restrictions :::’.30 Moreover, the Advocate General posited that
Ensuring that internet traffic management is fair and non-discriminatory is a con-
dition that must be fulfilled in order for the network to be genuinely open to end-
users. That openness presupposes that available content, applications and services
can be accessed, supplied and distributed without restrictions based on any of the
factors mentioned in Article 3(1): ‘the end-user’s or provider’s location [and] the
location, origin or destination of the information, content, application or service’
accessible via the internet.31
In addressing the effect on end users’rights, the Advocate General reasoned
that Article 3(2) protects the openness of the Internet and that internet access
providers cannot limit the exercise of users´ rights, whereas Article 3(3) requires
fair non-discriminatory treatment of Internet traffic. Telenor practices, directly
and indirectly, infringe end users’rights. The direct infringement concerns users
who provide content and do not belong to the group of selected applications (i.e.,
the delivery of their content is affected by unfavourable treatment). The indirect
infringement affects subscribers, who have limited opportunities to access wider
variety online content, and also suffer from the indirect consequences of slowing
down32 and the discriminatory treatment afforded to content providers who are
not zero-rated.33
The Advocate General noted that Telenor’s management practices slowed
down content which was not generated from selected applications; and speed
reduction is one form of traffic management that in principle is prohibited by
Article 3(3) of the Regulation.34 In particular, this commercial arrangement is
contained in the agreement between Telenor and its subscribers and Article
29Ibid., paras. 27-30.
30Ibid., para. 37.
31Ibid., para. 49.
32The practice of slowing down negatively affects the experience of using the application.
33Ibid., para. 55.
34Ibid., para. 56.
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3(2) prohibits agreements ‘on commercial and technical conditions’.35 In address-
ing the uncertainty of the referring court as to which framework should apply, the
Advocate General noted that the relevant aspect to consider was that there was an
infringement of users’rights as well as discriminatory traffic management meas-
ures in place (and the latter is definitely a violation of Article 3(3) of the
Regulation).36 Consequently, it was unnecessary to assess whether Article 3(2)
had also been infringed,37 as the Hungarian package practice was already incom-
patible with the Regulation.
T
Following the Opinion of the Advocate General, in its judgment38 the Court
agreed on the incompatibility of Telenor’s packages with the obligations of equal
treatment of all Internet traffic enshrined in Article 3 of the Regulation. The
Court clarified important terms and concepts, dividing its ruling into four parts.
It first introduced the underlying principles of the open Internet as enshrined in
Article 3.39 Second, it highlighted the relationship between ‘agreements’and
‘commercial practices’.40 Then it defined the term ‘end users’41 and, last, illus-
trated the impact commercial practices have on users’rights and the Internet.42
On the open Internet
In addressing the referred questions, the Court placed much importance on
Article 3 ‘Safeguarding of open internet access’, and discussed it at length. The
Court first referred to the passages from the Advocate General’s Opinion that
it considered important, in which emphasis was placed on the openness of the
Internet as a primarily principle of the Regulation.43 It then continued by remark-
ing that the purpose of the Regulation is to safeguard equal and non-discrimina-
tory internet access.
The Court decided that any interpretation of Article 3(2) and 3(3) needs to be
considered in the light of Article 3(1) and its principal aim, which is to protect end
users’rights to access and distribute information and content, as well as to provide
35Art. 3(2) of Regulation 2015/2120, supra n. 1, quoted in ibid., para. 57.
36Opinion, supra n. 28, para. 64.
37Ibid., para. 68.
38Joined Cases C-807/18 and C-39/19, supra n. 2, para. 27.
39Ibid., paras. 22-27.
40Ibid., paras. 32-36.
41Ibid., paras. 36-43.
42Ibid., paras. 43-46.
43Ibid., para. 27.
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applications and services. The Court also held that Article 3(2) requires that agree-
ments do not limit end users’rights.44
The Court moved on to analysing Article 3(3) in detail. The article prohibits
discrimination,45 restriction and interference irrespective of the application or ser-
vice used. If it is true that the Regulation allows for traffic management measures
(e.g., in case of network congestion), these need to be ‘reasonable’, which in this
context means they need to consider a range of technical requirements of catego-
ries of traffic and must be based on the principles of transparency, proportionality
and non-discrimination.46
Most importantly, the Court observed that commercial considerations are
excluded as a reason that could justify interfering with the use of applications
and services. Overall, Telenor packages do not qualify for the exceptions to
the general principles of network neutrality provisions.
On ‘agreements’and ‘commercial practices’
Next, the Court interpreted the meaning of ‘agreements’as challenged by the
Hungarian ISP. The Court pointed out that regardless of whether designed pack-
ages were part of contractual agreements with subscribers, Article 3(2) still
requires that there be no limitation in the exercise of users’rights47.
Furthermore, the contractual terms of those agreements –as stated in Article
3(2) –are limited to technical characteristics such as price, data volumes or speed.
As to commercial practices, the Court stated that these refer to the conduct of an
internet access service and they are aimed at adapting the services to meet poten-
tial subscribers’preferences. However, commercial practices ‘[:::] are not sup-
posed to reflect a concordance of wills between such a provider and an end
user :::’48
Simply put, the contractual agreements were based on the access to service
providers’commercial practices and neither the agreements nor commercial prac-
tices can limit end users’rights and circumvent the safeguards of open internet
access. The Court also elaborated on the role of National Regulatory
Authorities, which is to assess the compliance of ISPs with the provisions
enshrined in the Regulation on a case-by-case basis and by considering the char-
acteristics of the ISP. Whenever the National Regulatory Authority finds a viola-
tion of the whole of Article 3(3) by an ISP, it does not need to find a violation of
44Ibid., para. 24.
45Ibid., para. 25.
46Ibid., para. 25.
47Ibid., para. 33.
48Ibid., para. 34.
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Article 3(2). Importantly, the assessment by the National Regulatory Authorities
should be performed in light of the clarifications provided by the Court and their
assessment may be scrutinised by the national courts.
Who is an end user?
The Court complemented the abovementioned considerations by discussing who
end users are, a critical point which is key to understanding the openness of the
Internet. The Court remarked that the concept of the end user is not limited to
the subscribers to the packages offered by ISPs. Rather, end users comprise a
broader category which includes: ‘both natural and legal persons who use or
request internet access services in order to access content, applications and serv-
ices, as well as those who rely on internet access to provide content, applications and
services’.49 As such, the term ‘end users’also refers to those ‘who distribute infor-
mation and content and provide application and services’.50 Consequently, when
assessing agreements/commercial practices, the rights of those who provide con-
tent must be taken into account.
What is the impact of commercial practices?
Importantly, the Court recalled that, according to recital 7 of the Regulation
(zero-rating), the market position of the ISP should be considered because its scale
could materially affect end users’right of choice.
Subscriber packages which include zero-tariffagreements lead to a limitation of
rights. Specifically, the cumulative effects of these agreements are liable to increase
the use of zero-tariffapplications and services, and at the same time, they are liable
to reduce the use of other applications and services, the access to which is
restricted when the data are used.51 These packages make it technically impossible
to access applications and services that are not zero-rated. The Court noted that
the greater the number of subscribers, the more the cumulative effects of those
agreements will limit the exercise of users’rights.52 In light of the foregoing, the
Court found there was no compatibility with the obligation of equal-treatment of
the traffic for which no derogation is envisaged for commercial practices. The last
paragraph of Article 3(3) details the cases where derogations are permitted, such as
the need to comply with Union legislative acts, including national legislation and
court orders included ‘to preserve the integrity and security of the network’or
49Ibid., para. 37 (italics added).
50Ibid., para. 38 (italics added).
51Ibid., para. 44.
52Ibid., para. 45.
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services or applications; and to prevent or mitigate the effect of temporary net-
work congestion.53
Concerning the question of whether an assessment of the effects of commercial
practices on users’rights is necessary, the Court pointed out that there is no such
requirement when it comes to assessing the general obligations prescribed by the
Regulation.
A
Telenor Magyarország Zrt vNemzeti Média- és Hírközlési Hat´oság Elnöke is a
straightforward case, which nonetheless was decided by the Grand Chamber
to emphasise the importance of the topic. The European Court of Justice took
a strong stand against the commercial practices of Telenor and, as a general obser-
vation, the ruling offers much-needed clarification on the meaning of the
Regulation and establishes the importance of openness for the Internet.
However, the Court also refrained from directly evaluating zero-rating as a form
of discrimination and avoided engaging with a fundamental rights debate.
Network neutrality is a central regulatory tool in the field of internet gover-
nance, as it attempts to prevent ISPs from becoming the gatekeepers of what cir-
culates online. Specifically, the provisions on zero-rating prohibit corporate
schemes which would steer consumers’choices towards which apps or services
to use, thus distorting the level playing field, and effectively reducing innovation,
diversity and pluralism.54 Importantly, the Court highlighted these aspects, and
this merits attention because the final text of the Regulation is a notoriously weak-
ened version of the original Commission proposal and of the main features con-
stituting network neutrality provisions (no blocking, no throttling, no paid
prioritisation).55
Problematically, the expressions ‘network neutrality’and ‘zero-rating’are miss-
ing from the text of the Regulation. If the meaning of the first can be identified in
Article 3, and recital 7 is its closest articulation of zero-rating, the Regulation
remains vague on these important aspects.56 As reported by Horten after the
adoption of the Regulation, views remained divided on which business models
53Ibid., para. 49.
54K. Maniadaki, ‘Net Neutrality Regulation in the EU: Competition And Beyond’, 10(7) Journal
of European Competition Law & Practice (2019) p. 479 at p. 485.
55On these and the following points see C.T. Marsden, Network Neutrality (Manchester
University Press 2017) p. 116.
56Ibid.
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were permitted and the telecom industry believed that the Regulation allowed
zero-rating practices.57
Given the vagueness on these points, the BEREC Guidelines have played an
important role in interpreting the Regulation on these matters. Noteworthy for
the present case, the BEREC Guidelines state that ‘a zero-rating offer where all
applications are blocked (or slowed down) once the data cap is reached except for
the zero-rated application(s) would infringe Article 3(3) first (and third) subpara-
graph’.58 The Guidelines do not ban zero-rating practices as such,59 but they dif-
ferentiate between the various types of zero-rating based on their effect on users’
rights. For example, the Guidelines allow zero-rating practices that are not con-
sidered to limit end users’rights, but only influence their choices. These are prac-
tices which apply price-differentiation or zero-rating to all of the same category of
applications (e.g., all music streaming applications). According to BEREC, these
commercial practices are less dangerous. It is noteworthy that zero-rating all apps
(thus placing all apps into the same category) is still considered harmful because it
influences what consumers do with their apps, e.g., encouraging the use of social
networks rather than reading newspapers.60 Because of the importance the Court
places on the idea of an open Internet, questions can (again) be raised as to
whether zero-rating practices (and consequently the BEREC Guidelines) are in
line with the scope of the Regulation.61
As to the judgement, the Court seems not to distinguish between two practices
of Telenor´s MyChat and MyMusic services, namely: (1) the fact that the data did
not count against the data cap; and (2) once the data cap is reached, the other
57M. Horten, The Closing of the Net (Polity 2016) p. 86.
58BEREC Guidelines, supra n. 3, para. 41.
59See, for example, the Access Now submission to the public consultation on draft BEREC
Guidelines on the implementation of Open Internet Regulation (BoR PC10 (19) 27, 28
November 2019).
60Barbara van Schewick comprehensively details how this type of zero-rating still harms innova-
tion and freedom of expression. Zero-rating of all applications in a class allows ISPs to become the
gatekeepers of the Internet as they select and allow applications in the program. Preventing ISPs
from acting as gatekeepers is amongst the goal of the Regulation which aims to maintain an open
Internet. Further, this kind of program requires applications to actively seek to be zero-rated, which
can be particularly burdensome for start-ups: see B van Schewick, ‘Comments on BEREC
Guidelines on the Implementation by National Regulators of European Net Neutrality Rules,
BoR (16) 94’(BoR PC 01 (16) 106, 18 July 2016).
61The Dutch legislation initially considered zero-rating to be contrary to Art. 3(3) of Regulation
(EU) 2015/2120: see Brouwer, supra n. 3; N. Van Eijk, ‘Does net neutrality work? The Dutch
case’(27th European Regional Conference of the International Telecommunications Society
(ITS): ‘The Evolution of the North-South Telecommunications Divide: The Role for Europe’,
Cambridge, UK, September 2016) 〈https://www.econstor.eu/bitstream/10419/148715/1/van-
Eijk.pdf〉, visited 9 October 2021.
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applications were either blocked or slowed down. The Court directly addressed
the second aspect,62 which represents a differential technical treatment, but failed
to address the most common practice of zero-rating, that is, the opportunity to
use a few apps which do not count against the data volume.63 If the Court repeat-
edly points out that ISPs should not discriminate between specific applications
and services, it also fails to stress that not counting the data of selected applications
amounts to discrimination (as also stated in the BEREC Guidelines). By display-
ing zero-rating as a form of network neutrality breach, the Court would have pro-
vided an authoritative voice against this type of discriminatory practice. This
would have had consequences for the BEREC Guidelines, by reminding everyone
that zero-rating all applications in a class is also a form of discrimination. Zero-
rating should be avoided regardless of the material effect on users’rights.64 Th e
practice of zero-rating, even when it is not followed by different technical treat-
ment (e.g., slowing down or blocking), is a ‘powerful tool to favour some appli-
cations over others and causes the same problems as technical forms of differential
treatments’.65 In addition, by commenting on zero-rating practices, the Court
would have offered further guidance to National Regulatory Authorities which
are responsible for monitoring and intervening on a case-by-case basis against
commercial practices which undermine end users’rights.66
That said, it is worth noting that the ruling discerns the difference between the
‘commercial’and ‘technical’/traffic management. Technical interferences (e.g.,
slowing down, blocking services, degrading) are ambiguously deployed to meet
commercial purposes,67 and it is not easy to distinguish between technical man-
agement and commercial management. Importantly, the Court stated that what
differentiates the two is the purpose. In other words, it is essential that traffic-man-
agement measures be necessary for the functioning of the network (e.g., prevent-
ing network congestion) and limited in time.68
On the openness of the Internet
A significant point of debate is the one on the open Internet. Openness is a nor-
mative feature of the Internet, which today needs much protection against the
62My thanks to Dennis Brouwer for this point.
63van Schewick supra n. 9.
64See Maniadaki, supra n. 54.
65van Schewick, supra n. 9, p. 2.
66See recital 7 of Regulation (EU) 2015/2120, supra n. 1.
67For example, Maniadaki highlights that discrimination in the context of Network neutrality
‘may refer to the differentiated technical treatment of online traffic:::’: Maniadaki, supra n. 54.
p1
68Joined Cases C-807/18 and C-39/19, supra n. 2, para. 2.
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ongoing attempts to centralise it.69 The term ‘centralise’here roughly refers to the
trend which sees actors (e.g., ISPs, major platforms) increasingly exerting control
over the way the Internet develops and what circulates online.
If ISPs underlie the functioning of the network and are the primary actors to
look at, issues of openness require broader structural power problems within the
Internet ecosystem to be included in the Regulation. If the object of the
Regulation is an open Internet rather than simply network neutrality, a general
observation is that the Regulation fails to incorporate problems beyond the func-
tioning of the ISPs (such as control over data, for example). Reducing the problem
of Internet openness to just the area of ISPs’practices risks obscuring further
aspects that affect the decentralised nature of the Internet. Be that as it may, ‘open
Internet’has importantly guided the interpretation of the Court in this current
case. By emphasising this concept, the Advocate General and European Court of
Justice have established the importance of ‘openness’as a value to be protected for
the Internet, and one on which further rulings will be built. This is especially true
given that the case was decided by the Grand Chamber, which usually addresses
new complex or important issues; this makes the ruling likely to become a prece-
dent.70 Although it is beyond the scope of this commentary to provide more detail
on the concept of openness, at a ‘practical’level, one might note that commercial
practices such as zero-rating contribute to the accumulation of power by a few
actors, which conversely reduces the distributed nature and diversity of the
Internet ecosystem. The debate on network neutrality began because ISPs were
intervening in the trafficflow of competitive services (e.g., ‘Voice over
Internet Protocol’), and were trying to profit from digital platforms with many
users by charging them to deliver their content.71 However, rather than compet-
ing with digital actors, ISPs now partner up with them to increase their positions
of power. It is well known that zero-rating promotes the use of a few well-estab-
lished digital platforms and amplifies their network effect. This means that those
applications which are already the most used and which exert control over the
majority of data flow will grow even further. Likewise, ISPs deploy zero-rating
offers to attract more subscribers, thus growing in the market.
The Court somehow touched on these aspects when it discussed the relation
between the ‘scale’on which the ISPs operate and how this materially reduces user
69L. Belli, ‘End-to-End, Net Neutrality and Human Rights’, in L. Belli and P. De Filippi (eds),
Net Neutrality Compendium (Springer 2016); L. Belli, ‘Net Neutrality, Zero Rating and the
Minitelisation of The Internet’,2Journal of Cyber Policy (2016) p. 96.
70T. Ojanen, ‘Privacy Is More Than Just a Seven-Letter Word: The Court of Justice of the
European Union Sets Constitutional Limits on Mass Surveillance: Court of Justice of the
European Union, Decision of 8 April 2014 in Joined Cases C-293/12 and C-594/12, Digital
Rights Ireland and Seitlinger and Others’, 10(3) EuConst (2014) p. 528 at p. 529.
71L. DeNardis, The Global War for Internet Governance (Yale University Press 2014).
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choice.72 However, in the Court’s analysis, the popularisation effect that zero-rat-
ing has on the ISPs and how this contributes to reducing online diversity remains
unexplored. It is worth questioning how the dominance of a few ISPs may hinder
constitutional values such as competition, pluralism and diversity. For example,
let us consider the scenario in which in a country there is high concentration of
the market by few ISPs,73 which already manage most of the Internet traffic. In
cases of commercial agreements between a few ISPs and popular digital platforms,
small and less competitive applications would materially be denied the opportu-
nity to reach users, as ISPs would favour well-established platforms in order to be
more attractive to their subscribers (as opposed to those ISPs which do not use
zero-rating practices). To understand how reduction of the availability and diver-
sity of content may take place, the way platforms operate also deserves consider-
ation because platforms actively determine how individuals consume content.
This happens by collecting users’behavioural data and selling advertisement
space.74 In other words, platforms optimise the match between users, services,
and applications by using profiling techniques. This means that users’possibility
of access is hampered dramatically. In the case of corporate practices such as zero-
rating, the availability of content is restricted through a double passage: first,
through the selection by the ISPs (whenever network neutrality is absent) of
which services get better performance and are accessible, and second, through
the optimisation applied by the platforms.75
On the neutrality of ‘network neutrality’
Although this is the first case on network neutrality, it is not the first ruling in
which the Court has encountered the concept of neutrality. Neutrality here
should not be confused with the principle of technology neutrality, which refers
to a regulatory framework that should ‘neither impose nor discriminate in favour
of the use of a particular type of technology’.76 Rather, neutrality is a construction
that conceptualises the regulation of internet intermediaries; beneath its use,
among other things, lies a struggle to delimit the power of internet communica-
tion technologies. Network neutrality is not the only regulatory framework for the
ISPs; these also belong to the broader category of internet intermediaries. The E-
commerce Directive establishes that ISPs should not be liable for illegal third-
72Judgment, supra n. 2, paras. 41 and 46.
73E. Brogi et al., Monitoring media pluralism in the digital era : application of the Media Pluralism
Monitor 2020 in the European Union, Albania and Turkey in the years 2018-2019 (Centre for Media
Pluralism and Media Freedom (CMPF) Policy Report 2020) p. 48.
74N. Srnicek, Platform Capitalism (Polity 2016).
75There are two main effects, known as echo-chamber and filter bubble.
76Regulation (EU) 2015/2120, supra n. 1, para. 2.
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party content when they do not initiate it or have actual knowledge of the illegal
activity or information and are unaware of the facts or circumstances from which
the illegal activity or information is apparent. Under the E-commerce Directive,
ISPs fall within the category of mere conduit, which means that the provider ‘does
not initiate the transmission; does not select the receiver of the transmission; and
does not select or modify the information contained in the transmission’.77 Th e
Court elaborated that the idea of neutrality by limiting its concept to an actor who
has ‘confined itself to a merely technical and automatic processing of data’.78 This
builds on the idea that a ‘::: society service provider has neither knowledge of
nor control over the information which is transmitted or stored’(emphasis added).79
A possible way of reading the E-commerce Directive is that internet intermediar-
ies should not have decided on the circulation of the content. In these two contexts,
intermediaries’liability and network neutrality, neutrality as a legal construction80
hints that there should not be control over content, or –as DeNardis put it –
neutrality is generally understood as meaning that network operators should
not take action.81
Within the network neutrality framework, reducing the possibility of control
implies the ‘right to use content, applications and services’. Ultimately, this means
that the relationship between users’rights to access and users’rights to provide
content should not be mediated by the ISPs. At the moment, it remains an open
question whether this construction can be further elaborated and applied to other
actors and layers of the Internet.82
The missing dots: users’rights are fundamental rights
Unfortunately, the Court has not spelled out which user rights correspond to fun-
damental rights and how the latter are intertwined with the openness of the
77Directive 2000/31/EC ‘Directive on electronic commerce’, Art. 12.
78ECJ 12 July 2011, Case C-324/09, L’Oréal SA and Others veBay International AG and Others
ECLI:EU:C:2011:474, para. 119.
79Directive 2000/31/EC ‘Directive on electronic commerce’, recital 42.
80By ‘construction’I mean that technology is never neutral as such, and it has its own normativity
and politics: see DeNardis, supra n. 71; L. Winner, ‘Do Artifacts Have Politics?’(1980) 109(1)
Daedalus 121; and S. Larsson, Conceptions in the Code: How Metaphors Explain Legal Challenges
in Digital Times (Oxford University Press 2017).
81DeNardis, supra n. 71, p. 149. For a critical analysis of the concept of neutrality, see M. Maroni
and E. Brogi, ‘Freedom of Expression and the Rule of Law: the Debate in the Context of Online
Platform Regulation’, in L. Parcu and E. Brogi (eds.), Research Handbook on EU Media Law and
Policy (Edward Elgar 2021).
82An application of this can be found in D. Brouwer, ‘A Non-Discrimination Principle For
Rankings In App Stores’, 9(4) Internet Policy Review (2020) p. 1.
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Internet. One reason is that none of the preliminary questions mentioned pro-
visions of the EU Charter of Fundamental Rights.
However, placing network neutrality considerations alongside fundamental
rights helps in recognising how rights are inseparable from their organisational
and material settings and, conversely, how technological arrangements can be
shaped to either promote or hinder rights.
A well-designed network neutrality regime narrows disparities between the
actors who want to participate in the digital realm, and is important for equality
of access. Overall, ISPs (and internet communication technologies in general) can
create new types of discrimination and new forms of exclusion from society (in
addition to the one belonging to digital divide concerns83) based on commercial
interests. In this context, network neutrality primarily helps to protect freedom of
expression and freedom to conduct a business.84 If ISPs discriminate among
actors wanting to deliver content and services, they interfere with the chance
to seek and impart information and ideas as well as the freedom to exercise an
economic or commercial activities. Recital 33 acknowledges the importance of
respecting fundamental rights and observing the principle recognised by EU
Charter of Fundamental Rights such as ‘the protection of personal data, the free-
dom of expression and information, the freedom to conduct a business, non-dis-
crimination and consumer protection’.85
A network neutrality regime primarily protects an ecosystem (the Internet) in
which these freedoms have a chance to materialise. For this reason, it is somehow
odd that the Court has not juxtaposed fundamental rights considerations and net-
work neutrality provisions.
The freedom to conduct a business, protected by Article 16 of the Charter,
explicitly recognises one’s personal right to ‘exercise an economic or commercial
activity’86 ‘without undue interference from the state’.87 If Article 16 is canoni-
cally interpreted as a subjective right, this also counts as an organisational princi-
ple. According to Everson and Rui Correia Gonçalves, the freedom to conduct a
business indicates a ‘specific form of social-economic organization’,88 that is, a
commitment to a ‘highly competitive social market economy, aiming at full
83M. Ragnedda, The Third Digital Divide: A Weberian Approach to Digital Inequalities (Routledge
2017).
84van Schewick, supra n. 9.
85Regulation (EU) 2015/2120, supra n. 1, recital 33.
86See Art. 16 of the Charter.
87N. Wahl, ‘The Freedom to Conduct a Business: a Right of Fundamental Importance for the
Future of the European Union’, in F. Amtenbrink (ed.), The Internal Market and the Future of
European Integration (Cambridge University Press 2019).
88M. Everson and R. Correia Gonçalves, ‘Freedom to Conduct a Business’, in S. Peers et al.
(eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) p. 437.
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employment and social progress’89 as recognised in Article 3(3) TFEU. Everson
and Rui Correia Gonçalves attribute a ‘performative character’90 to the freedom to
conduct a business, which aims to value the entrepreneurial initiative and shows
the EU commitment ‘to the maintenance of a specified form of political economy,
or a distinct form of economic and social organization’.91 Briefly, the freedom to
conduct a business is associated with the idea of an open market economy with
free and fair competition. In today’s highly digitalised economy, regulating the
playing field online –that is network neutrality –also protects important values
for the EU associated with the economic initiatives.
In light of the foregoing considerations, the Court could have clarified that
ISPs should not create differential access, which would establish barriers to par-
ticipation in the economy online as much as offline.
A standard criticism of network neutrality would claim that ISPs have their
own freedom to conduct a business. However, the freedom to conduct a business
is not just an absolute right (hence subjected to limitation); it has a recognised
social function, which theoretically aims to ensure that a broader societal need
is met.92 In fact, the Court itself has remarked about the limits of private freedom
to pursue the general interest:93 the contractual freedom of these actors is
restricted (volume, speed etc.) in order to guarantee the two aims of the
Regulation: users’rights and an open Internet. For these reasons, the
Regulation makes it possible to provide an overall assessment of the provider’s
commercial practices (and not to limit the possibility of such an assessment).
If ISPs do not curtail the variety of services and goods which circulate online,
this translates into the users having the option of choosing what better serves their
needs, interests and personal characteristics. This is especially important because a
competitive market could also lead to a more diversified and tailored production
and distribution of goods and services (consumers’protection or consumer
welfare).
The same line of reasoning can be applied to freedom of expression, which is
also dependent on a diversified and competitive market which protects pluralism.
89Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ
C326, Art. 3(3).
90Everson and Correia Gonçalves, supra n. 88.
91Ibid.
92U. Andrea, The Freedom to Conduct a Business in the EU, Its Limitations and Its Role in the
European Legal Order: A New Engine for Deeper and Stronger Economic, Social, and Political
Integration. (Cambridge University Press 2019) (the Italian constitution also remarks that the eco-
nomic activities do not persue only their own interests).
93Joined Cases C-807/18 and C-39/19, supra n. 2, para. 26.
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Pluralism broadly refers to ‘::: diversity of ownership, variety of the sources of
information and in range of contents available :::’.94 Any consideration on net-
work neutrality cannot avoid the importance it plays in the context of freedom of
expression. In fact, the diversity of the contents and their accessibility and circu-
lation are the bases for a democratic society. As extensively addressed by the
Court, if Regulation 2015/2120 grants rights to end users to access and distribute
information or run applications and services of their choice, restricting ISPs’eco-
nomic freedom is functional to supporting the promotion of content diversity and
media pluralism. The lack of network neutrality would lead to the risk of letting
ISPs choose which content and whose voice would reach a wider audience or who
would benefit from better network performance.
In the case of commercial agreements between ISPs and popular digital plat-
forms, small and independent applications which carry no mainstream informa-
tion would be denied the opportunity to reach users and this limits the plurality of
views, without which freedom of expression would cease to work.
Bringing fundamental rights considerations into the discussion would have
helped to emphasise the importance that internet technologies have for current
society, especially when there are pressing issues concerning their regulation and
development.
C
ISPs can implement discriminatory practices driven by commercial interests.
Specifically, ISPs can interfere with the transmission of content either through
technical means, such as degrading the transmission of the comments or by influ-
encing consumers’behaviour. The Regulation to a greater extent forbids these
practices except for a few, critical loopholes. The Telenor judgment concerns
straightforward practices violating the network neutrality provisions. The case
is noteworthy because it was the first time that the European Court of Justice
had ruled on the Regulation. This commentary has noted, first, that the Court
offered important clarifications on the meaning of the provisions contained in
the Regulation and engaged with and defined the following concepts: open
Internet; the relationship between ‘agreements’and ‘commercial practices’; and
‘end users’. Second, this case note has pointed out the importance of the ruling
for crystallising the concept of Open Internet, regardless of the fact the Court
94Commission of the European Communities, Commission staffworking document media plural-
ism in the member states of the European union (sec(2007) 32).
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avoided engaging with the thorny issue of zero-rating practices as listed in the
BEREC Guidelines. The commentary has also stressed how the Court refrained
from aligning the ruling with a fundamental rights reasoning, which would have
helped to emphasise the constitutional relevance that ISPs have within contem-
porary society.
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