Net Neu­tral­i­ty

• Best effort principle
• Zero-rating
• Covid-19 pandemic: network utilisation
• Legal Framework
• Annual net neutrality reports
• BEREC

The internet is a combination of interconnected, independent networks without any central administration. The success of the internet is due to its simple and therefore robust but flexible network infrastructure. The separation of the network level from the application and service level and the associated low market entry barriers have boosted innovation. Innovative services and applications can continue to be developed, whether by end-users or providers without their own network.

The internet offers companies a new distribution channel to reach customers with little effort and low transaction costs.

The internet also offers customers the possibility to retrieve information quickly and easily, compare prices and purchase goods and services.

At the same time, the internet contributes to media diversity as well as facilitating political participation by making it easier for people to obtain information and express their opinion.

Best effort principle

To be able to use services and applications and obtain and distribute information, no further coordination with the network is needed. How each individual data packet is transported through the internet depends on the degree of utilisation of the system. This is known as the best effort principle.

EU policymakers have laid down net neutrality and the best effort principle in law with Regulation (EU) 2015/2120 (also known as the "TSM Regulation"). Net neutrality within the meaning of the TSM Regulation is when an internet service provider treats all traffic in a network equally (or neutrally), irrespective of the:

• content
• application
• service
• sender and
• receiver.

The core of the debate on net neutrality is essentially about whether or to what extent a departure from the previous principles of data transport on the Internet is acceptable from the point of view of both users and content providers.

Zero-rating

Zero-rating or zero tariff options are a hot topic in the context of net neutrality.

Zero-rating is a commercial practice that allows a customer to use certain services and applications covered by the zero-rating option without the data volume used for the services and applications counting towards the customer's data allowance in their internet access service contract.

There are different types of zero-rating practices. For instance, a zero-rating option may cover just one application (such as a certain music streaming app) or a whole category of applications (such as different video streaming apps). Add-on zero-rating options that cover services and applications of partners of a certain service category (such as audio, video, gaming, social and chat) are relatively common.

The European Court of Justice (ECJ) set out its opinion on zero tariff options in three judgments of 2 September 2021 (C-854/19 Vodafone Pass – roaming; C-5-/20 Vodafone Pass – limitation on tethering; C-34/20 Telekom StreamOn – limitation on bandwidth). In these judgments, the ECJ ruled that zero tariff options are incompatible with the principle of equal treatment of all traffic within the meaning of Article 3(3) of the TSM Regulation. The ECJ prohibited both technical and price-related unequal treatment of different categories of traffic within one tariff. The Bundesnetzagentur therefore takes the view that the zero tariff options offered on the German market (StreamOn/Vodafone Pass) are no longer admissible.

The operative provisions and the reasoning in the judgments are binding for the Bundesnetzagentur as well as for the other national regulatory authorities (NRAs) in Europe. All NRAs also need to take "utmost account" of the guidelines issued by the Body of European Regulators for Electronic Communications (BEREC). The BEREC guidelines that were revised in light of the ECJ judgments were approved on 14 June 2022.

Covid-19 pandemic: network utilisation

There have been no known cases of network overload in Germany as a result of the Covid-19 pandemic and the increase in the use of the internet through working from home, online education, video streaming and gaming services. The networks were also stable during the lockdown in spring 2020. A Report on utilisation of telecommunications networks (pdf / 91 KB) was published on 25 March 2020.

Network operators have arrangements in place to keep their networks operating as well as possible. If overloading were to occur, operators would be able to take traffic management measures as permitted by the TSM Regulation. The Bundesnetzagentur drew up Guidelines on traffic management measures (pdf / 83 KB) for the telecoms sector with solutions and measures for permissible traffic management. Up until now, it has not been necessary for network operators to take traffic management measures to cope with the level of traffic during the Covid-19 pandemic.

From March 2020 onwards, the NRAs reported regularly to BEREC on the situation in the networks and any regulatory or other action taken in light of the Covid-19 crisis. Overall, the increase in working from home and the use of streaming services did not lead to problems with the availability or general quality of internet access services in Europe.

BEREC published a report in November 2020 presenting the experiences with the regulatory and other measures taken in the Member States in areas including consumer protection, numbering and public warning systems since the beginning of the Covid-19 crisis in March 2020.

BEREC published a second report in December 2021 on the lessons learned from the action taken during the Covid-19 pandemic. The aim is to guarantee the continued functioning of communications networks and services. The report looks at the measures adopted at national level in the Member States and analyses the impact of the Covid-19 crisis on European telecommunications networks, including the open internet.

Overall, the report found that the NRAs have sufficient regulatory tools at their disposal to react to such crises adequately. Close cooperation between all those involved – NRAs, BEREC, companies, other national authorities and the European Commission – was a core factor contributing to the proven reliability of the communications networks even under the pandemic conditions.

Legal Framework

On 30 April 2016, a set of European rules to ensure net neutrality came into force. The rules are set out in Regulation (EU) 2015/2120 laying down measures concerning open internet access.

The Regulation protects all end-users:

• consumers and companies using internet access services and
• providers of content and applications.

The aim of the Regulation is to establish common rules to safeguard equal and non-discriminatory treatment of data traffic in the provision of internet access services and related end-users' rights. Put simply, the Regulation gives end-users the right to use the internet however they like, for instance to retrieve information or use applications or services of their choice. The Regulation also serves to guarantee that the internet ecosystem can continue to act as an engine for innovation.

The basic principle of Regulation (EU) 2015/2120 is net neutrality. The principle requires providers of internet access services to treat all traffic equally.

The Bundesnetzagentur can issue orders and enforce these orders with a coercive fine where necessary to implement the provisions of Regulation (EU) 2015/2120. It can also impose fines for certain breaches of the net neutrality provisions. The German Telecommunications Legislation Modernisation Act, which entered into force on 1 December 2021, increased the maximum fine for particularly serious breaches to 1 million euros.

Traffic management

In the context of traffic management, different categories of traffic are allowed provided that there are objectively different technical quality of service requirements. This is known as "reasonable traffic management".

Reasonable traffic management measures must be:

• transparent
• non-discriminatory and
• proportionate

and should not be based on commercial interests.

Providers are therefore not allowed to charge for special categories of traffic. Such reasonable traffic management measures must not monitor the specific content and must not be maintained for longer than necessary.

Exceptions

There are exceptions to the principle of equal treatment of all traffic. Traffic management measures are allowed in exceptional cases in order to comply with legislation, comply with orders by courts or public authorities, preserve the integrity and security of the network, and prevent impending network congestion or mitigate the effects of exceptional or temporary network congestion.

The Regulation also provides scope for the provision of specialised services, subject to strict conditions. Providers are free to offer specialised services other than internet access services and charge users for the services if optimised data transmission is objectively necessary in order to meet requirements of the content, applications or services, for instance if a service requires guaranteed and stable transmission conditions.

Updated Guidelines

BEREC published updated Guidelines on the Implementation of the Open Internet Regulation on 11 June 2020. For more information on the BEREC Guidelines please see chapter "BEREC" below.

Annual net neutrality reports

The Bundesnetzagentur publishes an annual report on implementation of the net neutrality provisions in Germany covering the period from May to April of the following year.

The net neutrality rules are set out in Regulation (EU) 2015/2120 laying down measures concerning open internet access. The aim of this Regulation is to establish common rules to safeguard equal and non-discriminatory treatment of data traffic in the provision of internet access services and related end-users' rights. It aims to protect end-users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation. The Regulation entered into force on 30 April 2016.

The Bundesnetzagentur is responsible in Germany for enforcing Regulation (EU) 2015/2120 on open internet access.

The annual reports focus on the following issues: the safeguarding of open internet access, transparency measures, supervision and enforcement, and penalties.

The Bundesnetzagentur has published its seventh report on the enforcement of the provisions on net neutrality in Germany. The Annual Report 2022/2023 covers the period from 1 May 2022 to 30 April 2023.

Net Neutrality in Germany – Annual Report 2022/2023 (pdf / 1 MB)

Previous Annual Reports:

Net Neutrality in Germany – Annual Report 2021/2022 (pdf / 642 KB)

Net Neutrality in Germany – Annual Report 2020/2021 (pdf / 2 MB)

Net Neutrality in Germany Annual Report 2019/2020 (pdf / 3 MB)

Net Neutrality in Germany Annual Report 2018/2019 (pdf / 797 KB)

Net Neutrality in Germany Annual Report 2017/2018 (pdf / 685 KB)

Net Neutrality in Germany Annual Report 2016/2017 (pdf / 659 KB)

BEREC

The Bundesnetzagentur is responsible in Germany for enforcing Regulation (EU) 2015/2120 on open internet access. The Bundesnetzagentur liaises with other European regulatory authorities within the Body of European Regulators for Electronic Communications (BEREC) with the aim of guaranteeing consistent application of the net neutrality provisions within the EU.

Guidelines on implementing the European net neutrality rules by the NRAs

Article 5(3) of Regulation (EU) 2015/2120 requires BEREC to issue guidelines for the implementation of the net neutrality obligations by the NRAs. BEREC issued the first guidelines in 2016. The guidelines are designed to provide guidance on implementing the obligations of NRAs and contribute to the consistent application of the Regulation. The NRAs must take utmost account of the guidelines. BEREC revised the relevant sections of its net neutrality guidelines in light of the ECJ judgments on zero tariff options. BEREC put out a draft for public consultation and then published the revised version of its Guidelines on the Implementation of the Open Internet Regulation on 14 June 2022.

The key points of the guidelines are summarised in a fact sheet:

fact sheet (pdf / 340 KB) (pdf/340 KB)

BEREC publishes an annual report on the implementation of the EU net neutrality provisions by the NRAs:

BEREC Implementation Reports

BEREC has issued various publications about net neutrality issues for a number of years now:

BEREC Net Neutrality Regulatory Assessment Methodology (5 October 2017)

BEREC Net neutrality measurement tool specification (5 October 2017)

BEREC Report on IP-Interconnection practices in the Context of Net Neutrality (5 October 2017)

Additional reports from BEREC on net neutrality are available at https://berec.europa.eu.