EU Council about to Reach Compromise on Net Neutrality

The new legislation, drafted under the Latvian Presidency that took over this month, will be based on the Italian Presidency’s proposal of 14 November 2014 and Member States’ contributions of November and December. Still following a principle-based approach, as proposed earlier, the final proposal will however contain some changes compared to the draft of November. The presidency announced that a definition of the term “internet access services” will be included and the text of Article 23 will be changed to start with:

“end-users’ right to open internet and the freedom of electronic communication providers to offer services other than those of internet access (services which require a specific level of quality), provided that there is no demonstrable negative impact on the availability and general quality of internet access services.

This new wording could indicate a broader scope of protection than the original text “Freedom to provide and avail of open internet access, and traffic management” in the European Parliament’s proposal. In general the new legislation will require equal treatment of all traffic. Reasonable traffic management measures will however be allowed in exceptional situations.

In its meeting of 27 January 2015 the Council further discussed the issue of so called “zero rating”. Zero rating means MNOs and MNVOs teaming up with certain online services (typically Facebook, Google, Wikipedia, music streaming or online television) in order to provide their customers with free access to those services. Zero rating has recently become a contentious issue with respect to net neutrality. In view of this controversy the Presidency is seeking guidance from the Member States on whether and how this matter should be resolved in the draft legislation. A ban on positive price discrimination across the European Union is however not likely since the Presidency already pointed out that the issue could be left outside legislative proposal’s scope and could be regulated by banning positive price discrimination at national level or leaving the assessment of such practices to general competition law.

Due to the Latvian presidency’s structured schedule a final draft is to be expected in February and then has to be discussed with the European parliament again.