This article analyses the changes in the regulatory analysis of zero-rating by national regulatory authorities in almost seven years of implementation of the European Union’s Regulation on Open Internet Access. The European Court of Justice issued three landmark judgments in cases C‑34/20 Telekom Deutschland (throttling), C‑5/20 Vodafone (tethering) and C‑854/19 Vodafone (roaming). The Court ruled that ‘zero-tariff options’, a form of zero-rating, violate the general obligation of providers of internet access services to treat traffic equally and without discrimination. The Court determined that these options fail to follow the stipulations of Article 3(3) of the Regulation on Open Internet Access. Prior to the judgments, the Open Internet Guidelines drafted by the Body of European Regulators for Electronic Communications (BEREC) recommended that national regulatory authorities should analyse zero-rating under Article 3(2) of the Regulation. BEREC recommended that they conduct a multi-factor analysis of the effects of zero-rating on the market. After the judgments, BEREC published updated guidelines stating that zero-rating as such is prohibited under Article 3(3), unless the zero-rating does not differentiate between applications based on user traffic. The authors argue that the judgments of the Court in conjunction with the updated Open Internet Guidelines provide NRAs and market actors with more legal certainty regarding the legality of zero-rating under the Regulation on Open Internet Access.
Keywords: zero-rating; open internet; net neutrality; regulation; internet access service
Dennis Brouwer is a Doctoral Candidate in Law at the Faculty of Law, University of Helsinki. Michiel van Dijk is a Coordinating Enforcement Officer at the Netherlands Authority for Consumers and Markets and has written the article in a personal capacity. Michiel van Dijk was also Co-Chair of the Open Internet Expert Working Group within BEREC from 2016 to 2020. For correspondence: <mailto:dennis.brouwer@helsinki.fi> and <mailto:michiel.van.dijk@acm.nl>. Acknowledgements: the authors are particularly grateful to Samira Rharissi, Senior Enforcement Official at the Netherlands Authority for Consumers & Markets (ACM), who has provided valuable comments and feedback on this article. The authors would also like to thank Juha Vesala, University Researcher at the University of Helsinki and Lapland, for his suggestions on improving the economic foundations of the article. Finally, the authors express their gratitude to Annemarie Sipkes, Director of the Telecommunications, Transport and Postal Services Department of ACM, for making their collaboration possible.
