The practice of an internet service provider of favouring the use of certain applications and services through commercial offers infringes the protection of users' rights and the guarantee of non-discriminatory treatment of traffic, the Court of Justice of the European Union ruled on Tuesday 15 September (Joined Cases C-807/18 and C-39/19).
The Telenor company, which provides Internet access services in Hungary, offers its customers preferential access packages with the special feature that the data traffic generated by certain services and applications is not counted towards the consumption of the volume of data purchased. Once that volume of data has been used up, those customers may continue to use those specific applications and services while measures blocking or slowing down data traffic are applied to the other available applications and services.
The Hungarian Communications Authority is of the opinion that Telenor should put an end to the two packages because they infringe the general obligation of equal and non-discriminatory treatment of traffic, as laid down in the Regulation (2015/2120) establishing measures relating to an open internet.
The Court first of all interprets the provisions of the regulation which guarantee end-users of internet access services rights (right of access to applications/contents/services, right to provide applications/contents/services, right to use the terminals of their choice) and prohibits the providers of those services from putting in place agreements or commercial practices limiting the exercise of those rights.
It notes that a supplier's services must be assessed against the requirement that those services must not involve a limitation on the exercise of those rights. However, Telenor's services are likely, according to the EU judges, to limit the rights of the final beneficiaries. The disputed offers aim to increase the use of the preferred applications and services and to reduce the use of other available applications and services. For the judges, the rights of end-users, therefore, seem to be all the more limited in view of the large number of customers entering into agreements with Telenor.
As regards the interpretation of the general obligation of equal and non-discriminatory treatment of traffic, the Court considers that no assessment of the impact of measures to block or slow down traffic on the exercise of the rights of end-users is required in order to find incompatibility with that general obligation. Furthermore, it adds that, since measures to slow down or block traffic are based on commercial, rather than technical, considerations, such measures are incompatible with this general obligation.
See judgment: https://bit.ly/3htJ5Sl (Original version in French by Mathieu Bion)