OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 4 March 2020 (1)
Joined Cases C‑807/18 and C‑39/19
Telenor Magyarország Zrt.
v
Nemzeti Média- és Hírközlési Hatóság Elnöke
(Request for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court, Hungary))
(Reference for a preliminary ruling — Telecommunications — Regulation (EU) 2015/2120 — Article 3 — End-users’ rights — Open internet access — Neutrality — Agreements or commercial practices that restrict the exercise of those rights — Zero tariff — Preferential treatment of certain applications — Blocking or slowing down of traffic)
1. In Regulation (EU) 2015/2120, (2) the EU legislature took the political decision to establish common rules to guarantee ‘internet openness’ (3) in all Member States, thereby ensuring, inter alia, that end-users are not ‘affected by traffic management practices which block or slow down specific applications or services’. (4)
2. In Hungary, a provider of internet access services offers its customers preferential (so-called ‘zero-tariff’) access packages the distinguishing feature of which is that the downloading of data from certain services and applications does not count towards the usage of data contracted by the end-user.
3. The Hungarian authority took the view that that offer, the details of which I shall refer to later, infringed Article 3(3) of Regulation 2015/2120. Its decision was appealed to the Fővárosi Törvényszék (Budapest High Court, Hungary), which has escalated its points of uncertainty in this regard to the Court of Justice, thereby giving the latter the opportunity to rule for the first time on the interpretation of the aforementioned regulation.
I. Legislative framework
A. Regulation 2015/2120
4. According to recitals 1, 3, 6, 7, 8, 9 and 11:
‘(1) This Regulation aims to establish common rules to safeguard equal and non-discriminatory treatment of 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. Reforms in the field of roaming should give end-users the confidence to stay connected when they travel within the Union, and should, over time, become a driver of convergent pricing and other conditions in the Union.
…
(3) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, providers of content, applications and services and providers of internet access services. The existing regulatory framework aims to promote the ability of end-users to access and distribute information or run applications and services of their choice. However, a significant number of end-users are affected by traffic management practices which block or slow down specific applications or services. Those tendencies require common rules at the Union level to ensure the openness of the internet and to avoid fragmentation of the internal market resulting from measures adopted by individual Member States.
…
(6) End-users should have the right to access and distribute information and content, and to use and provide applications and services without discrimination, via their internet access service. The exercise of this right should be without prejudice to Union law, or national law that complies with Union law, regarding the lawfulness of content, applications or services. This Regulation does not seek to regulate the lawfulness of the content, applications or services, nor does it seek to regulate the procedures, requirements and safeguards related thereto. Those matters therefore remain subject to Union law, or national law that complies with Union law.
(7) In order to exercise their rights to access and distribute information and content and to use and provide applications and services of their choice, end-users should be free to agree with providers of internet access services on tariffs for specific data volumes and speeds of the internet access service. Such agreements, as well as any commercial practices of providers of internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open internet access. National regulatory and other competent authorities should be empowered to intervene against agreements or commercial practices which, by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice. To this end, the assessment of agreements and commercial practices should, inter alia, take into account the respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved. National regulatory and other competent authorities should be required, as part of their monitoring and enforcement function, to intervene when agreements or commercial practices would result in the undermining of the essence of the end-users’ rights.
(8) When providing internet access services, providers of those services should treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment. According to general principles of Union law and settled case-law, comparable situations should not be treated differently and different situations should not be treated in the same way unless such treatment is objectively justified.
(9) The objective of reasonable traffic management is to contribute to an efficient use of network resources and to an optimisation of overall transmission quality responding to the objectively different technical quality of service requirements of specific categories of traffic, and thus of the content, applications and services transmitted. Reasonable traffic management measures applied by providers of internet access services should be transparent, non-discriminatory and proportionate, and should not be based on commercial considerations. The requirement for traffic management measures to be non-discriminatory does not preclude providers of internet access services from implementing, in order to optimise the overall transmission quality, traffic management measures which differentiate between objectively different categories of traffic. Any such differentiation should, in order to optimise overall quality and user experience, be permitted only on the basis of objectively different technical quality of service requirements (for example, in terms of latency, jitter, packet loss, and bandwidth) of the specific categories of traffic, and not on the basis of commercial considerations. Such differentiating measures should be proportionate in relation to the purpose of overall quality optimisation and should treat equivalent traffic equally. Such measures should not be maintained for longer than necessary.
…
(11) Any traffic management practices which go beyond such reasonable traffic management measures, by blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, applications or services, or specific categories of content, applications or services, should be prohibited, subject to the justified and defined exceptions laid down in this Regulation. Those exceptions should be subject to strict interpretation and to proportionality requirements. Specific content, applications and services, as well as specific categories thereof, should be protected because of the negative impact on end-user choice and innovation of blocking, or of other restrictive measures not falling within the justified exceptions. Rules against altering content, applications or services refer to a modification of the content of the communication, but do not ban non-discriminatory data compression techniques which reduce the size of a data file without any modification of the content. Such compression enables a more efficient use of scarce resources and serves the end-users’ interests by reducing data volumes, increasing speed and enhancing the experience of using the content, applications or services concerned.’
5. Paragraph 1 of Article 1 (‘Subject matter and scope’) provides:
‘This Regulation establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights.’
6. In accordance with Article 2 (‘Definitions’), ‘for the purposes of this Regulation, the definitions set out in Article 2 of Directive 2002/21/EC [(5)] apply’.
7. Article 3 (‘Safeguarding of open internet access’) states:
‘1. End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service.
This paragraph is without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services.
2. Agreements between providers of internet access services and end-users on commercial 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.
The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary.
Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to:
(a) comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers;
(b) preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users;
(c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.
…
5. Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality.
Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users.’
8. The first subparagraph of paragraph 1 of Article 5 (‘Supervision and enforcement’) states:
‘National regulatory authorities shall closely monitor and ensure compliance with Articles 3 and 4, and shall promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. For those purposes, national regulatory authorities may impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services.’
B. Directive 2002/21
9. Article 2 includes the following definitions:
‘(h) “user” means a natural or legal person using or requesting a publicly available electronic communications service;
(i) “consumer” means any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his trade, business or profession;
…
(n) “end-user” means a user not providing public communications networks or publicly available electronic communications services.
…’
II. Facts and questions referred for a preliminary ruling
A. Case C‑807/18
10. Telenor Magyarország Zrt. (‘Telenor’) is one of Hungary’s telecommunications service providers. It offers, among other products, the MyChat service package, whereby:
– On payment, subscribers receive 1 GB of data usable at their discretion. Once that volume of data has been used up, internet access slows down considerably. (6)
– Subscribers nonetheless enjoy unlimited and unrestricted access, at any time, to some of the major social networking and messaging applications, (7) the data traffic generated by which does not count towards the 1 GB limit.
11. Under the MyChat package, therefore, once a subscriber has used 1 GB of data, any subsequent traffic of data connected with non-preferred applications is characterised by limited access at very slow speeds, which is not the case with preferred applications (those relating to the aforementioned social networks).
12. The Nemzeti Média- és Hírközlési Hatóság Hivatala (National Media and Communications Office, Hungary; ‘the Office’) (8) took the view that the MyChat package could be regarded as a traffic management measure, in the form of a commercial practice, which offers subscribers unlimited, uniform-quality use of certain selected applications, while at the same time slowing down access to other internet content.
13. In the Office’s opinion, that measure is contrary to the requirements of equal and non-discriminatory treatment laid down in Article 3(3) of Regulation 2015/2120, and does not qualify for any of the exceptions available under that provision. It therefore ordered Telenor to eliminate the measure.
14. Telenor appealed the Office’s decision to the Fővárosi Törvényszék (Budapest High Court).
B. Case C‑39/19
15. Telenor also offers the MyMusic complementary services package, on a pre-paid monthly subscription basis. The package is available in three forms (Start, Nonstop and Deezer) guaranteeing a data traffic regime that is better suited to receiving music and radio content.
16. Depending on the monthly fee selected, (9) Telenor offers those signing up to the aforementioned offers either limited data usage (up to 500 MB a month, with MyMusic Start) or unlimited data usage (under the other two plans) with access to four music streaming platforms (10) and a number of online radio stations.
17. The traffic generated in connection with those packages does not count towards the data volume contracted by subscribers. The music applications continue to be available to subscribers without speed restrictions or broadband blocking even after they have used the contracted volume of data. By contrast, other internet content not included in the preferred applications generates chargeable data traffic and access to it is limited.
18. The Office adopted in relation to those packages a decision similar to that given in respect of the MyChat package (Case C‑807/19). Telenor challenged that decision before the Fővárosi Törvényszék (Budapest High Court).
19. That court has referred the following questions, identical in both cases, to the Court of Justice for a preliminary ruling:
‘(1) Must a commercial agreement between a provider of internet access services and an end user under which the service provider charges the end user a zero-cost tariff for certain applications (that is to say, the traffic generated by a given application is not taken into account for the purposes of data usage and does not slow down once the contracted data volume has been used), and under which that provider engages in discrimination which is confined to the terms of the commercial agreement concluded with the end consumer and is directed only against the end user party to that agreement and not against any end user not a party to it, be interpreted in the light of Article 3(2) of Regulation (EU) 2015/2120 …?
(2) If the first question referred is answered in the negative, must Article 3(3) of the regulation be interpreted as meaning that — having regard also to recital 7 of the regulation — an assessment of whether there is an infringement requires an impact- and market-based evaluation which determines whether and to what extent the measures adopted by the internet access services provider do actually limit the rights which Article 3(1) of the regulation confers on the end user?
(3) Notwithstanding the first and second questions referred for a preliminary ruling, must Article 3(3) of the regulation be interpreted as meaning that the prohibition laid down therein is an unconditional, general and objective one, [(11)] so that it prohibits any traffic management measure which distinguishes between certain forms of internet content, regardless of whether the internet access services provider draws those distinctions by means of an agreement, a commercial practice or some other form of conduct?
(4) If the third question is answered in the affirmative, can an infringement of Article 3(3) of the regulation also be found to exist solely on the basis that there is discrimination, without the further need for a market and impact evaluation, so that an evaluation under Article 3(1) and (2) of the regulation is unnecessary in such circumstances?’
III. Procedure before the Court of Justice
20. The questions referred were registered at the Court of Justice on 20 December 2018 (Case C‑807/18) and 23 January 2019 (Case C‑39/19).
21. Written observations have been submitted by Telenor, the Office, the Hungarian, Austrian, Czech, Finnish, German, Netherlands, Romanian and Slovenian Governments and the Commission.
22. A public hearing held on 14 January 2020 was attended by Telenor, the Office, the Hungarian, German, Netherlands and Slovenian Governments and the Commission.
IV. Analysis
A. Preliminary considerations
23. The tariffs at issue in these two references for a preliminary ruling allow customers that sign up to them to access certain applications of which the data traffic generated by their use does not count against the contracted data volume, from which only data connected with the use of other applications are deductible.
24. Under the ‘zero tariff’, downloads of services and applications not included in the offer slow down as soon as the volume contracted under the general tariff has been exhausted. While the fact that the contracted data has been exhausted does not affect access to the preferred applications or the speed of using them, other applications are blocked or slowed down from that point onwards.
25. The Office takes the view that those offers entail traffic management measures contrary to Article 3(3) of Regulation 2015/2120. After being called upon to review that assessment, the national court has referred for a preliminary ruling four questions that can be put into two groups, asking:
– First, in which the tariffs must be examined in the light of paragraph (2 or 3) of Article 3 of Regulation 2015/2120 (first and second questions).
– Secondly, in the event that Article 3(3) of Regulation 2015/2120 is applicable, whether that provision imposes a general, objective and unconditional prohibition (third question), and, if so, whether this rules out the need to carry out a circumstantial evaluation in order to determine whether the end-users’ rights have been infringed (second and fourth questions).
1. Objectives of Regulation 2015/2120
26. In order to address these questions, it is necessary to take into account the objectives of Regulation 2015/2120 and, in particular, the structure of Article 3 thereof.
27. Regulation 2015/2120 serves the twofold objective of ensuring open internet access and protecting end-users. To my mind, those two objectives do not have the same specific weighting within the scheme of the regulation, from the provisions of which it follows that the first (ensuring an open internet) takes priority.
28. The very title of Regulation 2015/2120 gives it the primary purpose of introducing ‘measures concerning open internet access’ and, thereafter, of amending Directive 2002/22 ‘on universal service and users’ rights relating to electronic communications networks and services’. (12)
29. The foregoing is clearly echoed in recital 1 and Article 1(1) of Regulation 2015/2120, according to which the latter ‘establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end users’ rights’. (13)
30. The remaining articles of Regulation 2015/2120 confirm the principal nature of the task of ensuring open internet access. (14) This is true, in particular, of Article 3, with the interpretation of which this reference for a preliminary ruling is concerned, and which is intended, as its expressive title indicates, to ensure the ‘safeguarding of open internet access’. Open internet access also forms the subject of other provisions of that text. (15)
2. End-users’ rights
31. Under the aforementioned heading, Article 3(1) lists the rights of so-called ‘end-users’. In order to identify who such ‘end-users’ are, regard is to be had, according to the express reference given in Article 2 of Regulation 2015/2120, to ‘the definitions set out in Article 2 of Directive 2002/21’.
32. Article 2(n) of Directive 2002/21 defines ‘end-user’ as ‘a user not providing public communications networks or publicly available electronic communications services’.
33. An ‘end-user’, therefore, is not just a ‘user’ (defined in Article 2(h) of Directive 2002/21 as ‘a legal entity or natural person using or requesting a publicly available electronic communications service’) or a ‘consumer’ (which Article 2(i) of that directive defines as ‘any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business or profession’), but rather, to be clear, both a consumer that accesses the internet and a provider of content and applications.
34. Although the terminology may seem misleading, (16) a person who uses his devices, whether fixed or mobile, to connect to the internet and a person who provides content and applications are both deemed to be ‘end users’ within the meaning of Directive 2002/21 (and, by extension, Regulation 2015/2120), since they both access the internet: whether in order to obtain information and content supplied by certain providers or, in the case of the latter, in order to make their applications, services and content available to the public.
35. The end-users’ rights recognised in Article 3(1), first subparagraph, of Regulation 2015/2120 are:
– the right to access and distribute information and content available on the internet;
– the right to use and provide applications and services;
– the right to use terminal equipment of their choice.
36. All of those rights are provided for ‘irrespective of the end-user’s or provider’s location or the location, origin or destination of the information, content, application or service’. (17) According to the second subparagraph of Article 3(1), moreover, they are to be understood ‘without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services’.
37. In short, the rights conferred in paragraph 1 guarantee open internet access in the sense that end-users can access all content, applications and services as well as supply and distribute the like without restrictions, assuming that they are lawful.
3. Article 3(2) of Regulation 2015/2120
38. The referring court’s points of uncertainty relate to Article 3(2) and (3) of Regulation 2015/2120.
39. Paragraph 2 establishes a specific guarantee in relation to the rights conferred in paragraph 1 and is thus intended, as I have already submitted, to protect the openness of the internet. To that end, paragraph 2 states that the exercise of those rights cannot be limited: (a) by agreements between providers of internet access services and end-users on ‘commercial and technical conditions and the characteristics of internet access services’; and (b) by ‘any commercial practices conducted by providers of internet access services’.
40. The difference between ‘agreements’ and ‘commercial practices’ has to do, in my opinion, with the express or tacit nature of the consent which end-users give to the commercial and technical conditions and the characteristics of internet access services:
– In the case of agreements, the end user will have expressly consented to those conditions when deciding upon them with the provider.
– In the case of commercial practices, consent will follow from the implicit acceptance by the other party of the conditions unilaterally laid down by the provider. (18)
41. In any event, Article 3(2) of Regulation 2015/2120 identifies which ‘commercial and technical conditions and … characteristics of internet access services’ cannot limit the exercise of the rights conferred on end-users in paragraph 1: those relating to ‘price, data volumes or speed’. Although, in my opinion, that list is not exhaustive, those three elements are the most material to our purposes here.
4. Article 3(3) of Regulation 2015/2120
42. While Article 3(2) of Regulation 2015/2120 lays down a specific guarantee in relation to the rights conferred in paragraph 1 which is therefore intended to safeguard the openness of the internet, paragraph 3 imposes on providers of internet access services a duty to manage network traffic the purpose of which is to ensure the fair and non-discriminatory treatment of internet traffic. (19)
43. In accordance with Article 3(3) of Regulation 2015/2120, providers of internet access services have an obligation, when supplying such services, to treat ‘all traffic equally …, 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’. (20)
44. That obligation is not absolute, however. Paragraph 3 allows providers of internet access services to ‘implement … reasonable traffic management measures’. Those measures ‘shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic’, and ‘shall not monitor the specific content and shall not be maintained for longer than necessary’.
45. Traffic may thus be the subject of differentiated (albeit non-discriminatory) treatment where its technically effective management so requires.
46. The delicate balance between the obligation to afford the same treatment to any form of internet access, on the one hand, and the obligation to manage that traffic effectively, on the other, is reflected in the list of behaviours, whether permitted or prohibited, that is contained in Article 3(3), third subparagraph, of Regulation No 2015/2120.
47. Under that provision,
– Providers of internet access services may not engage in traffic management measures that go beyond those set out in the second subparagraph, and, ‘in particular, shall not block, slow down, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof …’.
– However, that prohibition does not apply, ‘[where] necessary, and only for as long as necessary’, to certain purposes, of which the following should be highlighted here: to ‘… preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users; [and] to prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally’. (21)
48. Although the Finnish Government submits that the rules laid down in Article 3(3) form an ‘autonomous whole’ with regard to paragraphs 1 and 2 of the same provision, (22) I subscribe more to the view expressed by the Hungarian Government and the Commission, to the effect that paragraph 3 is also intended, like paragraph 2, to guarantee the rights conferred in paragraph 1. (23)
49. Ensuring that internet traffic management is fair and non-discriminatory is a condition 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.
50. In short, paragraphs 2 and 3 of Article 3 of Regulation 2015/2120 establish different guarantees for the rights conferred in paragraph 1 of the same provision. (24)
51. It is on the foregoing premisses that I shall analyse the questions raised by the referring court.
B. The relevant provision for the purposes of assessing the lawfulness of the tariff at issue (first and second questions)
52. The referring court wishes to ascertain whether the decisions subject to its scrutiny must be examined in the light of Article 3(2) of Regulation 2015/2120 (first question), or whether, on the contrary, they are governed by paragraph 3 of that provision (second question).
53. In the view of the referring court, there is a ‘commercial agreement between a provider of internet access services [Telenor] and an end user under which [Telenor] charges the end user a zero-cost tariff for certain applications (that is to say, the traffic generated by a given application is not taken into account for the purposes of data usage and does not slow down once the contracted data volume has been used), and under which [Telenor] engages in discrimination which is confined to the terms of the commercial agreement concluded with the end consumer and is directed only against the end user party to that agreement and not against any end user not a party to it’. (25)
54. As the German Government has emphasised, under that agreement, the provider of internet access services applies a traffic management measure. It is apparent from the order for reference, after all, that Telenor does not deny that … [the] traffic management practices … differ depending on whether the traffic is generated by the selected applications or other internet content. In particular, those practices have the effect of slowing down access to such content.
55. If that is the situation, providers of non-selected applications, as ‘end-users’, are afforded discriminatory treatment by comparison to providers of the applications enjoying preferred status under the commercial agreement. The former are, in short, the most directly affected by that agreement. It is true that subscribers who sign that agreement, and who are therefore also ‘end-users’, do not suffer such direct discrimination. They will nonetheless still suffer the indirect consequences of the treatment afforded to non-preferred providers, inasmuch as the opportunities for them to access content available on the network, that are guaranteed by the right conferred in Article 3(1) of Regulation 2015/2120, will ultimately be diminished.
56. In my opinion, that speed reduction measure, the existence of which is objectively and readily apparent, falls naturally within the scope Article 3(3) of Regulation 2015/2120, which refers to ‘slowing down’ as one of the forms of traffic management that are in principle prohibited (subject to the exceptional cases which the legislature goes on to provide for). (26)
57. The slow-down in access to applications and content other than those benefiting from preferred status was provided for in the agreement between Telenor and its subscribers. It is therefore appropriate to have regard to Article 3(2) of Regulation 2015/2120, which prohibits agreements ‘on commercial and technical conditions’. (27)
58. This raises the question as to which of the two paragraphs of Article 3 must be applied in the case where, as in this instance, a traffic slow-down measure has been provided for in an agreement between a provider of internet access services and its subscribers.
59. While this question is not, technically, relevant from the point of view of the final outcome, inasmuch as, whichever paragraph is applicable, the corollary is the same (namely, that the measure at issue is unlawful, and, therefore, the agreement providing for it is too), it may nonetheless help clarify which facts trigger that unlawfulness:
– In accordance with Article 3(2), as recital 7 of Regulation No 2015/2120 provides, the competent authorities are to have regard to the ‘scale’ of the agreement, taking into account, ‘inter alia, … the respective market positions of … providers of internet access services, and of the providers of content, applications and services, that are involved’, and must intervene where the agreement is capable of ‘undermining the essence’ of the right of access to an open internet. (28)
– Article 3(3), on the other hand, excludes any consideration of circumstances, inasmuch as the obligation of fair treatment applies ‘independently of [the] sender or receiver [of the traffic], [the] content, application or service, or [the] terminal equipment’. (29)
60. In that context, I agree with the Netherlands Government that preference should be given to Article 3(3) of Regulation No 2015/2120.
61. After all, since equal and non-discriminatory treatment is a necessary precondition for safeguarding open internet access, (30) it is not until such access is technically guaranteed that it is appropriate to ensure that it is not limited in any other way, be this by contract or commercial practice. (31)
62. I therefore take the view that Article 3(3) contains a general provision requiring a prior analysis of all agreements and commercial practices. Once any traffic management measures that do not meet the conditions laid down in paragraph 3 have been ruled out, it can then, if appropriate, be examined whether those agreements and practices are lawful in the light of paragraph 2. This is premissed on the understanding that, as the Romanian Government notes, an exception to the prohibition on discriminatory treatment under paragraph 3 cannot be provided for by contract.
63. The dividing line between paragraphs 2 and 3 of Article 3 of Regulation No 2015/2120 has nothing to do with the distinction between agreements (paragraph 2), on the one hand, and unilateral measures (paragraph 3), on the other, as Telenor maintains. Neither does it have anything to do with the difference between commercial conditions (paragraph 2) and technical conditions (paragraph 3), since paragraph 2 refers to both.
64. In my opinion, the relevant distinction lies in the direct infringement of end-users’ rights under paragraph 1, on the one hand, and the indirect infringement of such rights, by discriminatory traffic management measures, on the other:
– In the latter situation, the discriminatory traffic management measure will be unlawful for infringement of paragraph 3, inasmuch as it will have breached an obligation of fair treatment, which is a mandatory condition for enjoyment of the rights under paragraph 1.
– In the former situation, despite the fact that the obligation laid down in paragraph 3 has been discharged, the aforementioned rights may have been infringed if, notwithstanding fair traffic management, the consumer is in some way encouraged to make primary or exclusive use of certain applications. (32)
C. The nature of the prohibition laid down in Article 3(3) of Regulation No 2015/2120 (second, third and fourth questions)
65. The foregoing arguments essentially answer the referring court’s questions with respect to the prohibition laid down in Article 3(3) of Regulation No 2015/2120.
66. The inference I draw is that that prohibition is of a general, unconditional and objective nature, in so far as it proscribes any traffic management measure which is not reasonable (within the meaning of paragraph 3) and does not contribute towards the fair and non-discriminatory treatment of that traffic.
67. I agree with the Commission that, once an infringement of Article 3(3) has been established, there is no need to determine whether paragraph 2 of the same article has also been infringed (which would involve a detailed evaluation of the market and the impact of the measure at issue), although that is not to say that the procedural laws of the Member States cannot provide otherwise.
V. Conclusion
68. In the light of the foregoing, I propose that the Court’s answer to the Fővárosi Törvényszék (Budapest High Court, Hungary) should be as follows:
Article 3 of Regulation (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 must be interpreted as meaning that:
A commercial agreement between a provider of internet access services and a subscriber under which a zero-cost tariff is applied in respect of certain applications and the speed of access to others slows down once the contracted data volume has been used, entails a traffic management measure which infringes the obligation of fair and non-discriminatory treatment that is laid down in Article 3(3) of Regulation 2015/2120, unless it qualifies for one of the exceptions provided for in that paragraph, a matter that is for the referring court to determine.
Once that infringement has been established, there is no longer any need to specify whether the provisions of Article 3(2) of Regulation 2015/2120 have also been infringed or to carry out a detailed evaluation of the market and the impact of the measure.