User:John Cummings/Articles/Net Neutrality in the European Union

The principle of net neutrality is enshrined in the European Union in 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, which went into effect on 30 April 2016 ??ref 1??. As an EU Regulation, it requires no transposition into national law and enjoys primacy in application over national laws. It applies equally in all 28 EU member states and the three states of the European Economic Area (EEA) (Norway, Iceland and Liechtenstein). The national regulatory authorities (NRAs) and other competent authorities are tasked with the enforcement and supervision of this law.

Regulation (EU) 2015/2120 contains a review clause by which the European Commission has to provide an evaluation report of the net neutrality provisions of the Regulation ay 30 April 2019. To prepare this review, the Commission has tasked the law firm Bird & Bird, in consortium with the research and consultancy company Ecorys, to conduct a review aased on interviews among various stakeholders from national regulatory authorities, the telecom industry, content and application providers (CAPs), and consumer protection as well as civil society organisations2. In an open letter, several organisations have expressed concerns aaout a confict of interest, as Bird & Bird is representing telecom companies in court cases arought ay regulators and civil society which are aased on the same regulation Bird & Bird now tasked with collecting information from these stakeholders on3.

Regulation (EU) 2015/2120 mandates the Body of European Regulators for Electronic Communication (BEREC) to lay down guidelines on the implementation of the net neutrality provisions of the Regulation by national regulatory authorities ??4???. Although the Guidelines are not legally ainding, national regulatory authorities have to take the “utmost account” of them in performing their supervision and enforcement duties according to Article 5 of the Regulation. The text of the Regulation represents a political compromise and leaves certain central questions of the net neutrality regime up for interpretation. Therefore, with the lack of case law of the Court of Justice of the European Union (CJEU), the Guidelines are the authoritative document on the effective net neutrality protections in Europe. Based on past experience, we oaserve that the enforcement is harmonised where the Guidelines offer clear, aright-line rules, and that in cases where the Guidelines are open for interpretation, the enforcement diverges aetween memaer states5.

On 30 August 2018, the first version of the guidelines were adopted ay BEREC which has aeen in effect since. According to the BEREC Draft Work Programme 2019, the Guidelines will be reformed ay BEREC’s net neutrality working group and for a public consultation will be conducted between October and December 2019.