As a content provider, can an ISP offer me priority treatment (or restrict my services)?

At present this depends on where they are (e.g. the Netherlands and Slovenia have specific “net neutrality” legislation; other EU Member States have codes of practice, guidelines or proposals for legislation). A pan-EU legal obligation to ensure net neutrality may still survive from the European Commission’s “Connected Continent” proposals…

As a content provider, can an ISP offer me priority treatment (or restrict my services)?

At present this depends on where they are (e.g. the Netherlands and Slovenia have specific “net neutrality” legislation; other EU Member States have codes of practice, guidelines or proposals for legislation). A pan-EU legal obligation to ensure net neutrality may still survive from the European Commission’s “Connected Continent” proposals – as always, however, there are animated discussions regarding the extent to which “specialised services” might be permitted to enjoy superior treatment and on what terms, and the exceptions to any ban on throttling and blocking at the end user level.

In 2013 the European Commission issued a proposed package of legislation under the “Connected Continent” banner. The suggestion of a single European communications regulator never made it into the proposal. A fairly confusing proposal was included for a single EU authorization for provision of electronic communications services or networks across the EU based largely on home state control. Although enjoying some support from operators, this looks to be going the same way, with both the European Parliament and the EU Council coming out in favor of deleting it in its entirety.

Among sections of the proposed Regulation to remain, however, is the item referred to in the proposal as “open internet” and by the European Parliament as “net neutrality”. The European Commission’s proposed Regulation set out some general principles which the European Parliament in amendments passed in April 2014 enhanced as follows:

1. General freedom of end users to access and distribute information and content, run applications and use services of their choice (provided lawful). European Parliament: added the freedom to run and provide applications and services; and use terminals of their choice.

2. No blocking or throttling of any content, applications or services, except in applying non-discriminatory, proportionate and transparent traffic management measures necessary for:

(a) complying with a court order or law, or preventing serious crime;
(b) protecting the network, services and terminals;
© blocking spam;
(d) easing network congestion.

(these were very similar to the exceptions currently permitted under the net neutrality provisions of the Dutch Telecommunications Law (Article 7.4a).

European Parliament: limited the application of traffic management measures to:

(a) complying with a court order (note the deletion of compliance with laws and prevention of crime which would give more scope for interpretation);
(b) protecting the network, services and terminals;
© [deleted];
(d) easing network congestion.

The Parliament also deleted the qualification that traffic management should work within the limits of any agreements on data volumes or speeds of internet access (as this might leave a back door open to operators making discriminatory offers to users).

3. However, ISPs could agree quality of service deals for provision of “specialised services” with content providers or electronic communications providers but which must not affect the quality of the remaining services (in a “recurring or continuous manner” – so potentially not neutral). European Parliament: added a requirement that such specialized services can only be added if network capacity is sufficient for them to be provided in addition to internet access services and they must never reduce the availability or quality of internet access services. The Parliament also added an express provision prohibiting IPSs from discriminating between functionally equivalent services (so no blocking or degrading of VOIP in favor of the provider’s own voice services etc.).

So the European Parliament’s text supports net neutrality with provisions squarely in favour of non-discrimination for or against certain services, preventing specialised services from impairing general quality of the internet access service, and minimizing the application of traffic management measures. The Parliament’s definition of net neutrality states that “internet traffic should be treated equally without discrimination, restriction or interference, independently of its sender, recipient, type, content, device, service or application.”

The Body of European Regulators for Electronic Communications (BEREC – tasked with assisting regulators and the European Commission in developing and disseminating best practices) is essentially against a detailed rule-based regulation. Instead it advocates an flexible approach based on general principles and sufficient enforcement powers for national regulators. In any event, while the Parliament’s text does follow some of BEREC’s previous work, BEREC still expressed doubts over whether the definitions and rules proposed are legally precise, future-proof and enforceable in practice.

As the proposal takes the form of a Regulation that would be effective without national implementing legisaltion, the need for well thought-through principles a clear drafting is clearly a concern also for the EU Council which will decide on any final text along with the Parliament. In May 2014 the Council reviewed the provisions and also commented that more understandable and future-proof language would be required. Some Member States looked for either a non-binding text such as a recommendation or guideline or for traffic management exceptions possibly a non-exhaustive list that could be adapted at national level.

As with the ongoing discussions in the US, net neutrality is a highly political issue and the EU legislative process has seen intense lobbying from both the pro-start-up, neutral side and the pro-network, pro specialised services side. As of September 2014, it is still unclear whether some form of pan-European measure will be agreed or the current national differences will remain.