EU Court states ‘zero tariff’ options are contrary to regulation on open internet access

Two German courts put questions to the European Union Court of Justice concerning the compatibility with EU law of the limitation, on the part of an internet access provider, on bandwidth, tethering or on use when roaming, where the customer chooses such a ‘zero tariff’ option. Those courts must rule on disputes relating to such limitations between, on the one hand, Vodafone or Telekom Deutschland, and, on the other, the Bundesnetzagentur (Federal Network Agency of Germany) or the Bundesverband der Verbraucherzentralen, a German consumer protection organisation. The Court of Justice notes that a ‘zero tariff’ option, such as those at issue in the main proceedings, draws a distinction within internet traffic, on the basis of commercial considerations, by not counting towards the basic package traffic to partner applications. Such a commercial practice is contrary to the general obligation of equal treatment of traffic, without discrimination or interference, as required by the regulation on open internet access. Since those limitations on bandwidth, tethering or on use when roaming apply only on account of the activation of the ‘zero tariff’ option, which is contrary to the regulation on open internet access, they are also incompatible with EU law.