TSM: Net neutrality provisions 4-column working document

18.6.15




                                                     TSM: Net neutrality provisions
                                                      4-column working document
At the 3rd trilogue on 2 June, the co-legislators invited the Commission to make compromise proposals and undertook to work on them. The 4th
column is accordingly based on the Commission non-paper of 4 June on the net neutrality provisions.


  EP text of 8 May                   Council text of 29 May              Commission non-paper of 4 June                      EP text of 18 June

       Recitals                               Recitals                                  Recitals                                    Recitals

                               Marking for recitals: bold-               Marking for recitals: bold-                Marking for recitals: bold-
                               italic/strikethrough shows differences    italic/strikethrough shows differences     italic/strikethrough shows differences
                               with Council text of 17 April             with Council text of 29 May 2015           with COM non-paper of 4 June
                               (1) This Regulation aims at               (1) This Regulation aims at                (1) This Regulation aims at
                               harmonising rules on safeguarding         harmonising rules on access to open        harmonising rules on access to open
                               access to open internet by ensuring       internet by ensuring end-users’ right to   internet by ensuring end-users’ right to
                               end-users’ right to access and            access and distribute information and      access and distribute information and
                               distribute information and lawful         lawful content, run applications and       lawful content, run applications and
                               content, run applications and use         use services of their choice, as well as   use services of their choice, as well as
                               services of their choice, as well as by   by establishing common rules on the        by establishing common rules on the
                               establishing common rules on traffic      equal treatment of internet traffic and    equal       and      non-discriminatory
                               management which not only protect         traffic management which not only          treatment of internet traffic and traffic
                               end-users but simultaneously guarantee    protect end-users but simultaneously       management which not only protect
                               the continued functioning of the          guarantee the continued functioning of     end-users but simultaneously guarantee
                               Internet ecosystem as an engine of        the Internet ecosystem as an engine of     the continued functioning of the
                               innovation. Reforms in the field of       innovation. Reforms in the field of        Internet ecosystem as an engine of
                               roaming should give end-users the         roaming should give end-users the          innovation. Reforms in the field of




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confidence to stay connected when           confidence to stay connected when           roaming should give end-users the
they travel in the Union, and should        they travel in the Union, and should        confidence to stay connected when
become over time a driver of                become over time a driver of                they travel in the Union, and should
convergent pricing and other                convergent      pricing  and   other        become over time a driver of
conditions in the Union.                    conditions in the Union.                    convergent      pricing     and      other
                                                                                        conditions in the Union.
(2) The measures provided in this           (2) The measures provided in this           (2) The measures provided in this
Regulation respect the principle of         Regulation respect the principle of         Regulation shall respect the principle
technological neutrality, that is to say    technological neutrality, that is to say    of technological neutrality, that is to
they neither impose nor discriminate in     they neither impose nor discriminate in     say they neither impose nor
favour of the use of a particular type of   favour of the use of a particular type of   discriminate in favour of the use of a
technology.                                 technology.                                 particular type of technology.
(3) The internet has developed over         (3) The internet has developed over         (3) The internet has developed over
the past decades as an open platform        the past decades as an open platform        the past decades as an open platform
for innovation with low access barriers     for innovation with low access barriers     for innovation with low access barriers
for end-users, content and application      for end-users, content and application      for end-users, content and application
providers and internet service              providers and internet service              providers and internet service
providers. The existing regulatory          providers. The existing regulatory          providers. The existing regulatory
framework aims at promoting the             framework aims at promoting the             framework aims at promoting the
ability of end-users to access and          ability of end-users to access and          ability of end-users to access and
distribute information or run               distribute information or run               distribute information or run
applications and services of their          applications and services of their          applications and services of their
choice. However, a significant number       choice. However, a significant number       choice. However, a significant number
of end-users are affected by traffic        of end-users are affected by traffic        of end-users are affected by traffic
management practices which block or         management practices which block or         management practices which block or
slow down specific applications. These      slow down specific applications. These      slow down specific applications. These
tendencies require common rules at the      tendencies require common rules at the      tendencies require common rules at the




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Union level to maintain ensure the          Union level to ensure the open internet   Union level to ensure the open internet
open internet and to avoid                  and to avoid fragmentation of the         and to avoid fragmentation of the
fragmentation of the single market          single market resulting from individual   single market resulting from individual
resulting from individual Member            Member States’ measures.                  Member States’ measures.
States’ measures.
(10 4) In the open internet end-users       (4) In the open internet end-users        (4) In the open internet end-users
should have the right to access and         should have the right to access and       should have the right to access and
distribute information and content,         distribute information and content, and   distribute information and content, and
and to use and provide applications         to use and provide applications and       to use and provide applications and
and services without discrimination,        services without discrimination, via      services without discrimination, via
via their internet access service. The      their internet access service. The        their internet access service. The
exercise of this right is subject to        exercise of this right is subject to      exercise of this right is subject to
Union law and national law,                 Union law and national law, compliant     Union law and national law, compliant
compliant with Union law, regarding         with Union law, regarding the             with Union law, regarding the
the lawfulness of content, services or      lawfulness of content, services or        lawfulness of content, services or
applications. However, this                 applications. However, this Regulation    applications. However, this Regulation
Regulation does not seek to regulate        does not seek to regulate the             does not seek to regulate the
the lawfulness of the information,          lawfulness of the information, content,   lawfulness of the information, content,
content, application or services, nor the   application or services, nor the          application or services, nor the
procedures, requirements and                procedures, requirements and              procedures, requirements and
safeguards related thereto. These           safeguards related thereto. These         safeguards related thereto. These
matters remain thus subject to Union        matters remain thus subject to Union      matters remain thus subject to Union
legislation or national legislation in      legislation or national legislation in    legislation or national legislation in
compliance with Union law, including        compliance with Union law, including      compliance with Union law, including
measures giving effect to such Union        measures giving effect to such Union      measures giving effect to such Union
or national legislation (for example,       or national legislation (for example,     or national legislation (for example,
court orders, administrative decisions      court orders, administrative decisions    court orders, administrative decisions




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or other measures implementing,            or other measures implementing,            or other measures implementing,
applying or ensuring compliance with       applying or ensuring compliance with       applying or ensuring compliance with
such legislation). If those measures       such legislation). If those measures       such legislation). If those measures
prohibit end-users to access unlawful      prohibit end-users to access unlawful      prohibit end-users to access unlawful
content (such as, for example, child       content (such as, for example, child       content (such as, for example, child
pornography), end-users should abide       pornography), end-users should abide       pornography), end-users should abide
by those obligations by virtue of and in   by those obligations by virtue of and in   by those obligations by virtue of and in
accordance with that Union or national     accordance with that Union or national     accordance with that Union or national
law.                                       law.                                       law.
(4 5) End-users should be free to          (5) End-users should be free to            (5) End-users should be free to
choose between various types of            choose between various types of            choose between various types of
terminal equipment (defined in             terminal equipment (defined in             terminal equipment (defined in
Directive 2008/63/EC on competition        Directive 2008/63/EC on competition        Directive 2008/63/EC on competition
in the markets in telecommunications       in the markets in telecommunications       in the markets in telecommunications
terminal equipment) to access the          terminal equipment) to access the          terminal equipment) to access the
internet. Providers of internet access     internet. Providers of internet access     internet. Providers of internet access
service should not impose restrictions     services should not impose restrictions    services should not impose restrictions
on the use of terminal equipment           on the use of terminal equipment           on the use of terminal equipment
connecting to the network, in addition     connecting to the network, in addition     connecting to the network, in addition
to those imposed by terminal               to those imposed by terminal               to those imposed by terminal
equipment’s manufacturers or               equipment’s manufacturers or               equipment’s manufacturers or
distributors in compliance with Union      distributors in compliance with Union      distributors in compliance with Union
law.                                       law.                                       law.
(5 6) Internet access service is any a     (6) Internet access service is a           (6) Internet access service is a
publicly available electronic              publicly available electronic              publicly available electronic
communications service that provides       communications service that provides       communications service that provides
connectivity access to the internet,       access to the internet, and in principle   access to the internet, and in principle




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irrespective of the network technology      to all its end-points, irrespective of the   to all its end-points, irrespective of the
and terminal equipment used by end-         network technology and terminal              network technology and terminal
user. However, for reasons outside the      equipment used by the end-user.              equipment used by the end-user.
control of internet access service          However, for reasons outside the             However, for reasons outside the
providers, some end points of the           control of internet access service           control of internet access service
internet may not always be accessible,      providers, some end points of the            providers, some end points of the
for instance due to measures taken by       internet may not always be accessible,       internet may not always be accessible,
public authorities. Therefore, a            for instance due to measures taken by        for instance due to measures taken by
provider is deemed to comply with its       public authorities. Therefore, a             public authorities. Therefore, a
obligation related to the offering an       provider is deemed to comply with its        provider is deemed to comply with its
internet access service within the          obligation related to the offering an        obligation related to the offering an
meaning of this Regulation when that        internet access service within the           internet access service within the
service provides connectivity to            meaning of this Regulation when that         meaning of this Regulation when that
substantially virtually all end points of   service provides connectivity to             service provides connectivity to
the internet. Providers of internet         virtually all end points of the internet.    virtually all end points of the internet.
access services should therefore not        Providers of internet access services        Providers of internet access services
restrict connectivity to any end-           should therefore not restrict                should therefore not restrict
points of the internet which are            connectivity to any accessible end-          connectivity to any accessible end-
accessible to them.                         points of the internet. which are            points of the internet.
                                            accessible to them.
(6 7) In order to exercise their right      (7) In order to exercise their rights        (7) In order to exercise their rights
set out in Article 3(1), end-users          set out in Article 3(1), end-users           set out in Article 3(1), end-users
should be free to agree with providers      should be free to agree with providers       should be free to agree with providers
of internet access services on tariffs      of internet access services on tariffs       of internet access services on tariffs
with specific data volumes and speeds       with specific data volumes and speeds        with specific data volumes and speeds
or on other technical or commercial         of the internet access service. Such         of the internet access service. Such
characteristics of the internet access      agreements, as well as commercial            agreements, as well as commercial




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service. Such agreements, as well as         practices conducted by providers of         practices conducted by providers of
commercial practices conducted by            internet access service, should not limit   internet access service, should be non-
providers of internet access service,        the effective exercise of the right set     discriminatory and should not limit
should not limit the exercise of the         out in Article 3(1) and thusor              the effective exercise of the rights set
right set out in Article 3(1) and thus       circumvent provisions of this               out in Article 3(1) or circumvent
circumvent provisions of this                Regulation on safeguarding internet         provisions of this Regulation on
Regulation on safeguarding internet          access. National regulatory authorities     safeguarding internet access. National
access. National regulatory                  should be empowered to intervene            regulatory authorities should be
authorities should be empowered to           against agreements or commercial            empowered to intervene against
intervene against cCommercial                practices which by reason of their          agreements or commercial practices
practices which by reason of should          scale, lead to situations where end-        which by reason of their scale, lead to
not, given their scale, lead to situations   users’ choice is significantly reduced      situations where end-users’ choice is
where end-users’ choice is                   in practice. To this end, the               significantly reduced in practice. To
significantly reduced in practice. Since     assessement of agreements and               this end, the assessement of
the right to open internet is based on       commercial practices should take into       agreements and commercial practices
end-user’s choice to access preferred        account whether they are                    should take into account whether they
content and information , national           discriminatory in nature, as well as        are discriminatory in nature, as well as
regulatory authorities should be             the respective market positions of the      the respective market positions of the
required, as part of their monitoring        involved providers of internet access       involved providers of internet access
and enforcement function, and to             services and of content, services and       services and of content, services and
intervene when commercial, such              applications. Since the right to open       applications. Since the right to access
practices would therefore result in          internet is based on end-users’s choice     the open internet is based on end-
undermining the essence of this right.       to access their preferred content and       users’ right to send and receive choice
                                             information, national regulatory            to access their content and information
                                             authorities should be required, as part     without discrimination, national
                                             of their monitoring and enforcement         regulatory authorities should be
                                             function, to and intervene when             required, as part of their monitoring




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                                          agreements or commercial practices        and enforcement function, to intervene
                                          would result in undermining the           when agreements or commercial
                                          essence of this right.                    practices would result in undermining
                                                                                    the essence of this right.
                                          (7a) In an open internet all traffic      (7a) In an open internet all traffic
                                          should be treated equally, without        should be treated equally, without
                                          discrimination, restriction or            discrimination, restriction or
                                          interference, independently of its        interference, independently of its
                                          sender, recipient, content, device,       sender, recipient, content, device,
                                          service or application. The principle     service or application. The principle of
                                          of equal treatment is a general           equal treatment is a general principle
                                          principle of Union law. According to      of Union law. According to settled
                                          settled case-law, that principle          case-law, that principle requires that
                                          requires that comparable situations       comparable situations must not be
                                          must not be treated differently and       treated differently and that different
                                          that different situations must not be     situations must not be treated in the
                                          treated in the same way unless such       same way unless such treatment is
                                          treatment is objectively justified.       objectively justified.
(8) End-users should have rights to       (8) End-users should have rights to       (8) The objective of reasonable
access their preferred content and        access their preferred content and        traffic management is to contribute to
information, to use and provide           information, to use and provide           an efficient use of network resources
preferred services and applications, as   preferred services and applications, as   and to an optimisation of overall
well as terminal equipment.               well as terminal equipment.               transmission quality responding to the
Reasonable traffic management             Reasonable traffic management             objectively different quality of service
contributes to an efficient use of        contributes to an efficient use of        requirements of specific categories of
network resources and thus also           network resources and to an               traffic technical requirements of the
protects to an optimisation of the        optimisation of overall transmission      content, services and applications




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freedom of internet access service         quality responding to the technical        transmited. Reasonable traffic
providers to conduct a business.           requirements of the content, services      management measures applied by
Innovation by overall transmission         and applications transmitted.              providers of internet access services
quality responding to the technical        Moreover, reasonable traffic               should be transparent, proportionate,
requirements of the content, services      management measures applied by             non-discriminatory and should not
and applications providers should be       providers of internet access services      constitute anti-competitive behaviour
fostered. In order to be considered        should be transparent, proportionate,      be based on unjustified commercial
transmitted. Moreover, reasonable,         non-discriminatory and should not be       considerations such as preferring or
traffic management measures applied        based on unjustified commercial            disadvantaging competing content,
by providers of internet access services   considerations constitute anti-            services or applications. The
should be transparent, proportionate,      competitive behaviour such as              requirement for traffic management
non-discriminatory and should not          preferring or disadvantaging               measures to be non-discriminatory
constitute anti-competitive behaviour.     competing content, services or             does not preclude providers of internet
The requirement for traffic                applications. The requirement for          access services to implement, in order
management measures to be non-             traffic management measures to be          to optimise the overall transmission
discriminatory does not preclude           non-discriminatory does not preclude       quality, traffic management measures
providers of internet access services to   providers of internet access services to   which differentiate between different
implement, in order to optimise the        implement, in order to optimise the        categories of traffic. Any such
overall transmission quality, traffic      overall transmission quality, traffic      differentiation should, in order to
management measures which take into        management measures which                  optimise overall quality and user
account objectively which                  differentiate between different            experience, be permitted only on the
differentiate between different            categories of traffic services or          basis of objective technical quality of
categories of traffic, service or          applications. Any such differentiation     service requirements (for example, in
applications. Any such differentiation     in order to optimise overall quality       terms of latency, jitter, packet loss, and
should be permitted only on the basis      and user experience should be              bandwidth) of the different categories
of objective technical quality of          permitted only on the basis of             of traffic, which cannot be considered
service requirements of certain traffic    objective technical quality of service     to be but not on the basis of




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(for example, in terms of latency, or      requirements (for example, in terms of     commercial considerations. Such
high jitter, packet loss, and              latency, jitter, packet loss, and          differentiating traffic management
bandwidth). Blocking, of the different     bandwidth) of the different categories     measures should be proportionate in
categories of traffic, but not on the      of traffic, which cannot be considered     relation to the purpose of overall
basis of commercial considerations.        to be but not on the basis of              quality optimisation and should treat
Such differentiating traffic               commercial considerations. Such            equivalent traffic equally in line with
management measures should be              differentiating traffic management         the principle of non-discrimination.
proportionate in relation to the           measures should be proportionate in        The traffic management measures
purpose of overall quality                 relation to the purpose of overall         should not be maintained longer than
optimisation and should treat              quality optimisation and should treat      necessary.
equivalent traffic equally.                equivalent traffic equally.



Any traffic management practice            8(a) Any More intrusive traffic            (8a) Any Any traffic management
which goes beyond such reasonable          management practices which goes            practices which go beyond such
measures, including reasonable             beyond such reasonable measures,           reasonable measures by blocking,
differentiation, by blocking, slowing      including reasonable differentiation,      slowing down, restricting, interfering
down, altering, degrading or               namely by blocking, slowing down,          with, altering, degrading or
discriminating against between specific    restricting, interfering with, altering,   discriminating between specific
content, applications or services should   degrading or discriminating between        content, applications or services, or
be prohibited, subject to justified and    specific content, applications or          specific categories of content,
defined exceptions laid down in this       services, or specific categories of        applications or services, should be
Regulation. Content, services and          content, applications or services,         prohibited, subject to justified and
applications should be protected           should be prohibited, subject to           defined exceptions laid down in this
because of the negative impact of          justified and defined exceptions laid      Regulation. These exceptions are
blocking or other restrictive measures     down in this Regulation. These             subject to strict interpretation and
on end-user choice and innovation.         exceptions are subject to strict           proportionality requirements.




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Rules against altering content, services   interpretation and proportionality        Individual Content, services and
or applications refer to a modification    requirements. Individual                  applications should be protected, as
of the content of the communication,       Contentcontent, services and              well as categories thereof because of
but do not ban non-discriminatory data     applications should be protected, as      the negative impact of unjusitified
compression techniques which reduce        well as categories thereof because of     blocking or other restrictive measures
the size of a data file without any        the negative impact of unjustified        on end-user choice and innovation
modification of the content. Such          blocking or other restrictive measures    would be even greater if applied to
compression enables a more efficient       on end-user choice and innovation         entire categories . Rules against
use of scarce resources and serves the     would be even greater if applied to       altering content, services or
end-users’ interest in reducing data       entire categories. Rules against          applications refer to a modification of
volumes, increasing speed and              altering content, services or             the content of the communication, but
enhancing the experience of using the      applications refer to a modification of   do not ban non-discriminatory data
content, services or applications in       the content of the communication, but     compression techniques which reduce
question.                                  do not ban non-discriminatory data        the size of a data file without any
                                           compression techniques which reduce       modification of the content. Such
                                           the size of a data file without any       compression enables a more efficient
                                           modification of the content. Such         use of scarce resources and serves the
                                           compression enables a more efficient      end-users’ interest in reducing data
                                           use of scarce resources and serves the    volumes, increasing speed and
                                           end-users’ interest in reducing data      enhancing the experience of using the
                                           volumes, increasing speed and             content, services or applications in
                                           enhancing the experience of using the     question.
                                           content, services or applications in
                                           question.
                                           (8b) Technical information on             (8b) Technical information on
                                           specific quality of service               specific quality of service requirements
                                           requirements of traffic is usually        of traffic is usually contained in the




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                                             contained in the data packet header.         data packet header. Reasonable traffic
                                             Reasonable traffic management does           management does therefore not require
                                             therefore not require techniques             techniques which enable to monitor the
                                             which enable to monitor the content          content or payload of data packets,
                                             or payload of data packets, such as          such as deep packet inspection. By
                                             deep packet inspection. By contrast,         contrast, legal obligations or the
                                             legal obligations or the preservation        preservation of network security may
                                             of network security may exceptionally        in exceptional circumstances
                                             require monitoring of the content of         exceptionally require monitoring of the
                                             data packets, subject to concrete            content of data packets, subject to
                                             suspicious facts and strict                  concrete suspicious facts and strict
                                             proportionality. These exceptions do         proportionality. These exceptions do
                                             not justify systematic monitoring of         not justify systematic monitoring of the
                                             the content of data packets.                 content of data packets.
(9) Providers of internet access             (9) Providers of internet access             (9) Providers of internet access service
service may be subject to legal              service may be subject to legal              may be subject to Union or national
obligations requiring, for example,          obligations requiring, for example,          legislation (for example, Union or
blocking of specific content,                blocking of specific content,                national legislation related to the
applications or services. Those legal        applications or services. Those legal        lawfulness of content, applications or
obligations should be laid down in           obligations should be laid down in           services, or legislation related to public
Union or national legislation (for           Union or national legislation (for           safety), in compliance with Union law,
example, Union or national legislation       example, Union or national legislation       including criminal law, requiring, for
related to the lawfulness of                 related to the lawfulness of                 example, blocking of specific content,
information, content, applications or        information, content, applications or        applications or services or to measures
services, or legislation related to public   services, or legislation related to public   implementing or applying such
safety), in compliance with Union law,       safety), in compliance with Union law,       legislation, in compliance with Union
or they should be established in             including criminal law, requiring, for       law, such as national measures of




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measures implementing or applying          example, blocking of specific content,    general application, court orders,
such legislation, such as national         applications or services or they should   decisions of public authorities vested
measures of general application, courts    be established in to measures             with relevant powers, or other
orders, decisions of public authorities    implementing or applying such             measures ensuring compliance with
vested with relevant powers, or other      legislation, in compliance with Union     such     legislation    (for   example,
measures ensuring compliance with          law, such as national measures of         obligations to comply with court orders
such legislation (for example,             general application, court orders,        or orders by public authorities
obligations to comply with court orders    decisions of public authorities vested    requiring to block unlawful content).
or orders by public authorities            with relevant powers, or other            The requirement to comply with Union
requiring to block unlawful content).      measures ensuring compliance with         law relates, among others, to the
The requirement to comply with Union       such legislation (for example,            compliance with the requirements of
law relates, among others, to the          obligations to comply with court orders   the Charter of Fundamental rights of
compliance with the requirements of        or orders by public authorities           the European Union in relation to
the Charter of Fundamental rights of       requiring to block unlawful content).     limitations of fundamental rights and
the European Union in relation to          The requirement to comply with Union      freedoms. As stated in Directive
limitations of fundamental rights and      law relates, among others, to the         2009/140/EC any limitations of
freedoms. Reasonable traffic               compliance with the requirements of       fundamental rights or freedoms may
management should also allow actions       the Charter of Fundamental rights of      only be imposed if they are
to protect the integrity of the network,   the European Union in relation to         appropriate,       proportionate   and
for instance in preventing cyber-          limitations of fundamental rights and     necessary within a democratic society,
attacks through the spread of malicious    freedoms. Reasonable Restrictive          and their implementation shall be
software or end-users’ identity theft      traffic management measures,              subject to adequate procedural
through spyware. In the operation of       including blocking, should also allow     safeguards in conformity with the
their networks, providers of internet      actionsshould also be considered to be    European Convention for the
access services should be allowed to       justified when employed to protect the    Protection of Human Rights and
implement reasonable traffic               integrity and security of the network,    Fundamental Freedoms including
management measures to avoid               for instance in preventing cyber-         effective judicial protection and due




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congestion of the network.                attacks through the spread of malicious   process. Accordingly, these limitations
                                          software or end-users’ identity theft     may only be taken with due respect
                                          through spyware. In the operation of      for the principle of the presumption of
                                          their networks, providers of internet     innocence and the right to privacy. A
                                          access services should be allowed to      prior, fair and impartial procedure
                                          implement reasonable traffic              shall be guaranteed, including the
                                          management measures to avoid              right to be heard of the person or
                                          congestion of the network.                persons concerned, subject to the
                                                                                    need for appropriate conditions and
                                                                                    procedural arrangements in duly
                                                                                    substantiated cases of urgency in
                                                                                    conformity with the European
                                                                                    Convention for the Protection of
                                                                                    Human Rights and Fundamental
                                                                                    Freedoms The right to effective and
                                                                                    timely judicial review shall be
                                                                                    guaranteed.’       Restrictive    traffic
                                                                                    management measures, including
                                                                                    blocking, should also be considered to
                                                                                    be justified when employed to protect
                                                                                    the integrity and security of the
                                                                                    network, for instance in preventing
                                                                                    cyber-attacks through the spread of
                                                                                    malicious software or end-users’
                                                                                    identity theft through spyware.
Exceptionally, more restrictive traffic   (9a) The derogations, subject to          (9a) The derogations, subject to strict
management measures affecting             strict interpretation, should also        interpretation, should also include




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certain categories of content,             include more restrictive traffic            more restrictive traffic management
applications or services may be            management measures affecting               measures affecting certain categories
necessary for the purpose of preventing    certain categories of content,              of content, applications or services
network congestion, i.e. situations        applications or services which may be       which may be necessary for the
where congestion is pending. about to      necessary for the purpose of preventing     purpose of preventing impending
materialise, and in the mitigation of      impending network congestion, i.e.          network congestion, i.e. situations
Moreover, minimising the effects of        situations where congestion is about to     where congestion is about to
actual network congestion, should be       materialise, and in the mitigation of the   materialise, and in the mitigation of the
considered reasonable provided that        effects of network congestion,              effects of network congestion,
network such congestion occurs only        provided that such congestion occurs        provided that such congestion occurs
temporarily or in exceptional              only temporarily or in exceptional          only temporarily or in exceptional
circumstances. The principle of            circumstances. The principle of             circumstances. The principle of
proportionality requires that traffic      proportionality requires that traffic       proportionality requires that traffic
management measures based on this          management measures based on this           management measures based on this
exception treat equivalent categories      exception treat equivalent categories of    exception treat equivalent categories of
of traffic equally. Temporary              traffic equally and are only applied as     traffic equally and are only applied as
congestion refers to specific, non-        long as necessary. Temporary                long as necessary. Temporary
recurring situations during short          congestion should be understood as          congestion should be understood as
periods of time. Exceptional               referring refers to specific, situations    referring to specific situations of short
circumstances are infrequent This          of short duration, where a sudden           duration, where a sudden increase in
includes situations, especially in         increase in the number of users in          the number of users in addition to the
mobile access networks, where despite      addition to the regular users, or a         regular users, or a sudden increase in
operators’ efforts to ensure the most      sudden increase in demand for a             demand for a particular content or
efficient use of the resources available   particular content or service, may          service, may overflow the transmission
and thus prevent congestion, demand        overflow the transmission capacity of       capacity of some elements of the
occasionally exceeds the available         some elements of the network and            network and make the rest of the
capacity of the network, for example in    make the rest of the network less           network less reactive. Temporary




                                                                                                                             14
18.6.15




large sport events, public             reactive. Temporary congestion may        congestion may occur especially in
demonstrations concerts or festivals   occur especially in mobile networks,      mobile networks, which are subject to
and other situations where a much      which are subject to more variable        more variable conditions, such as
larger number than usual of users is   conditions, such as physical              physical obstructions, lower indoor
trying to make use of the network at   obstructions, lower indoor coverage,      coverage, or a variable number of
the same time.                         or a variable number of active users      active users with changing location. It
                                       with changing location. It may be         may be predictable that such temporary
                                       predictable that such temporary           congestion will occur from time to
                                       congestion will occur from time to        time at certain points in the network –
                                       time at certain points in the network –   such that it cannot be regarded as
                                       such that it cannot be regarded as        exceptional -, without it recurring often
                                       exceptional -, without it recurring       or for such extensive periods that a
                                       often or for such extensive periods       capacity expansion would be
                                       that a capacity expansion would be        economically justified. Exceptional
                                       economically justified. Exceptional       congestion should be understood as
                                       congestion should be understood as        referring to unpredictable and
                                       referring to unpredictable and            unavoidable situations of congestion,
                                       unavoidable situations of congestion,     both in mobile and fixed networks.
                                       both in mobile and fixed networks.        These situations may be caused e.g. by
                                       These situations may be caused e.g.       a technical failure such as a service
                                       by a technical failure such as a          outage due to broken cables or other
                                       service outage due to broken cables or    infrastructure elements, unexpected
                                       other infrastructure elements,            changes in routing of traffic or large
                                       unexpected changes in routing of          increases in network traffic due to
                                       traffic or large increases in network     emergency or other situations beyond
                                       traffic due to emergency or other         the control of the internet access
                                       situations beyond the control of the      service provider. Such congestion




                                                                                                                       15
18.6.15




internet access service provider. Such      problems are likely to be infrequent
congestion problems are likely to be        but may be severe, and are not
infrequent but may be severe, and are       necessarily of short duration. The need
not necessarily of short duration.non-      to apply intrusive traffic management
recurring situations during short           measures to prevent or mitigate the
periods of time. Exceptional                effects of temporary or exceptional
circumstances are infrequent                network congestion should not give
situations, especially in mobile access     operators the possibility to circumvent
networks, where despite operators’          the general prohibition of blocking,
efforts to ensure the most efficient use    slowing down, altering, degrading or
of the resources available and thus         discriminating between specific
prevent congestion, demand                  content, applications or services, or
occasionally exceeds the available          specific categories of traffic. Recurrent
capacity of the network, for example in     and more long-lasting network
large sport events, concerts or festivals   congestion which is neither
and other situations where a much           exceptional nor temporary should not
larger number than usual of users is        benefit from such a derogation and
trying to make use of the network at        should rather be tackled through
the same time. The need to apply            expansion of network capacity.
intrusive traffic management
measures to prevent or mitigate the
effects of temporary or exceptional
network congestion should not give
operators the possibility to circumvent
the general prohibition of blocking,
slowing down, altering, degrading or
discriminating between specific




                                                                                  16
18.6.15




                                          content, applications or services, or
                                          specific categories of traffic.
                                          Recurrent and more long-lasting
                                          network congestion which is neither
                                          exceptional nor temporary should not
                                          benefit from such a derogation and
                                          should rather be tackled through
                                          expansion of network capacity.
(9a 10) For the purposes of this          (10) For the purposes of this             (10) For the purposes of this
Regulation, prior explicit consent        Regulation, prior explicit consent        Regulation, prior explicit consent
should mean any freely given specific,    should mean any freely given specific,    should mean any freely given specific,
distinct and informed indication of       distinct and informed indication of       distinct and informed indication of
end-user’s wishes by which the end-       end-user’s wishes by which the end-       end-user’s wishes by which the end-
user signifies his unambiguous            user signifies his unambiguous            user signifies his unambiguous
agreement to allow the provider of        agreement to allow the provider of        agreement to allow the provider of
internet access services to prevent the   internet access services to prevent the   internet access services to prevent the
transmission of unsolicited               transmission of unsolicited               transmission of unsolicited
communication or to implement             communication or to implement             communication or to implement
parental control measures. In addition,   parental control measures. For the        parental control measures. For the
it is also important to recall that       purposes of giving effect to the          purposes of giving effect to the
according to Article 20 of the            provision requiring a prior explicit      provision requiring a prior explicit
Universal Service Directive1, contracts   consent of the end-user for the           consent of the end-user for the
for services providing connection to a    implementation of parental control        implementation of parental control
public communications network and/or      measures by the provider of the           measures by the provider of the
publicly available electronic             internet access services, this            internet access services, this
communications services should            Regulation should be applied in           Regulation should be applied in




                                                                                                                         17
18.6.15




inform consumers and other end-users       accordance with national rules.            accordance with national rules.
so requesting about, inter alia, any       Therefore, this Regulation does not        Therefore, this Regulation does not
conditions which limit access to and/or    affect national rules which define, for    affect national rules which define, for
use of services and applications.          example, parental rights and               example, parental rights and
Finally, and f For the purposes of         obligations. In this respect, and by way   obligations. In this respect, and by way
giving effect to the provision requiring   of an example, the aim of parental         of an example, the aim of parental
a prior explicit consent of the end-user   control measures could be to prevent       control measures could be to prevent
for the implementation of parental         the access of minors to content,           the access of minors to content,
control measures by the provider of the    applications and services, such as those   applications and services, such as those
internet access services, this             involving pornography or gratuitous        involving pornography or gratuitous
Regulation should be applied in            violence, which might seriously impair     violence, which might seriously impair
accordance with national rules.            minors’ physical, mental or moral          minors’ physical, mental or moral
Therefore, this Regulation does not        development. Parental control              development. Parental control
affect national rules which define, for    measures should be applied in a            measures should be applied in a
example, parental rights and               manner that ensures that the end-user      manner that ensures that the end-user
obligations. In this respect, and by way   decides which categories of content        decides which categories of content
of an example, the aim of parental         should be filtered, blocked or             should be filtered, blocked or
control measures could be to prevent       controlled. They should also include a     controlled. They should also include a
the access of minors to content,           clear alert to the end-user that such      clear alert to the end-user that such
applications and services, such as those   measures have been used to filter,         measures have been used to filter,
involving pornography or gratuitous        block or control content or categories     block or control content or categories
violence, which might seriously impair     of content when the end-user attempts      of content when the end-user attempts
minors’ physical, mental or moral          to access such content. The measures       to access such content. The measures
development. Parental control              should also include a clear and            should also include a clear and
measures should be applied in a            transparent mechanism by which the         transparent mechanism by which the
manner that ensures that the end-user      end-user who has consented to the use      end-user who has consented to the use
decides which categories of content        of these measures may withdraw this        of these measures may withdraw this




                                                                                                                           18
18.6.15




should be filtered, blocked or             consent at any time.                         consent at any time.
controlled. They should also include a
clear alert to the end-user that such
measures have been used to filter,
block or control content or categories
of content when the end-user attempts
to access such content. The measures
should also include a clear and
transparent mechanism by which the
end-user who has consented to the
use of these measures may withdraw
this consent at any time.
(7 11)        There is demand on the       (11) There is demand on the part of          (11) There is demand on the part of
part of content, applications and          content, applications and services           content, applications and services
services providers, as well as on the      providers to be able to provide, as well     providers to be able to provide, as well
part of end-users, for the provision of    as on the part of end-users, for the         as on the part of end-users, for the
electronic communication services          provision of, electronic communication       provision of, , electronic
other than internet access services,       services other than internet access          communications services other than
based on specific quality of service       services, based onwhich require              internet access services, for which
levels. Agreements in this respect         specific quality of service levels.          require specific quality of service
could also play an important role in the   Agreements in this respect could             levels are indispensable. Such specific
provision of services with a public        alsoSuch specific quality levels are,        quality levels are, for instance,
interest as well as in the development     for instance, required by some               required by some services responding
of new services such as machine-to-        services play an important role in the       to a public interest (e.g. e-health) or by
machine communications. At the same        provision of services withresponding         some new machine-to-machine
time, such agreements should allow         to a public interest (e.g. e-health) or as   communications services. Providers of
providers of electronic                    well as in the development by some of        electronic communications to the




                                                                                                                               19
18.6.15




communications to the public to better      new services such as machine-to-           public, including providers of internet
balance traffic and prevent network         machine communications services. At        access services, and providers of
congestion. End-users including             the same time, such agreements should      content, applications and services
providers of content, applications and      allow providers of electronic              should therefore be free to offer
services, should therefore remain free      communications to the public to better     services which are not internet access
to conclude agreements with providers       balance traffic and prevent network        services and which are optimised to
of electronic communications to the         congestion. Providers of electronic        meet the specific indispensable quality
public and providers of content             communications to the public,              requirements of specific content,
applications and services, which            including providers of internet access     applications or services, or a
require specific levels of quality of       services, and providers of content,        combination thereof.
service. Such services should not be        applications and services End-users
offered as a replacement for internet       should therefore remain be free to
access services, and their provision        conclude agreements with providers of
should not impair in a material manner      electronic communications to the
the availability and quality of internet    public and providers of content
access services for other end-users.        applications and offer services which
National regulatory authorities should      are not internet access services and
ensure that providers of electronic         which are optimised to meet the
communications to the public comply         specific quality requirements forof
with this requirement, as set out in        specific content, applications or
Article 4. In this respect, national        services, or a combination thereof
regulatory authorities should assess        which require specific levels of quality
whether the negative impact on the          of service.
availability and quality of internet
access services is material by
analysing, inter alia, quality parameters
such as timing and reliability




                                                                                                                           20
18.6.15




parameters (latency, jitter, packet loss),
levels and effects of congestion in the
network, actual versus advertised
speeds, performance of internet access
services compared with services other
than internet access services, and
quality as perceived by end-users.
                                             (11a) In order to avoid a negative         (11a) In order to avoid a negative
                                             impact of the provision of such            impact of the provision of such
                                             services on the availability or quality    services on the availability or quality
                                             of internet access services for end-       of internet access services for end-
                                             users other than those having              users other than those having
                                             subscribed to the specific service,        subscribed to the specific service,
                                             sufficient capacity needs to be            sufficient capacity needs to be ensured.
                                             ensured. Providers of electronic           Providers of electronic
                                             communications to the public,              communications to the public,
                                             including providers of internet access     including providers of internet access
                                             services, should, therefore, offer such    services, should, therefore, offer such
                                             other services, or conclude                other services, or conclude
                                             corresponding agreements with              corresponding agreements with
                                             providers of content, services or          providers of content, services or
                                             applications facilitating such services,   applications facilitating such services,
                                             only if the network capacity is            only if the network capacity is
                                             sufficient to provide them in addition     sufficient to provide them in addition
                                             to any internet access services            to any internet access services
                                             provided. The open internet                provided. The open internet provisions
                                             provisions of Article 3 should not be      of Article 3 should not be




                                                                                                                             21
18.6.15




circumvented by other services usable       circumvented by other services usable
or offered as a replacement for             or offered as a replacement for internet
internet access services. However, the      access services. However, the mere
mere fact that corporate services such      fact that corporate services such as
as virtual private networks may also        virtual private networks may also give
give access to the internet should not      access to the internet should not be
be considered as a replacement of the       considered as a replacement of the
internet access service provided that       internet access service provided that
such access to the internet is              such access to the internet is compliant
compliant with Article 3(1) to (4) of       with Article 3(1) to (4) of this
this Regulation and thus cannot be           Regulation and thus cannot be
considered a circumvention of those         considered a circumvention of those
rules.Such services should not be           rules.
offered as a replacement for internet       The provision of these services should
access services, and tTheir provision       not impair the availability and general
of these services should not impair in a    quality of internet access services for
material manner the availability and        end-users other than those having
general quality of internet access          subscribed to the specific service.
services for other end-users other than
those having subscribed to the specific     National regulatory authorities should
service. National regulatory authorities    ensure that providers of electronic
should ensure that providers of             communications to the public comply
electronic communications to the            with this requirement, as set out in
public comply with this requirement,        Article 4. In this respect, national
as set out in Article 4. In this respect,   regulatory authorities should assess the
national regulatory authorities should      impact on the availability and general
assess whether the negative impact on       quality of internet access services by




                                                                                 22
18.6.15




                                          the availability and general quality of      analysing, inter alia, quality parameters
                                          internet access services is material by      (latency, jitter, packet loss, etc.), levels
                                          analysing, inter alia, quality parameters    and effects of congestion in the
                                          such as timing and reliability               network, actual versus advertised
                                          parameters ((latency, jitter, packet loss,   speeds, performance of internet access
                                          etc.), levels and effects of congestion      services compared with services other
                                          in the network, actual versus                than internet access services, and
                                          advertised speeds, performance of            quality as perceived by end-users.
                                          internet access services compared with
                                          services other than internet access
                                          services, and quality as perceived by
                                          end-users.
(11 12) National regulatory authorities   (12) National regulatory authorities         (12) National regulatory authorities
play an essential role in ensuring that   play an essential role in ensuring that      play an essential role in ensuring that
end-users are effectively able to         end-users are effectively able to            end-users are effectively able to
exercise the right to avail of open       exercise the right to avail of open          exercise the right to avail of open
internet access. To this end, national    internet access. To this end, national       internet access. To this end, national
regulatory authorities should have        regulatory authorities should have           regulatory authorities should have
monitoring and reporting obligations,     monitoring and reporting obligations,        monitoring and reporting obligations,
and should ensure compliance of           and should ensure compliance of              and should ensure compliance of
providers of electronic                   providers of electronic                      providers of electronic
communications to the public with the     communications to the public,                communications to the public,
obligation to ensure sufficient network   including providers of internet access       including providers of internet access
capacity for the provision of non-        services, with their obligations             services, with their obligations
discriminatory internet access services   pursuant to Article 3, including the         pursuant to Article 3, including the
of high quality which should not be       obligation to ensure sufficient network      obligation to ensure sufficient network
impaired by provision of services with    capacity for the provision of non-           capacity for the provision of non-




                                                                                                                                23
18.6.15




a specific level of quality. Providers of   discriminatory internet access services     discriminatory internet access services
internet access services should ensure      of high quality which should not be         of high quality which should not be
maximum transparency in the                 impaired by the provision of services       impaired by the provision of services
provision of internet access services       with a specific level of quality.           with a specific level of quality.
according to the additional                 Providers of internet access services       National regulatory authorities should
transparency measures laid down in          should ensure maximum transparency          also have powers to impose technical
Article 4. Therefore, national              in the provision of internet access         characteristics, minimum quality of
regulatory authorities should enforce       services according to the additional        service requirements and other
compliance with Article 3 and the           transparency measures laid down in          appropriate measures on all or
respective parts of Article 4. They         Article 4. Therefore, national              individual providers of electronic
should also have powers to impose           regulatory authorities should enforce       communications to the public if this is
minimum quality of service                  compliance with Article 3 and the           necessary to ensure compliance with
requirements on all or individual           respective parts of Article 4. They         Article 3 or to prevent degradation of
providers of electronic                     National regulatory authorities should      the quality of service of internet access
communications to the public if this is     also have powers to impose technical        services for other end-users. In doing
necessary to prevent degradation of the     characteristics, minimum quality of         so, national regulatory authorities
quality of service of internet access       service requirements and other              should take utmost account of relevant
services for other end-users. In doing      appropriate measures on all or              guidance from BEREC.
so, national regulatory authorities         individual providers of electronic
should take utmost account of relevant      communications to the public if this is
guidance from BEREC.                        necessary to ensure compliance with
                                            Article 3 or to prevent degradation of
                                            the quality of service of internet access
                                            services for other end-users. In doing
                                            so, national regulatory authorities
                                            should take utmost account of relevant
                                            guidance from BEREC.




                                                                                                                              24
18.6.15




(13) The open internet provisions           (12a) The open internet provisions
should be complemented by effective         should be complemented by effective
end-user provisions which address           end-user provisions which address
issues particularly linked to internet      issues particularly linked to internet
access services and enable end-users        access services and enable end-users to
to make informed choices. These             make informed choices. These
provisions should apply in addition to      provisions should apply in addition to
the applicable provisions of Directive      the applicable provisions of Directive
2002/22/EC as amended and Member            2002/22/EC as amended and Member
States may maintain or adopt more           States may maintain or adopt more far-
far-reaching measures. Providers of         reaching measures. Providers of
internet access services should inform      internet access services should inform
end-users in a clear manner about           end-users in a clear manner about any
any traffic management practices            traffic management practices deployed
deployed and about the possible             and about the possible impact of other
impact of other services to which they      services to which they subscribe on the
subscribe on the quality and                quality and availability of their
availability of their respective internet   respective internet access services. In
access services. In view of the             view of the increasing use of data
increasing use of data volume               volume allowances it is essential that
allowances it is essential that end-        end-users be able to be fully aware of
users be able to be fully aware of any      any such allowances and to
such allowances and to continuously         continuously monitor their data
monitor their data consumption.             consumption. Discrepancies between
Discrepancies between advertised            advertised quality parameters, in
quality parameters, in particular           particular speeds, and the actally
speeds, and the actally available           available quality of internet access




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