EU court rules against Deutsche Telekom and Vodafone on net neutrality

Deutsche Telekom and Vodafone have found themselves on the wrong end of a European court decision in a years-long dispute over certain content offerings.

The case centres on video streaming and other content services offered by the pair in the Germany. The European Court of Justice examined the services – following domestic investigations and a request from the German courts to do so – and ruled that both operators have violated net neutrality and roaming regulations.

To clarify, the EU court has not ruled against the telcos as such; it has merely made a judgement on the compatibility of the services – or in this case otherwise – with European law. Nonetheless, this is not great news for Deustsche Telekom and Vodafone, who will await the next move from domestic authorities.

It is around half a decade since German regulator the Bundesnetzagentur (BNetzA) took issue with Deutsche Telekom’s zero-rated Stream On offer, which covers music and videos, and later with Vodafone Germany’s similar Video Pass, Music Pass, and others.

Having mulled the situation, the regulator highlighted a few points it was unhappy with and instructed the telcos to make changes. In Deutsche Telekom’s case, it objected to the fact the incumbent throttled data speeds for some users on certain tariffs and that the zero-rating did not apply when users were roaming. It was apparently a similar story for Vodafone.

Rather than make the alterations to the plans the regulator called for, the telcos appealed to the courts for help. To cut a long story short, the Administrative Court in Cologne and the (Higher Regional Court, Düsseldorf, then turned to the European Court of Justice for assistance in interpreting EU law, and the ECJ has now made a call.

“‘Zero tariff’ options are contrary to the regulation on open Internet access. It follows that limitations on bandwidth, tethering or on use when roaming, on account of the activation of such an option, are also incompatible with EU law,” reads the title and subhead of the ECJ’s announcement.

The court goes on to explain further:

“By today’s judgments, 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.”

That’s pretty clear advice. Now it’s back to Germany for a final ruling.

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