Judgment;Summary — ECLI:EU:C:2021:677
Date: 2021-09-02
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 January 2020 
Referring court: 
Verwaltungsgericht Köln (Germany) 
Date of the decision to refer: 
20 January 2020 
Applicant: 
Telekom Deutschland GmbH 
Defendant: 
Bundesrepublik Deutschland 
  
Subject matter of the main proceedings 
Telecommunications, mobile communications tariffs, video-streaming, slowing 
down of one category of service 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1.(a) In the case where a mobile communications tariff including a monthly data 
allowance and providing for reduced transmission speed once that data volume 
has been used can be extended by a free option which allows certain services 
provided by content partners of the telecommunications company to be used 
without offsetting the data volume used for those services against the monthly 
data allowance included in the mobile communications tariff, and the end-user 
agrees to limitation of the bandwidth to a maximum of 1.7 Mbit/s for video-
EN 
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streaming, irrespective of whether the video-streaming service is provided by 
content partners or other providers, is Article 3(2) of Regulation (EU) 2015/2120 
to be understood as meaning that agreements on the characteristics of internet 
access services within the meaning of Article 3(2) of that regulation must fulfil the 
requirements of Article 3(3) thereof? 
(b) If the answer to Question 1.(a) is in the affirmative: Is Article 3(3), third 
subparagraph, of Regulation (EU) 2015/2120 to be understood as meaning that, in 
a situation such as that at issue in the present case, bandwidth limitation qualifies 
as the slowing down of one category of service? 
(c) If the answer to Question 1.(b) is in the affirmative: Is the term ‘impending 
network congestion’ within the meaning of Article 3(3), third subparagraph, point 
c), of Regulation (EU) 2015/2120 to be understood as meaning that it covers only 
(impending) exceptional or temporary network congestion? 
(d) If the answer to Question 1.(b) is in the affirmative: Is Article 3(3), third 
subparagraph, point (c), of Regulation (EU) 2015/2120 to be understood as 
meaning that, in a situation such as that at issue in these proceedings, the need for 
equal treatment of equivalent categories of traffic precludes bandwidth limitation 
that applies in the case of one optional add-on only, but not in the case of other 
mobile communication tariffs, and applies, moreover, to video-streaming alone? 
[Or. 3] 
(e) If the answer to Question 1.(b) is in the affirmative: Is Article 3(3), third 
subparagraph, of Regulation (EU) 2015/2120 to be understood as meaning that, in 
a situation such as that at issue in these proceedings, bandwidth limitation that 
depends on the addition of the optional add-on and that the end-user can, 
moreover, deactivate at any time for up to 24 hours fulfils the requirement that 
one category of service may be slowed down only for as long as is necessary to 
achieve the objectives of Article 3(3), third subparagraph, points (a) to (c), of 
Regulation (EU) 2015/2120? 
2.(a) If the answer to Question 1.(b) is in the negative: Is Article 3(3), second 
subparagraph, second sentence, of Regulation (EU) 2015/2120 to be understood as 
meaning that, in a situation such as that at issue in these proceedings, bandwidth 
limitation for video-streaming alone is based on objectively different technical 
quality of service requirements of specific categories of traffic? 
(b) If the answer to Question 2.(a) is in the affirmative: Is Article 3(3), second 
subparagraph, third sentence, of Regulation (EU) 2015/2120 to be understood as 
meaning that identification of the traffic generated from video-streaming from IP 
addresses, protocols, URLs and SNIs and using pattern matching, during which 
certain header information is compared with typical video-streaming values, 
constitutes monitoring of the specific content of the traffic? 
3. If the answer to Question 1.(a) is in the negative: Is Article 3(1) of 
Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such 
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as that at issue in these proceedings, bandwidth limitation for video-streaming 
alone restricts end-users’ rights within the meaning of Article 3(1) of Regulation 
(EU) 2015/2120? 
Relevant provisions of EU law 
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 (OJ 2015 L 310, p. 1), especially Article 3 
Relevant provisions of national law 
Telekommunikationsgesetz (Telecommunications Law) of 22 June 2004 (BGBl. 
[Federal Law Gazette] I p. 1190), especially Paragraph 126 
Brief summary of the facts and procedure 
1 The applicant is a subsidiary of a telecommunications company whose services to 
customers include mobile communications services provided at varying tariffs. 
Since 19 April 2017, customers on its ‘MagentaMobil’ mobile communications 
plan have been able to add the free ‘StreamOn’ option (originally available in 
‘StreamOn Music’, ‘StreamOn Music&Video’, ‘MagentaEINS StreamOn Music’ 
and ‘MagentaEINS StreamOn Music&Video’ variations). If ‘StreamOn’ is added, 
the data volume generated from audio- and video-streaming of the applicant’s 
content partners’ services is not offset against the data allowance included in the 
mobile communications tariff agreed in the contract for use of the internet 
connection provided via mobile communications (‘zero rating’) but, once it has 
been used up, the transmission speed in general is reduced. In order to qualify for 
zero rating, the content partner must essentially fulfil individual technical 
requirements prescribed by the applicant and enter into a contract; the applicant 
does not demand remuneration from content partners. 
2 In the case of ‘StreamOn Music&Video’, the end-user also agrees to limitation of 
the bandwidth to a maximum of 1.7 Mbit/s for video-streaming, irrespective of 
whether the video-streaming service is provided by content partners or by other 
providers. 
3 In order to distinguish between traffic generated from content partners’ services 
and other traffic, the applicant agrees distinguishing criteria with its partners, such 
as IP addresses, protocols, URLs and SNIs. It also identifies traffic generated from 
video-streaming using pattern matching, during which certain header information 
is compared with typical video-streaming values. 
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4 End-users can deactivate and reactivate optional add-ons and thus bandwidth 
limitation at any time, that is to say, they can restore maximum transmission 
quality, including for video-streaming, by using the data volume included in their 
data allowance. If they are not reactivated within 24 hours, the applicant 
automatically restores the default settings (that is to say, no offsetting against data 
allowance and bandwidth limitation). With ‘MagentaEINS StreamOn 
Music&Video’, on the other hand, the bandwidth is not limited. ‘MagentaEINS 
StreamOn Music&Video’ differs from ‘StreamOn Music&Video’ in that this 
optional add-on can be added to a mobile communications tariff only if the mobile 
communications tariff is combined with a fixed network tariff, including an 
associated internet access service. 
5 All optional add-ons can be cancelled at any time with immediate effect. 
6 On 15 December 2017, the Bundesnetzagentur (German Federal Network 
Agency) adopted the contested decision. By that decision, it found that the 
reduction in the video-streaming data transmission speed to a maximum of 1.7 
Mbit/s under the ‘StreamOn’ optional add-on infringed Article 3(3) of Regulation 
(EU) 2015/2120 and that the requirements for traffic management measures laid 
down in Article 3(3), second subparagraph, or third subparagraph, point (a), were 
not fulfilled. Furthermore, it prohibited the applicant from reducing the data 
transmission speed to a maximum of 1.7 Mbit/s under the ‘StreamOn’ optional 
add-on and ordered it to cease applying the corresponding tariff clauses. 
7 The opposition filed by the applicant against that decision was rejected on 8 June 
2018. 
Principal arguments of the parties in the main proceedings 
8 The applicant is fundamentally of the opinion that Article 3(2) of Regulation (EU) 
2015/2120 is the only criterion by which bandwidth limitation under the optional 
add-on should be measured; that end-users’ rights within the meaning of 
Article 3(1) of Regulation (EU) 2015/2120 have not been infringed and therefore 
the bandwidth limitation is permissible; that the same applies if Article 3(3) of 
Regulation (EU) 2015/2120 is also used as a criterion, which the applicant 
considers would be wrong; that Article 3(3), first subparagraph, of Regulation 
(EU) 2015/2120 does not of itself enact a principle of comprehensive equal 
treatment; that, in any event, bandwidth limitation is permissible as a traffic 
management measure within the meaning of Article 3(3), second subparagraph, 
first sentence, of Regulation (EU) 2015/2120; that there has been no infringement 
of the ban on discrimination or of the [Or. 7] principle of proportionality within 
the meaning of Article 3(3), second subparagraph, second sentence, of Regulation 
(EU) 2015/2120; that, as required by Article 3(3), second subparagraph, third 
sentence, of Regulation (EU) 2015/2120, the content of traffic is not monitored 
and the measure is not maintained for longer than necessary; and that, aside from 
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the foregoing, bandwidth limitation is permissible data compression within the 
meaning of recital 11 of Regulation (EU) 2015/2120. 
9 The defendant takes issue with the applicant’s arguments. 
Brief summary of the basis for the request 
10 The case is to be determined by the legal situation at the time of the last official 
decision, that is to say, on 8 June 2018. 
11 In the opinion of the referring court, there are substantial grounds for believing 
that the applicant has infringed its obligations under Regulation (EU) 2015/2120, 
but that the legal situation is not sufficiently clear-cut to dispense with an order for 
reference. 
Question 1.(a) 
12 It follows from the case-law of the Oberverwaltungsgericht (Higher 
Administrative Court) of the Land of North Rhine-Westphalia that: 
– Agreements within the meaning of Article 3(2) of Regulation (EU) 
2015/2120 must be measured against the requirements of Article 3(3) of that 
regulation. The applicant’s argument that the bandwidth limitation at issue is 
agreed by contract between it and its end-users and thus comes solely under 
Article 3(2) of Regulation (EU) 2015/2120 is unconvincing, as the scope of 
Article 3(2) and the scope of Article 3(3) thereof are not mutually exclusive, 
in the sense that Article 3(2) of Regulation (EU) 2015/2120 regulates all 
contractual agreements permitted between providers of internet access 
services and their end-users, whereas Article 3(3) of that regulation concerns 
only any remaining unilateral measures by providers of internet access 
services not agreed by contract. 
– The terms ‘discrimination’, ‘restriction’ or ‘interference’ should be 
understood as defining in greater detail the equal treatment requirement 
within the meaning of Article 3(3), first subparagraph, first sentence, of 
Regulation (EU) 2015/2120. At the same time, the terms ‘sender’, ‘receiver’, 
‘content’, ‘applications’, ‘services’ or ‘terminal equipment’ are used to 
indicate that unequal treatment is expressly prohibited. Therefore, an 
agreement permitting bandwidth limitation to a maximum of 1.7 Mbit/s for 
video-streaming constitutes unequal treatment, inasmuch as bandwidth 
limitation for video-streaming but not for other services and applications is 
an arbitrary technical distinction based on the type of application or service 
used or provided. 
– This is confuted neither by recital 9 of the Regulation, which merely serves 
to explain the requirements regulated in Article 3(3), second subparagraph, 
of Regulation (EU) 2015/2120 for reasonable traffic management measures, 
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which should still be permissible despite any unequal treatment of traffic as 
a systematic exemption from Article 3(3), first subparagraph, of Regulation 
(EU) 2015/2120, nor by recital 11 of the Regulation concerning data 
compression to reduce the data volume but not the data transmission speed. 
13 However, a view that conflicts with the case-law of the Higher Administrative 
Court of the Land of North Rhine-Westphalia can also be argued as follows: 
– Article 3(2) and Article 3(3) of Regulation (EU) 2015/2120 have different 
scopes, meaning that traffic-shaping under contractual agreements must be 
measured solely against Article 3(2) thereof. The wording of Article 3(2) of 
Regulation (EU) 2015/2120 refers only to Article 3(1), not to Article 3(3) 
thereof. The term ‘treat’ in Article 3(3), first subparagraph, of Regulation 
(EU) 2015/2120 does not appear to bear any terminological similarity with 
the term ‘agreements’ within the meaning of Article 3(2) of the Regulation. 
– In terms of the overall scheme of the Regulation, Article 3(1) of Regulation 
(EU) 2015/2120 regulates fundamental end-user rights, Article 3(2) thereof 
essentially regulates the private autonomy to enter into agreements, and 
Article 3(3) thereof regulates unilateral rights and obligations of providers of 
internet access services that do not need to be agreed with the end-user. 
Applying the requirements of Article 3(3) of Regulation (EU) 2015/2120 for 
the purpose of assessing the legality of agreements within the meaning of 
Article 3(2) thereof would run counter to that. Article 3(2) of Regulation 
(EU) 2015/2120 also expressly allows agreements on the commercial and 
technical conditions of internet access services. However, Article 3(3), 
second subparagraph, of Regulation (EU) 2015/2120 prohibits all traffic 
management measures ‘based on commercial considerations’. Having to 
measure agreements within the meaning of Article 3(2) of Regulation (EU) 
2015/2120 against the requirements of Article 3(3) of Regulation (EU) 
2015/2120 as well would have the following absurd result: although end-
users and providers of internet access services would be able to enter into a 
contract on commercial conditions, Article 3(3), second subparagraph, of 
Regulation (EU) 2015/2120 would prevent the contractual agreement from 
being implemented by applying a corresponding traffic management 
measure. That result is prevented if Article 3(2) of Regulation (EU) 
2015/2120 is understood to be the only criterion by which the legality of 
contractual agreements is measured and Article 3(3) of Regulation (EU) 
2015/2120 is understood to be the criterion by which the legality of 
unilateral measures taken by providers of internet access services is 
measured. That interpretation is also in keeping with the sense and purpose 
of Regulation (EU) 2015/2120, which focuses on protecting end-users and 
their rights. 
14 Given the differing views on the scope of Article 3(2) in relation to the scope of 
Article 3(3) of Regulation (EU) 2015/2120, the referring court is of the opinion 
that clarification is needed as to whether agreements within the meaning of 
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Article 3(2) of Regulation (EU) 2015/2120 should be measured against the 
requirements of Article 3(3) of Regulation (EU) 2015/2120. 
Question 1(.b) 
15 Assuming that agreements within the meaning of Article 3(2) of Regulation (EU) 
2015/2120 must also be measured against the requirements of Article 3(3) of that 
regulation, the referring court initially holds that bandwidth limitation to a 
maximum of 1.7 Mbit/s for video-streaming manifestly qualifies as unequal 
treatment within the meaning of Article 3(3), first subparagraph, of Regulation 
(EU) 2015/2120. That is because clearly not all traffic is treated equally within the 
meaning of the first subparagraph of Article 3(3) of Regulation (EU) 2015/2120 in 
the provision of internet access services. 
16 Furthermore, the referring court is of the opinion that there can reasonably be no 
doubt that unequal treatment within the meaning of the first subparagraph of 
Article 3(3) of Regulation (EU) 2015/2120 can be justified solely in accordance 
with the second and third subparagraphs of Article 3(3) thereof. According to 
recital 8 of Regulation (EU) 2015/2120, when providing internet access services, 
providers of those services should treat all traffic equally, without discrimination, 
restriction or interference, independently of its sender or receiver, content, 
application or service, or terminal equipment. According to general principles of 
EU law and settled case-law, comparable situations should not be treated 
differently and different situations should not be treated in the same way unless 
such treatment is objectively justified. 
17 Clearly, any such justification is subject to the requirements of the second and 
third subparagraphs of Article 3(3) of Regulation (EU) 2015/2120. 
18 Although recital 8 of Regulation (EU) 2015/2120 refers, in connection with the 
prohibition of unequal treatment within the meaning of Article 3(3), first 
subparagraph, of Regulation (EU) 2015/2120, to general principles of EU law and 
to settled case-law, the referring court assumes that objective justification within 
the meaning of recital 8 is only possible subject to the requirements laid down in 
the second and third subparagraphs of Article 3(3) of Regulation (EU) 2015/2120. 
This is because a different interpretation of Article 3(3), first subparagraph, of 
Regulation (EU) 2015/2120 would run counter to the obvious regulatory scheme 
of Article 3(3) thereof. 
19 In light of this, the referring court holds that there is also no doubt that the 
criterion in the third subparagraph of Article 3(3) of Regulation (EU) 2015/2120 
must take precedence over the criterion in the second subparagraph of that 
Article 3(3). 
20 This is because, as its wording illustrates, that provision enacts a fundamental ban 
on traffic management measures that go beyond reasonable traffic management 
practices within the meaning of Article 3(3), second subparagraph, of Regulation 
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(EU) 2015/2120 and expressly refers to the slowing down of categories of services 
as a measure that providers of internet access services are prohibited from 
applying unless the requirements of Article 3(3), third subparagraph, points (a) to 
(c), of Regulation (EU) 2015/2120 are fulfilled. 
21 In the light of these basic assumptions, the referring court is of the opinion that, in 
the present case, it does not follow with sufficient clarity from Regulation (EU) 
2015/2120 whether, in a situation such as that at issue in these proceedings, 
bandwidth limitation qualifies as the slowing down of one category of service 
within the meaning of Article 3(3), third subparagraph, thereof. 
22 The referring court cannot assume reasonably without doubt that bandwidth 
limitation that applies to video-streaming alone concerns one category of service 
within the meaning of Article 3(3), third subparagraph, of Regulation (EU) 
2015/2120 (‘specific content, applications or services, or specific categories 
thereof’, ‘des contenus, des applications ou des services spécifiques ou des 
catégories spécifiques de contenus, d’applications ou de services’). The term 
‘category of service’ is not defined in Article 2 of Regulation (EU) 2015/2120. 
Moreover, Article 3(3), second subparagraph, second sentence, of Regulation 
(EU) 2015/2120 and Article 3(3), third subparagraph, point (c), thereof contain 
further terms, namely ‘specific categories of traffic’, on the one hand, and 
‘equivalent categories of traffic’, on the other, which in turn are not defined in 
Article 2 of Regulation (EU) 2015/2120 and do not elucidate the term ‘category of 
service’, as the binding language versions of the Regulation sometimes use terms 
that overlap with the term ‘category of service’ (‘specific categories of traffic’, 
‘certaines catégories spécifiques de trafic’, ‘équivalent categories of traffic’, ‘les 
catégories équivalentes de trafic’). 
23 Even if, in the opinion of the referring court, there is overwhelming cause to 
believe that, as ‘specific content, applications or services’ and ‘specific categories 
thereof’ are named in Article 3(3), third subparagraph, of Regulation (EU) 
2015/2120, bandwidth limitation for video-streaming comes within the scope of 
that provision alone, it does not follow from Article 3(3), third subparagraph, of 
Regulation (EU) 2015/2120, read in the light of recital 11 of Regulation (EU) 
2015/2120, that non-discriminatory data compression techniques that reduce the 
size of a file without changing its content are prohibited. Although, in the opinion 
of the referring court, there is overwhelming cause to believe that, in a situation 
such as that at issue in these proceedings, bandwidth limitation is not a non-
discriminatory data compression technique in that sense as, according to recital 11 
of Regulation (EU) 2015/2120, any such data compression is supposed to make 
possible a more efficient use of scarce resources and to serve the end-users’ 
interests by reducing data volumes, increasing speed and enhancing the 
experience of using the content, applications or services concerned, in the opinion 
of the referring court, these requirements are not fulfilled in a situation such as 
that at issue in this case in the event of bandwidth limitation. 
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24 Nonetheless, recital 11 of Regulation (EU) 2015/2120 clarifies that Article 3(3), 
third subparagraph, thereof does not preclude all measures by providers of internet 
access services intended to make possible a more efficient use of scarce resources. 
In light of that fact, the referring court cannot assume, at least not reasonably 
without doubt, that, in a situation such as that at issue in these proceedings, 
bandwidth limitation qualifies as the slowing down of one category of service 
within the meaning of Article 3(3), third subparagraph, of Regulation (EU) 
2015/2120. Therefore, in the opinion of the referring court, clarification is needed 
as to whether bandwidth limitation qualifies as the slowing down of one category 
of service within the meaning of Article 3(3), third subparagraph, of Regulation 
(EU) 2015/2120. 
Question 1.(c) 
25 According to recital 11 of Regulation (EU) 2015/2120, Article 3(3), third 
subparagraph, points (a) to (c), thereof are subject to strict interpretation and to 
strict proportionality requirements. Specific content, applications and services, as 
well as specific categories thereof, should be protected because of the negative 
impact on end-user choice and innovation of blocking, or of other restrictive 
measures not falling within the justified exceptions. In light of that, the referring 
court is of the opinion that there is overwhelming cause to believe that, in a 
situation such as that at issue in this case, bandwidth limitation does not fulfil the 
requirements of Article 3(3), third subparagraph, point (c), of Regulation (EU) 
2015/2120. According to recital 15 of that regulation, Article 3(3), third 
subparagraph, point (c), thereof allows necessary measures to prevent impending 
network congestion, that is to say, situations in which congestion is about to 
materialise, and to mitigate the effects of network congestion, where such 
congestion occurs only temporarily or in exceptional circumstances. It states that 
temporary congestion should be understood as referring to specific situations of 
short duration, where a sudden increase in the number of users in addition to the 
regular users, or a sudden increase in demand for specific content, applications or 
services, may overflow the transmission capacity of some elements of the network 
and make the rest of the network less reactive. According to recital 15 of 
Regulation (EU) 2015/2120, exceptional congestion should also [Or. 24] be 
understood as referring to unpredictable and unavoidable situations of congestion. 
It states that possible causes of those situations include a technical failure such as 
a service outage due to broken cables or other infrastructure elements, unexpected 
changes in routing of traffic or large increases in network traffic due to emergency 
or other situations beyond the control of providers of internet access services. 
26 The referring court is of the opinion that the bandwidth limitation applied here in 
the case of optional add-ons for video-streaming does not fulfil these requirements 
simply because it is not applied in temporary or exceptional circumstances only. 
On the contrary, it follows from the information provided by the applicant that the 
bandwidth is limited because the network capacity available should allow 
permanent, unlimited use of video-streaming only up to a maximum bandwidth of 
1.7 Mbit/s. Irrespective of whether impending network congestion can be assumed 
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from any such blanket submission, no temporary or exceptional circumstances 
within the meaning of recital 15 of Regulation (EU) 2015/2120 are apparent in 
that regard. 
27 However, the referring court cannot assume reasonably without doubt that the 
term ‘impending network congestion’ within the meaning of Article 3(3), third 
subparagraph, point (c), of Regulation (EU) 2015/2120 concerns only temporary 
or exceptional impending network congestion. 
28 That is because the wording of Article 3(3), third subparagraph, point (c), of 
Regulation (EU) 2015/2120 refers to impending network congestion, on the one 
hand, and to the effects of exceptional or temporary network congestion, on the 
other. The referring court is of the opinion that clarification is therefore needed as 
to whether the adjectives ‘exceptional’ and ‘temporary’ also refer to the term 
‘impending network congestion’. 
29 In the opinion of the referring court, the fact that recital 15 of Regulation (EU) 
2015/2120 considers, in summarising, that traffic management measures going 
beyond reasonable traffic management measures are permissible ‘to prevent or 
mitigate the effects of temporary or exceptional network congestion’ suggests that 
they do. Clearly, this means that impending network congestion comes within the 
scope of Article 3(3), third subparagraph, point (c), of Regulation (EU) 2015/2120 
only if it is exceptional or temporary. By contrast, the statement in recital 15 of 
that regulation that recurrent and more long-lasting network congestion which is 
neither exceptional nor temporary should not benefit from the exception in 
Article 3(3), third subparagraph, point (c), of Regulation (EU) 2015/2120, but 
should rather be tackled through expansion of network capacity, proves to be 
inconclusive. It is the understanding of the referring court that the reference to 
expansion of network capacity is included simply by way of contrast to 
exceptional and temporary congestion and is therefore less important than the 
question of whether the term ‘impending network congestion’ concerns 
exceptional and temporary situations only. 
30 Notwithstanding the pointers provided by recital 15 of Regulation (EU) 
2015/2120 for the interpretation of the provision, the referring court considers that 
the wording of Article 3(3), third subparagraph, point (c), thereof is ambiguous. 
The referring court therefore considers that, without a preliminary ruling by the 
Court of Justice, it will be unable to make an interpretation to the effect that the 
provision covers only (impending) exceptional or temporary network congestion. 
Question 1.(d) 
31 In the opinion of the referring court, there is overwhelming cause to believe that 
the application of bandwidth limitation in a situation such as that at issue in these 
proceedings involves unequal treatment of equivalent categories of traffic only in 
the case of the ‘StreamOn Music& Video’ optional add-on and not in the case of 
the other add-ons, especially not the ‘MagentaEINS StreamOn Music&Video’ 
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optional add-on. That is because bandwidth limitation for video-streaming does 
not apply to all end-users; therefore, both equivalent and, more importantly, 
identical categories of traffic are treated unequally. This is compounded by the 
fact that, in the opinion of the referring court, relevant unequal treatment of 
equivalent categories of traffic within the scope of Article 3(3), third 
subparagraph, point (c), of Regulation (EU) 2015/2120 also exists in a situation 
such as that at issue in these proceedings, where bandwidth limitation applies to 
video-streaming only. 
32 However, as stated previously, the term ‘equivalent categories of traffic’ 
(‘gleichwertige Verkehrsarten’; ‘les catégories équivalentes de trafic’) is (also) not 
defined in Article 2 of Regulation (EU) 2015/2120. Moreover, the term does not 
coincide with the term ‘specific categories of traffic’ within the meaning of 
Article 3(3), second subparagraph, second sentence, of Regulation (EU) 
2015/2120, even though the binding language versions thereof sometimes use 
overlapping terms (‘specific categories of traffic’, ‘certaines catégories 
spécifiques de trafic’, ‘équivalent categories of traffic’, ‘les catégories 
équivalentes de trafic’). Finally, this term is terminologically different from the 
term ‘category of service’ within the meaning of Article 3(3), third subparagraph, 
of Regulation (EU) 2015/2120. 
33 That notwithstanding, it is not permissible under Article 3(3), third subparagraph, 
point (c), of Regulation (EU) 2015/2120 to slow down one category of service 
‘except as necessary’ to prevent impending network congestion or to mitigate the 
effects of exceptional or temporary network congestion. Furthermore, recital 15 of 
Regulation (EU) 2015/2120 refers to the principle of proportionality and considers 
it necessary in this regard that traffic management measures based on Article 3(3), 
third paragraph, point (c), of Regulation (EU) 2015/2120 treat equivalent 
categories of traffic equally. This makes it impossible for the referring court to 
decide reasonably without doubt [Or. 27] whether, in cases such as the present, 
the application of bandwidth limitation infringes Article 3(3), third subparagraph, 
point (c), thereof in the case of one optional add-on only. Although, in the opinion 
of the referring court, there is little to suggest that, the reference to the principle of 
proportionality might in fact imply that, where one category of service is slowed 
down, equivalent (and also identical) categories of traffic need not be treated 
equally, provided that partial slowing down of one category of service may 
prevent impending network congestion. 
34 Clarification is therefore required as to whether Article 3(3), third subparagraph, 
point (c), of Regulation (EU) 2015/2120 allows such an understanding. Only if 
partial slowing down in the above sense proves to be permissible would the 
question even arise as to whether the application of bandwidth limitation to the 
‘StreamOn Music&Video’ optional add-on only and not to the ‘MagentaEINS 
StreamOn Music&Video’ optional add-on can permissibly be based, as argued by 
the applicant, on the fact that, in the case of the ‘MagentaEINS StreamOn 
Music&Video’ optional add-on, it is possible to predict from the fixed network 
connection in place that not all video-streaming will be via the mobile network. 
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Question 1.(e) 
35 In the opinion of the referring court, there is overwhelming cause to believe that 
the time requirement in Article 3(3), third subparagraph, point (c), of Regulation 
(EU) 2015/2120 is not safeguarded if, in a situation such as that at issue in these 
proceedings, the bandwidth limitation applies in principle permanently, but the 
optional add-on must be added, on the one hand, and can be deactivated and 
reactivated by the end-user, on the other. 
36 That is because it is the referring court’s understanding that permanent bandwidth 
limitation clearly disregards the regulatory purpose of Article 3(3), third 
subparagraph, of Regulation (EU) 2015/2120 which, according to recital 15 
thereof, should not give providers of internet access services the possibility to 
circumvent the general prohibition on blocking, slowing down, altering, 
restricting, interfering with, degrading or discriminating between specific content, 
applications or services, or specific categories thereof. 
37 However, the recitals of Regulation (EU) 2015/2120 do not further specify the 
requirement that measures within the meaning of Article 3(3), third subparagraph, 
thereof are permissible only ‘for as long as is necessary’ to achieve one of the 
objectives listed in Article 3(3), third subparagraph, points (a) to (c), of that 
regulation. Even if, in the opinion of the referring court, there are no convincing 
grounds that suggest as much, it cannot be assumed, at least not reasonably 
without doubt, that, in a situation such as that at issue in these proceedings, the 
requirement of Article 3(3), third subparagraph, of Regulation (EU) 2015/2120 is 
safeguarded by the fact that bandwidth limitation applies only once an optional 
add-on has been added, which can, moreover, be deactivated and reactivated at 
any time by the end-user. 
38 In light of this, the referring court considers that the meaning of the time 
requirement in Article 3(3), third subparagraph, point (c), of Regulation (EU) 
2015/2120 also requires clarification. 
Question 2 
39 If, in a situation such as that at issue in the present proceedings, bandwidth 
limitation does not infringe Article 3(3), third subparagraph, of Regulation (EU) 
2015/2120, it is necessary to clarify, in addition to Questions 1.(b) to 1.(e), 
whether it is a permissible traffic management measure within the meaning of 
Article 3(3), second subparagraph, of Regulation (EU) 2015/2120. 
Question 2.(a) 
40 According to recital 9 of Regulation (EU) 2015/2120, providers of internet access 
services may implement, in order to optimise the overall transmission quality, 
traffic management measures which differentiate between objectively different 
categories of traffic. It states that any such differentiation should, in order to 
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optimise overall quality and user experience, be permitted only on the basis of 
objectively different technical quality of service requirements (for example, in 
terms of latency, jitter, packet loss, and bandwidth) of the specific categories of 
traffic, and not on the basis of commercial considerations. The stated objective of 
reasonable traffic management is to contribute to an efficient use of network 
resources and to an optimisation of overall transmission quality responding to the 
objectively different technical quality of service requirements of specific 
categories of traffic, and thus of the content, applications and services transmitted. 
41 In light of that, the referring court is of the opinion that there is overwhelming 
cause to believe that, in a situation such as that at issue in this case, bandwidth 
limitation is not based on objectively different technical quality of service 
requirements of specific categories of traffic within the meaning of Article 3(3), 
second subparagraph, of Regulation (EU) 2015/2120. That is because the 
requirements for video-streaming in terms of latency, jitter, packet loss, and 
bandwidth do not differ in fact from data transmission for the use of other 
applications or services. Video-streaming differs from data transmission for the 
use of other applications or services only inasmuch as adaptive bitrate technology 
is regularly applied. 
42 However, in the opinion of the referring court, that is not an objectively different 
technical quality of service requirement of specific categories of traffic within the 
meaning of Article 3(3), second subparagraph, second sentence, of Regulation 
(EU) 2015/2120. The same applies to the fact, argued by the applicant, that video-
streaming is a potentially bandwidth-intensive application. In the opinion of the 
referring court, that does not of itself satisfy the criterion that all traffic 
management measures must be based on objectively different technical quality of 
service requirements of specific categories of traffic. 
43 The fact that bandwidth limitation for video-streaming is not based on objectively 
different technical quality of service requirements of specific categories of traffic 
within the meaning of Article 3(3), second subparagraph, second sentence, of 
Regulation (EU) 2015/2120 is also illustrated, in the opinion of the referring court, 
by the fact that bandwidth limitation only applies in the case of one optional add-
on and nowhere else and that optional add-on can, moreover, be deactivated and 
reactivated at any time by the end-user. 
44 Nonetheless, the referring court cannot definitively rule thus reasonably without 
any doubt. This follows, first, from the fact, as stated previously, that the term 
‘specific categories of traffic’ (‘bestimmte Verkehrskategorien’; ‘certaines 
catégories spécifiques de trafic’) is (also) not defined in Article 2 of Regulation 
(EU) 2015/2120. Moreover, that term does not coincide with the term ‘equivalent 
categories of traffic’ within the meaning of Article 3(3), third subparagraph, point 
(c), of Regulation (EU) 2015/2120, even though the binding language versions of 
that regulation sometimes use terms that overlap (‘specific categories of traffic’, 
‘certaines catégories spécifiques de trafic’, ‘équivalent categories of traffic’, ‘les 
catégories équivalentes de trafic’). Moreover, that term differs terminologically 
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from the term ‘category of service’ within the meaning of Article 3(3), third 
subparagraph, of Regulation (EU) 2015/2120. 
45 This is compounded by the fact that recital 9 of Regulation (EU) 2015/2120 
simply paraphrases, by way of example, the criterion in Article 3(3), second 
subparagraph, second sentence, thereof that traffic management measures must be 
based on objectively different technical quality of service requirements. In light of 
that fact, the referring court cannot rule definitively that, in a situation such as that 
at issue in these proceedings, bandwidth limitation is not based on objectively 
different technical quality of service requirements of specific categories of traffic 
within the meaning of Article 3(3), second subparagraph, of Regulation (EU) 
2015/2120. 
46 The meaning of the term ‘objectively different technical requirements’ cannot be 
seen as adequately clarified as, according to recital 9 of Regulation (EU) 
2015/2120, providers of internet access services may implement traffic 
management measures in order to optimise the overall transmission quality; 
recital 9 of Regulation (EU) 2015/2120 likewise states that traffic management 
measures should optimise the overall quality and user experience. In the opinion 
of the referring court, this does not of itself explain the meaning of the 
requirement of Article 3(3), second subparagraph, second sentence, of Regulation 
(EU) 2015/2120 that traffic management measures must be based on objectively 
different technical quality of service requirements of specific categories of traffic. 
Recital 9 of Regulation (EU) 2015/2120 itself simply establishes a reference to the 
requirement that the objective of reasonable traffic management is ‘to contribute 
to an efficient use of network resources and to an optimisation of overall 
transmission quality responding to the objectively different technical quality of 
service requirements of specific categories of traffic, and thus of the content, 
applications and services transmitted’. Even having recourse to recital 9 of 
Regulation (EU) 2015/2120, the meaning of the term ‘objectively different 
technical requirements’ cannot be established with sufficient clarity. 
47 Thus, it is necessary to clarify whether, in a situation such as that at issue in these 
proceedings, bandwidth limitation fulfils the requirement of Article 3(3), second 
subparagraph, second sentence, of Regulation (EU) 2015/2120 that traffic 
management measures must be based on objectively different technical quality of 
service requirements of specific categories of traffic. 
Question 2.(b) 
48 Article 2 of Regulation (EU) 2015/2120 does not define the term ‘monitor the 
specific content’ within the meaning of Article 3(3), second subparagraph, third 
sentence, of the Regulation. Recital 10 of the Regulation simply states that 
reasonable traffic management does not require techniques which monitor the 
specific content of data traffic transmitted via the internet access service. 
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49 This does not provide the referring court with sufficient pointers to specify the 
regulatory content of Article 3(3), second subparagraph, third sentence, of 
Regulation (EU) 2015/2120. Therefore, the referring court cannot decide 
reasonably without doubt whether, in a situation such as that at issue in these 
proceedings, bandwidth limitation involves prohibited monitoring of the actual 
traffic, inasmuch as technical data from IP addresses and/or protocols and/or 
URLs and/or SNIs (for https) and/or, where applicable, the public keys used to 
encrypt https and/or technical data used by providers or their service providers are 
used to identify video-streaming traffic. 
Question 3 
50 If, in a situation such as that at issue in these proceedings, bandwidth limitation 
should be measured solely against Article 3(2) of Regulation (EU) 2015/2120 and 
not against the requirements of Article 3(3) thereof, the referring court is of the 
opinion that clarification is needed as to whether bandwidth limitation infringes 
end-users’ rights under Article 3(1) of Regulation (EU) 2015/2120. Under that 
provision end-users are to have the right to access and distribute information and 
content, use and provide applications and services, and use terminal equipment of 
their choice, irrespective of the end-user’s or provider’s location or the location, 
origin or destination of the information, content, application or service, via their 
internet access service. 
51 The referring court is of the opinion that the question as to whether, in a situation 
such as that at issue in these proceedings, bandwidth limitation qualifies as a 
restriction on end-users’ rights within the meaning of Article 3(1) of Regulation 
(EU) 2015/2120 has not initially been adequately clarified on the basis of the 
BEREC Guidelines. Although they indicate that certain technical situations 
infringe Article 3(1) of Regulation (EC) 2015/2120, that does not, in the opinion 
of the referring court, suggest, at least not with absolute certainty, that bandwidth 
limitation infringes Article 3(1) of that regulation. 
52 The same applies to the assumption in the BEREC guidelines, which are not, 
moreover, expressly applied in the provisions of Regulation (EU) 2015/2120, that 
infringement of Article 3(3) thereof may simultaneously mean infringement of 
Article 3(1) of that regulation. 
53 Individual optional add-ons have of themselves already been criticised for forcing 
end-users to use the services of content partners. However, according to the 
BEREC guidelines in particular, so-called zero-rated plans are not of themselves 
incompatible with Article 3(1) of Regulation (EU) 2015/2120. Provided that non-
discriminatory access to zero rating is guaranteed for content providers and no 
separate fee is charged for zero rating, such plans are considered generally 
permissible even outwith the BEREC guidelines. 
54 Finally, it has not been clarified, at least not definitively, whether, in a situation 
such as that at issue in these proceedings, bandwidth limitation should be seen as a 
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restriction of end-users’ rights within the meaning of Article 3(1) of Regulation 
(EU) 2015/2120. The discussion to date on these matters can be summarised as 
follows: The specific configuration of traffic shaping is relevant. Provided, as in 
this case, that end-users can deactivate and reactivate traffic shaping (combined 
with zero rating), bandwidth limitation is not seen as an infringement of 
Article 3(1) of Regulation (EU) 2015/2120 as, according to the grounds argued, 
end-users have the private autonomy to decide how to use their internet access; if 
customers are given an additional option and are in sole control of that decision, 
that suggests that their options have been increased, not that their freedom of 
choice has been restricted. 
55 The wording of the provision and the recitals of Regulation (EU) 2015/2120 
provide no clues whatsoever as to whether infringement of end-users’ rights is 
precluded because their options in a situation such as that at issue in these 
proceedings are extended by the optional add-ons. The same applies to the 
question of whether content providers’ rights are infringed because they are no 
longer able to distribute their content in the maximum possible technical quality to 
all end-users. Nor does the fact that Article 3(1) of Regulation (EU) 2015/2120 
makes (‘their’) reference to the internet access service of end-users provide a 
definitive answer to the question referred, as nothing can be inferred from that in 
terms of the legal position of content providers. Moreover, it would appear that 
the discussion to date on traffic shaping has disregarded the fact that, in the 
situation at issue here, providers of video-streaming services and other content 
providers are treated unequally. 
56 In light of this, the referring court is of the opinion that the European Court of 
Justice needs to clarify whether, in a situation such as that at issue in these 
proceedings, bandwidth limitation qualifies as a restriction of end-users’ rights 
within the meaning of Article 3(1) of Regulation (EU) 2015/2120.