REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of the open internet access provisions of Regulation (EU) 2015/2120
Date: 2019-04-30
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, cross-frontier data flow, freedom to provide services, information technology, innovation, regulation of telecommunications, single market, transmission network, universal service

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.4.2019  COM(2019) 203 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of the open internet access provisions of Regulation (EU) 2015/2120     
 
 
1. 

INTRODUCTION 

The EU has  enshrined the principle of  an open  internet  in  Regulation (EU) 2015/2120, 
sometimes  referred  to  as  the  Telecoms  Single  Market  Regulation1,  which  applies  in  all 
Member States since 30 April 2016. 

  Articles 1 and 2 set the scope and definitions 

  Article 3(1) of the Regulation  sets  out  the principle that end-users of internet 
access services have the right to access and distribute the information, content, 
applications and services of their choice. 

  Article 3(2)  provides  that  agreements  between  providers  of  internet  access 
services  and  end-users  must  not  limit  the  rights  of  end-users  set  out  in 
Article 3(1). 

  Article 3(3)  bans  blocking,  throttling  and  discrimination  between  content, 
applications  and  services,  subject  to  certain  limited  exceptions.  Traffic 
management, to optimise the quality of the services transmitted, is possible as 
long  as  it  is  reasonable.  The  third  sub-paragraph  lays  down  restrictive 
exceptions from  the obligation not  to  engage in  traffic management measures 
(and  not  to  block,  slow  down,  alter,  restrict,  interfere  with,  degrade  or 
discriminate  between  specific  content,  applications  or  services)  in  order  to 
either comply with legislation, or to preserve the security of the networks or to 
prevent exceptional/temporary congestion management. 

  Article 3(4)  provides  that  any  traffic  management  measures  have  to  comply 
with the principles of necessity and proportionality as regards the processing of 
personal  data  and  to  the  relevant  Union  framework  in  this  area.  Article 3(5) 
makes  clear  that  services  (other  than  internet  access  services)  optimised  for 
specific  content,  applications  or  services  (sometimes  called  ‘specialised 
services’) can be offered under  certain  conditions,  including that  they  are not 
detrimental to the quality of general internet access services. 

  Article 4 sets transparency measures 

  Articles 5 and 6 concern supervision, enforcement and penalties. 

The  Regulation  empowers  BEREC  to  issue  Guidelines  in  close  cooperation  with  the 
Commission  on  the  obligations  of  the  national  regulatory  authorities  to  monitor  and 
ensure  compliance  with  the  provisions  on  open  internet.  BEREC  established  an  Expert 
Working Group on Open  Internet  which meets  regularly and in  which the Commission 
participates.  BEREC  published  a  first  version  of  the  Guidelines2  in  August  2016.    The 
working  group’s objective is  to  ensure consistency  in  the application of  the Regulation 
across Europe. 

1  Regulation  (EU)  2015/2120  of  the  European  Parliament  and  of  the  Council  of  25  November  2015 
laying  down  measures  concerning  open  internet  access  and  retail  charges  for  regulated  intra-EU 
communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012 (OJ L 310, 
26.11.2015, p.1). 

2  BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules  

1 

 
 
 
                                                 
Article 9 calls on the Commission to review the regulation’s provisions on open internet 
access and submit a report to the European Parliament and the Council, ‘accompanied, if 
necessary, by appropriate proposals with a view to amending the Regulation.’ 

This report assesses the implementation of the regulation since it entered into force and 
compares  the  state  of  play  regarding  access  to  the  open  internet  in  the  Union  today, 
including in the light of market and technological developments, against the situation that 
existed before the regulation became applicable. 

The Commission's assessment shows the objectives of the regulation remain as relevant 
today as when they were first adopted and are not contested: there is broad consensus that 
consumers and businesses should have a right to access an open internet. It helps them to 
acquire information, communicate, innovate and compete in the global digital economy 
and is an increasingly important means for citizens to participate fully in society. 

For  the  purposes  of  this  assessment,  the  Commission  gathered  feedback  on  how  the 
regulation changed the open internet landscape from a wide range of groups through: 

the  (SMART  2017/0011)  study3,  which  analysed  the  most  up  to  date  national 
- 
regulatory authorities’ decisions, case law and feedback from the 28 Member States and 
Norway and included a stakeholder survey and targeted interviews; 

- 
a  2018  public  consultation  by  the  Body  of  European  Regulators  for  Electronic 
Communications  (BEREC),  followed-up  by  an  opinion4  on  the  implementation  of  the 
BEREC guidelines; 

- 

- 

regular contacts with stakeholders at all levels; and 

a targeted stakeholder workshop held on 5 December 2018. 

2.  BASELINE SITUATION 

Before  the  regulation  entered  into  force,  end-users  complained  that  Voice  Over  IP 
services (VoIP)5 were being blocked by internet service providers. 

For  example,  at  least  21 %  of  fixed  and  at  least  36 %  of  mobile  broadband  users  were 
affected by restrictions on their ability to communicate over the internet on a peer-to-peer 
(P2P)  basis,  either  for  technical  or  contractual  reasons  and  at  least  21 %  of  broadband 
users  were  affected  by  VoIP-related  restrictions,  either  technically  or  contractually6.  In 
addition, innovative web start-ups faced legal uncertainty about how far they could use 
the internet to access their market. 

3 

Study  on  the  implementation  of  the  net  neutrality  provisions  of  the  Telecoms  Single  Market 
Regulation (SMART 2017/0011) — Bird & Bird and Ecorys for the Commission. 

4  Opinion  for  the  evaluation  of  the  application  of  Regulation  (EU)  2015/2120  and  the  BEREC  Net 

5 
6 

Neutrality guidelines 

(such as Skype or WhatsApp voice calls over the Internet) 

‘A  view  of  traffic  management  and  other  practices  resulting  in  restrictions  to  the  open  Internet  in 
Europe -’ — BEREC and Commission, BoR (12) 30. 

2 

 
 
                                                 
Furthermore,  some  consumer  practices  were  subject  to  restrictions  or  the  blocking  of 
certain services, such as the practise of ‘tethering’, which entails using a smartphone to 
connect to the general cellular network, and sharing this connection with other devices by 
opening a Wi-Fi hotspot from the smartphone. 

Consumers also complained that internet connection contracts lacked transparency about 
speed and the management of traffic. 

3.  COMMERCIAL DEVELOPMENTS OF AUTHORISED SERVICES. IMPACT OF ARTICLE 3(1) 

The  regulation  addresses  contractual  conditions  and  commercial  practices  applied  by 
internet access services. 

Successful resolution of blocked services 

Article 3(3) bans the blocking of access and restricts traffic management measures. This 
obligation has allowed consumers to benefit from access to websites and services of their 
choice.  VoIP  services,  in  particular,  have  developed  freely  since  the  regulation  entered 
into  force  and  consumer  associations  have  welcomed  this  as  a  clear  success  of  the 
regulation. 

Successful introduction of the choice of terminal equipment 

According  to  Article 3(1),  the  end-user  has  the  right  to  opt  for  the  terminal  equipment 
they  want  to  use. The practice of ‘tethering’ is  now accepted by  all EU internet  access 
providers, which is deemed as an improvement by consumer associations. 

4.  COMMERCIAL DEVELOPMENTS OF OFFERS AT DIFFERENTIATED PRICES - ARTICLES 3(2) 

AND 3(3) 

Article 3(2) requires that contractual conditions and commercial practices do not limit the 
end-users’ rights set out in Article 3(1). 

Differentiation on price: Zero-rating 

Legal basis and zero-rated offers 

An offer is called ‘zero-rated’ when an internet service provider applies a marginal price 
of  zero  to  the  data  traffic  associated  with  a  particular  application  or  category  of 
applications  (and  the  data  consumed  does  not  count  towards  any  general  data  cap). 
Internet service providers often provide it at no extra cost to the user. 

Although the term ‘zero-rating’ does not appear in the regulation, such commercial offers 
were  taken  into  account  by  the  co-legislators.  In  particular,  Article 3(2)  states  that 
‘Agreements between providers of internet access services and end-users on commercial 
and technical conditions and the characteristics of internet access services such as price, 
data volumes or speed, and any commercial practices conducted by providers of internet 
access  services,  shall  not  limit  the  exercise  of  the  rights  of  end-users  laid  down  in 
paragraph 1.’ 

3 

 
 
 
Effect of zero-rated offers on consumers 

Interest groups hold a variety of — often contrasting — views about the impact of zero-
rated offers. For example, consumer associations7 view the overall impact of zero-rated 
offers  as  negative  for  the  consumer  and  think  that  they  should  be  prohibited.  They 
consider that such offers distort competition between the companies offering the content 
or  applications  that  are  included  as  zero-rated  and  other  companies  offering  similar 
content  and  applications8.  In  contrast,  internet  service  providers  consider  that  the 
regulation allows them to propose different offers with different prices and gives freedom 
to the end-user to choose between these offers. 

Both  the  level  of  competition  in  the  market  and  the  inclusiveness  of  the  selected 
applications affect consumers. Such offers are more likely to benefit consumers in cases 
when the level of competition is high in either the internet access market or the content 
and applications markets and when data is comparatively affordable (even when there is 
a  charge)9.  Furthermore,  these  offers  are  less  likely  to  have  a  distorting  effect  on  the 
content  market  if  they  include  entire  categories  of  applications  (for  example  all  music 
streaming services) than if they include a restricted list of applications. 

Regulatory practices for zero-rating offers 

The BEREC guidelines define zero-rating offers and recommend that national regulatory 
authorities assess them on a case-by-case basis. The guidelines list a range of factors that 
need to be taken into account in the context of the specific market circumstances in the 
various Member States10. 

Even  if  a  lower/zero  price  is  applied  for  certain  applications  —  rather  than  an  entire 
category  —  whose  data  consumption  does  not  count  towards  the  data  cap,  this  is  an 
economic (rather than a technical) incentive to use those applications. According to the 
BEREC  Guidelines,  such  types  of  zero-rating  would  not  be  ipso  facto  prohibited  the 
regulation11. 

However, because of Article 3(3), internet service providers must treat all internet traffic 
equally  when  providing  internet  access  service,  without  discrimination,  restriction  or 
interference.  Thus,  according  to  the  same  guidelines,  a  zero-rating  offer  where  all 
applications  are  blocked  or  slowed  down  once  the  data  cap  is  reached,  except  for  the 
zero-rated  applications,  would  contravene  Articles  3(3)  first  and  third  paragraph  sub-
paragraphs12. 

Source: stakeholder workshop of 5 December 2018. 

7 
8 

In the Netherlands, a Court found that Article  3 of the Regulation contains no categorical prohibition 
on  price  discrimination  and  that  a  zero-rating  offer  for  music  services  was  authorised  -  see  District 
Court of Rotterdam 20  April 2017, ECLI:NL:RBROT:2017:2940. After the Court decision, a citizens’ 
rights  association  challenged  the  authorisation  but  the  District  Court  of  Rotterdam  dismissed  the 
challenge. : see Bits of Freedom vs ACM ECLI:NL:RBROT:2019:414 case.  
9  A European Commission study for DG COMP looked into these effects in 2017. 
10  BEREC guidelines (2016), para 43-48. 
11  BEREC guidelines (2016), para 42. 
12  BEREC guidelines (2016), para 55. 

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The  SMART  study13  found  that  the  national  regulatory  authorities  decisions  were 
consistent in this regard. Working together within the BEREC working group, they have 
ensured consistency in the decisions that apply in the different Member States. There are 
consistent  trends  in  implementation  between  Member  States.  For  example,  zero-rating 
offers applicable to all applications of a given category and  that are blocked along with 
the user’s other internet traffic once the general cap is reached and that do not make other 
differentiation  in  traffic,  were  generally  regarded  as  lawful.  Regulatory  interventions 
have  focused  on  technical  differentiation  and  on  rather  specific  offer  conditions.  Some 
decisions also clarified roaming-related aspects. 

As  previously  mentioned,  BEREC  plans  to  continue  this  collaborative  work  with  the 
Commission,  to  clarify  the  guidelines  where  possible,  and  provide  a  step-by-step 
methodology for assessing zero-rating cases. 

Differentiation on quality 

Article 3(2) also provides that agreements between providers of internet access services 
and  end-users  on  characteristics  (such  as  price,  data  volumes  or  speed)  must  not  limit 
end-users ability to exercise their rights as laid down in paragraph 1. 

End-users therefore have the right to choose differentiated prices for different parameters 
of  quality  of  service  (e.g.  data  volumes  or  speeds)  as  long  as  the  rights  laid  down  in 
Article 3(1) are not limited for any of them. 

Quality of service may vary depending on the terminal equipment used, coverage of the 
network, the content and other objective factors. For example, when two end-users have 
subscribed  to  services  of  different  quality,  they  may  experience  varying  transmission 
performance. However, in principle, they are considered as being treated equally if traffic 
management  measures  are  based  on  objective  technical  justifications  that  benefit  the 
overall quality and/or efficiency of the network. Evidence to date does not indicate that, 
as a general proposition, the availability of services with different speed, volume or other 
characteristics,  at  different  prices,  would  have  harmed  consumers  or  their  ability  to 
exercise their rights under Article 3(1). 

Since  Article 3(2)  allows  for  commercial  agreements,  the  protection  of  consumers  who 
have  purchased  services  with  lower  quality  is  normally  ensured  by  the  transparency 
measures provided in Article 4 of the regulation, the general measures for the protection 
of end-users  rights  included in  Chapter  IV of the Universal  Service Directive14 and the 
general  consumer  protection  regime.  At  this  stage,  it  does  not  appear  that  additional 
measures are needed to strengthen this general protection regime.   

BEREC is working closely with the Commission to clarify this subject in its guidelines. 

User-controlled network blocking 

The  internet  service  providers  raised15  possible  future  offers  where  connected  objects 
may  connect  only  to  their  producer’s  application  and  where  the  end-user  may  wish  to 

13  The SMART 2017/0011 study. 
14  Directive 2002/22/EC of the  European Parliament and of the  Council of 7 March 2002 on universal 
service  and  users'  rights  relating  to  electronic  communications  networks  and  services  (OJ  L  108, 
24.4.2002, p. 51–77). 

15  Source: stakeholder workshop on 5 December 2018. 

5 

 
                                                 
restrict the possibility of connection only to their own devices. A typical example would 
be  a  person  buying  a  burglar  alarm  or  a  webcam  and  restricting  the  devices  that  are 
authorised to configure it to those of the premises’ inhabitants. In such a case, the internet 
service  provider  would  implement  the  access  restrictions  in  the  network,  but  at  the 
request of the end-user. In this case, the choice given to the end-user by Article 3(2) to 
agree  on  technical  conditions  with  the  internet  service  provider  is  relevant.  In  such  a 
scenario, the obligations in Article 3(3) that apply to the operator blocking end-points do 
not apply to cases where the end-user  is fully in control of –— and establishes item by 
item — what is blocked or not (and the other technical or commercial conditions of the 
internet access service do not vary depending on their choice.) However, such practices 
should  be  closely  monitored  in  order  to  ensure  that  no  such  choice  is  imposed  by  the 
internet service provider. On the contrary, it should remain under the permanent control 
of the end-user with easy initial opt-in and subsequent opt-out16. 

5.  TECHNOLOGY  DEVELOPMENTS  AND  THE  TRAFFIC  MANAGEMENT  PROVISIONS  OF 

ARTICLE 3(3) 

5G 

The Commission’s Communication on the Gigabit society17, the 5G action plan18 and the 
European Electronic Communications Code19 establish ambitious objectives for the roll 
out 5G networks and provide for solutions that can allow innovative services to flourish. 
5G  technologies  are  being  standardised  by  the  electronic  communications  industry  and 
will soon reach the market. 

5G  enables  industrial  transformation  through  wireless  broadband  services  provided  at 
gigabit speeds. 5G promises high-speed data connections, low latency and the capability 
to  exploit  any  available  wireless resources from  Wi-Fi  to  4G and to  handle millions  of 
connected devices simultaneously (the 'internet of things’). It also opens the possibility to 
make  network  organisation  flexible,  with  software  parameters  allowing  innovative 
business models across multiple sectors (e.g. transport, health, manufacturing, logistics, 
energy, media and entertainment). 

The  regulation  was  deliberately  conceived  as  a  principles-based  set  of  rules  so  that  it 
could  be  applied  to  the  foreseeable  development  of  new  technologies  and  services, 
provided  they  remain  consistent  with  the  open  internet  ecosystem.  This  is  reflected  in 
recital  (1)  which identifies the double objective  of the  regulation: “to protect  end-users 
and simultaneously to  guarantee the continued functioning of the internet  ecosystem as 
an engine of innovation”. 

Slicing 

Network  slicing  technology  works  to  create  virtual  separation  between  parts  of  the 
network. It opens new possibilities for organising the provision of different services by 
allocating resources rapidly. 

16  Related discussions are in BEREC guidelines paragraph 17, 38 and 55. 
17  Connectivity for a Competitive Digital Single Market — COM(2016) 587. 
18  5G for Europe: An action plan — COM(2016) 588. 
19  Directive (EU) 2018/1972 — European Electronic Communications Code. 

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5G  introduces  more  possibilities  to  deliver  connectivity  that  is  adapted  to  the  service 
being  offered.  Some  services  need  high  and  consistent  data  speed  (for  example 
augmented  reality),  and  some  need  different  features  like  the  possibility  to  connect  a 
number of low-power devices (for example health sensors in a house). 

5G  architecture  could  enable  forms  of  reasonable  traffic  management  measures  that 
optimise traffic depending on the objective characteristics of the content, application or 
service, thereby improving the system’s general performance and flexibility. 

Article 3(3)  second  sub-paragraph  provides  that  providers  may  implement  reasonable 
traffic  management  measures.  However,  ‘such  measures  shall  not  monitor  the  specific 
content and shall not be maintained for longer than necessary’. Depending on the choices 
made when deploying 5G networks, there could be a future need to assess precisely what 
content is ‘specific’ and what is not. At this stage, the Commission is not aware of any 
concrete  example  where  this  provision  would  hinder  implementation  of  slicing 
technology. The Commission will continue to follow this issue closely as 5G develops in 
the market. 

BEREC has announced that  it welcomes dialogue between interest  groups and national 
regulatory  authorities  if  the  former  are  uncertain  of  whether  a  specific  use  of  a  5G 
technology  complies  with  the  regulation.  The  Commission  supports  this  stakeholder 
dialogue and will work closely with BEREC on the updated guidelines. 

6.  TECHNOLOGY DEVELOPMENTS AND SPECIALISED SERVICES -  ARTICLE 3(5) 

Services other than internet access services 

Article 3(5)  provides  for  the  possibility  to  offer  services  other  than  internet  access 
services  (herein  referred  to  as  ‘specialised  services’),  which  are  optimised  for  specific 
content,  applications  or  services,  or  a  combination  thereof,  where  the  optimisation  is 
necessary to meet requirements of the content, applications or services for a specific level 
of quality. 

It sets out that internet service providers may only offer or facilitate such services if the 
network capacity is sufficient to provide them in addition to any internet access services 
without degrading their quality. 

There  have  been  few  questions  regarding  the  application  of  Article 3(5)  since  the 
regulation entered into force, because not many novel kinds of specialised services have 
been launched. 

According  to  a  survey20,  the  same  kinds  of  specialised  services  have  been  offered  for 
some time by a wide range of internet service providers — mainly managed voice calls 
(Voice over IP — VoIP) and television through internet (IPTV). 

The industry expects new specialised services to appear, facilitated by 5G networks. No 
commercial  5G  services  are  available  yet  and  stakeholders  have  expressed  uncertainty 
about  the  future  interpretation  of  Article 3(5)  by  national  regulatory  authorities.  The 
condition laid down in Article 3(5) is that specialised services can be offered ‘only if the 

20  The SMART2017/0011 study. 

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network capacity is sufficient to provide them in addition to any internet access services 
provided’  and  that  ‘[s]uch  services  shall  not  be  usable  or  offered  as  a  replacement  for 
internet  access  services,  and  shall  not  be  to  the  detriment  of  the  availability  or  general 
quality of internet access services for end-users’. 

While internet service providers support the underlying principle of the regulation, they 
are  concerned  —  along  with  some  content  providers  —  that  the  current  BEREC 
guidelines  do  not  provide  sufficient  flexibility  in  its  examples  of  how  to  satisfy  those 
conditions, obliging them to reserve dedicated resources for these new services and lose 
the benefit of the dynamic allocation of capacity. They also point out that any specialised 
service  that  complies  with  the  conditions  in  Article  3(5)  should  be  permitted  without 
needing  prior  authorisation  before  it  is  launched.  Providers  underline  that  they  want  to 
avoid a situation in which the presumed complexity of the ex post assessment would lead 
them in practice to seek explicit permission before developing or launching any service. 
They  have  also  emphasised  that  the  example  in  the  guidelines  concerning  measuring 
performance by making a test of the internet access service while all specialised services 
are  shut  down  is  hardly  applicable  in  practice  since  some  vertical  services  cannot  be 
delayed due to their special nature. 

Consumer  and  civil  society  organisations  and  content  providers  consider  that  both  the 
regulation and the guidelines are flexible enough to accommodate 5G services. 

In  view  of  a  next  generation  of  specialised  services,  questions  on  the  application  of 
Article 3(5)  may  come  up.  It  might  become  necessary  to  further  clarify  when 
optimisation  of  services  can  be  considered  to  be  necessary  on  technical  or  commercial 
grounds, when ‘network capacity is sufficient’ and when specialised services are ‘to the 
detriment  of  the  availability  or  general  quality  of  internet  access  services.  Such 
clarifications may be necessary’. Such clarifications may be necessary in order to ensure 
end-user protection and to guarantee the continued functioning of the internet ecosystem 
as an engine of innovation. 

BEREC  has  announced21  that  it  will  consider  providing  further  clarifications  in  the 
guidelines on how to assess, on case-by-case basis, whether a service other than internet 
access complies with  the conditions  set  out  in  Article 3(5). The Commission  will work 
closely with BEREC on this update to the guidelines. 

Network performance measurement 

The emerging growth of network slicing and specialised services raises the challenge of 
how to  give end-users  the flexibility to  benefit  from  a dynamic allocation of resources, 
while complying with the Article 3(5) obligation to not allow specialised services to act 
to the detriment of the quality of the general internet access services. 

Measuring network performance is a complex task as it depends on multiple factors, such 
as other end-users using the network or the distance between a mobile phone and the base 
station antenna, and comparing performance over time requires statistical analysis. 

Internet  service  providers  insist  on  the  importance  of  reflecting  the  many  drivers  of 
network  performance  when  interpreting  measurements.  Consumer  and  civil  rights 
organisations  acknowledge  the  complexity  of  this  task  but  insist  on  the  need  to  verify 
quantitative information. 

21  Quoted BEREC opinion. 

8 

 
                                                 
BEREC is working on updating guidelines in this area22 and has launched a procurement 
procedure to develop the relevant software tool. 

7.  CONTRACTUAL TRANSPARENCY, REGULATORY MONITORING AND PROCEDURES 

Transparency obligations in Article 4 

Article 4(1) has contributed to transparency as regards conditions included in contract for 
internet access services for end-users and appears to be effective for the information that 
internet  service  providers  publish  on  their  websites.  Consumer  associations  received 
much  fewer  complaints  about  the  quality  of  internet  access  services  than  before  the 
regulation became applicable. 

The  European  Electronic  Communications  Code23,  which  will  apply  from  December 
2020, will complement this provision by further harmonising the transparency rules with 
a free and independent comparison tool. 

Supervision and enforcement — Article 5 

Baseline: situation before 31 December 2016 

Some Member State had legislation in place on open internet access or on transparency 
of information and some had self-regulation or co-Regulation measures.  Such Member 
States  had  the  possibility  to  maintain  until  31  December  2016  such  national  measures 
and, in such case, they had the obligation to notify the Commission those measures by 30 
April 2016. The figures below illustrate this situation: 

22  Quoted BEREC opinion. 
23  Directive (EU) 2018/1972, Article 103. 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Maps 1, 2 and 324: 

1 Pre-existing legislation on open internet access (banning blocking, throttling and 
zero-rating offers) 

2: Pre-existing legislation on transparency 

3: Pre-existing self-regulation (yellow) and co-regulation (blue) 

Map 1  

Map 2  

Map 3 

Implementation of the regulation after December 2016 

The supervision and enforcement of the regulation is still comparatively recent and work 
in progress. A number of investigations by individual national regulatory authorities into 
certain topics are under way. Yet, the implementation has been consistent throughout the 
Union.  The  issues  that  have  arisen  were  mainly  transparency  (contract  information), 
zero-rating  and  traffic  management  measures.  National  regulatory  authorities  are 
addressing  them  in  a  coordinating  manner.  Indeed,  within  BEREC  they  established  a 
working  group  to  exchange  practises  and  strive  to  maintain  consistency  in  their 
application  of  the  regulation.  This  coordination  process  led  the  decision-making  in  the 
Member States to converge widely. 

Sanctions — Article 6 

Sanctions differ widely between Member States. For example, in some Member States, 
penalties are linked to a company’s turnover, others have a fixed maximum amount and 
some have a combination of the two. For similar violations of, for instance, Article 3, the 
fixed maximum amounts range from around EUR 15 000 to EUR 3 million and turnover-
related maximum fines range from 0.5 % to 10 %. The type of penalties imposed (fines 
and/or  periodic  penalty  payments  with  or  without  the  possibility  to  impose  other 
sanctions such as suspension of activities) also differ between Member States. 

24  data from the SMART2017/0011 study. 

10 

 
 
 
 
 
 
 
 
 
 
                                                 
Figure 1:

Overview of maximum fines (turnover-related and monetary)25 

Only very few penalties have been imposed to date and all of them were well below the 
applicable maximum. 

Since  effective,  dissuasive  and  proportionate  sanctions  are  crucial  for  the  correct 
implementation  of  the  regulation,  the  Commission  is  monitoring  the  implementation  of 
this provision in the Member States. 

25  The SMART2017/0011 study. 

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8.  CONCLUSION 

Compared with the situation in 2015, before the regulation applied, end-users and content 
application  providers  express  great  satisfaction  with  today’s  state  of  affairs.  Internet 
service providers also support the principles of an open internet and do not consider that 
it is necessary to amend these principles. 

One of the regulation’s objectives was to support the internet as an engine of innovation. 
Today, digital businesses are clearly flourishing as evidenced by start-up clusters in very 
dynamic  places  across  Europe.  The  emergence  of  these  start-ups  is,  in  part,  thanks  to 
their  ease  of  access  to  their  customers,  which  the  regulation  supports.  In  addition,  the 
regulation does not seem to affect the investments made by providers of internet access 
services. All market participants highly appreciate the legal certainty that it has created, 
as having predictable rules is crucial for their investment decisions. 

From the assessment of the first two and a half years of implementation, the Commission 
concludes that the regulation’s principles are appropriate in light of the development of 
the  market  and  that  they  are  effective  in  protecting  the  end-user  and  promoting  the 
internet as an innovation engine.  

Experience of how the regulation is applied is still limited due to the relatively short time 
it has been in application. A further period of regulatory stability will enable regulators, 
stakeholders and end-users to become more familiar with its application. Such stability is 
ensured in the EU through directly applicable, principles-based legislation, supported by 
all relevant stakeholder communities, and underpinned by flexible mechanisms to ensure 
consistent decision-making at national level. 

Therefore,  the  Commission  concludes  that  it  would  not  be  appropriate  to  propose 
amendments  to  the  Regulation  at  this  stage.  The  Regulation  will  continue  to  protect 
European internet users and allow them to continue to benefit from access to information, 
and content, applications and services according to their choice. 

The  Commission  shall  continue  to  monitor  developments  in  the  market,  in  light  of  the 
developments in technology and services. 

In  particular,  it  shall  work  closely  with  BEREC,  which  is  carrying  out  a  coordination 
process  that  has  successfully  led  Member  States  to  converge  their  decision-making. 
BEREC  plans  to  continue  this  collaboration  in  the  future.  Interest  groups  have  made 
comments on BEREC’s implementation guidelines and called for them to be adapted to 
reflect market and technology developments. BEREC has begun its work on updating the 
Guidelines and plans to deliver in 2019, “in close cooperation with the Commission” as 
provided  for  in  Article  5(3),  and  should  continue  in  the  future,  to  ensure  that  the 
Guidelines reflect in an appropriate manner the development of the market. 

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