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: 2023-04-28
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: 5G, Internet, consumer protection, cross-frontier data flow, freedom to provide services, regulation of telecommunications, single market, transmission network, universal service

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.4.2023  COM(2023) 233 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.  1. 

INTRODUCTION 

The  principle  of  the  open  internet  is  embedded  in  Regulation  (EU)  2015/21201,  which 
has  applied in  all Member States since 30 April  2016. The Regulation  grants  end-users 
the directly applicable right to access and distribute lawful content and services of their 
choice  via  their  internet  access  service.  It  enshrines  the  principle  of  net  neutrality: 
internet 
throttling  or 
prioritisation.  The  end-users’  rights  cannot  be  limited  by  the  agreements  between  them 
and  their  internet  providers,  or  by  traffic  management  practices  undertaken  by  the 
providers.  The  principle  of  the  open  internet  has  been  included  in  the  European 
Declaration on Digital Rights and Principles2, which shows its continuing importance in 
the EU. 

treated  without  discrimination,  blocking, 

traffic  must  be 

the  Body  of  European  Regulators 

for  Electronic 
The  Regulation  empowers 
Communications (BEREC) to issue guidelines in close cooperation with the Commission 
on  the  obligations  of  the  national  regulatory  authorities  (NRAs)  to  monitor  and  ensure 
compliance with  the provisions on open internet. BEREC published  the first  version of 
the guidelines3 in August 2016 and updated them in 20204 and 20225. The BEREC Open 
Internet  Working  Group,  in  which  the  Commission  participates,  aims  at  ensuring 
consistency in the application of the Regulation across Europe. 

The  Commission  was  required  to  review  the  Regulation’s  provisions  on  open  internet 
access  (Articles  3,  4,  5  and  6)  and  submit  a  report  to  the  European  Parliament  and  the 
Council, ‘accompanied, if necessary, by appropriate proposals with a view to amending 
the Regulation’, by 30 April 2019 and every 4 years thereafter. 

The first report on the implementation of the Regulation was published in April 20196. It 
concluded  that  the  Regulation  was  appropriate  and  effective  in  protecting  end-users’ 
rights and promoting the internet as an engine for innovation, and that there was no need 
to  amend  it.  Since  then,  the  Commission,  BEREC  and  the  NRAs  have  continued  to 
monitor developments in the market and the implementation of the open internet rules. 

The aim of this second report is to provide  an assessment of the implementation of the 
four  articles  of  the  Regulation  since  2019,  including  in  the  light  of  market  and 
technological  developments.  For  the  purpose  of  this  assessment,  the  Commission 
gathered feedback on how the Regulation supported the open internet access from a wide 
range of sources: 

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 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 L 310, 26.11.2015, 
p. 1; hereinafter referred to as the Regulation. 
2  European  Declaration  on  Digital  Rights  and  Principles  for  the  Digital  Decade  2023/C  23/01;  OJ  C  23, 
23.1.2023, p. 1–7. 
3  BEREC  Guidelines  on  the  Implementation  by  National  Regulators  of  European  Net  Neutrality  Rules, 
BoR (16) 127, 30 August 2016. 
4 BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020. 
5 BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (22) 81, 9 June 2022. 
6 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, COM (2019) 203 final. 

1 

 
 
                                                 
1)  the national implementation reports from the NRAs7 and BEREC8; 

2)  the  BEREC  Opinion  for  the  evaluation  of  the  application  of  Regulation  (EU) 

2015/2120 of December 20229; 

3)  the SMART 2019/002410 study (‘the study’), that collected factual information on 
the implementation of the Regulation through desk research, interviews, a survey, 
expert panels, and a targeted stakeholder workshop held on 30 January 2023, and 
provided assessment and recommendations; 

4)  ongoing contacts with stakeholders at all levels. 

The  report  also  takes  into  consideration  the  jurisprudence  of  the  European  Court  of 
Justice (ECJ) on the interpretation of the provisions of the Regulation. 

2.  2.  CONTEXT 

Since the 2019 report, there have been some important developments. Among the legal, 
judicial and regulatory developments are: 

- 

- 

- 

four judgments of the ECJ on the Regulation, one of September 202011, and three 
of September 202112;  

the  entry  into  force  of  the  European  Electronic  Communications  Code13,  which 
the  consumer-protection  aspects  of  Directive 
among  others  expanded 
2002/22/EC14 to which the Regulation refers;  

two revisions of the initial BEREC guidelines published in August 2016: the first 
in  June  2020  clarified  certain  parts  of  the  guidelines  and  took  account  of  the 
experience of NRAs in applying them; and another in June 2022 reflected the ECJ 
judgments on ‘zero tariff’ offers. 

Among  the  potentially  relevant  technological  developments,  as  well  as  global  and 
geopolitical events since 2019 are: 

7 The Commission  publishes  on its  website (Open Internet  | Shaping Europe’s digital  future (europa.eu)) 
the  annual  country  reports  on  the  open  internet  provided  by  the  NRAs.  So  far  6  sets  of  the  reports  are 
available. 
8 So far, BEREC has adopted 6 annual reports on the implementation of Regulation; all are available on its 
website: www.berec.europa.eu. 
9 BEREC Opinion for the evaluation of the application of Regulation (EU) 2015/2120, BoR (22) 163, 12 
December 2022. 
10 ‘Study on the implementation of the open internet access provisions of Regulation 2015/2120 No. 2022-
008’, carried out by ICF and WIK Consult. 
11 Judgment of the Court (Grand Chamber) of 15 September 2020 in Joined Cases C-807/18 and C-39/19 - 
Telenor Magyarország.  
12 Judgments of the Court (Eighth Chamber) of 2 September 2021 in Case C-854/19 - Vodafone, Case C-
5/20 - Vodafone, and Case C-34/20 – Telekom Deutschland. 
13  Directive  (EU)  2018/1972  of  the  European  Parliament  and  of  the  Council  of  11  December  2018 
establishing the European Electronic Communications Code, OJ L 321, 17.12.2018, p. 36. 
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 (Universal Service 
Directive), OJ L 108, 24.4.2002, p. 51. 

2 

 
 
                                                 
- 

- 

- 

the  COVID-19  pandemic,  which  led  to  an  increase  in  internet  traffic,  raising 
questions  about  possible  measures  to  manage  network  congestion  and  their 
validity under the Regulation;  

the  progressive  deployment  of  5G  mobile  networks,  bringing 
increased 
opportunities to provide different services with different quality of service (QoS) 
levels;  

the  EU  sanctions  against  Russia  in  response  to  the  military  aggression  against 
Ukraine, including restrictions against several media outlets that cover all means 
of  transmission  and  distribution  in  –  or  directed  at  –  the  EU  Member  States 
(including cable, satellite, internet protocol TV, platforms, websites and apps)15. 

3.  3.  COMMERCIAL DEVELOPMENTS 

3.1. 

3.1. 

Restrictions on the free use of equipment, services and content 

The Regulation provides for the end-users’ right to access and distribute information and 
content, to use and provide applications and services, and  to use terminal equipment of 
their  choice.  This  right  is  irrespective  of  the  end-user’s  or  provider’s  location  or  the 
location, origin or destination of the information, content, application or service. 

The  Regulation  also  clarifies  that  end-users  should  be  free  to  choose  their  terminal 
equipment and that providers of internet access services should not impose restrictions on 
the  use  of  terminal  equipment  connecting  to  the  network  beyond  those  imposed  by 
manufacturers or distributors of terminal equipment. 

In its  guidelines  BEREC clarified that, when considering whether end-users are  able to 
use the terminal equipment of their choice, NRAs should first assess whether an internet 
access  service  provider  provides  ‘obligatory  equipment’,  and  whether  there  is  an 
objective  technological  necessity  for  the  obligatory  equipment  to  be  considered  part  of 
the internet access service provider’s network.  

The  study  confirms  that  restrictions  on  the  use  of  terminal  equipment  are  relatively 
widespread  and  that  the  response  of  NRAs  to  such  restrictions  is  not  uniform.  Router 
freedom is considered important in countries where the network termination point (NTP) 
excludes the router16. In general, compared with the situation reported in the 2019 report, 
although  there  is  now  more  transparency  about  the  location  of  the  NTP and  conditions 
for using  alternative equipment  to  that supplied by the  internet access  service provider, 
the situation across Europe remains varied. In this regard, the NRAs and BEREC could 
explore a more coordinated approach and narrower definitions. 

15  Council  Regulation  (EU)  2022/350  of  1 March  2022  amending  Regulation  (EU)  No 833/2014 
concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine; OJ L 65, 
2.3.2022,  p.  1–4,  and  Council  Decision  (CFSP)  2022/351  of  1 March  2022  amending  Decision 
2014/512/CFSP  concerning  restrictive  measures  in  view  of  Russia’s  actions  destabilising  the  situation  in 
Ukraine, OJ L 65, 2.3.2022, p. 5–7. 
16 Out of 24 NRAs which responded to this question within the study, 16 reported that the NTP is defined 
in their jurisdiction. Out of these, in the case of 7 the NTP excludes the router, 4 Member States include the 
router within the NTP definition, and in a further 5 the definition varies by technology. In 8 of the Member 
States for which information was available, consumers have been required to make use of routers supplied 
by ISPs. 

3 

 
 
                                                 
Overall,  some  Member  States  made  steps  to  support  increased  choice  in  terminal 
equipment,  compared  to  the  situation  reported  in  2019.  Stakeholders  confirm  that 
challenges  regarding  limitations  on  terminal  equipment  and  the  use  of  devices  have 
reduced.  Nonetheless,  some  stakeholders  call  for  improved  enforcement  and  greater 
clarity on the interpretation of specific terms.  

3.2. 

3.2. 

‘Zero tariff’ options  

The  ‘zero  tariff’  option  is  a  commercial  practice  where  an  internet  access  provider 
applies a ‘zero tariff’, or a reduced tariff, to all or part of the data traffic associated with 
an  application  or  category  of  specific  applications,  offered  by  partners  of  that  access 
provider17.  Such  data  are  therefore  not  counted  towards  the  data  volume  purchased  by 
end-users as part of their basic package.  

As  noted  in  the  2019  report,  such  ‘zero  tariff’  options  were  in  general  considered  not 
prohibited by the Regulation. BEREC in its 2016 guidelines indicated how such options 
should be assessed, and further developed its assessment methodology of ‘zero tariff’ and 
similar offers in its 2020 guidelines. ‘Zero tariff’ options were present in most Member 
States and overall, widespread on the market18. 

In  fact,  all  the  ECJ  judgments  on  the  Open  Internet  Regulations  were  issued  in  cases 
related to ‘zero tariff’ options.  

First,  in  2019,  the  ECJ  considered  packages  offered  by  an  internet  access  service 
provider,  which  enabled  end-users  to  use  certain  specific  applications  and  services 
covered by a ‘zero tariff’ with the related traffic not counted towards the data volume of 
the basic package of the internet access service, with specific conditions of use attached 
to such offers. The ECJ emphasised in its ruling that the general obligation to treat traffic 
equally as a principle applies to applications and services covered by ‘zero tariff’.  

In  2021,  the  ECJ  ruled  that  ‘zero  tariff’  options  are  incompatible  with  the  Regulation. 
Limitations on bandwidth, tethering, or use when roaming, on account of the activation 
of such options, are also incompatible with EU law. 

Following  the  ECJ  rulings,  BEREC  noted  in  its  2022  guidelines  that  commercial 
practices could include ‘differentiated pricing’ in which the price for a given amount of 
data  is  not  the  same  for  all  traffic  across  a  particular  internet  access  service  traffic; 
however,  those  practices  ought  to  be  ‘application  agnostic’.  In  other  words,  internet 
access service providers may include in their commercial practices a different price for a 
certain amount of data (including a ‘zero tariff’ option or a reduced tariff), as long as this 
data traffic is used irrespectively of the application. 

BEREC  considers  any  differentiated  pricing  practices  that  are  not  application  agnostic 
(such as applying a ‘zero tariff’ to internet access service providers’ own applications or 
allowing content and application providers to subsidise their own data) to be in general 
inadmissible. 

17 See definition by ECJ in Judgments in Cases C-854/19, C-5/20 and C-34/20. 
18  Still  in  2022,  the  applications  most  subject  to  ‘zero  tariff’  were  music  streaming  (20  Member  States), 
video/IPTV (20 Member States) and social media (18 Member States). ‘Zero tariffs’ were also reported for 
voice and short messages (15 Member States), cloud services (8 Member States), and gaming (6 Member 
States). 

4 

 
 
                                                 
Following  the  ECJ  rulings,  as  of  December  2022,  ‘zero  tariff’  options  have  been  fully 
withdrawn  or  are  being  withdrawn  from  the  market19.  NRAs  and  operators  report  that 
customers receiving ‘zero tariff’ options are being transitioned to plans with additional or 
unlimited data, or in a few cases to time-based discounts.  

The  study  shows  that  there  is  general  agreement  among  the  stakeholders  that  the  ECJ 
judgments  and  the  updated  BEREC  guidelines  have  brought  clarity  on  ‘zero  tariff’ 
options. A few NRAs indicated that ‘zero tariff’ options for the customer care sites were 
allowed in  their Member States,  while  others  allowed  ‘zero tariff’ options for social or 
educational  purposes.  According  to  the  study,  some  stakeholders  consider  that  ‘zero 
tariff’  options  for  social  or  educational  purposes  should  be  permitted  as  such,  while 
others fear that this could open the door to breaches of the Regulation’s principles and is 
not needed in cases where sufficient bandwidth is provided in consumer packages. More 
clarity  on  the  interpretation  of  terms  related  to  ‘zero  tariff’  options  in  those  instances 
could be useful. 

4.  4.  TRAFFIC MANAGEMENT 

The  Regulation  also  affirms  that  internet  access  service  providers  must  treat  all  traffic 
equally,  without  discrimination,  restriction,  or  interference;  they  must  not  block,  slow 
down,  alter,  restrict,  interfere  with,  degrade  or  discriminate  between  specific  content, 
applications or services. The Regulation provides for a few exceptions that are limited to:  

a)  compliance with EU legislative acts, or national legislation, including with orders 

by courts or public authorities vested with relevant powers; 

b)  preservation of the integrity and security of the network, of services provided, and 

of the terminal equipment of end-users; 

c)  prevention of network congestion and mitigation of the effects of exceptional or 

temporary network congestion. 

4.1. 

4.1. 

Blocking and throttling of content  

The  study  shows  that  authorised  blocking  is  widely  reported,  in  particular  under  two 
exemptions: (a) legislation and (b) security and integrity. 

Blocking  of  content  has  occurred  in  many  Member  States  based  on  legislation/legal 
rulings including blocking of illegal gambling and child pornography, extremist content, 
breach  of  copyright,  threat  to  state,  and  on  the  basis  of  EU  sanctions  against  Russia. 
Especially  in  the  context  of  the  sanctions  against  Russia,  some  internet  access  service 
providers  expressed  concerns  that  they  lacked  legal  clarity  as  to  the  circumstances  in 
which  they  were  permitted  or  required  to  block  content.  In  this  regard,  BEREC 
highlighted  that  NRAs  have  sought  to  assist  internet  access  service  providers  in  the 
practical  implementation  of  the  sanctions  in  order  to  avoid  over-  or  under-blocking. 
However, it also recalled that NRAs are not responsible for deciding on or overseeing the 
implementation of sanctions.  

19  As  of  December  2022,  ‘zero  tariff’  options  have  been  fully  withdrawn  (not  marketed  and  withdrawn 
from existing customers) in 6 Member States (HR, EE, LT, LU, MT, SI), while in a further 5 (AT, DK, CZ, 
DE, HU), existing customers are still served, but the phase-out of ‘zero tariffs’ was due to be completed by 
March 2023 (or January 2023 in the case of DK). 

5 

 
 
                                                 
The use of throttling to address time-limited network congestion issues (exemption (c)) is 
less  widely  reported  by  NRAs.  It  has  been  used  mainly  when  end-users  exceed  the 
capacity  in  mobile  data  plans;  and  to  prevent  network  overload  on  mobile  networks 
during power outages to ensure access to calls and emergency services or during periods 
of network failure or sudden increases in traffic.  

4.2. 

4.2. 

Impact of COVID-19 on traffic management 

When the COVID-19 crisis started, and with it the lockdown measures, BEREC and the 
NRAs  worked  closely  with  the  Commission20  to  provide  swift  and  clear  guidance  to 
stakeholders. They also continued to report on the situation in the following months21. 

Several  NRAs  noted  that  no  throttling  was  required  during  the  COVID-19  pandemic, 
even during the peak of the crisis, when lockdown measures implemented in the Member 
States resulted in an increase in teleworking and distance learning, thus increasing traffic 
on  the  network.  On  traffic  management  during  the  COVID-19  pandemic,  throttling  for 
COVID-19-related  reasons  was  not  reported  in  any  Member  State  in  any  of  the  2022 
NRAs’ reports. 

The COVID-19 crisis is an excellent example of the adaptability and applicability of the 
Regulation  to  specific  challenges,  such  as  the  peak  in  internet  traffic  during  the  crisis. 
This  example  is  strong  evidence  that  the  interplay  of  the  Regulation,  the  BEREC 
guidelines,  and  the  cooperation  of  the  Commission  provides  for  a  future-proof  tool  to 
manage  unexpected  developments  as  and  when  they  occur.  Moreover,  the  COVID-19 
crisis  also  shows  that  the  current  infrastructure  was  able  to  cope  with  a  sudden, 
unexpected, and sustained peak in internet traffic.  

Still,  significant  investments  will  be  needed  in  the  coming  years  to  ensure  that  all  the 
targets  of  the  Digital  Decade  Policy  Programme22  can  be  met,  and  that  the  European 
infrastructures can cope with a likely increase in network traffic and keep up with new 
technological  developments.  The  Commission  is  currently  soliciting  the  views  of 
stakeholders on the investments needed to build the internet infrastructure of the future in 
an  exploratory  consultation  running  from  23  February  2023  to  19 May 2023.  In  that 
context,  it  should  be  noted  that  the  Digital  Decade  Policy  Programme  stresses  the 
principle that ‘all market actors benefiting from the digital transformation should assume 
their social responsibilities and make a fair and proportionate contribution to the public 
goods, services and infrastructures, for the benefit of all Europeans’. This is also in line 
with  the political  commitments  included in  the European  Declaration on  Digital  Rights 
and  Principles.  The  above-mentioned  exploratory  consultation  also  seeks  stakeholders’ 
views on how this principle could be implemented in practice – if relevant – to help roll 
out  the  infrastructure  needed  to  enable  Europe  to  lead  the  digital  transformation. 
However,  the  fact  that  a  debate  is  currently  ongoing  with  and  between  the  different 
stakeholders  on  this  issue,  does  not  put  into  question  the  net  neutrality  rules,  the 

20 Joint Statement from the Commission and the BEREC on coping with the increased demand for network 
connectivity due to the COVID-19 pandemic of 19 March 2019. 
21 In the Joint Statement BEREC committed to setting up a special reporting mechanism to ensure regular 
monitoring of the internet traffic situation in each Member State to be able to respond swiftly to capacity 
issues. Initially, the report was issued twice a week and then monthly, as the reported situation stabilised, 
and updates from NRAs moderated. 
22  Decision  (EU)  2022/2481  of  the  European  Parliament  and  of  the  Council  of  14  December  2022 
establishing the Digital Decade Policy Programme 2030, OJ L 323, 19.12.2022, p. 4. 

6 

 
 
                                                 
importance  of  which  has  also  been  restated  in  the  Declaration  on  Digital  Rights  and 
Principles. 

5.  5. 

TECHNOLOGICAL DEVELOPMENTS 

5.1. 

5.1. 

Development of 5G technologies 

As highlighted already in the 2019 report, the Regulation was deliberately conceived as a 
principle-based set of rules that could be applied to the foreseeable development of new 
technologies, such as 5G and new services (e.g. network slicing, 5G QoS identifier (5QI), 
mobile  edge  computing,  and  ‘network  as  a  service’).  The  Commission  in  2019 
committed to both continue to follow this issue closely as 5G developed in the market, 
and work closely with BEREC to update its guidelines, which it did in 2020.  

The revised 2020 BEREC guidelines provide considerable clarifications relevant for 5G 
technologies,  elaborating  on  their  compatibility  with  the  Regulation.  The  guidelines 
explain how internet access service providers may differentiate the QoS level of internet 
access service subscriptions. The QoS levels should remain ‘application agnostic’ while 
the  end-users  should  remain  in  control  over  which  applications  are  transmitted  over 
which QoS level.  

To date, neither BEREC nor the Commission  are aware of any specific example where 
the implementation of 5G technology would be impeded by the Regulation.  

5.2. 

5.2. 

Technology developments and specialised services 

The  Regulation  provides  for  the  possibility  to  offer  services  other  than  internet  access 
services. Such services, commonly referred to as ‘specialised services’, are optimised for 
specific  content,  applications,  or  services,  or  for  a  combination  of  these,  where  such 
optimisation  is  necessary  to  meet  their  quality  requirements.  Providers  may  offer  or 
facilitate specialised services only if the network capacity is sufficient to provide them in 
addition to any internet access services without degrading the quality of the latter.  

The BEREC guidelines clarify how the rules in the Regulation should be understood by 
elaborating  on  the  conditions  for  providing  specialised  services,  which  are  provided  in 
the  Regulation  itself.  In  this  respect,  the  2020  guidelines  indicate  that  different 
applications  (in  the  form  of  specialised  services)  can  be  treated  differently  when  it  is 
objectively necessary to meet an application’s requirement for a specific level of quality 
that  cannot  be  met  over  a  best-effort  internet  access  service.  The  BEREC  guidelines 
acknowledge that the internet and the nature of internet access services will evolve over 
time. The three examples of specialised services, indicated in the BEREC guidelines and 
available in many Member States, are: VoLTE, IPTV, and VoIP.  

The assessment of compliance remains first and foremost with the provider considering 
to offer a specialised service, as no prior permission from NRA is required to offer such 
services  to  end-users.  To  establish  whether  a  service  is  in-  or  out-of-scope,  the 
Regulation  requires  internet  access  service  providers  to:  (i)  prove  the  need  for  each 
application  to  be  treated  in  a  particular  way;  (ii)  show  that  it  is  separated  from  the 
internet access service; and (iii) demonstrate that such treatment will not have a negative 
impact for the end-users. 

7 

 
 
The  views  of  the  consulted  stakeholders  on  the  development  of  specialised  services 
differ.  Some  consider  that  the  need  for  specialised  services  may  decline  as  the  average 
quality  of  internet  access  services  increases.  Others  are  of  a  view  that  the  demand  for 
specialised services may grow in  the context  of 5G network slicing.  BEREC  notes that 
on the one hand a service that today requires optimisation and qualifies as a specialised 
service may not require it in the future due to the improving general quality of internet 
access  services,  whilst,  on  the  other  hand,  additional  services  may  emerge  that  would 
need  to  be  optimised.  This  could  be  the  case  with  the  transition  to  Web  4.023  and  the 
development  of  ‘networks  as  a  service’,  where  networks  will  be  expected  to  provide 
transmission, storage, and computing functions24.  

As  the  development  of  technology  continues,  different  stakeholders  say  that  it  is 
sometimes  not  clear  whether  certain  experimental  services  and  technologies  would  fall 
under  the  remit  of  the  Regulation,  and  whether  their  applications  would  be  considered 
lawful.  Up  until  now,  the  NRAs  and  BEREC  applied  a  case-by-case  approach  to  new 
technologies.  BEREC  still  favours  this  approach  for  the  reason  that  only  a  few 
specialised services have been implemented so far. However, this lack of legal certainty 
may  have  a  chilling  effect  on  investments  and  innovation.  In  this  respect,  while  some 
stakeholders,  including  consumer  organisations,  are  satisfied  with  the  current  BEREC 
guidance,  many  larger  internet  access  service  providers  consider  that  the  current  rules 
and approach do not provide sufficient certainty to enable them to launch services based 
on network slicing or define specialised services.  

Greater legal certainty could therefore be beneficial to both innovators and consumers in 
the future. How to achieve it, by signalling that new high-performance services should be 
possible  within  the  scope  of  the  Regulation,  and  whether  such  ‘signposting’  should  be 
done via a clarification in the BEREC guidelines (e.g. in shorter intervals commensurate 
with  market  and  technological  developments)  or  by  the  Commission,  is  one  of  the 
matters to focus on in the near future.  

6.  6.  CONTRACTUAL  TRANSPARENCY,  REGULATORY  MONITORING  AND 

PROCEDURES 

6.1. 

6.1. 

Transparency obligations 

The Regulation sets out several transparency requirements, mainly about information on 
speeds and traffic management practices. It requires internet access service providers to 
provide information about remedies available in case of discrepancies between actual and 
contractually  agreed  speeds,  and  put  in  place  transparent,  simple,  and  efficient 
procedures  to  address  end-users’  complaints.  Any  significant  discrepancy  between  the 
actual  performance  of  the  internet  access  services  regarding  speed  or  other  QoS 
parameters  and  the  performance  indicated  by  the  provider  should,  where  the  relevant 
facts are established by a monitoring mechanism certified by the NRA, trigger remedies 
available to consumers under national law.  

Overall,  there  have  been  significant  improvements  in  transparency  thanks  to  the 
implementation  of  the  Regulation.  The  Regulation  is  considered  by  consumer 

23 The fourth generation of the World Wide Web. 
24 For example, services provided over software-defined networks of the future may feed into the concept 
of  specialised  services,  e.g.  services  for  building  automation,  connected  cars,  high-quality  consumer 
applications, or secured connectivity. 

8 

 
 
                                                 
organisations,  civil  rights  organisations,  and  NRAs  to  be  effective  in  ensuring 
transparency on broadband speeds, the treatment of traffic, and means of redress for the 
consumers when they do not receive the QoS they expect. 

Most  NRAs  consider  that  internet  access  service  providers  have  complied  with  the 
transparency requirements, and that significant improvements have been made since the 
2019 report. Some challenges remain, in particular among smaller (often local) providers, 
and  in  some  cases  with  the  reporting  of  speeds  (e.g.  on  maps)  by  mobile  providers  or 
misrepresentation  of  the  term  ‘unlimited’  data25.  Moreover,  there  has  been  significant 
progress by NRAs in introducing monitoring tools to enable consumers to verify that the 
speeds they are receiving match those contractually agreed26.  

Some  stakeholders  would  like  the  BEREC  guidelines  to  provide  more  detailed  and 
prescriptive  recommendations  on  the  approaches  that  NRAs  should  take  to  enforce 
transparency;  to  provide  clarity  regarding  speed  concepts  and  measurement;  and  to 
ensure consistency when reporting on the actual speeds versus contractual or advertised 
speeds. Consumer and civil rights organisations also noted that information is not easy to 
understand for consumers,  highlighted  gaps  between actual and  contractual  speeds, and 
inefficiencies in complaint handling by internet access service providers. BEREC did not 
identify  specific  transparency  monitoring  issues,  noting  that  transparency  requirements 
were generally fulfilled by providers.  

6.2. 

6.2. 

Supervision and enforcement 

The  Regulation  gave  NRAs  powers  to  ensure  that  its  objectives  are  met.  Since  the 
Regulation  entered  into  force,  NRAs’  decisions  taken  against  internet  access  service 
providers have been challenged in court in eight Member States27. In the vast majority of 
cases,  courts’  decisions  have  confirmed  the  NRAs’  decisions.  In  its  2020  guidelines, 
BEREC  noted  that  there  are  three  types  of  actions  which  NRAs  can  pursue  to  monitor 
and  ensure  compliance:  (i)  supervising  or  monitoring  the  application  of  different 
requirements;  (ii)  enforcement;  and  (iii)  reporting  on  findings  from  the  monitoring 
exercises. The imposition of any requirements and measures should be assessed based on 
their effectiveness, necessity and proportionality. 

According to the study, enforcement practices differ widely. Whereas some NRAs pursue 
multiple cases and conclude cases  with formal findings or decisions, others enforce the 
provisions of the Regulation through informal dialogue, and others use a combination of 
approaches to achieve compliance. Stakeholders broadly agree that NRAs have acted in 
accordance with the BEREC guidelines. Views about the degree to which the guidelines 
have  led  to  more  consistent  practices  across  Member  States  are  more  varied,  with 
consumer rights organisations agreeing strongly with this statement, while internet access 
service providers are more neutral on this point. 

25 This was addressed through BIPT guidelines in BE. 
26 7 NRAs provide a certified tool (AT, HR, CY, DE, IT, PL, RO),  while 11 additional NRAs provide a 
tool  which  they  do  not  claim  is  certified  (CZ  notes  that  certification  is  planned),  3  further  NRAs  are 
planning to introduce such a tool or are in the process of testing it (BG, FI, LV). 
27 BoR (22) 128, Chapter 9 and Annex I. 

9 

 
 
                                                 
6.3. 

6.3. 

Sanctions 

Sanctions  and  the  methods  for  calculating  penalties  differ  widely  between  Member 
States.  For  example,  13  Member  States  have  set  penalties  linked  to  the  company’s 
turnover, while others have a fixed maximum amount or a combination of the two. The 
maximum penalties vary from 0.25% to 5% of the average annual worldwide turnover, or 
are set at a maximum amount which ranges from EUR 100 000 to EUR 5 million. Only a 
few penalties have been imposed to date, and all of them were well below the applicable 
maximum. 

7.  7.  CONCLUSIONS 

The  rules  enshrined  in  the  Regulation  are  at  the  core  of  the  functioning  of  the  internet 
ecosystem  in  Europe  and  have  been  recalled  in  the  European  Digital  Rights  and 
Principles  with  a  political  commitment  to  protect  and  promote  an  open  internet  in  the 
European  digital  transformation.  This  report  highlights  specific  issues  that  deserve 
special attention by the Commission and BEREC in the near future, in order to guarantee 
that  the  application  of  the  Regulation  continues  to  be  relevant  and  in  line  with 
technological developments. 

Since  the  2019  report,  technological  changes,  but  especially  major  market  and 
geopolitical changes, took place that could not have been foreseen when the Regulation 
was drafted. The fact that the Regulation and its implementation have been able to stand 
the test of time, confirms that the principle-based approach of the Regulation continues to 
guarantee the essential balance between the protection of end-user rights and the need to 
foster  a  competitive  EU  digital  single  market.  From  this  assessment,  the  Commission 
concludes that, compared with the situation in 2019 when the first report was issued, the 
principles of an open internet remain relevant, from the perspective of end-users, content 
and application providers, and internet access service providers.  

10