1 This request for a preliminary ruling concerns the interpretation of Article 3 of 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).
2 The request has been made in proceedings between the Autoritatea Națională pentru Administrare și Reglementare în Comunicații (National Authority for Management and Regulation in Communications, Romania; ‘ANCOM’) and Telekom România Mobile Communications S.A. concerning a decision by which that authority found a tariff option proposed by that company to be incompatible with the obligations arising under EU law and ordered that company to put an end to any discriminatory treatment of video streaming in comparison with other categories of traffic.
3 Recitals 6 to 9, 11 and 15 of Regulation 2015/2120 state: ‘(6) End-users should have the right to access and distribute information and content, and to use and provide applications and services without discrimination, via their internet access service … (7) In order to exercise their rights to access and distribute information and content and to use and provide applications and services of their choice, end-users should be free to agree with providers of internet access services on tariffs for specific data volumes and speeds of the internet access service. Such agreements, as well as any commercial practices of providers of internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open internet access. National regulatory and other competent authorities should be empowered to intervene against agreements or commercial practices which, by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice. To this end, the assessment of agreements and commercial practices should, inter alia, take into account the respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved. National regulatory and other competent authorities should be required, as part of their monitoring and enforcement function, to intervene when agreements or commercial practices would result in the undermining of the essence of the end-users’ rights. (8) 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 Union 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. (9) 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. Reasonable traffic management measures applied by providers of internet access services should be transparent, non-discriminatory and proportionate, and should not be based on commercial considerations. The requirement for traffic management measures to be non-discriminatory does not preclude providers of internet access services from implementing, in order to optimise the overall transmission quality, traffic management measures which differentiate between objectively different categories of traffic. Any such differentiation should, in order to 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. Such differentiating measures should be proportionate in relation to the purpose of overall quality optimisation and should treat equivalent traffic equally. Such measures should not be maintained for longer than necessary. … (11) Any traffic management practices which go beyond such reasonable traffic management measures, by blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, applications or services, or specific categories of content, applications or services, should be prohibited, subject to the justified and defined exceptions laid down in this Regulation. Those exceptions should be subject to strict interpretation and to 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. … … (15) … measures going beyond such reasonable traffic management measures might also be necessary to prevent impending network congestion, that is, situations where congestion is about to materialise, and to mitigate the effects of network congestion, where such congestion occurs only temporarily or in exceptional circumstances. The principle of proportionality requires that traffic management measures based on that exception treat equivalent categories of traffic equally. 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. … Exceptional congestion should be understood as referring to unpredictable and unavoidable situations of congestion, both in mobile and fixed networks. … The need to apply traffic management measures going beyond the reasonable traffic management measures in order to prevent or mitigate the effects of temporary or exceptional network congestion 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. Recurrent and more long-lasting network congestion which is neither exceptional nor temporary should not benefit from that exception but should rather be tackled through expansion of network capacity.’
4 Article 1 of that regulation, headed ‘Subject matter and scope’, provides in paragraph 1 thereof: ‘This Regulation establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights.’
5 Article 3(1) to (3) of that regulation provides: ‘1. End-users shall 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. … 2. 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. Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used. The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary. Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to: (a) comply with … legislative acts …; (b) preserve the integrity and security of the network …; (c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.’
6 Telekom România Mobile Communications is an undertaking operating in the telecommunications sector.
7 From 15 October 2017, in the context of the internet access service offered with certain mobile subscriptions and, from 13 November 2017, in respect of certain prepaid card offers, Telekom România Mobile Communications offered a tariff option known as ‘Bonus Net Nelimitat’ (‘unlimited internet bonus’).
8 The basic tariff in respect of those subscriptions or those cards includes a monthly data allowance that can be used to access any type of traffic, including video streaming, enjoying a speed of up to 150 megabits per second. The activation of the ‘unlimited internet bonus’ by the customer concerned entails, in addition to access to unlimited data the use of which is not taken into account in that basic tariff, a limitation of the speed of video streaming traffic to a maximum of 1.5 megabits per second. That limitation in turn leads to a reduction in the resolution of the videos. If the customer concerned deactivates that bonus, all categories of traffic benefit from the initial speed, but the monthly data allowance used is offset against the data allowance subscribed to in that tariff or the data allowance invoiced.
9 By decision of 8 August 2018, ANCOM found that the ‘unlimited internet bonus’ tariff option introduced a traffic management measure that was incompatible with Article 3(3) of Regulation 2015/2120 and that Telekom România Mobile Communications had to discontinue that measure. According to that decision, different types of traffic were treated differently, without objective justification, since video streaming was discriminated against by limiting the maximum speed associated with that type of traffic, namely to 1.5 megabits per second, whereas the speeds associated with other types of traffic could reach up to 150 megabits per second. First, that limitation of the speed associated with a certain category of traffic is not based on technical considerations within the meaning of the second subparagraph of Article 3(3) of that regulation and, second, that limitation does not come within one of the exceptions provided for in the third subparagraph of Article 3(3) of that regulation.
10 By judgment of 26 May 2021, the Curtea de Apel București (Court of Appeal, Bucharest, Romania) upheld the action for annulment brought against that decision by Telekom România Mobile Communications. That court held, in essence, that video streaming constituted a category of traffic that was objectively different from other categories of traffic and that the ‘unlimited internet bonus’ tariff option was a transparent, non-discriminatory, proportionate and temporary traffic management measure based on the objectively different technical quality of service requirements of certain specific categories of traffic and not based on commercial considerations.
11 ANCOM brought an appeal against that judgment before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), which is the referring court.
12 The referring court considers that the judgments of 15 September 2020, Telenor Magyarország (C‑807/18 and C‑39/19, EU:C:2020:708); of 2 September 2021, Vodafone (C‑854/19, EU:C:2021:675); of 2 September 2021, Vodafone (C‑5/20, EU:C:2021:676); and of 2 September 2021, Telekom Deutschland (C‑34/20, EU:C:2021:677) already provide sufficient information regarding the questions raised by Telekom România Mobile Communications concerning the interpretation of Article 3(2) of Regulation 2015/2120, read in the light of recital 7 thereof, and the relationship between that provision and Article 3(3) of that regulation.
13 The referring court nevertheless states that it must determine, first, whether the difference in treatment applied by Telekom România Mobile Communications, when the ‘unlimited internet bonus’ is activated, between video streaming and other categories of traffic constitutes unequal treatment within the meaning of the first subparagraph of Article 3(3) of Regulation 2015/2120. Second, the referring court asks whether, in accordance with the second subparagraph of Article 3(3) of that regulation, read in the light of recital 9 thereof, the traffic management measure implemented by Telekom România Mobile Communications in the context of that activation is a reasonable traffic management measure. Third, the referring court asks whether such a traffic management measure might come within the exception laid down in point (c) of the third subparagraph of Article 3(3) of that regulation, relating to the need to avoid temporary network congestion in so far as it entails a limitation of the speed associated with a specific category of traffic and a reduction in the resolution of video content to a maximum of 480p.
14 The referring court considers that the situation at issue in the main proceedings differs from those that were at issue in the cases which gave rise to the judgments cited in paragraph 12 above. Those cases concerned tariff options which discriminated against the various content providers by favouring the partners of the telecommunications undertaking concerned or by limiting the speed of traffic in respect of applications or services which were not included in the tariff offer at issue, whereas, in the present case, the difference in treatment concerned is applied irrespective of the providers of video-streaming services, that is to say, whether or not they are partners of Telekom România Mobile Communication.
15 In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 3 of [Regulation 2015/2120] be interpreted as meaning that a tariff option offered by a telecommunications undertaking which allows final customers who have accepted it to use all video-streaming services free of charge, independently of the service provider and regardless of whether or not they have the status of content partner of the telecommunications undertaking, is compatible with the obligations arising from that provision, without the data volume consumed by using those services being included in the monthly data allowance guaranteed by the mobile communications tariff, but with a limitation of the bandwidth for that type of content?’
16 By its question, the referring court asks, in essence, whether Article 3 of Regulation 2015/2120 must be interpreted as precluding an option for unlimited internet access, at no additional cost, offered by a provider of internet access services to its customers, which, when activated, enables those customers to use video-streaming services without the data thus used being set off against the data allowance included in the basic monthly charge, but limits the bandwidth applied to that content, irrespective of the distributors or providers, in comparison with that applied to other categories of traffic, while, where that option is not activated by those customers, all traffic, including video streaming, enjoys the same bandwidth strength, but the amount of data used is set off against the data allowance subscribed to by those customers.
17 The various provisions of Article 3 of Regulation 2015/2120 seek, as is apparent from Article 1 thereof, to safeguard equal and non‑discriminatory treatment of traffic in the provision of internet access services and related end users’ rights (judgments of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraph 27, and of 2 September 2021, Telekom Deutschland, C‑34/20, EU:C:2021:677, paragraph 24).
18 Article 3(1) of Regulation 2015/2120, read in the light of recital 6 of that regulation, sets out the rights of end users, including the rights to access and distribute information and content, and to use and provide applications and services. Under Article 3(2), the exercise of those rights must not be limited by agreements concluded between the providers of internet access services and end users or by the commercial practices conducted by those providers.
19 As regards Article 3(3) of that regulation, it must be borne in mind, first of all, that the first subparagraph of that provision, read in the light of recital 8 of that regulation, imposes on providers of internet access services a general obligation of equal treatment, without discrimination, restriction or interference with traffic, from which derogation is not possible in any circumstances by means of commercial practices conducted by those providers or by agreements concluded by them with end users (judgment of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraph 47).
20 Next, it is apparent from the second subparagraph of that Article 3(3), and from recital 9 of Regulation 2015/2120, in the light of which that second subparagraph must be read, that, while being required to comply with that general obligation, those providers are still able to adopt reasonable traffic management measures. However, that possibility is, inter alia, subject to the condition that such measures are not maintained for longer than necessary and that such measures are based on ‘objectively different technical quality of service requirements of specific categories of traffic’, and not on ‘commercial considerations’ (see, to that effect, judgment of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraph 48).
21 Lastly, it follows from the third subparagraph of that Article 3(3) that, unless they have been adopted for a fixed period and are necessary to enable a provider of internet access services (i) to comply with a legal obligation, (ii) to preserve the integrity and security of the network, or (iii) to prevent or remedy network congestion, all measures consisting in blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between content, specific applications or services cannot be considered reasonable within the meaning of the second subparagraph of Article 3(3) and must, therefore, in themselves be regarded as incompatible with Article 3(3) (see, to that effect, judgment of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraph 49).
22 In the light of the foregoing, the objective of the general obligation set out in the first subparagraph of Article 3(3) of Regulation 2015/2120 is not only to ensure that providers of internet access services do not implement measures which entail discriminating between different distributors or providers of content, applications or services, but, more broadly, is to ensure that any content accessed or distributed and any applications or services used or provided via an internet access service are treated equally.
23 Accordingly, the mere fact that a measure applied by a provider of internet access services does not seek to ensure that certain distributors or providers of content, applications or services, which are its partners, are treated differently in comparison with other broadcasters or providers of content, applications or services, which are not its partners, does not automatically lead to the conclusion that that general obligation has been complied with.
24 It follows that a measure which limits the bandwidth applied, if a tariff option is activated, to video streaming, in comparison with that applied to other categories of traffic, whereas, if that option is deactivated, all internet traffic, including video streaming, enjoys the same bandwidth strength, differentiates between categories of traffic, which may amount to an infringement of that general obligation.
25 It is clear from the Court’s case-law that such a difference in treatment cannot be justified under the freedom of contract recognised in Article 3(2) of Regulation 2015/2120, including by means of agreements concluded between the providers of internet access services concerned and end users, such as consumers, or commercial practices intended to meet a demand on the part of the customer concerned (see, to that effect, judgments of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraphs 36 and 47, and of 2 September 2021, Telekom Deutschland, C‑34/20, EU:C:2021:677, paragraphs 26 and 32).
26 By contrast, as is apparent from the second subparagraph of Article 3(3) of that regulation, a measure which differentiates between objectively different categories of traffic may be implemented where it satisfies the conditions to be classified as a ‘reasonable traffic management measure’, within the meaning of that provision. Where those conditions are not satisfied, such a measure may also be implemented if it comes within one of the three exceptions exhaustively listed in the third subparagraph of Article 3(3) of that regulation, in the present case, the exception provided for in point (c) of that provision.
27 As regards, in the first place, the second subparagraph of Article 3(3) of Regulation 2015/2120, it follows from that provision, read in the light of recital 9 of that regulation, that providers of internet access services may implement traffic management measures which differentiate between specific categories of traffic provided, in particular, that those measures seek to optimise the overall transmission quality and the user experience and that they are based on objectively different technical quality of service requirements specific to those categories of traffic and not on the basis of commercial considerations.
28 Thus, a traffic management measure can be regarded as being based on such objective differences only if the technical conditions which that measure applies to a specific category of traffic meet the technical quality of service requirements specific to that particular category of traffic.
29 By contrast, any measure of a provider of internet access services in respect of an end user, which, without being based on such objective differences, results in the content, applications or services offered by the various content, applications or services providers not being treated equally and without discrimination, must be regarded as being based on ‘commercial considerations’ within the meaning of the second subparagraph of Article 3(3) of Regulation 2015/2120 (see, to that effect, judgment of 15 September 2020, Telenor Magyarország, C‑807/18 and C‑39/19, EU:C:2020:708, paragraph 48). In particular, a measure involving a distinction within traffic which a provider of internet access services justifies solely on the basis that there is a difference between the categories of traffic, without, however, the purpose of that measure being linked to that difference, is based on such commercial considerations.
30 The same applies to a measure which not only differentiates between different categories of traffic when a tariff option is activated, but which treats the same category of traffic differently depending on the price paid by the end user for a certain data allowance.
31 It follows that a tariff option such as that at issue in the main proceedings, which limits the bandwidth applied to video streaming in comparison with that applicable to other categories of traffic, whereas, if that option is deactivated, the same level of bandwidth is applied to all traffic, including video streaming, differentiates between internet traffic on the basis of commercial considerations. That is all the more so since it is not claimed that the distribution and playback of streamed video requires a bandwidth limitation in order to optimise the overall transmission quality and user experience. On the contrary, as is apparent from the request for a preliminary ruling, such a limitation reduces the resolution of the video content and therefore its quality.
32 In addition, where such an option leaves it to the relevant customers of an internet access service provider to decide whether to activate or deactivate it, preventing that provider from monitoring the actual period of application of the traffic management measure which it has implemented, that measure cannot be regarded as not being maintained ‘longer than necessary’ within the meaning of the second subparagraph of Article 3(3) of Regulation 2015/2120.
33 As regards, in the second place, point (c) of the third subparagraph of Article 3(3) of that regulation, it should be stated that that provision, which, as set out in recital 11 of that regulation, is to be interpreted strictly, allows the implementation of traffic management measures which may not meet the requirements laid down in the second subparagraph of Article 3(3) of that regulation, provided that those measures are necessary and only for as long as is necessary to prevent impending network congestion or to mitigate the effects of exceptional or temporary network congestion. Since a provider of internet access services cannot monitor the actual period of application of a traffic management measure which that provider has adopted, as set out in the preceding paragraph of the present judgment, that measure cannot be regarded as being limited solely to the period of time necessary to prevent impending network congestion or to mitigate the effects of exceptional or temporary network congestion, as required by point (c) of the third subparagraph of Article 3(3) of Regulation 2015/2120.
34 It follows from all of the foregoing considerations that a tariff option which differentiates, on the basis of commercial considerations, between categories of traffic as a result of a bandwidth limitation applied to video streaming, without coming within any of the exceptions referred to in the third subparagraph of that Article 3(3), infringes the general obligation of equal treatment, without discrimination, restriction or interference of traffic, laid down in the first subparagraph of that Article 3(3).
35 Therefore, the answer to the question referred is that Article 3 of Regulation 2015/2120 must be interpreted as precluding an option for unlimited internet access, at no additional cost, offered by a provider of internet access services to its customers, which, when activated, enables those customers to use video-streaming services without the data thus used being set off against the data allowance included in the basic monthly charge, but limits the bandwidth applied to that content, irrespective of the distributors or providers, in comparison with that applied to other categories of traffic, while, where that option is not activated by those customers, all traffic, including video streaming, enjoys the same bandwidth strength, but the amount of data used is set off against the data allowance subscribed to by those customers.
36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.