BEREC’s guidelines on net neutrality

Update Update

BEREC, the EU body gathering national telecom regulators, published its guidelines on the implementation of Net Neutrality, aiming to guide NRAs in their application of EU regulation 2015/2120 on net neutrality. Our recap below, including stakeholders' reactions and next steps.

On August 30th, the Body of European Regulators for Electronic Communications (BEREC), the EU body gathering the National Regulation Authorities (NRAs) in the field of electronic communications (e.g. ARCEP in France), published its guidelines on the implementation of net neutrality. In a nutshell, net neutrality aims at ensuring non-discrimination within the information transmitted on the internet, so that data traffic being transmitted over the internet is treated equally, no matter what it contains, which application transmits the data (“application-agnosticism”), where the data comes from or where it goes.

These guidelines were quite expected by stakeholders and policy makers following the adoption of the EU Regulation 2015/2120 on net neutrality of November 25th, 2015. Indeed, if such regulation had been quite welcomed over the EU, it had also been a lot criticized, as net neutrality, the core concept of the regulation, was still very unprecise, making its implementation difficult. BEREC’s guidelines thus aim to provide guidance to NRAs in the implementation of the EU regulation on net neutrality.

Before issuing its guidelines, BEREC had organized a large public consultation on the draft text, between June 6th and July 18th, 2016. Such consultation was unprecedented for a BEREC initiative, as it triggered almost half a million submissions from various stakeholders, including public institutions, independent experts, internet service providers, content providers, members of the civil society and other players, showing the strong interest raised by the subject (see the report on the outcome of the consultation).

In a nutshell, BEREC’s guidelines provide several practical recommendations for NRAs when implementing the 2015/2120 Regulation towards operators, and deal with three main topics: commercial practices (such as zero-rating), traffic management and transparency requirements to be complied with.

Although those guidelines are, from a legal standpoint, non-binding vis-à-vis national authorities and operators, they aim to harmonize the implementation of the EU rules by NRAs and hence are likely to have a critical impact on the national application of net neutrality. In case players do not agree with an NRA’s interpretation or implementation of the guidelines, they could seek a common interpretation from the EU Court of Justice that will then bind all the Member States.

Overall, BEREC’s guidelines were quite welcomed by the main stakeholders, including the European Commission and national regulators. However, some operators highlighted that these guidelines do not sufficiently take into account the concerns they expressed during the public consultation.

To strengthen the harmonization effort that has been initiated on the topic, BEREC plans to favor an on-going “sharing of experience” between NRAs on the implementation of its guidelines. NRAs will publish annual reports on their own implementation of the guidelines, as of next year, which should lead to a first practical evaluation of BEREC’s guidelines. In addition, a review clause provides that BEREC has the possibility to review and update its guidelines when it considers it to be appropriate.