Tribunal Decision: Restrictions on bandwidth, tethering and roaming by Deutsche Telekom and Vodafone violate EC Directive on the  Internet
(ECJ, judgments of 02.09.2021 – C-854/19, C-5/20, C-34/20)

In the following tribunal decision (C-854/19, C-5/20, C-34/20, Vodafone and Telekom Deutschland), the ECJ ruled as follows:

“Zero tariff options” violate the Open Internet Access Regulation.
Consequently, restrictions on bandwidth and on tethering or roaming based on the activation of such an option are also incompatible with Union law.

A so-called “zero tariff option” is a commercial practice consisting in the application by an Internet access service provider of a “zero tariff” or a discounted tariff, in whole or in part, to the traffic associated with a specific application or category of applications offered by partners of that access provider. Therefore, such data will not be counted towards the amount of data purchased under the basic tariff. Such an option, offered as part of limited rates, enables Internet access providers to increase the attractiveness of their offering.

Two German courts (Cologne Administrative Court, Düsseldorf Higher Regional Court) are asking the Court of Justice whether it is compatible with European Union law for an Internet access service provider to limit bandwidth or restrict tethering or roaming if the customer chooses such a “zero tariff” option. These courts are involved in legal disputes concerning such restrictions between Vodafone or Telekom Deutschland, on the one hand, and the Federal Network Agency (Germany) or the Federation of German Consumer Organizations (Bundesverband der Verbraucherzentralen), a German consumer protection organization, on the other.

In today’s rulings, the Court points out that a “zero tariff option” such as those at issue in the original proceedings discriminates within Internet traffic on the basis of commercial considerations by not counting traffic to certain partner applications towards the basic tariff. Such a commercial practice violates the general duty established in the Open Internet Access Regulation to treat traffic equally without discrimination or interference and they are also incompatible with Union law.
(PM No. 145/21 v. 02.09.2021)


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