End User Rights, Equal Treatment of Traffic, and Compatibility of Zero Tariff Offers with the Open Internet Access Regulation. CJEU Telenor Judgment in CASES C-807/18 and C-39/19 – A Case Comment

Abstract

This case comment concerns the judgment of the Court of Justice of the European Union in the Telenor case. The CJEU responded to a request for a preliminary ruling by the Budapest High Court, which related to the use of zero tariff offers in commercial practices and agreements on internet access services. Zero tariffs consist in the traffic generated by specific applications or services not counting towards deductions in an end user’s data allowance in a given billing period. The CJEU came to the conclusion that such offers are incompatible with Article 3(3) of Regulation 2015/2120 on open internet access, if they involve traffic management measures blocking or slowing down all internet content other than the content subject to a zero tariff, once an end user’s data allowance has been exhausted. Finding this incompatibility does not require an assessment of the scale of the practice, and its influence on end user rights. Such an assessment would be necessary to establish incompatibility with Article 3(2) of Regulation 2015/2120. However, finding incompatibility with Article 3(3) makes it possible for national regulatory authorities to refrain from analyzing incompatibility with Article 3(2).