AG Campos Sánchez-Bordona: Requirements of fair and non-discriminatory treatment of consumers in the internet market
Advocate General Campos Sánchez-Bordona has handed down his Opinion in Telenor Magyarország (joined cases C-807/18 and C-39/19). This is a Grand Chamber case arising from the reference for a preliminary ruling made by the Budapest High Court, Hungary (Fővárosi Törvényszék). The questions posed by the referring Court offer the Court of Justice the opportunity to rule for the first time on the interpretation of Regulation 2015/2120 laying down measures concerning open internet access and amending pre-existing EU rules on roaming and on universal service and users’ rights relating to electronic communications networks and services.
Regulation 2015/2120 sets common rules to ensure the openness of the internet in all Member States, preventing, inter alia, that end-users are affected by traffic management practices that block or slow down certain applications or services. However, in Hungary, an Internet access service provider offers its customers preferential access packages (‘zero-rate’ packages’), the peculiarity of which is that the downloading of data from certain services and applications does not count towards the consumption of data contracted by the end user. The proceedings before the referring court concern a dispute between the service provider and Hungarian administrative authorities, which understood that this offer infringes Article 3(3) of Regulation 2015/2120.
By his Opinion, Advocate General Campos Sánchez-Bordona proposes that the Court of Justice rules that Article 3 of Regulation 2015/2120 must be interpreted as meaning:
- Firstly, that a commercial agreement between an internet access service provider and a subscriber, under which a zero-cost tariff is applied to certain applications and the speed of access to others is slowed down once the contracted volume of data has been consumed, entails a traffic management measure which infringes the requirement of fair and non-discriminatory treatment laid down in Article 3(3) of Regulation 2015/2120, unless it could benefit from the exceptions contained in that paragraph, which it is for the referring court to decide.
- Secondly, that once that infringement has been established, it is no longer necessary to specify whether there has also been an infringement of Article 3(2) of Regulation 2015/2120 or to carry out a detailed assessment of the market and the impact of the measure’.
The Opinion is available here (in French).