On July 3rd, after more than ten hours of discussion, the three major EU institutions — the Commission, Parliament and Council — reached a political agreement on the text of the Telecoms Single Market (TSM) Regulation, a contentious piece of EU legislation that includes continent-wide provisions on Net Neutrality. Today, the Industry Committee of the European Parliament has formally approved this text.
Does the finalised TSM text actually guarantee Net Neutrality protections across the EU? The short answer is: maybe yes, maybe no.As we explain below, the text has been clarified and improved, but lacks elements that would provide solid footing for Net Neutrality in Europe, such as an outright ban on zero rating [PDF].
What decisions have been made? The EU institutions have sought to complete their work on the TSM Regulation, building on the preliminary agreement reached Monday, June 29, on the core text. They agreed upon [PDF] the recitals — key elements for interpreting the text — on Friday, July 3rd, making necessary improvements to the text.
The agreed-upon text includes the principle of Net Neutrality without ever naming it:
“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.”
With this language added to assert the general principle of non-discrimination in the text, it appeared that EU lawmakers were delivering on the repeated promise of enshrining Net Neutrality. Thanks to input from the Parliament, the EU institutions further improved the text, by including criteria to help define “specialised services” so as to avoid creation of a two-tiered internet:
“There is demand on the part of content, applications and services providers to be able to provide, as well as on the part of end-users for the provision of electronic communication services other than internet access services, for which specific quality of service levels, not assured by internet access service, are necessary. Such specific quality levels are, for instance, required by some services responding to a public interest or by some new machine-to-machine communications services. Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services should therefore be free to offer services which are not internet access services and which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet the requirements of the content, applications or services for a specific level of quality. The national regulatory authority should verify whether and to what extent such optimisation is objectively necessary to ensure one or more specific and key features of the content, application or service and to enable a corresponding quality assurance to be given to end-users, rather than simply granting general priority over comparable content, applications or services available via the internet access service and thereby circumventing the provisions regarding traffic management applicable to the internet access service.”