The German courts have raised preliminary questions to the Court of Justice of the European Union on so-called zero tariffs and the resulting contractual restrictions. The Court found that these tariffs are contrary to the EU's Open Internet Access Regulation. At the same time, this conclusion also applies to bandwidth restrictions, tethering, or roaming usage due to the activation of this tariff. Operators must therefore not restrict internet access to a specific group of customers.
A zero tariff is a service where the ISP applies a more favorable rate to all or part of the data traffic associated with a specific application or category of specific applications offered by the ISP's partners. This data is not taken from the amount of data purchased under the basic flat-rate tariff.
The Court addressed this issue against the German companies Vodafone and Telekom Deutschland. The first allowed the zero tariffs to be used only in Germany, and the latter imposed a flat-rate limit on the internet connection speed.
This issue covers the Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures relating to access to the open internet and amending Directives 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks in the Union. Its Article 3(3), first subparagraph, provides that internet access service providers must treat all traffic equally, without discrimination, restriction or distortion, inter alia, irrespective of the applications or services used. This provision cannot be circumvented by the commercial practices of providers or the agreements they conclude with end-users. Nor may measures be taken against end-users that are not based on objectively different requirements and which result in the content, applications or services offered by other content providers not being treated equally and without discrimination.
However, zero tariffs differentiate within internet traffic based on the provider's business objectives while not deducting partner application traffic from the basic flat tariff. The CJEU concluded in its decisions in these cases that such commercial practices, therefore, do not meet the general obligation of equal treatment of traffic without discrimination or distortion enshrined in the first subparagraph of Article 3(3) of Regulation 2015/2120. The same view must be applied to the bandwidth limitations, the invalidity of zero tariff in the case of tethering or roaming.
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