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European Union: Net Neutrality

(Apr. 28, 2011) The question of net neutrality, that is, whether access to Internet services or content should be regulated or should be unfettered and provided pursuant to the principle of “best effort,” has moved to the forefront of the agenda of the European Union. While the United States, where net neutrality was first debated, has adopted rules to ensure an open Internet, the EU is in the process of considering the best options available. (EU Set to Unveil Neutral Net Neutrality Plans, EURACTIV(Apr. 20, 2011).)

At the EU level, there is no established definition of net neutrality. The 2009 amended EU telework rules provide for the open and neutral character of the Internet, in order to promote an effective, competitive single market, where the best goods and services at the best prices are available to consumers. Consequently, the national regulatory authorities are required to safeguard the interests of the EU citizens “by promoting the ability of end-users to access and distribute information or run applications and services of their choice.” (Framework Directive cited in Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: The Open Internet and Net Neutrality in Europe, COM (2011) 0222, (Apr. 19, 2011).) This is reinforced by a transparency requirement that requires that subscribers to a service be informed of any changes and any conditions limiting access to or the use of services and applications. (Id.)

On April 19, 2011, the European Commission adopted the Communication on the Open Internet and Net Neutrality in Europe, following a public consultation and a joint summit organized by the Commission and the European Parliament on the issue of an open Internet held in 2010. The Communication identified as one of the main concerns raised during the consultation process the blocking or throttling of lawful traffic. Blocking means making it difficult to access or restrict certain services or websites on the Internet. Throttling is a technique used to control traffic, minimize congestion, slow down certain types of traffic, and actually affect the quality of content. (Id. at 5.)

Transparency was also identified as a critical issue of the debate on net neutrality. Apparently, EU consumers have complained of the discrepancy between advertised and actual delivery speeds for Internet connection. The Commission, in the abovementioned Communication, also reviewed the international context, especially the stance of the Federal Communications Commission in the United States, the Canadian Radio-Television and Telecommunications Commission, and Norwegian and Chilean models. Chile was the first country to legislate on net neutrality. (Id. at 8.)

The Communication concludes with the Commission's commitment to maintain an open Internet. For the time being, the Commission intends to wait until all the EU Members have transposed the telecom rules by the deadline of May 25, 2011, and to see how the rules are being implemented in practice. At the end of the year, the Commission will publish any evidence from monitoring the situation on the Internet, including any blocking or throttling of certain types of Internet traffic. The Commission will then examine the possibility of further action, such as the adoption of “more stringent measures” to ensure fair competition and choice among consumers. (Id. at 9.)

Behind the scenes, large telecom companies lobbied the Commission not to adopt a tough stand on Internet neutrality, whereas consumer and advocacy groups were disappointed. (EURACTIV, supra.)

Neelie Kroes, the European Commission Vice-President for the Digital Agenda, summarized the key message of the Communication, which centers on ensuring “the right of citizens and businesses to have easy access to an open and neutral internet.” She also emphasized the timeliness of the launch of the report, just one month before the new telecommunications rules are entering into force on May 25, 2011. (Press Release, Neelie Kroes, The Internet Belongs to All of Us, Speech/11/285 (Apr. 19, 2011).)