Net neutrality in the EU: Update and state of play on TSM Regulation

In September 2013, the European Commission presented its proposal for a Regulation on a single market for electronic communications, which is now in the hands of the European Parliament (See our analysis of the Commission proposal here). The Industry, Research and Energy (ITRE) committee has been designated as lead committee for this file and will provide a report by the end of February, before the legislation is voted on by the full European Parliament in early April, ahead of elections in May.


The Regulation and ITRE in context

This Regulation and the protection of net neutrality through law was a promise made by Commissioner Neelie Kroes, in charge of the Digital Agenda for Europe, at the beginning of her mandate in 2009. However, four years later, the proposal fails to ensure the openness of the internet and could undermine growth in this sector, as Access already pointed out.

Over the past few years, the European Parliament has called for strong Net Neutrality provisions (here and here), however, it is unfortunate that some Members of the European Parliament (MEPs) in charge of the file, have taken up Neelie Kroes’ line, and in some cases, have proposed changes to weaken the protection of the neutral internet at the expense of human rights and European competition and innovation. Indeed, the ITRE committee and the rapporteur for this file, Pilar del Castillo Vera, recently published a draft version of its report on the proposal and the amendments introduced weaken users’ rights and empower telecommunications companies to engage in more discriminatory practices — Access is working with EDRi to provide analysis of committees’ drafts; find comments on ITRE draft reports here.


Fundamental rights left behind

Since the proposed Regulation came out, many organisations (e.g., BEREC) have indicated concerns that the text is being rushed through the European legislature without full exploration of its potential consequences, and criticises the lack of cooperation and consultation by the Commission.

Indeed, it appears that the ITRE committee will proceed to the consideration of amendments on its report on January 22 and 23. Other committees (LIBE, IMCO, CULT, and JURI) are expected to give their opinion on this text in order to make the ITRE report as close as possible to the view of the whole Parliament on this proposed Regulation. However, the LIBE committee will not be voting on its final opinion until early February, meaning that when the ITRE committee will be considering amendments to its report, the LIBE opinion won’t be ready.

Technically, the ITRE committee is not violating the Parliament’s Rules of Procedure, but it is a bit curious to request the opinion from a committee and then not take its findings and recommendations into account. This is especially problematic considering that the LIBE committee will provide an opinion on how this Regulation may impact users’ rights, an aspect that so far has been severely overlooked by both the Commission and the ITRE committee. The ITRE Committee can and should include a new consideration of amendments in Mid-February to allow for the consideration of the LIBE Committee’s report.


Hope coming from the Council?

In parallel, the Council of the EU — the representatives of the 28 member states — have started discussions on this proposal.

On December 5th, the Transport, Telecommunication and Energy Council had its first orientation debate on this proposed Regulation. We are encouraged by the direction of the discussions during the meeting, with regards to the provisions on net neutrality. We are pleased to see that a majority of member states welcomed the inclusion of net neutrality in the Regulation, some even calling for more refined definitions, such as Belgium and the Netherlands.

Furthermore, some countries, such as Slovenia, expressed concern that the current proposal might actually weaken current standards. This is unsurprising, given that Slovenia and the Netherlands have already implemented binding legislation protecting net neutrality in their respective countries. Slovenia strongly advised that this Regulation be amended by refining definitions and ensuring appropriate safeguards.

The UK was the only country expressing some reservations on the need to enshrine net neutrality into law since “there is no proof of failure of the self-regulatory approach.” However, the Body of European Regulators for Electronic Communications (BEREC) has decisively shown in a 2012 study that blocking, throttling of VoIP and P2P traffic, and other discriminatory practices are pervasive throughout Europe.

Neelie Kroes, representing the European Commission during this Council meeting said that she took notes of the member states’ call for a “clearer and better approach to net neutrality.” However, the Council press release following this meeting was a bit misleading. Even though it acknowledged the general call for net neutrality, it then stated that member states believed the objective of net neutrality, inter alia, “could be furthered by making better use of current instruments”.. Member states did make that statement, but never regarding net neutrality, they were only referring to the potential cost of a new change of rules in areas such as spectrum policy or roaming which have already been reviewed recently by the EU.


Coming Next

If not amended, the current proposal will cause irreparable damages to the open internet. The European Union has to seize the opportunity to enshrined net neutrality into law and create a harmonised digital single market, where human rights, innovation and competition can flourish.