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EU Parliament Still Divided on the Issue of Net Neutrality

The proposal of the European Commission on Net neutrality is currently discussed within the European Parliament. Committees appointed for opinion have already expressed their point of view on this text – except the Civil liberties (LIBE) committee, whose report will be voted on February 12th.

Opinion Reports bring potential improvements

Since last summer, La Quadrature du Net and others have expressed several doubts and concerns on the proposal of the European Commission.

In order to fill those legal voids, on December 2013, La Quadrature du Net proposed a batch of amendments, whose main goal was to help Members of the European Parliament to:

  • follow the BEREC guidelines for Quality of Service in the scope of Net neutrality, clarifying specialised services have to be operated within closed electronic communications networks;
  • stress that a specialised service shall not reiterate a service functionally identical to a service already available on the open Internet, in order not to circumvent Net neutrality and boost innovation in the digital economy;
  • better define the nature of a reasonable traffic management practice;
  • cover the freedom to connect any devices to the network;
  • endow regulatory authorities with legal instruments geared to: monitor and report on Internet traffic management measures; put in place clear procedures to address citizens’complaints on the infringement of Net neutrality; be in capacity to sanction Net neutrality breaches.

The outcomes of this first "round of voting" open a window on the future and crucial steps of the procedure. Committees appointed for opinions have indeed proposed some improvements to the original text of the European Commission such as the deletion of article 19 on Assured Quality of Services products1, the introduction of an enforcement mechanism or the deletion of "serious crime" as a condition for the implementation of any traffic management measure.

However, it remains to be seen whether Industry, Research and Energy (ITRE) committee will accept to take these opinions into account when its own report – directed to influence the final position of the European Parliament as a whole – will be adopted on February 24th. In any case, on specialised services and the definition of Net neutrality, which are crucial aspects of any Net neutrality legislation, much remains to be done.

Key aspects of Net neutrality still missing

The last week vote in Internal Market (IMCO) committee demonstrates how the Net neutrality principle is still in danger. For example, the definition of specialised services therein adopted, is very far from being satisfactory2: the compromise reached does not clarify indeed that the dividing line between a specialised service and an internet access service is whether or not that service is operated within closed network and is already available over the open Internet. Furthermore the provision aimed at “deploying traffic management to ensure the appropriate level of network capacity and quality”, if maintained, will de facto become a gaping loophole in the Regulation, allowing providers to discriminate on the basis of contents.

The same kind of approach on specialised services has been adopted in Legal Affairs (JURI) committee, where the amendment carried also opens the doors to anti-competitive practices3. The Members of the European Parliament have to be aware that refusing to complete the definition of specialised services would mean to definitely compromise the free choice of Internet users and their wonderful potential of creativity and innovation4.

Furthermore, JURI committee rejected the excellent amendment 615, tabled by Marietje Schaake (NL - ALDE) and Cecilia Wikström (SE - ALDE), pleading for a reinforcement of the Net neutrality principle, by protecting the right of every single user to connect any hardware device to access the Internet.

Del Castillo and Rohde against everyone else?

On February 24th, the text will be voted in ITRE committee, responsible for the file; the report adopted at that time will be thereafter submitted to the whole European Parliament, during the last plenary sitting of this legislation, currently scheduled for April 2nd. Unluckily, this committee raises several concerns.

First of all, the rapporteur, Pilar del Castillo Vera (ES - EPP), has refused, since the beginning of the decision-making process, to introduce or promote amendments guaranteeing a true protection of Net neutrality. Although she is wary of clearly displaying her opposition to a definition of specialised services BEREC-oriented, her public statements plead in favour of “an inclusive approach” supposed to guarantee the fruition of an open Internet. But what does she mean exactly? Why a stricter definition of specialised services could harm any player's possibility to navigate and benefit of an open Internet? Why a greater guarantee for European citizens to benefit of their right to communicate without interferences would challenge the existence of an open Internet? Why does she not have the political bravery to state that Net neutrality is not something she cares about, as potentially problematic for telecom giants? At least, it would be more clear and honest for her constituency.

Secondly, Jens Rohde (DK - ALDE), shadow rapporteur for the ALDE group, did not even make the effort to table amendments on those critical subjects and he did nothing but state to share Pilar del Castillo Vera’s positions. This passive attitude is quite deplorable; all the more so as there is considerable number of dissenting voices within his group. Excellent amendments have been tabled in various committees by his fellow party members Sophia in 't Veld (NL - ALDE), Marietje Schaake, Cecilia Wikström, Nadja Hirsch (DE - ALDE), Alexander Alvaro (DE - ALDE), who genuinely defend and reinforce the Net neutrality principle. These voices cannot go unheeded.

The fate of Net neutrality in the hands of socio-democrats?

However, the Net neutrality fringe within the ALDE group is not the only one in the European Parliament. Aside the excellent work made by the Greens – headed by their shadow rapporteur Amelia Andersdotter (SE - Greens/EFA) – we also observed good inputs coming from socialists, headed by Mrs. Catherine Trautmann (FR - S&D), as shadow rapporteur for her group, and Dimitrios Droutsas (GR - S&D), as Vice-president of ITRE committee.

As Mrs. Herczog (HU - S&D) recently stated speaking on behalf of Catherine Trautmann, the Socialists seem to attach a great importance to a clearer definition of specialised services. Unluckily, even if the amendment 3606 – cosigned by Trautmann, Madurell (ES - S&D), Droutsas and Herczog – goes in the right direction, it really needs to be improved in order to prevent that a service functionally identical to another available on the open Internet could be commercialised. This provision is essential to guarantee a fair competition and innovation within the European single market for electronic communications and create all guarantees necessary to a genuine implementation of the Net neutrality principle.

Mrs. Trautmann, as the person with the most authority for her role, competence and experience on this kind of issues, is the only one in capacity to fight against the anti-Net neutrality and anti-competitive positions existing within ITRE committee. And she can do it, all the more so as her colleague Dimitrios Droutsas, with who she signed the insufficient amendment 360 on the definition of specialised services, realised the importance of a further clarification on that field. As a matter of fact, in view of the adoption of LIBE opinion, Mr. Droutsas later tabled the amendment 547, which includes civil society suggestions and clearly addresses the anti-competitive risk raised by specialised services. Let's hope Droutsas' input, with the unconditional support of Mrs. Trautmann, can become the firm and official position of the S&D group as a whole, in order to have a powerful counterbalance to the unacceptable positions entrenched so far by Pilar del Castillo Vera, and endorsed by Jens Rohde.

In the wake of the civil society organisations' calls and the amount of amendments tabled in defence of Net neutrality, it would be completely unacceptable if the members of ITRE committee were to capitulate in the face of the telecom lobby. The European Parliament must bring comprehensive protections to Net neutrality, so as to protect freedom of expression and promote innovation in the digital economy.

Next four weeks will thereby determine the fate of Net neutrality in Europe; every European citizen can act and have an actual influence on the evolution of this file, by getting in touch with their MEPs and calling on them to bring comprehensive protections to the free Internet. To get on board, please visit the campaign website

By Miriam Artino, in charge of legal and political analysis for La Quadrature du Net

  • 1. The article deleted reads:
    “1. Any operator shall have the right to provide a European ASQ connectivity product as specified in paragraph 4.
    2. Any operator shall meet any reasonable request to provide a European ASQ connectivity product as specified in paragraph 4 submitted in writing by an authorised provider of electronic communications services. Any refusal to provide a European ASQ product shall be based on objective criteria. The operator shall state the reasons for any refusal within one month from the written request. It shall be deemed to be an objective ground of refusal that the party requesting the supply of a European ASQ connectivity product is unable or unwilling to make available, whether within the Union or in third countries, a European ASQ connectivity product to the requested party on reasonable terms, if the latter so requests.
    3. Where the request is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the written request, either party is entitled to refer the issue to the relevant national regulatory authority pursuant to Article 20 of Directive 2002/21/EC. In such a case, Article 3(6) of this Regulation may apply.
    4. The provision of a connectivity product shall be considered as the provision of a European ASQ connectivity product if it is supplied in accordance with the minimum parameters listed in Annex II and cumulatively meets the following substantive requirements:
    (a) ability to be offered as a high quality product anywhere in the Union;
    (b) enabling service providers to meet the needs of their end-users;
    (c) cost-effectiveness, taking into account existing solutions that may be provided on the same networks;
    (d) operational effectiveness, in particular in respect of limiting to the extent possible implementation obstacles and deployment costs for customers; and
    (e) ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency in accordance with Union law are respected.
    5. The Commission shall be empowered to adopt delegated acts in accordance with Article 32 in order to adapt Annex II in light of market and technological developments, so as to continue to meet the substantive requirements listed in paragraph 4.”
  • 2. The amendment reads “'specialised service' means an electronic communications service, optimised for specific content, applications or services, or a combination thereof, by deploying traffic management to ensure the appropriate level of network capacity and quality, provided over logically distinct capacity and relying on strict admission control, with a view to securing enhanced quality characteristics which are controlled from end-to-end and that is not marketed or used as a substitute for internet access services”
  • 3. The amendment reads: “'specialised service' means an electronic communications service or any other service that are provided using the Internet Protocol and operated within closed electronic communications networks relying on admission control that provide the capability to access specific content, applications or services, or a combination thereof, based on extensive use of traffic management in order to ensure adequate service characteristics; and that is not marketed or widely used as a substitute for internet access service”
  • 4. After the adoption of the Regulation, a reflection could be launched to consider the possibility of allowing prioritization of Internet communications, as long as three main conditions are met: i) that such Quality of Service be application-agnostic (applied indiscriminately to different online services or applications); ii) that such Quality of Service be under the full control of the user so as to preserve the key architectural features of the Internet; iii) that the best-effort Internet be protected from degradation caused by the development of guaranteed QoS, for instance by ensuring a “sufficient quality of service” for the best-effort traffic delivery model (a notion already in use in some EU countries).
    On propositions for such positive discrimination and its relationship to Net neutrality, see the work of prof. Barbara van Schewick:
  • 5. The amendment reads: “End-users have the right to access and distribute information and content, run applications and use services or devices of their choice via their internet access service, in accordance with the principle of net neutrality.”
  • 6. The amendment reads: “‘specialised service’ means an electronic communications service or any other service that provides the capability to access or use specific content, applications or services, or a combination thereof, in order to ensure adequate characteristics from end-to-end. A specialised service is operated within closed electronic communications networks and thus clearly separated from internet access services and is not marketed or used as a substitute for internet access service”
  • 7. The amendment reads: “‘specialised service’ means an electronic communications service or any other service operated within closed electronic communications networks using the Internet Protocol with strict admission control that is not marketed or used as a substitute for internet access service; and that is not functionally identical to services available over the public internet”
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