The highest European court has declared tariffs from Telekom and Vodafone to be illegal. The ECJ recognized a violation of net neutrality in the tariffs. This is likely to have massive consequences for the provider – and for you as a customer.
The two options that the ECJ has now looked at are Telekom’s Stream On and Vodafone Pass. The principle of both options: Certain data traffic defined by the providers are excluded from being counted towards the monthly agreed data volume. As a customer, depending on the provider and option, you have the option of watching Netflix, YouTube, and Co on the go without paying for the data traffic.
THAT WAS THE ORIGINAL POSITION FOR THE ECJ
The European Court of Justice had dealt with the German tariff offers because the Cologne Administrative Court and the Düsseldorf Higher Regional Court had appealed to him. They had to deal with it because the Federal Network Agency and consumer advocates had sued the tariffs. The German courts now wanted to know whether it is compatible with EU law for a provider of Internet access services to limit the bandwidth. In addition, it was about the restriction of tethering and roaming , if the customer chooses such a “free tariff option”. In the matter, the ECJ had to separate three proceedings from the same complex. (Ref. C-854/19, C-5/20, and C-34/20)
In essence, the German courts were particularly bothered by the fact that StreamOn users agreed to a general bandwidth limit for video streaming to a maximum of 1.7 Mbit / s for certain mobile phone tariffs. HD resolution was no longer possible. This happened regardless of whether it was video streaming from content partners or other providers. However, under pressure from the Federal Network Agency, the process has now been abandoned. ” Vodafone Pass ” was only intended for use within Germany. Abroad, the data traffic for audio and video streaming was always counted towards the inclusive data volume. That has also been changed in the meantime. In addition, Vodafone calculates the data consumption when using a hotspot (“Tethering”) on the data volume included in the tariff.
THIS IS HOW THE ECJ DECIDED
However, the ECJ did not deal with details such as tethering, bandwidth limitation, or roaming in its judgment. His judgment is much broader. Because he has now declared both tariff options to be completely incompatible with EU law.
The ECJ explains the reason in a press release. With these “free of charge options”, a distinction is made “on the basis of commercial considerations” within the Internet traffic, in that the data traffic to certain partner applications is not counted towards the base tariff. Such a business practice violates the general obligation to treat traffic equally without discrimination or disruption. In plain language: a violation of net neutrality. Accordingly, all data on the Internet must be treated equally.
The principle of net neutrality is intended to ensure that innovative services can continue to be offered on an equal footing over the Internet. This should give startups, for example, the same opportunities as Google or Facebook. With the zero-rating, however, the use of certain services is not counted towards the data volume. So not all services are treated equally.
STREAM ON AND VODAFONE PASS BEFORE THE END?
Ultimately, the ECJ ruling is now much more far-reaching than the original lawsuits before German courts. Media lawyer Christian Solmecke is now critical of the future of Stream On and Vodafone Pass. The options are likely to “now generally face the end because they fundamentally and not just in detail violate network neutrality,” he writes in a press release. The decision thus also has a signal effect for other providers who can no longer make such offers. However, the case-law of the European Court of Justice does not immediately result in a ban on Stream On and Vodafone Pass. The German courts must first convert the ECJ case law into national case law within the framework of the original proceedings.
But where there is light, there is also shadow. “Because the only legally legal alternative to enable permanent music and video streaming would be an EU-wide data flat rate, ” said Solmecke. How Telekom and Vodafone react to the judgment and how the Federal Network Agency comments on the procedure, you can read in another message.