Network neutrality is the principle that our data should be treated equally over the internet regardless of its source, who receives it or content and without favouring or blocking particular products or websites.

The Body of European Regulators for electronic communications (BEREC) delivered its final guidance on implementation of the net neutrality rules by EU regulators on the 30^th August (as required by Article 5(3) of the Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015). After the compromise text of the regulation concluded that all data should be treated equally but some data is more equal than others, otherwise known as carve outs to the principle of network neutrality, BEREC was always going to have a tough job trying to come up with a set of guidelines that will be implemented consistently across all Member States.  BEREC received over 400,000 responses to the consultation.  The finer details of what constitutes ‘acceptable traffic management practice’ are not ’byte sized’. It will also be interesting to see how the ‘specialised services’ which are aimed at allowing more managed ‘internet of things’ type services to emerge that do allow internet access to be provided contrary to the network neutrality principle are actually offered by the telecom operators in practice particularly as they will be required to justify that such an approach is necessary, that network capacity is sufficient and that the broader internet access service is not degraded, if requested to do so by the regulator.

The general consensus is that BEREC has not looked to water down the principle of network neutrality through the carve outs in its Guidelines and therefore network neutrality has been protected.   There were criticisms that in fact it has been too prescriptive in its approach.  Of course these Guidelines are now going to be interpreted by the national regulatory authorities.  The role of the NRAs will be to monitor, enforce and report back to BEREC on how network operators are complying the fundamental principle of network neutrality or whether the ‘carve outs’ become the exception rather than the rule. Ultimately as EU governments seek to auction 5G spectrum off and ask the EU telcos to put their hands in their pockets once again to invest in networks whilst adopting a not entirely consistent approach to mergers, it will remain to be seen how forcefully traffic management is scrutinised to assess its reasonableness and non-discriminatory basis for implementation.  One thing is clear however, uncertainty and investment rarely go hand in hand and the final Guidance does not totally remove the former when the networks in Europe need the latter.

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