Trialogue/Trialogue net neutrality

De La Quadrature du Net


Comparative analysis of European Parliament and Council of the European Union propositions for the trialogues on Net Neutrality and the provisional agreement from the 4th trialogue (30 June 2015).

  • European Parliament, version of the 27 May 2015
  • Council of the EU, version of the 28 May 2015
  • Provisional agreement of the trialogue, version of the 30 June 2015

In Italic : what has been withdrawn from the EP' version

In Bold : what has been added to the Council of EU' version

Article 1

European Parliament Council of the European Union Provisional agreement of the trialogue
This Regulation establishes common rules on aiming at ensuring open Internet access offered by providers of electronic communications to the public, safeguarding end-users' rights and ensuring non-discriminatory treatment of traffic. This Regulation establishes common rules to ensure open Internet access, safeguarding related end-user’s rights and equal treatment of traffic in the provision of Internet access services. This Regulation establishes common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and safeguarding related end-user’s rights.

The objective of this regulation is to establish common rules on the preservation of an open Internet while guaranteeing a non discriminatory traffic procession in providing Internet access.

The Council has replaced the terms "non discriminatory" by "equal". This change is not harmless and is challenging the distribution of bandwidth.

The version adopted during the trialogue of the 30th June is deleting the mention to an "open-Internet" that can be found in the versions of the Parliament and the Council of the EU. This notion was abstract and did not have an actual definition and was replaced by the need of an "equal" and "non-discriminatory" procession of the traffic. As there is no definition of Net Neutrality, this requirement is fundamental.


Article 2

European Parliament Council of the European Union Provisional agreement of the trialogue
Definition: “Net neutrality” means the principle according to which all Internet traffic is treated equally, without discrimination, restriction or interference, independently of its sender, recipient, type, content, device, service or application. Deleted Deleted

The Council and the provisional agreement are deleting the reference to Net Neutrality. The Parliament has introduced this clear definition in the text and was one of its fundamental points. The consecration of this fundamental principle was replaced by the notion of "an open Internet" in other parts of the text.

Despite some articles that forbid discrimination of traffic management reasons, the risks to make the network non neutral, non transparent and to put in place prices discriminations are high.

Despite the modification brought by the 1st article, forbidding the implementation of any discriminatory measures while providing services allowing the access to the Internet. The absolute refusal of Member States to agree on a clear definition of Net Neutrality seems to mean they want to stay flexible. The fact that specialised services do not enter in the scope of application of the 1st article and are not subjects to the requirement of non-discriminatory and equal processing of the traffic.

European Parliament Council of the European Union Provisional agreement of the trialogue
Definition: "specialised services", is a service of electronic communication optimised for the content, applications or specific services of a combination of the above ; provided through the capacities logical distinct, based on a strict access control, offering a functionality requiring a point to point superior quality and which is not commercialised or used as a substitution product of a Internet access service. Deleted Deleted

The definition of specialised services has been deleted from the 2nd article but the notion is kept at the article 3-5 (see below).

Article 3-2

European Parliament Council of the European Union Provisional agreement of the trialogue
Providers of Internet access services and end-users may agree on the commercial conditions for Internet access services related to price, data volumes or speed. Such agreements, and any commercial practices conducted by providers of Internet access services, shall [be non-discriminatory and shall] not limit the exercise of the right of end-users set out in paragraph 1. Providers of Internet access services and end-users may agree on commercial and technical conditions and characteristics such as price, data volumes or speed. Such agreements, and any commercial practices conducted by providers of Internet access services, shall not limit the exercise of the right of end-users set out in paragraph 1. Agreements between providers of internet access services and end-users on commercial and technical conditions and characteristics of internet access services such as price, data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the right of end-users set out in paragraph 1.

The Council and the provisional agreement are giving the possibility to ISP's to conclude agreements with final users setting commercial conditions and specific techniques regarding Internet access (prices, volume and speed), without infringing rights specified at article 3-1 (on the right to access to and distribute information)

It is possible that this article from the Council and the provisional agreement would have as consequence, commercial agreements with content managers to limited accesses, as there are no more definition of specialised services, nor any article forbidding discrimination on equivalent traffics. This would lead to a problematic distortion of competition for smaller start-ups and would lead to a real transparency issue for users.

However, if any type of discriminatory traffic management is forbidden, practices of zero-rating which allows mobile operators to offer free access to some online services for clients of a particular mobile network should not be authorised. Nonetheless, it should be clear that the price discrimination is included in the interpretation of traffic management. Thus, regarding the given interpretation, there is no guarantees that implemented practices by companies such as Facebook, Wikimedia Foundation (for Wikipedia) and Google which violate Net Neutrality would be allowed within the European Union.

Article 3-3

European Parliament Council of the European Union Provisional agreement of the trialogue
Subject to this paragraph and in accordance with the principle of net neutrality, providers of Internet access services shall treat all traffic equally when providing Internet access services.

Providers of Internet access services may implement reasonable traffic management measures. In order to be deemed reasonable and compliant with the principle of equal treatment, such measures shall be transparent, non-discriminatory, proportionate and shall not constitute anti-competitive behaviour, account being taken of objectively different technical quality of service requirements of specific categories of traffic, whereas such a distinction can only be made on the basis of the packet header. Such measures shall not be maintained longer than necessary.

Subject to this paragraph, providers of Internet access services shall treat all traffic equally when providing Internet access services.

Providers of Internet access services may implement reasonable traffic management measures. In order to be deemed reasonable, such measures shall be transparent, non-discriminatory, proportionate, shall not constitute anti-competitive behaviour and shall be based on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not be maintained longer than necessary

Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.

The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed reasonable, such measures shall be transparent, non-discriminatory, proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained longer than necessary.


This article is on traffic management which are authorised from the moment they are transparent, non-discriminatory and proportionate. Also, they should not be based on commercial considerations. On the other hand, ISP's are not authorised to use Deep Packet Inspection techniques in order to implement traffic management measures.

It is interesting to see that the agreement of the trialogue reintegrates the notion of "equivalent traffic" which implies that all types of equivalent traffic are subject to an identical treatment. Equivalent types of traffic refer to packets transiting on the network. For example, videos are large packets while VOIP is transition through smaller packets.


Article 3-3 (next)

European Parliament Council of the European Union Provisional agreement of the trialogue
Providers of Internet access services shall not engage in traffic management measures going beyond the reasonable measures set out in sub-paragraph 2, and in particular shall not block, slow down, alter, degrade or discriminate between specific content, applications or services, or specific categories or entire classes of traffic, except as necessary, and only for as long as necessary, to:

a) comply with legal obligations, to which the Internet access service provider is subject, that are laid down in Union legislation or national legislation, in compliance with Union law, or in measures giving effect to such Union or national legislation, including orders by courts or public authorities vested with relevant powers;

b) preserve the integrity and security of the network, services provided via this network, and the end-users' terminal equipment;

c) prevent or mitigate the effects of temporary and exceptional network congestion, provided that equivalent types of traffic are treated equally.

Providers of Internet access services shall not engage in traffic management measures going beyond the reasonable measures set out in subparagraph 2, and shall not block, slow down, alter, degrade or discriminate between specific content, applications or services, except as necessary, and only for as long as necessary, to:

a) comply with legal obligations to which the Internet access service provider is subject, that are laid down in Union legislation or national legislation, in compliance with Union law, or in measures giving effect to such Union or national legislation, including orders by courts or public authorities vested with relevant powers;

b) preserve the integrity and security of the network, services provided via this network, and the end-users’ terminal equipment;

c) prevent impending network congestion and mitigate the effects of exceptional and or temporary network congestion, provided that equivalent categories of traffic are treated equally;

d) prevent transmission of unsolicited communication within the meaning of Article 13 of Directive 2002/58/EC or implement parental control measures, subject to a prior explicit consent of the end-user. The end-user shall be given the possibility to withdraw this consent at any time.

Providers of internet access services shall not engage in traffic management measures going beyond the measures set out in subparagraph 2, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, to:

a) comply with Union legislation or national legislation, in compliance with Union law, to which the internet access service provider is subject, or with measures giving effect to such Union or national legislation, in compliance with Union law, including with orders by courts or public authorities vested with relevant powers;

b) preserve the integrity and security of the network, services provided via this network, and the end-users’ terminal equipment;

c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.


The provision (3-3 §c) displayed in the Council and the trialogue version of the text would allow to put in place measure on traffic management regarding exceptional effects or temporary traffic congestion. Those conditions, very little restrictive, allow a too big leeway for ISP's. The expression "exceptional congestion OR temporary" is not excluding regular congestions at certain hours (for example, peak-hours on a big video website every evening around 7pm).


The provisional agreement deletes a disposition (3-3 §d) of the Commission that was deleted by the Parliament and added back by the Council. This disposition was allowing to prevent the transmission of non solicitation information or to put into place parental control measures, under the preliminary agreement fo the user and the possibility for the user to come back to the agreement.


  • Parental control: technical, ISP's would have blocked website if parental control was activated. They would be the persons in charge to define the rule linked to parental control by blocking websites on a black list.
  • Prevention of non solicited communication: such a measure would have be acceptable –so is parental control– as long as a disposition was forbidding ISP's to act differently from a DNS or IP blocking. Any other solution would have automatically need the intervention of ISP's on the content of traffic, thus DPI.

Besides, it is important to note that the considering regarding this article gives the example of the compression of data (without modifying the content). Or compressing data leads, de facto, to DPI.

The suppression of the article 3-3§d is very positive and will not prevent Member States to think on antispam measures of parental control which will not violate Net Neutrality principle.

Article 3-5

European Parliament Council of the European Union Provisional agreement of the trialogue
Providers of electronic communications to the public, including providers of Internet access services, and providers of content, applications and services shall be free to offer individual services which are distinct from Internet access services and which are optimised for specific content, applications or services, or a combination thereof, in order to meet their requirements for a specific level of quality.

Such services shall only be offered if the network capacity made available by providers of electronic communications services to the public, including providers of internet access services, is sufficient to provide them in addition to Internet access services, they are not marketed or usable as substitute for internet access services and are not to the detriment of the availability or quality of Internet access services.

Providers of electronic communications to the public, including providers of Internet access services, and providers of content, applications and services shall be free to offer services other than Internet access services which are optimised for specific content, applications or services, or a combination thereof, in order to meet their requirements for a specific level of quality.

Providers of electronic communications to the public, including providers of Internet access services, may offer such services only if the network capacity is sufficient to provide them. Such services shall not be offered as a replacement for Internet access services, and shall not be to the detriment of the availability or general quality of Internet access services.

Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality.

Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users


This article introduces, firstly, the possibility for providers of electronic communication, including ISP's, content, applications and services providers, to offer services other than access to the Internet. From this moment, those services are not access to the Internet, they are out the scope of the 1st article and are not subject to process traffic equally and in a non-discriminating way. The protections given by the 1st article to maintain Net Neutrality has a small significance and the risk is high that operators implement specialised services with a price discrimination, without respecting the principle of Net Neutrality and with a prioritisation of services.

Thus, ISP's could offer a service (such as VOD), opening a wide breach on the principle of fair and free competition. This would have an extremely negative effect on small innovative companies.

Article 4-1

European Parliament Council of the European Union Provisional agreement of the trialogue
National regulatory authorities shall closely monitor and ensure compliance with Article 3, and shall promote the continued availability of non-discriminatory Internet access services at levels of quality that reflects advances in technology and are not impaired by services referring to Article 3(5). For those purposes national regulatory authorities may impose technical characteristics and minimum quality of service requirements in accordance with Article 22 of the Universal Services Directive. National regulatory authorities shall publish reports on an annual basis regarding their monitoring and findings, and provide those reports to the Commission and BEREC. National regulatory authorities shall closely monitor and ensure compliance with Article 3 and with paragraphs 3 and 5 of this Article, and shall promote the continued availability of open Internet access at levels of quality that reflect advances in technology. For those purposes national regulatory authorities may impose technical characteristics and minimum quality of service requirements in accordance with the second subparagraph of Article 22(3) of the Universal Service Directive. National regulatory authorities shall publish reports on an annual basis regarding their monitoring and findings, and provide those reports to the Commission and BEREC. National regulatory authorities shall closely monitor and ensure compliance with Article 3 and with paragraphs 3 to 6 of this Article, and shall promote the continued availability of non-discriminatory internet access at levels of quality that reflect advances in technology. For those purposes national regulatory authorities may impose technical characteristics minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services. National regulatory authorities shall publish reports on an annual basis regarding their monitoring and findings, and provide those reports to the Commission and BEREC

The trialogue is adding the word "non discriminatory", which was deleted by the Council, avoiding de facto the implementation of discriminatory measures.