Analysis on JURI Draft Opinion on Single Market Regulation

EDRi and La Quadrature du Net welcomes the draft opinion, but would like to make some comments on selected proposed amendments below. The left column repeats the Commission proposal; the right column contains the amendments proposed by the rapporteur, Marielle Gallo. EDRi's comments can be found below. For ease of reading, the headings are highlighted and marked with arrows :

• green for amendments which we welcome;
• yellow for amendments which pursue good aims, but could benefit from further suggested improvements;
• red for amendments which in our view should be reconsidered.

In each case, a short justification is given.

Amendment 18

Proposal for a regulation Article 2 - point 15
Text proposed by the Commission	Amendment
(15) "specialised service" means an electronic communications service or any other service that provides the capability to access specific content, applications or services, or a combination thereof, and whose technical characteristics are controlled from end-to-end or provides the capability to send or receive data to or from a determined number of parties or endpoints; and that is not marketed or widely used as a substitute for internet access service;	(15) "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;

Justification: The proposal of the rapporteur would seem to be going on the right direction, since it pleads for service operated within closed electronic communications networks preventing that any service online could be considered as a specialised service, as called for by BEREC, NRA and civil society organisations. The amendment points out that a specialised service must be separate from the public best effort internet and have to be uniquely provided within closed electronic communications network, which is a good point. However, the provision concerning the “extensive use of traffic management” ensuring “adequate service characteristics” could be turned into an explicit authorisation to degrade the Internet best effort even if a specialised service run on closed network. The maintain of “widely” in this context does not guarantee any legal certainty and could allow that a service functionally identical to services available over the public internet access service could be replicated on a closed network and be considered as specialised services.

Amendment 25

Proposal for a regulation Article 23 - paragraph 1 - subparagraph 2
Text proposed by the Commission	Amendment
End-users shall be free to enter into agreements on data volumes and speeds with providers of internet access services and, in accordance with any such agreements relative to data volumes, to avail of any offers by providers of internet content, applications and services.	End-users shall be free to enter into agreements on data volumes, speeds and services with providers of internet access services and, in accordance with any such agreements relative to data volumes, to avail of any offers by providers of internet content, applications and services.

Justification: Generally speaking, the access to and the usage of Internet content, applications and service shall not be conditional to any commercial agreements , especially if they consist of using data caps as a measure of bandwidth usage. Since the nature of those services is not clarified, extending the enter into agreements to “services” could entail an unaware acceptance by end users on limitations of services already available on internet, such as, for instance, the marketing of access offers which give free access to dominant online services, such as Facebook or Google, while the rest of the Internet would remain heavily charged This would distort competition, reinforcing the dominance of US corporations and lock Internet users in these service's' walled gardens.