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Comparative analysis of European Parliament and Council of the European Union propositions for the trialogues on Net Neutrality. Analysis done in June 2015.
 
Comparative analysis of European Parliament and Council of the European Union propositions for the trialogues on Net Neutrality. Analysis done in June 2015.
  

Version du 30 juin 2015 à 10:36


Comparative analysis of European Parliament and Council of the European Union propositions for the trialogues on Net Neutrality. Analysis done in June 2015.

  • European Parliament, version of the 27 May 2015
  • Council of the EU, version of the 28 May 2015

Article 1

European Parliament Council of the European Union
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.

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


Article 2

European Parliament Council of the European Union
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

The Council is 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 "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.


European Parliament Council of the European Union
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 comercialised or used as a substitution product of a Internet access service. Deleted

The definition of specialised services has been deleted. The notion of a service that "is not commercialised or used as a substitutions product of a Internet access service" is disappearing from the text.

The risk is thus to leave a breach for operator for a prioritasion of services.

A new attempt of definition is appearing in article 3.

Article 3-2

European Parliament Council of the European Union
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.

The Council is 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 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.

Article 3-3

European Parliament Council of the European Union
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


Article on measures regarding traffic management.

The Council is deleting not only the principle to Net Neutrality but also to the mention to packets headers which would impeach ISP's to use Deep Packet Inspection in order to set up traffic management measures. It is interesting to see that previous versions of the text allowed temporary traffic management techniques "for equivalent traffics that are subject to an identical treatment". The part has been totally deleted to only leave the part where "ISP must treat all traffic equally". The types of equivalent traffic are packets that are transiting on the network. For example, videos are large packets where VOIP is transiting through smaller packets.

It is not guaranteed that this new measure will be more protective. In fact, the guarantee that all types of equivalent traffic are subject to an identical processing is impeaching a distinct discrimination of an Internet service, for example, in favour of a specialised service (VOD) and especially when Network Neutrality is not guaranteed anymore.

Article 3-3 (next)

European Parliament Council of the European Union
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.


The provision (3-3 §c) displayed in the Council 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 Council is adding, by modifying it, a disposition (3-3 §d) of the Commission that was deleted by the Parliament. This disposition is 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 block website if parental control is 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 should be acceptable –so is parental control– as long as a disposition is forbidding ISP's to act differently from a DNS or IP blocking. Any other solution would 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.


Article 3-5

European Parliament Council of the European Union
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.


This article introduces, firstly, the possibility to reach agreements between ISP's and, on one hand, providers of services of communication to the public through electronic way and, on the other hand, users (including those who provide the content, application or services) to put in place specialised services requiring a specific level of quality. The issue is that the Council has made disappear the notion of "specialised services" and that the guarantees of restriction regarding the definition of the concept of "specialised 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
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.

The Council is simply deleting the word "non discriminatory", allowing, de facto, the setting up of all discriminatory measures.