The net neutrality protections in the EU consist of two layers, a legal and regulatory one. The legal basis for the protections is part of an EU Regulation, which takes precedence over national law and is directly applicable in all Member States as well as the further three countries in the European Economic Area (EEA) Norway, Iceland and Liechtenstein. This Regulation gives the independent national telecom regulators the power and the mandate to protect net neutrality in their respective countries. To ensure that these 31 independent regulators apply the Regulation uniformly throughout the EU and EEA, they must take “utmost account” of the guidelines on net neutrality that were issued by the European umbrella organisation of all telecom regulators, BEREC. These BEREC net neutrality guidelines present very detailed recommendations on what net neutrality actually means in Europe.

The Regulation prescribes that the European Commission has to submit an evaluation report by 30 April 2019. For this purpose, it has outsourced part of the work to the consultancy firm Ecorys and the law firm Bird & Bird, which is famous for assisting the telecom industry in resisting net neutrality protections. This has led to the peculiar situation that regulators and civil society have to answer questions about the strengths and weaknesses of the Regulation to the same office of Bird & Bird that EDRi member Bits of Freedom faces in court in a case based on the same Regulation. Several NGOs, including EDRi, EDRi member epicenter.works and others have sent an open letter to the Commission pointing out this conflict of interest, but the Commission has not fully addressed these concerns.

It seems the European Commission will not reopen the Regulation, considering the elections to the European Parliament in May 2019 and the following reshuffle of political power in the European Union. On the other hand, BEREC conducts itself transparently and has already announced on several occasions that it intends to review its net neutrality guidelines.

Since the release of BEREC's draft work programme for 2019, we also know that this review is planned to start in 2019 and will lead to new draft guidelines, followed by a public consultation process in late September 2019.

What is to be expected of this review? The telecom industry has made clear what they want to talk about: 5G. The new mobile network standard has not even been fully specified, but it is already the biggest talking point of the telecoms industry and is used to call into question existing net neutrality protections around the world. With the US having stepped away from their 2015 Open Internet rules, Europe is now the first major world region that tries to bring 5G in line with net neutrality. This debate has a technological and political side. Technologically, 5G brings a new option for telecom operators to deepen their control over the information flow. It is called “network slicing” and it brings differentiated Quality of Service policies to the radio access network.

The scenarios range from preferential treatment for premium subscribers at the expense of everyone else to a complete segmentation of the internet with granular control of the network over every application.

Whether the application of this new industry standard has to follow existing telecom law or whether the law should adapt to the standard ought to be an easy question to answer, but this might not be the case.

For example, at the recent global Internet Governance Forum (IGF) in Paris, representatives of telecom giants Vodafone and AT&T strongly argued for loosening existing net neutrality rules in order to make a 5G-rollout more economically viable.

5G offers providers far more control when it comes to giving preferential treatment to individual applications or internet subscribers, but it also brings interesting new features like specifying a low energy network slice, which could be used for example by solar powered Internet of Things (IoT) devices. BEREC has taken it upon itself to tackle this issue upfront. This means that regulators will decide if the strong protections against the abuse of exceptions to the net neutrality in the Regulation (so called “specialised services”) will be upheld.

If Europe follows the push of the telecom industry to water down the implementation and enforcement of its net neutrality rules and allows a two-tiered internet system built on a sliced up 5G network, this could have serious ripple effects in the rest of the world. Should the US and Europe allow 5G to become the exception to net neutrality, the end of the open internet will become a question of the roll-out of the next mobile network technology.

The final guidelines in Europe comes quite close to the US 2015 Federal Communications Commission (FCC) Open Internet rules. Particularly regarding the issue of zero-rating, the guidelines do not offer a so-called “bright-line rule”. This means that the final decision on the legality of commercial offers that discriminate between applications based on price is left to the regulator. While zero-rating offerings are now on the market in all but one European country, not a single regulator has prohibited such offer. Especially low income and young internet users are affected by this strong incentive to only use well-established internet services.

The reform of the net neutrality guidelines should tackle this issue. The Regulation clearly states that there are cases in which regulators have to intervene against zero-rating. While a bright-line rule banning zero-rating would be the best possible outcome, at the very least more guidance has to be given to regulators when it comes to different forms of economic discrimination that are clearly harmful to end-user rights. EDRi member epicenter.works will publish a report on the net neutrality situation in Europe in early 2019, including a mapping of zero-rating offers in the European market.

This article is an adaptation of an article previously published by EDRi member epicenter.works: https://en.epicenter.works/content/net-neutrality-vs-5g-what-to-expect-from-the-upcoming-reform-in-the-eu

BEREC Guidelines on the Implementation by National Regulators of European Net Neutrality Rules https://berec.europa.eu/eng/document_register/subject_matter/berec/regulatory_best_practices/guidelines/6160-berec-guidelines-on-the-implementation-by-national-regulators-of-european-net-neutrality-rules 

How we saved the internet in Europe (04.10.2016) https://epicenter.works/content/how-we-saved-the-internet-in-europe