Quo vadis, zero-rating?

Abstract

In the case of mobile internet service, the so-called “zero-rating” is a market practice whose assessment was far from clear under Regulation 2015/2120 / EU, which addresses the issue of net neutrality. In its judgments of September 2020 and 2021, the Court of Justice of the European Union clarified that such a tariff option is contrary to the obligations arising from Article 3 (3) of the Regulation. While in its 2020 judgment the CJEU merely stated that it was illegal for a service provider to “highlight” certain content after a subscriber had exhausted data, in its 2021 judgments it already found it illegal to have positive discrimination before the data had been exhausted. This stricter interpretation may also justify a review of current market practice. The judgments also pointed out that the guidelines issued by BEREC to standardize the application of the law do not affect the case law of the CJEU.