EU Court issues further guidance on net neutrality and zero-rating
Written By
Associate
Netherlands
I am an associate in our Commercial and Regulatory & Administrative practices in The Hague. Having focused on the intersection of technology and law since university, I advise a wide array of clients in the technology and communications sectors. I regularly assist clients with both regulatory matters, as well as questions regarding contracting.
On 10 July, the Court of Justice of the European Union (CJEU) published its latest judgment on net neutrality in Case C-367/24.
The judgment reinforces the CJEU’s stance that “zero-rated” or reduced-tariff applications must still comply with the Net Neutrality Regulation (Regulation (EU) 2015/2120), which bars discriminatory treatment of online content and services. This new judgment mostly provides more guidance for determining when such packages comply with the Regulation.
In this case, if the zero-rating option was selected, an additional restriction was imposed (on bandwidth usage for videos). In line with the earlier judgments of the CJEU on zero-rated packages with an additional restriction, the CJEU held that this package was in violation of Regulation (EU) 2015/2120 (specifically Article 3, paragraph 3).
The recent CJEU judgment provides important new guidance on Article 3, paragraph 3 of the Regulation, clarifying that treating all content providers the same, regardless of partnership status, may still breach compliance if traffic is managed based on commercial, rather than technical, reasons—especially when bandwidth restrictions lower video quality without justifiable technical need. The Court further clarified that traffic management measures must be grounded in the specific technical quality of service requirements for different categories of internet traffic, and only reasonable if these align with actual service needs. Additionally, the CJEU ruled that if customers can activate or deactivate such measures and the provider cannot monitor their duration, these measures cannot be considered as maintained solely as necessary, thus failing to meet regulatory standards that exceptions must be strictly limited to the period required to prevent or mitigate network congestion.
Previous judgments of the CJEU sparked a big legal debate on the (in)admissibility of zero-rating in the EU. It is unfortunate that the latest judgment does not address, let alone answer, the question whether zero rating is categorically prohibited under the Net Neutrality Regulation. The judgment does provide some further guidance on the Regulation.
A more detailed analysis of the court case can be found here.
For more information, please contact Raoul Grifoni Waterman
