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Digital Business Lawyer
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Volume: 20 Issue: 4
(April 2018)

BEREC launches public consultation of its Net Neutrality Guidelines

The Body of European Regulators for Electronic Communications (‘BEREC’) launched a public consultation on 14 March 2018 for the evaluation of the application of Regulation (EU) 2015/2120 (‘the Net Neutrality Regulation’) and the BEREC Net Neutrality Guidelines, seeking stakeholder views on how the Net Neutrality Regulation and BEREC Guidelines have been applied in various Member States, for the purpose of informing a BEREC Opinion due to be published for the European Commission (‘EC’) at the end of 2018. BEREC’s Guidelines were originally published on 30 August 2016, to provide recommendations to national regulatory authorities (‘NRAs’) on the implementation of the Net Neutrality Regulation, with the purpose of contributing to the consistent application of the Regulation across the EU.

“The launch of a consultation on the evaluation of the Net Neutrality Regulation and the corresponding BEREC Net Neutrality Guidelines comes as no surprise, given the intense debate in the adoption process of the Regulation itself and in the consultation process that preceded the publication of the BEREC Guidelines,” comments Andriani Ferti, Senior Associate at Karatzas & Partners. “Let’s remind ourselves that the heavy lobbying and the contrasting views concerning the Net Neutrality Regulation resulted in numerous loopholes in the legislation.”

The consultation was launched with an accompanying consultation paper, in which BEREC lists questions for stakeholders to answer regarding their general experience with the application of the Net Neutrality Regulation and the BEREC Guidelines, the definitions clarified in the Guidelines, and the sections of the Guidelines which relate to commercial practices, traffic management, specialised services, transparency, and new technologies. “The BEREC Guidelines are not perfect, but overall BEREC did a very good job with them, resisting a huge lobbying campaign by certain economic operators,” states Maryant Fernandez Perez, Senior Policy Advisor at European Digital Rights (‘EDRi’). “We have noticed there are several net neutrality violations that have not been properly addressed in several Member States. Therefore, we welcome this consultation to inform all relevant authorities and the public about them, so action can be taken.”

In its ‘general experience’ questions, BEREC specifically enquires as to whether the Guidelines have helped NRAs apply the Regulation in a consistent, coherent and correct way. “Not all regulators are doing their job,” notes Fernandez Perez. “In some cases, they have very little resources to take action, or they are not even in charge of implementing the Regulation and the Guidelines. This, for example, is the case in Spain. The NRA (the Comision Nacional de los Mercados y de la Compentencia, or CNMC) was in charge of feeding into the elaboration of the Net Neutrality Guidelines, but the Ministry of Energy and Digital Agenda is the one in charge of implementing them. A similar situation happens in Denmark.”

“I find the Guidelines sufficiently detailed,” concludes Ferti. “Implementation by Member States may not be harmonised, but this is not always the result of regulations and policies at EU level and may also depend on the specificities of the local markets. Despite any problems the EC may identify in its evaluation of the Regulation in 2019, it is questionable whether such evaluation would lead to amendment. However, the evolution of technology (and especially with the introduction of 5G) may necessitate certain amendments.”

BEREC’s public consultation is set to conclude on 25 April 2018, and its consultation paper additionally notes that the EC itself will review the Net Neutrality Regulation in early 2019.

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