Publication of the Net Neutrality Guidelines

On 30 August 2016, the Body of European Regulators for Electronic Communications (BEREC) published guidelines related to the implementation of obligations incumbent on national regulatory authorities ("NRA") to guarantee open internet access.

These obligations flow from Article 5 of Regulation 2015/2120 of 25 November 2015 laying down measures concerning open internet access and common rules for all Member States of the Union to safeguard "equal and non-discriminatory treatment of traffic" and the rights of end-users regarding access to information and content, as well as the use thereof.

This regulation in fact provides that:

• End-users (individuals and businesses) are entitled, via their internet access service and regardless of their location or that of their internet service provider (ISP), to access information and content, distribute said information and content, and use and provide applications and services;

the agreements entered into by ISPs and end-users regarding commercial and technical conditions, such as price, volume or speed of internet data, must not limit end-user rights.
This applies to internet access services accessible to the public, with the exception of private networks, services for which internet access is limited due to the nature or the terminal, and interconnection services.

BEREC's guidelines set out recommendations NRAs must take into consideration in order to carefully monitor the application of the 2015 regulation and "promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology".

For example, the guidelines ensure that NRAs can assess operators' compliance with their obligations in terms of managing traffic or providing specialised services.

They also refer to practices which ISPs must adopt to make their information accessible, reliable and relevant (Article 4). In this regard, to ensure transparency, NRAs must require communication of details on the type of speed provided, whether the services are fixed ("maximum speed" or "normally available speed") or mobile ("estimated maximum speed").

If an ISP fails to comply with its obligations, the NRA may impose mandatory measures to remedy the situation.

Therefore, compliance with European rules on net neutrality falls under the responsibility of the NRAs - in France, the ARCEP - and they must, in particular, monitor the contractual conditions and commercial practices of ISPs, and proceed with requisite market analyses.

NRAs are also required to send an annual report to the European Commission and BEREC regarding the audits conducted and conclusions drawn in this regard (Article 5 of the Guidelines).