The ECJ ruled on a case in Hungary, confirming that zero-rated services have to stop once a user’s data allowance has been used up.
The ECJ ruled on a Hungarian case: On 15 September 2020, The European Court of Justice (ECJ) ruled on a case referred by the High Court of Budapest after Telenor challenged a decision of the national regulator, the NMHH. In January 2017, the NMHH required Telenor to terminate its MyChat and MyMusic offers, because the zero-rated applications continued to be available even when a user had used up their overall data allowance.
Commercial motives are not ‘reasonable’ traffic management: The ECJ said that Telenor’s offers are incompatible with articles 3(1) and 3(2) of the EU Regulation on open internet access, because the blocking and throttling measures they implement limit the rights enshrined in the Regulation, and because they are based on commercial motives, which the Regulation considers to be outside the scope of ‘reasonable’ traffic management. Continuing to offer a service upon reaching the data cap would favour the use of that service over other available applications, especially if it were done at scale over a large number of customers.
The ruling vindicates BEREC’s approach: It is worth noting that the Regulation did not specify whether a zero-rated service must be stopped when an overall data allowance is exhausted. This is something BEREC recommended in the guidelines it issues. By taking the same approach, the Court confirms that BEREC struck the right balance by allowing zero rating while reducing risks of discrimination between services.
