Article 3(2) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access – the ‘Open Internet Regulation’ – generally allows Internet Service Providers and end-users to agree on the characteristics, and the commercial and technical conditions of Internet Access Services (IAS), such as price, data volumes or speed. However, these conditions and commercial practices must not limit the exercise of the rights of end-users laid down in Article 3(1) of the Open Internet Regulation and must fully comply with Article 3(3) of the Open Internet Regulation equal treatment of traffic obligation. The Body of European Regulators for Electronic Communications (BEREC) considers differentiated pricing as one of the commercial practices mentioned in Article 3(2) of the Open Internet Regulation.
Differentiated pricing practices may come in different forms. BEREC considers differentiated pricing practices that are application-agnostic (i.e. the commercial and technical treatment of traffic is independent of application) to be typically admissible and compliant with Article 3(3) of the Open Internet Regulation on the equal treatment of traffic obligation. However, non-application-agnostic practices (e.g. applying a zero price to a certain third party or IAS application, or a content and application provider subsidising its own data) are not allowed.
When the pricing practice is independent of application, it would typically be considered admissible. Examples of such commercial practices include:
- application-agnostic offers where data consumption during a certain period (e.g. during the weekend or off-peak times or a given number of hours per month) is not counted against the general data cap in place on the IAS tariff or is priced differently, since all traffic is treated equally and no specific application or category of specific application is treated favourably;
- offers based on different IAS tariffs with different application-agnostic Quality of Service (QoS) levels (for parameters such as speed, latency, jitter and packet loss), volumes, contractual length, bundles and with or without subsidised equipment since within one tariff all traffic is treated equally;
- application-agnostic tariff plans for a broad public (e.g. all consumers) or a targeted group (e.g. special tariffs for school children, students, senior citizens or low-income citizens);
- offers where the speed is throttled for all traffic after the data volume has been used up; a sufficient speed could still allow accessing the internet in an application-agnostic manner, and this would also allow access to the provider’s online self-service portal or the application allowing end-users to purchase additional data volume.