EU Court issues further guidance on net neutrality and zero-rating

The Court of Justice of the European Union (CJEU) published its latest judgment on net neutrality on 10 July 2025, in Case C-367/24, concerning a mobile operator’s “unlimited internet bonus” option in Romania. 

Impact and relevance of the judgment

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.

As with earlier rulings, the Court has again emphasised that national regulators must intervene whenever such tariff options undermine the essential principle that end-users should be free to access and provide any legal internet content or service, without favour or penalty.

Overall, the judgment confirms that internet service providers cannot circumvent net neutrality by combining “unlimited use” of data with slower speeds (for certain categories of traffic), unless there is an objectively justified technical requirement. Where such measures do not meet the strict test of being essential for, for instance, preventing acute network congestion, they will violate Article 3 of Regulation 2015/2120. 

Facts

According to the facts in the case, the operator offered its customers a standard monthly data allowance for all internet traffic, which could reach speeds of up to 150 megabits per second. Upon activating a bonus option, users could consume an unlimited amount of data for video streaming without that consumption counting against their monthly allowance. In return, however, streaming quality was always capped at 1.5 Mbps (reducing video resolution), while all other data traffic continued at faster speeds. That limitation applied equally to all video content, regardless of whether the content provider had a commercial arrangement with the operator.

Ruling

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). In the 2020 cases of the CJEU on net neutrality and zero-rating (ECLI:EU:C:2020:708), the package slowed down the speed of data traffic once the data limit was reached, except the ‘zero-rated applications’. In the 2021 cases, all packages also contained additional elements on top of zero-rating: 1) Internet use outside the country of residence (roaming) (ECLI:EU:C:2021:675), 2) Internet use on devices other than the device with the subscription (tethering) (ECLI:EU:C:2021:676) and 3) bandwidth usage for videos (ECLI:EU:C:2021:677). 

In this case, if the zero-rating option was selected, an additional restriction was imposed (on bandwidth usage for videos). As in the previous judgments, this zero-rated package with an additional restriction was once again declared to be contrary to the Net Neutrality Regulation. 

This is also consistent with the fact that the Advocate General has not delivered an opinion to the Court of Justice for this judgment. The Court of Justice, together with the Advocate General, can only decide to rule on a case without an opinion if no new legal issue is raised. 

New guidance

The judgment does contain some new guidance on the explanation of Article 3, paragraph 3 of the Regulation. Firstly, the CJEU clarified that treating all content providers equally, regardless of partnership status, does not mean they differentiate internet traffic based on compliant reasons, but rather on non-compliant commercial considerations. According to the CJEU, this was further substantiated by the fact that the provider did not claim that the bandwidth limitation was needed to optimise transmission quality and user experience. To the contrary, the limitation reduced the video quality. 

Secondly, the CJEU provided guidance on the assessment of whether a traffic management measure is based on objectively different technical quality of service requirements. According to the CJEU, this requires that the technical conditions address the quality of service needs specific to a given category of internet traffic. In other words, the measure can only be reasonable if the applied technical conditions align with the specific quality of service needs of a given category of traffic.

Finally, the CJEU addressed the issue of duration and monitoring of traffic management measures. Where customers have the option to activate or deactivate such measures, and the provider cannot monitor the actual period of their application, the CJEU holds that measures cannot be regarded as being maintained only as long as necessary (required to meet the threshold of reasonable traffic management measures). According to the CJEU, this also fails to comply with the regulatory requirement that any exception to traffic management rules must be strictly limited to the period needed to prevent or mitigate network congestion (for traffic management measures under Article 3 paragraph 3 subparagraph 3(c)). 

Discussion

The series of judgments by the CJEU from 2021 sparked a big legal debate on whether zero-rating was now categorically prohibited in the EU. Following the judgments, BEREC opened a consultation to determine how the judgments could be incorporated in its guidelines for the Regulation. In its guidelines, BEREC is of the opinion that zero-rating is “inadmissible”. 

It is unfortunate that the CJEU did not tackle this debate in this new judgment. The judgment is a continuation of previous judgments, which specify that a zero-rating offer with an additional restriction is in any case incompatible with the Regulation. However, the judgment does not address, let alone answer, the question whether zero rating is categorically prohibited. The judgment does provide some further guidance on the Regulation. 

Further reading and references
For additional background on net neutrality and zero-rating in the EU, regulators and interested parties may wish to consult relevant case law, including the 2020 Telenor rulings (C-807/18 and C-39/19) and 2021 judgments (rulings of 2 September 2021 in cases C-854/19 (Vodafone v Bundesrepublik Deutschland), C-5/20 (Verbraucherzentrale Bundesverband eV v Vodafone) and C-34/20 (Telekom Deutschland v Bundesrepublik Deutschland)).