Joint Statement from the Commission and BEREC
20 March 2020
The Regulation prohibits operators from blocking, slowing down or prioritising traffic. Traffic management measures are authorised if they are reasonable, meaning that the measures shall be transparent, non-discriminatory, proportionate and based on objective differences in technical quality of service requirements of specific categories of traffic (Article 3(3) of the Regulation ). Such measures cannot monitor specific content and cannot be maintained longer than necessary. Measures going beyond reasonable traffic management measures are allowed only as an exception after occurrence of conditions described in the Regulation. One of them is necessity to prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion.
According to the statement:
- operators need to objectively assess that the levels of traffic are very high compared to a similar reference period, and that absent the envisaged measures users would be negatively affected by the congestion;
- an exceptional congestion should be understood as referring to situations which -even when applying the highest standards of professional diligence in network management - result in unpredictable and unavoidable situations of congestion in mobile or fixed networks, e.g. possibly caused by multiple technical failures, unexpected changes in routing of traffic not under the operator’s control, or large increases in network traffic linked to the current pandemic crisis or other emergency situations beyond the control of providers of Internet access services (see recital 15 of the Regulation 2015/2120);
- when implementing exceptional traffic management measures, operators should consider proportionate solutions to the problem observed that would guarantee access to the Internet to all users while being effective to manage congestion that might be caused by peak traffic, be limited in time to the strict necessary and ensure that equivalent categories of traffic are treated equally;
- users are encouraged to make responsible use of the Internet with settings that reduce data consumption.
The European Commission and BEREC call on operators to closely cooperate with national regulatory authorities and to inform them timely on the measures taken in order to ensure the necessary transparency for individuals and businesses and that regulatory authorities can efficiently and effectively perform their monitoring tasks.