Slovakia – The impact of the CJEU judgments on zero tariffs on the market

According to the latest Annual Report on Monitoring Regulation No. 2015/2120 (the “Report”) published recently by the Slovak Regulatory Authority for Electronic Communications and Postal Services (the, “Telecommunications Office"), three internet service providers were offering zero tariffs in Slovakia. A zero tariff should be understood as "a commercial practice whereby an internet access provider applies a "zero tariff", or a tariff that is more advantageous, to all or part of the data traffic associated with an application or category of specific applications, offered by partners of that access provider.”

In Slovakia, the operators were providing zero tariffs for apps used for video and audio streaming, chatting, playing games, accessing social networks, etc. Data consumed by such apps were not counted towards the data volume purchased as part of the pre-paid basic package. The report further adds that once the pre-paid data included in the basic package were used up, the traffic in the regime of the zero tariff was treated the same as the other data traffic. Considering the fact that after consuming the pre-paid data the zero-rated apps were treated in the same way as other apps (the traffic was slowed down for all applications), the report evaluated the service as compliant with the Open Internet Regulation and net neutrality principle. Net neutrality is the core principle of the Open Internet Regulation and requires equal and non-discriminatory treatment of traffic in the provision of internet access services.

It needs to be noted that report covers the monitoring period from 1 May 2020 to 30 April 2021 and was issued prior to recent development related to the interpretation of the net neutrality principle for zero tariffs offerings. Thus, it is likely that the Telecommunications Office will change its opinion in the following report and will align with decisions of Court of Justice of the European Union ("CJEU", CJEU: C-854/19, C-5/20, C-34/20) which found the practice contrary to the principle of net neutrality. For instance, the service allowing for the use of services or specific apps without deducting the consumed data from the data volume included in the basic package is contrary to the net neutrality principle. Following the said CJEU judgments, the Body of European Regulators for Electronic Communications ("BEREC") issued its updated Guidelines on the Implementation of the Open Internet Regulation ("the Guidelines") from 9 June 2022 and aligned its position with the CJEU judgments.

In Slovakia, some operators have already evaluated and adjusted their offerings to comply with the updated Guidelines and CJEU judgements. For example, Orange Slovakia, one of the biggest telecommunications operators in Slovakia, refers to both the CJEU judgments and the updated Guidelines, when informing its subscribers of reasons for withdrawing its offer of the Nonstop Data Packages allowing for the use of certain apps (e. g. games, navigation, social networks, etc.) without deducting the consumed data from the pre-paid data package. Also, as of 1 July 2022, Slovak Telekom cancelled its offering of the StreamOn service (which did not consume data from the basic package for streaming on selected video apps).

However, not all telecommunications operators were as quick. For example, O2 Slovakia has yet to decide whether to revoke its offer of so-called Smart Packages. This package includes 10 GB of extra data for using Facebook, YouTube, or other services. The extra data work for a single chosen app, and this way the telecommunications operator directly provides an advantage for a particular data transfer.

Nevertheless, according to publicly available information, telecommunications operators are likely to be granted some transitory period during which they should completely withdraw their zero-rating offers. According to the Telecommunications Office's latest statements, the deadline by which offers should be withdrawn might be 1 September 2022, depending on the outcome of the consultations conducted with the telecommunications operators.

For further information contact Katarina Ondrovicova