Analysis on JURI Draft Opinion on Single Market Regulation

Access, EDRi and La Quadrature du Net welcome the draft opinion, but would like to make some comments on selected proposed amendments below. The left column repeats the Commission proposal; the right column contains the amendments proposed by the rapporteur, Marielle Gallo.Access, EDRi and La Quadrature du Net's comments can be found below. For ease of reading, the headings are highlighted and marked with arrows :


 * green for amendments which we welcome;
 * yellow for amendments which pursue good aims, but could benefit from further suggested improvements;
 * red for amendments which in our view should be reconsidered.

In each case, a short justification is given.

Here is our Voting List on all of the amendments tabled on this report.

=Amendment 18=

Justification: The proposal of the rapporteur seems to go in the right direction by specifying that specialised services will be operated within closed electronic communications networks, preventing a scenario where any online service could be considered as a specialised service. However, the amendment is not comprehensive enough to achieve its goals; it would allow to have services which fulfil these requirements and still compete directly with online services.

=Amendment 25=

Justification: By adding "services", this amendment further widens the loophole that would allow operators to discriminate traffic through preferential agreements. Existing large online services could thereby leverage their dominance by offering deals that would exclude competitors from the market. Furthermore, to ensure legal certainty, “shall be free” has to  be changed into “shall have the right”.

=Amendment 26=

Justification: The addition of “prevent” is vague and difficult to verify. This would open a loophole that would enable ISPs to engage in discriminatory traffic management. Traffic management measures must only be used in demonstrated, transient cases of network congestion and have to be necessary, proportionate, temporary, targeted, transparent and in accordance with relevant laws.

=Amendment 27=

Justification: While the reference to a specific time period for traffic management brings the amendment in the right direction, further improvements will be required to provide legal certainty. Namely, it is not clear what the circumstances in which a processing of data or the limited time period is “necessary”.

=Amendment 28=

Justification: The added clarifications are helpful, however some suggested improvements include changing "freedoms" to "rights", and to make these reports readily available to the public. Furthermore, in order to better frame the role of the NRA, it should be mandatory to create an enforcement mechanism geared to guarantee freedom of expression of end users, as well as competition and innovation in the digital economy. For this reason, NRA should be requested to put in place appropriate, clear, open and efficient procedures aimed at addressing network neutrality complaints.

=Amendment 29=

Justification: This is beyond our purview.

=Amendment 30=

Justification: Although transparency alone is not sufficient to protect the net neutrality principle, the provisions introduced on that matter by the European Commission represent a genuine step forward to the protection of European citizens'freedoms online. Its deletion from the proposed Regulation and proposed inclusion in the USD Directive from 2002 is not welcome as it is opposed to an harmonised approach, which is necessary to implement the single market of telecommunications and meet the goal of the European Commission proposal.

=Amendment 31=

Justification: This article improves users understanding of their contractual rights. Information on requirements for contracts is a necessary component of this Regulation. Its deletion from the proposed Regulation and proposed inclusion in the USD Directive from 2002 is not welcome.