27.4.2020

EN

Official Journal of the European Union

C 137/34

(Case C-34/20)

(2020/C 137/47)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Telekom Deutschland GmbH

Defendant: Bundesrepublik Deutschland

Questions referred

(a) In the case where a mobile communications tariff including a monthly data allowance and providing for reduced transmission speed once that data volume has been used can be extended by a free option which allows certain services provided by content partners of the telecommunications company to be used without offsetting the data volume used for those services against the monthly data allowance included in the mobile communications tariff, and the end-user agrees to limitation of the bandwidth to a maximum of 1,7 Mbit/s for video-streaming, irrespective of whether the video-streaming service is provided by content partners or other providers, is Article 3(2) of Regulation (EU) 2015/2120 to be understood as meaning that agreements on the characteristics of internet access services within the meaning of Article 3(2) of that regulation must fulfil the requirements of Article 3(3) thereof?

(b) If the answer to Question 1.(a) is in the affirmative: Is Article 3(3), third subparagraph, of Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such as that at issue in the present case, bandwidth limitation qualifies as the slowing down of one category of service?

(c) If the answer to Question 1.(b) is in the affirmative: Is the term ‘impending network congestion’ within the meaning of Article 3(3), third subparagraph, point c), of Regulation (EU) 2015/2120 to be understood as meaning that it covers only (impending) exceptional or temporary network congestion?

(d) If the answer to Question 1.(b) is in the affirmative: Is Article 3(3), third subparagraph, point (c), of Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such as that at issue in these proceedings, the need for equal treatment of equivalent categories of traffic precludes bandwidth limitation that applies in the case of one optional add-on only, but not in the case of other mobile communication tariffs, and applies, moreover, to video-streaming alone? [Or. 3]

(e) If the answer to Question 1.(b) is in the affirmative: Is Article 3(3), third subparagraph, of Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such as that at issue in these proceedings, bandwidth limitation that depends on the addition of the optional add-on and that the end-user can, moreover, deactivate at any time for up to 24 hours fulfils the requirement that one category of service may be slowed down only for as long as is necessary to achieve the objectives of Article 3(3), third subparagraph, points (a) to (c), of Regulation (EU) 2015/2120?

(a) If the answer to Question 1.(b) is in the negative: Is Article 3(3), second subparagraph, second sentence, of Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such as that at issue in these proceedings, bandwidth limitation for video-streaming alone is based on objectively different technical quality of service requirements of specific categories of traffic?

(b) If the answer to Question 2.(a) is in the affirmative: Is Article 3(3), second subparagraph, third sentence, of Regulation (EU) 2015/2120 to be understood as meaning that identification of the traffic generated from video-streaming from IP addresses, protocols, URLs and SNIs and using pattern matching, during which certain header information is compared with typical video-streaming values, constitutes monitoring of the specific content of the traffic?

If the answer to Question 1.(a) is in the negative: Is Article 3(1) of Regulation (EU) 2015/2120 to be understood as meaning that, in a situation such as that at issue in these proceedings, bandwidth limitation for video-streaming alone restricts end-users’ rights within the meaning of Article 3(1) of Regulation (EU) 2015/2120?

(1) Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ 2015 L 310, p. 1).