The ACM's case against T-Mobile was rejected. The regulator had earlier threatened T-Mobile with fines of EUR 50,000 per day as long as it continued with the service allowing customers to stream music without it counting towards their data allowance. The ACM's decision was suspended, and T-Mobile was allowed to continue with the service until the court case was heard.
The Dutch government had tried to impose a strict ban on zero-rating, but the EU regulation on net neutrality "without a doubt" does not include such a categorical ban on price discrimination, the judge said. The ruling noted that the relevant article in the Dutch law clearly contradicted the EU regulation, adding that "there is no other possible conclusion than that the national lawmaker acted against its better knowledge" in maintaining the relevant article in Dutch law, despite the background of how the EU regulation was decided and its text.
While T-Mobile may continue with its service, the court left a few questions unanswered and noted several issues remain. While this brings clarity on the applicability of the Dutch Telecommunications Law, a decision on whether zero rating should be allowed under the EU regulations has not been taken. The court said that T-Mobile's service could violate the EU net neutrality regulation, but the ACM knowingly did not investigate this, as it believed that zero-rating was forbidden in any case.
T-Mobile called the ruling a victory for its customers. "We can now continue to innovate and break down barriers in order to give our customers the complete freedom of unlimited mobile internet," the operator said. T-Mobile has claimed that its offer is allowed under EU rules, as it makes no difference between the music services included in the zero-rating. This was the core of its argument in court.
The ACM said it was good that there was clarity in the market on the matter. It reads the ruling as saying that zero rating is forbidden under Dutch law, but that Dutch lawmakers cannot impose national restrictions alongside the EU regulation.
The ruling may still go to the corporate appeals court. The ACM said it plans to study the decision first before deciding whether to appeal. It has six weeks to take a decision.
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