The Dutch Senate has approved legislation implementing the EU regulation on net neutrality and the end to roaming surcharges. The legislation amending the Telecommunications Act was already approved by the lower house of parliament in May and will take effect after its publication in the official journal. The law has already raised opposition, as T-Mobile said it plans a court appeal and industry association GSMA said the Dutch law goes "far beyond the intent of the EU Regulation".
Dutch law already incorporated the principle of net neutrality under changes to the Telecom Act passed in 2012. This included a stricter stance than the EU regulation on various issues, notably a ban on price discrimination. Also known as zero rating, this is where ISPs allow customers free access to certain applications without charging for data traffic.
The opposition party PVV proposed an amendment in the Senate that would see Dutch law follow the EU's stance on zero rating, which does not ban it explicitly. Under the guidelines published by the EU regulator Berec, national regulators would be allow to decide whether such practices are in violation of net neutrality on a case-by-case basis, depending on a number of factors, such as the exact terms of the offer and market shares of the players involved. Notably, positive price discrimination, such as free access to customer service apps, is allowed under Berec's guidelines.
The Senate passed the revised law with a large majority, in line with the government's previously stated stance that the Netherlands would take a strict line on net neutrality. The Dutch regulator ACM has already sanctioned some providers in the past for unauthorised price discrimination, and more recently said that it would investigate a new offer from T-Mobile to offer zero-rated music streaming to some customers.
T-Mobile Netherlands said immediately after the Senate vote that it plans a court appeal to challenge the law. The mobile operator claims that its service is in line with the guidelines from Berec and the EU regulation and noted that the latter is already in effect across the EU. The company said it was "very astonished" that the Dutch government would adopt legislation in conflict with EU law and found it "incomprehensible" that the Ministry of Economic Affairs, which drew up the legislation, would impact the interests of businesses and consumers in such as way. Furthermore T-Mobile noted that its data-free music offer is open to all music streaming services, without preference for any big players or any cost to the music providers.
The GSMA backed the operator's position, saying it has "serious concerns" about the Dutch revised law and that the legislation "will harm consumers by stifling innovation and limiting the choice of services available to Dutch citizens". The GSMA called on the European Commission to ensure the EU regulation is implemented the same across EU countries. It will be up to the Commission to decide whether the Dutch law is inviolation of the EU regulation, and if so, start an infringement procedure against the country.
