Rechtbank Rotterdam Team Bestuursrecht 1 zaaknummer: ROT 18/1470 uitspraak van de meervoudige kamer van 24 januari 2019 in de zaak tussen Stichting Bits of Freedom (Bits of Freedom), te Amsterdam, eis
Article 3(1).
The Regulation also foresees intervention in case such restrictions result in choice being materially reduced, but also in other cases that could qualify as a limitation of the exercise of the end-users’
Article 3(1).
- In light of the aforementioned considerations, BEREC considers that a comprehensive assessment of such commercial and technical conditions may be required, taking into account in particular: the goals of the Regulation and whether the relevant agreements and/or commercial practices circumvent these general aims; the market positions of the ISPs and CAPs involved - a limitation of the exercise of end-user rights is more likely to arise where an ISP or a CAP has a ‘strong’ market position (all else being equal) compared to a situation where the ISP or CAP has a ‘weak’ market position. The market positions should be analysed in line with competition law principles; the effects on consumer and business customer end-user rights, which encompasses an assessment of inter alia: o whether there is an effect on the range and diversity of content and applications which consumer end-users may use and, if so, whether the range and diversity of applications which end-users can choose from is reduced in practice; o whether the end-user is incentivised to use, for example, certain applications; o whether the IAS subscription contains characteristics which materially reduce end-user choice (see in more detail in paragraph 48). the effects on CAP end-user rights, which encompasses an assessment of, inter alia: o whether there is an effect on the range and diversity of content and applications which CAPs provide, and to what extent the range and diversity of applications may not be effectively accessed; o whether CAPs are materially discouraged from entering the market or forced to leave the market, or whether there are other material harms to competition in the market concerned (see in more detail in the fourth bullet of paragraph 48 with regard to offers); o whether the continued functioning of the internet ecosystem as an engine of innovation is impacted, for example, whether it is the ISP that picks winners and losers, and on the administrative and/or technical barriers for CAPs to enter into agreements with ISPs. the scale of the practice and the presence of alternatives - a practice is more likely to limit the exercise of end-user rights in a situation where, for example, many end-users are concerned and/or there are few alternative offers and/or competing ISPs for the end-users to choose from.
- Each of these factors may contribute to a material reduction in end-user choice and hence a limitation of the exercise of end-users’
Article 3(2).
In any specific case, the presence of one or more of these factors may in fact limit the exercise of enduser rights. 48. In applying such a comprehensive assessment, the following considerations may also be taken into account: Any agreements or practices which have an effect similar to technical blocking of access (see paragraph 55) are likely to infringe Articles 3
(1)and 3
(2), given their strong impact on end-user rights. Commercial practices which apply a higher price to the data associated with a specific application or class of applications are likely to limit the exercise of endusers’ rights because of the potentially strong disincentive created to the use of the application(s) affected, and consequent restriction of choice. Also, the possibility that higher prices may be applied to an application or category of application may discourage the development of new applications. End-users of an IAS whose conditions include a lower (or zero) price for the data associated with a specific application or class of applications will be incentivised to use the zero-rated application or category of applications and not others. Furthermore, the lower the data cap, the stronger such influence is likely to be. Price differentiation between individual applications within a category has an impact on competition between providers in that class. It may therefore be more likely to impact the “continued functioning of the internet ecosystem as an engine of innovation” and thereby undermine the goals of the Regulation than would price differentiation between classes of application.” In artikel 15.1 van de Telecommunicatiewet is – onder meer bepaald – dat ACM toezicht houdt op de naleving van het bepaalde bij of krachtens de netneutraliteitsverordening. In artikel 1:2, derde lid, van de Algemene wet bestuursrecht is bepaald dat ten aanzien van rechtspersonen als hun belangen mede worden beschouwd de algemene en collectieve belangen die zij krachtens hun doelstellingen en blijkens hun feitelijke werkzaamheden in het bijzonder behartigen.