What is the problem? European consumers may be prevented from accessing and running the applications and content of their choice
Network congestion caused by fast Internet traffic growth (due to the appearance of new technologies, business models, applications and content), and increasing security threats on the networks, have led Internet Service Providers (ISPs) to make increasing use of traffic management techniques to manage traffic. In certain instances, ISPs apply these traffic management practices in ways that are problematic, affecting in particular end-users but also content and application providers (CAPs) and leading to a lack of end-to-end connectivity.
On 29 May 2012, BEREC published the results of its traffic management investigation, following a Europe-wide data collection exercise launched jointly with the Commission in December 2011. This analysis showed that more than 21% of Internet subscribers are affected by P2P restrictions on fixed networks and VoIP restrictions on mobile networks and even more than 36% by P2P restrictions on mobile networks .
This issue is made more acute by an absence of transparency about these practices and about the features of Internet access services in general. In addition, remaining barriers to switching prevent consumers from migrating to other ISPs with more suitable or more competitive offers.
Lack of EU guidance in this field causes regulatory uncertainty on how to apply the relevant provisions from the existing Regulatory Framework. In this context, Member States have started to adopt different approaches, creating a risk of fragmentation of the Digital Single Market and deterring ISPs and CAPs from investment and innovation.
Why is EU action required? To safeguard more effective consumer choice in the open Internet
If Internet access products that prevent end-users – against their will – to access the content and applications of their choice were to proliferate without accessible alternative options, such a development could be detrimental to consumer choice, competition, innovation and could negatively affect the European content and application industries.
Therefore this requires swift EU action, in particular in view of the global character of the Internet and the risk of fragmentation of the Digital Single Market.
EU action will promote a common regulatory approach among National Regulatory Authorities (NRAs) towards the open Internet and provide a clear and predictable framework for all stakeholders in Europe. Measures in favour of the open Internet at European level will also send a strong signal to market players that the future of the industry lies in innovation, investments and competition.
What has the Commission done so far?
In 2009, the Commission set out in its Declaration on Net Neutrality its commitment to preserve the open and neutral character of the Internet. The declaration was followed by a wide-ranging public consultation in summer 2010 and a joint summit organised together with the European Parliament in November 2010.
Following these extensive consultations, the Commission published on 19 April 2011 a Communication on “The open internet and net neutrality in Europe”. This Communication proposed a step-by-step approach consisting of investigation, followed by pro-competitive action on switching and transparency, and if this should prove to be insufficient, possible action on unjustifiable traffic management. It said it would remain vigilant to ensure that the new EU electronic communications Directives adopted in 2009 are properly transposed and implemented. These rules include the policy objective that subscribers should be able to access and distribute information or run applications and services of their choice. They also modernise the provisions regarding ease of switching, transparency and quality of service (QoS)  across Europe, and give National Regulatory Authorities (NRAs) the tools to deal with net neutrality issues. The Directives had to be transposed by the Member States by 25 May 2011.
In April 2011, the Commission asked BEREC to undertake a fact-finding exercise on issues crucial to ensuring an open and neutral Internet, including barriers to changing operators, blocking or throttling internet traffic (e.g. voice over internet services), transparency and quality of service.
BEREC published the results of the traffic management investigation on 29 May 2012. Consequently, Vice-President Kroes published a press memo proposing action on consumer choice and net neutrality. In this context, the Commission services have launched a public consultation on 23 July ending on 15 October 2012.
What will the Commission do?
The Commission is preparing a Recommendation to generate more real choices for consumers and provide clarity on net neutrality for all stakeholders in Europe. The Recommendation will include guidance on transparency (e.g. clear information about features of Internet access offers, such as Internet speeds, data ceilings, etc.), elements of traffic management, switching and the responsible use of traffic management tools.
An impact assessment related to this guidance is being carried out, taking into account the results of the public consultation.
 In the case of P2P restrictions on fixed networks, all of the affected users are technically affected (i.e. 21%). In the case of P2P restrictions on mobile networks, about 30% of users are technically affected and 6% only contractually. Regarding VoIP restrictions on mobile networks about 16% are technically affected and 5% are contractually affected.
 ITU definition of Quality of Service: "Totality of characteristics of a telecommunications service that bear on its ability to satisfy stated and implied needs of the user of the service." Recommendation E.800 (09/08), available at: http://www.itu.int/rec/T-REC-E.800-200809-I/en