contract-law phone
What responsibilities do mobile phone operators have if a plan they offer is ruled illegal in court?
<p>There was a recent court ruling by the European Court of Justice about net neutrality (<a href="https://www.zeit.de/digital/internet/2020-09/eu-recht-eugh-neutralitaet-internet-verordnung-handy-vertraege#comments" rel="nofollow noreferrer">source</a>, unfortunately in German). Essentially the operators where offering plans with a limited full speed download but some specific services (for example facebook, spotify, etc) were excluded from the download count. So once a user had used up their monthly say 1 Gb of download at full speed, further downloads would be significantly reduced in speed with the exception of some listed services. These kinds of plans were ruled illegal because they breach net neutrality.</p>
<p>Question: What are the consequences of this for mobile phone operators?</p>
<p>They should stop offering these plans and change existing plans. But they presumably profited from these plans in the past, and while the court ruling is new, the law is not. So do they have to pay some kind of compensation to customers who had such a plan? Some kind of fine for offering something illegal? Or does the court ruling only have an effect from now on so the past is the past?</p>

<p>The consequences are, that your model needs to be one of these:</p>
<ul>
<li>no matter what you download, after the limit everything is throttled and any download counts for the amount. No affiliates that don't count unless mandated by law (i.e. Corona-App).</li>
<li>no limit to the download at all, everything is fast.</li>
</ul>
<p>Since the consumer presumably benefitted from the plan, compensation only would be warranted for the future of the contract, where the company has to alter the contract - which they most likely do by offering a free early termination and benefits for the new contract.</p>

<blockquote>
<p>do they have to pay some kind of compensation to customers who had such a plan?</p>
</blockquote>
<p>Most likely Telenor will have to pay those customers and/or a fine. From a legal standpoint, it is not a matter of &quot;<em>let's move forward and forget about the past</em>&quot;.</p>
<p>As of today the ruling in the <a href="http://curia.europa.eu/juris/fiche.jsf?id=C%3B39%3B19%3BRP%3B1%3BP%3B1%3BC2019%2F0039%2FP&amp;oqp=&amp;for=&amp;mat=or&amp;lgrec=en&amp;jge=&amp;td=%3BALL&amp;jur=C%2CT%2CF&amp;dates=&amp;pcs=Oor&amp;lg=&amp;parties=Telenor&amp;pro=&amp;nat=or&amp;cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&amp;language=en&amp;avg=&amp;cid=2483281" rel="nofollow noreferrer">Telenor case</a> has not been posted, but the matter of compensation and sanctions is something for the member state (in this case, Hungary) to determine. See article 6 of <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2015.310.01.0001.01.ENG&amp;toc=OJ:L:2015:310:TOC" rel="nofollow noreferrer">Regulation (EU) 2015/2120</a>.</p>
<p>That being said, the decision of the EU court impliedly endorses customers' entitlement to some sort of reimbursement insofar as those data plans are tantamount to unlawful surcharges. Even if Telenor fully met its statutory duty to inform customers about the terms and conditions, the criteria of Telenor's data plans contravene the non-discrimination principle as established in article 3 of the Regulation.</p>
<p>Without knowing Hungary's law regarding sanctions (or even whether such law has been enacted already), quantifying the reimbursement on an individual basis seems difficult because assessing --in retrospective-- the customers' rationale in their decision making will be hard. It will be likewise hard for third-parties to prove that their loss of <em>x</em> amount in revenue stemmed from Telenor's data plans dissuading users from using/visiting those third-parties' applications/websites.</p>
<p>Bottom line is that Regulation 2015/2120 opens the door for the affected customers (and perhaps, although less likely, third parties) to be somehow reimbursed by Telenor. Based on the article you shared, the ruling merely found that Telenor's data plans are unlawfully discriminatory.</p>
