(26) A competitive market should ensure that users receive the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks. In order to meet quality of service requirements, operators may use procedures in order to measure and shape traffic on a network link so as to avoid filling the link to capacity or overfilling the link, which would result in network congestion and poor performance. These procedures are subject to scrutiny by the national regulatory authority acting in accordance with the provisions of the Framework Directive 2002/21/EC and the specific Directives to ensure they do not restrict competition, in particular by addressing discriminatory behaviour. If appropriate, national regulatory authorities may also impose minimum quality of service requirements on undertakings providing public communications networks to ensure that services and applications dependent on the network are delivered to a minimum quality standard, subject to examination by the Commission. National regulatory authorities are empowered to take action to address degradation of service, including the hindering or slowing down of traffic, to the detriment of consumers. However, since inconsistent remedies can impair the achievement of the internal market, the Commission should be able to assess any requirements intended to be set by national regulatory authorities for possible regulatory intervention across the Community and, if necessary, adopt issue comments or recommendations in order to achieve consistent application throughout the Community.
This Directive neither mandates nor prohibits conditions imposed by providers of publicly available electronic communications and services, limiting users’ access to and/or use of services and applications, where allowed under national law and in conformity with Community law, but does provide for information of such conditions. National measures regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy and due process as defined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Directive 2002/22/EC (Universal Service Directive) does not require providers to monitor information transmitted over their networks or to bring legal proceedings against their customers on grounds of such information, nor does it make providers liable for that information. Responsibility for punitive action or criminal prosecution is a matter for national law, respecting fundamental rights and freedoms including the right to due process.