A two-tier Internet will be created in Europe as the result of a late-night "compromise" between the European Commission, European Parliament and the EU Council. The so-called "trilogue" meeting to reconcile the different positions of the three main EU institutions saw telecom companies gaining the right to offer "specialised services" on the Internet. These premium services will create a fast lane on the Internet and thus destroy net neutrality, which requires that equivalent traffic is treated in the same way.

In a fact sheet on the agreement, the European Commission tries to hide the reality that net neutrality is being destroyed by defining something called the open Internet : "Under today's agreement, paid prioritisation in the open Internet will be banned. Based on this new legislation, all content and application providers will have guaranteed access to end-users in the open Internet. This access should not be dependent on the will or particular commercial interest of Internet service providers."

But running alongside this "open Internet," on the same network, there will be "specialised services," which are not open and where paid prioritisation is permitted: "The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access." The caveat is vague, and in practice will not prevent "specialised services" competing with those offered on the "open Internet"—the Commission mentions "internet TV" as an example of a specialised service—so large companies will be able to offer premium services at attractive prices, which startups with limited resources will find hard to match.

The Commission is aware of that threat to fair competition. In its press release, it says the new rules will mean that "access to a start-up's website will not be unfairly slowed down to make the way for bigger companies." However, this only applies to its newly-defined "open Internet," where all traffic must be treated fairly. It does not apply to specialised services, which will be able to pay telecoms companies for faster delivery than rivals on the "open Internet." Inevitably, this tilts the playing field in favour of established players with deeper pockets.

The Commission's main argument for introducing "specialised services" is to encourage new offerings: "more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving." But it would be unwise to run these kinds of critical services over a connection that was also running traditional Internet services: instead, a dedicated connection used only for that service would be needed. In that case, prioritisation and net neutrality would not be an issue because it would not be used for anything else.

If a service is not critical, it would not need to be prioritised over traditional internet offerings. If people wanted better connectivity for that "internet TV" service, they could upgrade their whole connection, not just pay a premium for the "specialised services" part. In other words, the argument for "specialised services" does not stand up to scrutiny. In fact, the real motivation behind introducing the concept is simply that telecoms want to be able to charge those offering online services extra for preferential delivery.

The new rules are further biased in favour of incumbents by allowing zero rating: "Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume." This, too, creates a two-tier Internet, since the services that are not provided free by ISPs are at a big disadvantage compared to those that are. Zero rating will encourage bigger companies to pay for a place on zero-rate programmes, thus raising the barrier to entry for new, competitive services.

The European Commission's press release skirts over another major loss for European innovation: the failure to bring in a unified approach to releasing radio spectrum in the EU. It simply says: "Member States receive valuable revenues from the sale of spectrum rights. While these revenues should stay exclusively with the Member States, we need a more harmonised management of radio spectrum at EU level given its vital importance for connectivity." That's a huge missed opportunity to free up spectrum across the EU for innovative services, particularly from smaller companies. Once more, the main benefactors are the established telecoms companies that can use their entrenched positions to throttle competition.

The only real benefit for EU citizens from last night's agreement is the eventual abolition of roaming charges for mobile phone use in the EU from June 2017, but even here the situation is not as rosy as the European Commission would have us believe. According to the Green MEP Michel Reimon, who took part in the trilogue, telecoms companies will still be allowed to add on special roaming charges to protect their domestic rates, provided the relevant national government agrees (original in German).

Calling the details of the deal "blurry" and "ambiguous," particularly on "specialised services," Joe McNamee of the digital rights group EDRi wrote today: "This is 'just' a provisional agreement. First, the explanatory recitals need to be finalised. Then, the EU institutions need to decide if they are really prepared to create such legal uncertainty for European citizens and business. This will become clear in the coming weeks."