BIBLIOGRAPHY: MANIADAKI Katerina, Wolters Kluwer Law, International Competition Law Series Vol. 59, 2014, 416 p.

EU Competition Law, Regulation and the Internet. The Case of Net Neutrality, Katerina MANIADAKI

Katerina Maniadaki

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

Katerina Maniadaki is a Legal Advisor at Ofcom (the independent regulator and competition authority for the UK communications industries) and she has a sound knowledge of competition law and Internet. Her book questions how the net neutrality can be preserved by the prohibition of article 102 TFEU and answers this question by discussing principles and identifying specific issues. She criticizes the standards set by the existing case law and introduces a framework for the relevant market definition assessment of market power and analysis of practices in markets. She analyzes interesting issues such as pluralism on the Internet, search neutrality, interconnection agreements among operators and scope of the EU regulatory framework for electronic communications to name but a few. She reviews Commission decisions, case law of the EU Court of Justice, soft law instruments and relevant policy documents like BEREC (the Body of European Regulators for Electronic Communications, established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009).

In chapter 1, she introduces net neutrality and its links with competition law. She also presents the main players and the architecture of Internet.

In chapter 2, she presents the definition, principles and objectives of net neutrality. Actually, there are several definitions of net neutrality (no blocking, no discrimination in favor of vertically integrated content services, maintaining the “zero-price rule,” and no “undue discrimination” and “reasonable traffic management”). Then, she looks at net neutrality from another angle as an interconnection issue. She explains broader definition of net neutrality with open access, neutrality across all levels and device neutrality.

In chapter 3, the author highlights net neutrality regulation in the EU. She provides a short overview on the EU Regulatory Framework with its scope, separation of transmission and content. She focuses on the imposition of obligations on operators with significant market power. She also analyzes the background of the review of the EU Regulatory Framework with respect to net neutrality and subsequent developments within EU institutions (Commission, Council, Parliament), BEREC and in some Member States (France and UK principally).

In chapter 4, the author points out the inherent potential and limitations of competition law in protecting net neutrality. She stresses the “openness” of the objectives of EU competition law versus the objectives of net neutrality. Under the objectives of EU competition law, she highlights the various aims of the rules on competition, as well as the exclusionary and the exploitative abuses. She also recalls the evolution of the objectives of EU competition law and per se restrictions and effects analysis. She compares the objectives of competition law with those of net neutrality and she highlights pluralism. She defines pluralism as a public policy objective and diversity as a hallmark of consumer welfare. The concept of innovation is also a key concept. She presents the case law with implications for dynamic competition and the 2008 Guidance with the incorporation of innovation considerations (objective justifications and burden of proof of dynamic efficiencies).

In chapter 5, the author looks at relevant market definition and assessment of market power. She analyzes the markets for content termination with call termination and content termination (direct constraints, indirect constraints and countervailing power). Successively, she explains the retail markets for Internet access services, the markets for interconnection, the markets for interconnection to an IAP’s network, collective dominance and relevant markets at the content level.

In chapter 6, the author qualifies net neutrality violations as refusals to deal. She examines EU case law and the Commission’s practice on refusals to deal and refers to Microsoft I. She proposes an alternative approach to refusals to deal and presents the notion of indispensability, as a restriction of effective competition. There are several situations in which there are violations of net neutrality as refusals to deal. First, there is blocking, namely indispensability (market power in content termination markets and market power at the retail Internet access level) and restriction of competition and consumer harm. There is also refusal to interconnect, refusal to provide premium services, refusal to include in a “Granny Package” or “Walled Garden” and objective justifications (congestion control and other justifications).

In chapter 7, the author explains the links between net neutrality discrimination and unfair pricing. Regarding discrimination, she presents an overview of EU case law on article 102 TFEU with shortage of supplies (BP and BPB Industries) discounts and rebates (Hoffmann-La Roche, Michelin I, AKZO, Soda-ash/Solvay, Irish Sugar and British Airways), violations of the internal market principle (United Brands, Tetra Pak II, Corsica Ferries, Portuguese Airports, Deutsche Bahn) and miscellaneous (Deutsche Post, Clearstream, Kanal 5 and Post Denmark). Then she assesses harm to competitors versus harm to effective competition and consumers, efficiencies and other objective justifications. She also examines the price or quality discrimination against downstream competitors and the relationship with article 102(b) TFEU. Next, she looks at price, quality, and objective discriminations. Finally, she presents excessive pricing and the implications for net neutrality.

In chapter 8, she concludes by looking at the EU Google investigation and questions whether there are new features of online competition. She looks at non-price competition, information failures and behavioral biases, network effects, economies of scale and two-sided markets, innovation and proof of discrimination.

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David Leys, EU Competition Law, Regulation and the Internet. The Case of Net Neutrality, Katerina MANIADAKI, January 2015, Concurrences Review N° 1-2015, Art. N° 70687, p. 259

Editor Wolters Kluwer Law & Business

Date 1 August 2014

Number of pages 410

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