ARTICLES: INTERNET – NET-NEUTRALITY – MOBILE SECTOR – BEREC – REGULATION – COMPETITION LAW

EU Net Neutrality policy and the mobile sector: The need for competition law standards

The TSM Regulation’s much-awaited Net Neutrality rules came into effect in the EU on 30 April 2016, the overarching aim of which is to strike a balance between the interests of end-users and Internet Service Providers. However, in seeking to do so, the TSM Regulation’s normative rules are prone to legal uncertainty which lend themselves to Type I errors being made (i.e., over-regulation) and consumer welfare thereby being compromised unless the Net Neutrality obligations are interpreted consistent with competition law principles.

If these competition law ‎ standards are not applied, those who advocate those who advocate that the Net Neutrality non-discrimination principle constitutes a blanket rule to be applied without discretion are in effect ignoring the consumer welfare considerations which would be better served by the inherent flexibility of EU competition rules. “Smart” Net Neutrality regulation should enable competent authorities to ensure a customer’s freedom to choose the services they desire, while at the same time addressing the fast-moving and competitive dynamics of the Internet ecosystem; nowhere is that principle more clearly borne out than in the mobile communications sector.

The thoughts for this paper first materialised in the context of a panel discussion held at the Digital Broadband Forum in London on 21 April 2015, and initially appeared in the online publication, Chillin’ Competition, and has since been updated to take into account intervening events. The author would like to thank his colleague, Charles Clarke, for his invaluable assistance in marshalling the research necessary to put this paper together, and to Telage’s Tony Shortall for his helpful comments on technical aspects of mobile technology. The text, however, remains the sole responsibility of the author. I. Introduction 1. While there is no precise definition of Net Neutrality, it is commonly understood to be the policy that ensures the objective of an open Internet, with no blocking or

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Peter Alexiadis, EU Net Neutrality policy and the mobile sector: The need for competition law standards, September 2016, Concurrences Review Nº 3-2016, Art. N° 80707, www.concurrences.com

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