Relaxing whilst doing Competition Law is not an Oxymoron

EU Net Neutrality Policy and the Mobile Sector: The Need for Competition Law Standards, by Peter Alexiadis

with one comment

Open Internet

Peter Alexiadis needs no introduction. He is one of the leading competition and telecoms lawyers in Europe. He also runs a seminar on Competition Law & Regulated Network Industries down the road from the LSE, at King’s College London. Peter is in fact one of the most academically-minded practitioners that I know, and one from whom I have always learnt a great deal (including at the Chillin’ Competition conference, where he shared his thoughts on copyright licensing).

Alfonso and I are delighted that he has chosen Chillin’ Competition to issue his new paper, entitled ‘EU Net Neutrality Policy and the Mobile Sector: The Need for Competition Law Standards’. Click here to access it.

The paper is really timely. As most readers will know, net neutrality has progressively found its way into EU telecoms regulation. Regulation 2015/2120, which entered into force on 30 April, deals specifically with the so-called ‘open Internet’. The net neutrality provisions enshrined in this text are part of the zeitgeist, according to which there is always a good reason to impose strict non-discrimination obligations on firms.

Peter’s paper is a useful reminder that an overly zealous approach to net neutrality can have unintended consequences, in particular in mobile markets. He points out that EU competition law has been dealing with the same or related questions (‘access’, ‘non-discrimination’, ‘objective justification’) for decades. Accordingly, it is only sensible to interpret the provisions of the Regulation in light of the experience acquired by courts and competition authorities.

Here’s a hint of what the paper is about:

The much-awaited EU Net Neutrality rules contained in the TSM Regulation entered into force on 30 April 2016. These rules have the overarching aim of safeguarding the open Internet and, in doing so, seek to strike a balance between the interests of consumers and Internet Service Providers (“ISPs”). However, the natural consequence of seeking such a compromise is legislative uncertainty. Given the fact that the various Articles of the TSM Regulation offer very little by way of unambiguous guidance, there is a serious risk that many broadly formulated provisions of that Regulation are amenable to a restrictive interpretation, resulting in the over-regulation of ISPs. If that scenario were to materialise, the author believes that there would be a risk of consumer welfare benefits being unwittingly sacrificed on the otherwise laudable altar of the open Internet. Given the breadth of the language used in the TSM Regulation, the risk of over-enforcement is tangible, especially given the constantly evolving Internet value chain, the multi-sided nature of Internet-related markets and the disruptive nature of new Internet business models.

Enjoy the read!

Written by Pablo Ibanez Colomo

16 May 2016 at 6:19 pm

Posted in Uncategorized

One Response

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  1. This is in the right direction. The FCC in the US attempted something similar in their last NPRM that preceded the actual rules about a year ago, but eventually opted for traditional regulation. Europe could have pioneered the way to antitrust like regulation, considering the lack of historical interests due to the brief history of NN rules in Europe. Sad, but oh well.

    Konstantinos Stylianou

    18 May 2016 at 9:19 am

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