Legal Analysis of Network Neutrality under EU Competition Rules and the Regulatory Framework for Electronic Communications

Abstract

Network neutrality refers to a policy principle regarding access for online content and service providers to broadband infrastructure. It implies a general and ex ante obligation of non-discrimination for network operators when granting access to providers of online services, with the aim of excluding practices such as blocking access to non-affiliated content, degrading the quality of transmission, imposing unreasonable restrictions or prioritizing affiliated content. Whether such obligation should be anchored in regulation was first fiercely debated in the United States, and the issue is now gaining increased attention in other parts of the world, including the European Union, where the regulatory framework for electronic communications is currently under review. This article examines whether existing rules already provide the competent authorities with the necessary tools to take action against broadband providers discriminating or blocking content of those who are not prepared to pay a "toll" for the use of higher speed networks or better quality services. And if not, should the regulatory framework be adapted accordingly? It looks at both competition rules and the 2003 regulatory framework for electronic communications networks and services, including the legislative proposals published by the European Commission on November 13, 2007 and the discussions currently taking place in the European Parliament.

Keywords: Network Neutrality, EU Competition Law, EU Electronic Communications Regulation