EU Competition Law and the Internet: The Case of Net Neutrality

This thorough analysis of the subject demonstrates that, irrespective of how the EU sector-specific framework on net neutrality develops, competition law remains one of the tools available to regulators in order to address practices that might result in the unequal treatment of online content. The question then arises of what EU competition law, and in particular the prohibition of Article 102 TFEU, can contribute to the preservation of net neutrality. The author clearly identifies the issues that this question gives rise to and discusses the principles under which they should be addressed. Discussing critically the standards set by the existing case law, she introduces a framework for the relevant market definition, assessment of market power and analysis of practices in markets where net neutrality violations could manifest. In so doing, the author addresses a number of much broader questions surrounding the application of EU competition law to the “new economy.” The issues and topics examined include:

• blocking;

• traffic management;

• quality of service;

• preferential treatment of specific (types of) content;

• congestion management and capacity planning and provisioning;

• interconnection agreements among operators;

• application of the antitrust doctrines on refusals to deal, non-discrimination and unfair pricing;

• relevant market definition and assessment of market power;

• scope of the EU Regulatory Framework for Electronic Communications;

• incentives of market players to invest and innovate; 
• pluralism on the Internet;

• the aims of competition law enforcement;

• application of competition law to the “new economy”;

• “search neutrality”; and

• behavioural biases and regulation.

The analysis focuses on the case law of the CoJ, Commission decisions, and soft-law instruments, and also attends to relevant policy documents, including work by BEREC.

Concerning as it does a topic that is fiercely debated at the academic, legislative, industry and societal levels – a very polarized controversy over what many speak of as nothing less than the “future of the Internet” – this book sheds clear light on what the NN debate is about and how it can be dealt with under EU law. Practitioners, policymakers, and academics in a number of fields will greatly appreciate the depth with which this study tests the assumption that competition law can address these issues and to what extent. The analysis will also serve valuable insights for other debates surrounding the regulation of the “new economy” and the Internet in particular.