Abstract
In the recent Telenor case, the EU Court of Justice has for the first time interpreted the relationship between net neutrality regulation and zero-rating offers, considering net neutrality regulation incompatible with the offer of packages in which data traffic generated by certain applications does not count towards the consumption of the data volume purchased and whereby, once that data volume has been used up, end-users may continue to use those applications without restriction, while other applications are blocked or slowed. However, despite their incompatibility with the net neutrality principle of non-discrimination, zero-rating offers may provide benefits to consumers, fostering broadband consumption and promoting product differentiation, without necessarily leading to the exclusion of content providers. Therefore, a revision of the net neutrality regulation is needed in order to assess this practice in accordance with an ex post case-by-case investigation.
Highlights
While nowadays the attention is captured by the wave of reform proposals recently released questioning the capability of current antitrust rules to handle the emergence of large technology platforms, advocating to replace or supplement them with regulatory measures to better scrutinize new Market and Competition Law Review / volume v / no. 1 / april 2021 / 141-166 practices and business models1, it is worth acknowledging that net neutrality has been the first intervention to refuel the longstanding debate on the scope of regulation and antitrust enforcement
ABSTRACT: in the recent Telenor case, the EU Court of Justice has for the first time interpreted the relationship between net neutrality regulation and zero-rating offers, considering the former incompatible with the offer of packages in which data traffic generated by certain applications does not count towards the consumption of the data volume purchased and whereby, once that data volume has been used up, end-users may continue to use those applications without restriction, while other applications are blocked or slowed
By imposing on broadband service providers (ISPs) non-discriminatory traffic management obligations, net neutrality regulation aims at preventing them from engaging in conducts potentially harmful to edge providers, considering antitrust laws unfit for this task
Summary
While nowadays the attention is captured by the wave of reform proposals recently released questioning the capability of current antitrust rules to handle the emergence of large technology platforms, advocating to replace or supplement them with regulatory measures to better scrutinize new Market and Competition Law Review / volume v / no. 1 / april 2021 / 141-166 practices and business models, it is worth acknowledging that net neutrality has been the first intervention to refuel the longstanding debate on the scope of regulation and antitrust enforcement. Net neutrality regulation has inspired the inquiries in digital markets. By imposing on broadband service providers (ISPs) non-discriminatory traffic management obligations, net neutrality regulation aims at preventing them from engaging in conducts potentially harmful to edge providers, considering antitrust laws unfit for this task. In the EU, the Court of Justice (CJEU) has expressed greater support for the application of antitrust rules in regulated industries. With regard to the telecommunications industry and the margin squeeze of competitors, the CJEU has ruled that the approval by a national sectoral regulator of a dominant undertaking’s pricing practices cannot, as such, absolve that undertaking from responsibility under antitrust rules
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