LESIJ NO. XXIII, VOL. 1/2016
EU COMPETITION LAW AND THE TELECOMS SINGLE
MARKET: NETWORK NEUTRALITY IN THE AFTERM ATH OF
THE TSM REGULATION
Noemí ANGULO GARZARO
Amaya ANGULO GARZARO
Since the early 1990s, a sharp increa se in the Internet tra ffic has been experienced. Technology,
once again, has pro ven to be able to develop faster than r egulation. In this endlessly evolving scenario,
operator s in the technology markets, as well as end-users, often find themselves under-protected.
Therefore, it comes as a major concern the need to regula te those technological markets and, more
specifically, the use –or abuse– of Internet.
All Internet traffic should be treated equally and that i s, precisely, what network neutrality aims
at. Consequently, network oper ators may not take advantage of their position in the market to affect
competition in related markets. All in all, network neutrality is crucia l to achieve the highest degree of
competition. In the absence of network neutra lity, the Internet would find itself unable to qualify as a
market merely dr iven by innovation, and it would unfailingly turn into one r uled by deal making.
Competition law claims that the higher the neutrality is – i.e., the more equal the treatment is, the better
it is for the consumer. If network operating companies create an exploitative business model, they might
be able to block competitors’ websites and services; in other words, it may facilitate adoption of
anticompetitive practices – namely, the abuse of their dominant position.
Transcending all the a rguments raised aga inst network neutrality –such as the prevention of an
overuse of bandwidth–, we will demonstrate that it must be deemed essential from a Competition law
perspective. In addition, we will argue, the imperative necessity of leaving the market under the tough
scrutiny of competition authorities, which are best placed to assess the anticompetitive chara cter of the
practices br ought about by market operators.
Keywords: EU Competition law, network neutrality, Telecommunications Single Market, TSM
Regulation, European integr ation.
The use of the Internet has experienced
an outstanding growth, due both to its
worldwide development as a means of
communication and to its validation as an
PhD candidate, Faculty of Law, University of Deusto, (e-mail: email@example.com).
PhD candidate, Faculty of Law, University of the Basque Country, (e-mail:
Ben Scott, Mark Cooper and Jeannine Kenney, “Why Consumers Demand Internet Freedom Network
Neutrality: Fact vs. Fiction”, in Fr ee Press (2006), accessed 3 February, 2016 http://www.
freepress.net/sites/default/files/fp-legacy/nn_fact_v _fictio n_final.pdf, 7.
engine o f economic progress
increasingly important role played by the
Internet ha s raised the awareness of
competition authorities over the risk that
operators of the network may succumb to the
temptation of distorting the competitive
dynamics of the market, unduly favoring the