Eu competition law and the telecoms single market: network neutrality in the aftermath of the TSM regulation

• Author: Noemí Angulo Garzaro - Amaya Angulo Garzaro
• Position: PhD candidate, Faculty of Law, University of Deusto, (e-mail: noemi.angulo@deusto.es). - PhD candidate, Faculty of Law, University of the Basque Country, (e-mail: amaya.angulogarzaro@gmail.com).
• Pages: 40-51

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

Abstract

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.

1. Introduction

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: noemi.angulo@deusto.es).

 PhD candidate, Faculty of Law, University of the Basque Country, (e-mail:

amaya.angulogarzaro@gmail.com).

1

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

1

. Such

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