The much-awaited EU Net Neutrality rules contained in the TSM Regulation entered into force on 30 April 2016. These rules have the overarching aim of safeguarding the open Internet and, in doing so, seek to strike a balance between the interests of consumers and Internet Service Providers (“ISPs”). However, the natural consequence of seeking such a compromise is legislative uncertainty. Given the fact that the various Articles of the TSM Regulation offer very little by way of unambiguous guidance, there is a serious risk that many broadly formulated provisions of that Regulation are amenable to a restrictive interpretation, resulting in the over-regulation of ISPs. If that scenario were to materialise, the author believes that there would be a risk of consumer welfare benefits being unwittingly sacrificed on the otherwise laudable altar of the open Internet. Given the breadth of the language used in the TSM Regulation, the risk of over-enforcement is tangible, especially given the constantly evolving Internet value chain, the multi-sided nature of Internet-related markets and the disruptive nature of new Internet business models. Although BEREC (the body representing EU telecommunications sector regulators at national level) has been
assigned the unenviable task of providing, by August 2016, the guidance required to give effect to the broad principles of the TSM Regulation, it is the author’s contention that BEREC’s work need not be under “scorched earth” conditions, but should be driven by the standards developed over the years under EU competition rules, insofar as: (i) their application in a regulatory setting should inform regulators of how the concept of non-discrimination is to be interpreted; and (ii) the development of ‘objective standards’ under EU competition rules is the best means of prescribing: (a) the types of “commercial practices” which have a material impact on consumer choice; and (b) the legitimate scope of necessary traffic management techniques.