Volume 49 (2012) / Issue 5
The debate on network neutrality concerns the ways in which Internet Service Providers (ISPs) can manage the traffic on their network, as gatekeepers of information between content providers and end-users on the Internet. The European institutions have chosen not to regulate network management by ISPs strictly, but rather have them make their network management transparent for end-users. Some Member States, however, are in the process of regulating network management beyond the transparency approach of the European framework, for instance by banning ISPs from blocking or degrading traffic on their networks. Such different regulatory approaches towards network management across borders lead to regulatory fragmentation that causes inefficiencies and threatens the Internal Market. The present research establishes the necessity for the European Institutions to counteract this regulatory fragmentation, and re-harmonize network management regulation across the EU. The core of this article then investigates whether EU law allows for such a re-harmonization effort and analyses two non-exclusive approaches to mitigate regulatory fragmentation of network management. First, the European Commission could open infringement proceedings against defecting Member States and argue that their national regulation encroaches on the independence of National Regulatory Authorities (NRAs). Second, the European Institutions could initiate harmonizing legislation following the Article 114 TFEU procedure-which will likely be upheld when challenged before the European Courts.
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