Ceci n’est pas un Level Playing Field
In Magritte’s famous painting, a pipe is not a pipe. In Brussels today, a “level playing field” is not a level playing field. It is a euphemism, a rebranding exercise that hides a significant power shift behind the veil of procedural fairness. And what is being proposed in the European Commission’s Digital Networks Act (DNA) isn’t some high-minded initiative to create balance; it’s a calculated move that would upend the very foundations of how the open Internet functions.
Two proposals stand at the heart of this policy turn. First, empowering National Regulatory Authorities (NRAs) and the Body of European Regulators for Electronic Communications (BEREC) to “facilitate cooperation” among players in the digital ecosystem. Second, “clarifying” Open Internet rules for so-called “innovative services.” These may sound innocuous, even productive. But scratch the surface, and what you find is a concerted attempt to shift financial and regulatory power into the hands of a few dominant telecom operators. The stakes? Europe’s entire digital ecosystem.
Dispute Resolution: From Peacemaking to Power Play
Let’s start with the proposal to empower NRAs and BEREC. The idea here is to facilitate cooperation, an agreeable enough goal, in theory. But cooperation, in this context, is just a polite way of saying mandated payments from Content and Application Providers (CAPs) to Electronic Communications Networks (ECNs). It opens the door to network usage fees via backroom regulatory channels, rather than democratic legislative processes.
This approach skirts around the transparency and accountability normally expected in European policymaking. It seeks to achieve through procedural tools what could not be passed through direct legislative action: the imposition of financial tolls on CAPs for delivering traffic that end-users have already requested. The idea has been repeatedly rejected, not just by civil society and creative sectors, but also in BEREC’s own independent assessments, which found no evidence of market failure in the IP interconnection ecosystem.
And yet, here we are, being asked to believe that NRAs need new powers to resolve disputes and encourage financial cooperation. In reality, this “facilitation” is a Trojan horse for what amounts to a “sending party pays” model. It is a restructuring of the Internet’s economics that has already proven toxic elsewhere, notably in South Korea, where similar policies led to decreased efficiency, increased prices, and a chilling effect on content creation.
Worse still, such mechanisms can be weaponised. Dispute resolution, often presented as a neutral process, becomes in the hands of powerful telcos a tool for extracting concessions. A cautionary tale is the eleven-year peering dispute between Init7 and Swisscom, illustrating just how long and resource-draining such mechanisms can be when used strategically. In this framework, CAPs face the risk not just of losing cases, but of losing years to procedural deadlock.
The Open Internet: Handle With Care
The second proposal is no less dangerous: the idea of “clarifying” Open Internet rules to accommodate “innovative services.” While the term may sound like a progressive nod to technological evolution, it is dangerously vague. What is meant by “innovative”? Is it about differentiated services for critical applications like telemedicine? Or is it a blank cheque for prioritised services that create a fast lane for the few who can pay, leaving the rest to languish in a neglected digital slow lane?
Under EU law, there are already tightly defined conditions under which “specialised services” may be offered. These are supposed to be objectively necessary, non-substitutable for standard Internet access, and must not impair the quality of the general Internet Access Service (IAS). The current regulatory regime is fit for purpose and already accommodates genuine innovation.
But the language of “clarification” is being pushed by those who want to reinterpret these rules to suit commercial objectives. If “innovative services” are allowed to be broadly defined, the result will be a two-tiered Internet. The general open Internet, the bedrock of creativity, competition, and consumer choice, would be relegated to second-class status. CAPs offering creative content, streaming platforms, educational tools, and start-ups would be pressured into paying for network prioritisation, or risk degradation of service quality.
The case of Deutsche Telekom’s alleged engineering of artificial network congestion to justify fast lanes—the Netzbremse case—shows that this is not a theoretical concern. The danger of regulatory capture is very real. Once gatekeepers can charge for access to quality service, the Internet ceases to be a platform for permissionless innovation. It becomes a toll booth.
A Slow Burn, Not a Flash Fire
Let’s talk about the real-world impact. Who would bear the brunt of this policy shift? First and foremost, Europe’s creative sector. Small and medium-sized enterprises, independent creators, and start-ups do not have the financial muscle to pay recurring fees for premium access. Every euro spent on telecom tolls is a euro not spent on content creation, platform development, or innovation.
Moreover, the costs will inevitably be passed on to consumers. Expect higher subscription fees, fewer choices, and reduced quality. A streaming service unable to pay for prioritisation might find its videos buffering endlessly on 5G networks optimised for paying partners. Educational platforms could become unusable in peak hours. New entrants could find themselves locked out of the market before they even begin.
All of this undermines Europe’s stated digital ambitions. The Digital Single Market was meant to create a unified, open environment for innovation. The DNA proposals risk turning it into a fragmented patchwork of national regimes, with NRAs interpreting vague mandates differently and CAPs being forced to negotiate fees on a country-by-country basis.
Ignoring the Evidence
This isn’t policymaking based on evidence. It is policymaking based on lobbying narratives. BEREC has consistently found that the IP interconnection market functions efficiently, with falling prices and robust competition. The narrative of a funding gap that must be filled by CAPs is, in fact, just that: a narrative. It diverts attention away from real infrastructure challenges, such as deployment barriers, administrative bottlenecks, and the need for improved public-private coordination.
CAPs already contribute heavily to network efficiency. Investments in Content Delivery Networks (CDNs), caching infrastructure, and video compression technologies have significantly reduced the burden on telecom networks. Forcing CAPs to pay on top of this creates perverse incentives: why invest in efficiency if you’re going to be charged regardless?
Worse, it sets a precedent. Once telecoms get a taste for these payments, what’s to stop further demands? What’s to stop the same argument being made about app stores, operating systems, or device manufacturers? The logic of “you benefit from our network, therefore you must pay” can be extended ad infinitum.
Conclusion: When Cooperation Isn’t
A genuine level playing field is not one where the playing surface is tilted in favour of the largest telecom players. It is one where rules are applied consistently, access is open and non-discriminatory, and innovation can flourish without permission or payment.
The Internet’s success lies in its neutrality. Its structure does not privilege one type of content or service over another. Everyone, from a solo podcaster to a multinational platform, uses the same pipes under the same rules. Disrupting that balance would be a historic mistake.
The DNA represents a pivotal moment. The European Commission has a choice. It can uphold the principles that have made the Internet a force for creativity, democratic discourse, and economic growth. Or it can choose a path of regulatory appeasement to a narrow set of vested interests.
Let’s not be seduced by procedural platitudes and semantic smokescreens. Let’s call these proposals what they are: a shift towards a gatekeeper-driven, pay-to-play Internet. One where disputes are settled not in open court, but in regulatory back rooms. One where “innovation” is a code word for discrimination.
Ceci n’est pas un level playing field. It is a toll road disguised as a boulevard. If we care about Europe’s digital future, we should refuse to take the exit.
Written by Caroline De Cock, LL.M. , Head of Research.
