The DNA Attempts to Rewrite BEREC’s DNA: Net Neutrality Is the Sequence It Wants to Delete?
On 31 March, the Body of European Regulators for Electronic Communications (BEREC) held its 14th Stakeholder Forum in Brussels. The agenda was pleasant enough: working group meet-and-greets, a session on shaping the 2027 work programme, panels on Europe’s digital framework and the future of connected networks. The usual Brussels choreography.
But behind the agenda lies a question with real consequences: what role is BEREC being set up to play under the Digital Networks Act (DNA)? And does that role serve the open internet, or is net neutrality simply the sequence the DNA’s authors would prefer to quietly edit out?
This is the fourth piece in our ongoing series on the DNA. If you missed the earlier posts, we looked at the “voluntary” conciliation trap, the level playing field fiction, and what Germany’s net neutrality saga taught us about regulatory failure.
From Referee to Rulemaker
Under the current Open Internet Regulation (OIR), BEREC’s job was essentially interpretive. It published guidelines that national regulatory authorities (NRAs) used to assess complaints, evaluate traffic management practices, and handle edge cases like zero rating. The guidelines were influential, but they were soft law. NRAs remained the primary enforcers. BEREC provided the playbook; the national bodies ran the match.
The DNA proposal changes this picture. Open internet access is no longer the star of the show; it becomes one chapter among many, alongside provisions on market access, network deployment, quality of service (QoS), security and universal connectivity. BEREC’s role expands accordingly. It is asked to develop a common template for operator reporting, publish EU-wide syntheses of national enforcement practices every two years, and issue guidelines on how NRAs should implement open internet obligations, including which QoS parameters to use and how to measure them.
None of this is inherently wrong. Consistency across twenty-seven national regulators is a reasonable ambition, and BEREC has generally done creditable technical work. But the shift in institutional architecture matters. The DNA moves from a primarily “defensive” model, preventing degradations and discriminatory practices, to a more “pro-active” one, where regulators may shape the baseline quality of internet access services (IAS) and scrutinise commercial practices against a richer dataset.
The question is: pro-active in whose interest?
The Net Neutrality Continuity Story, and Its Limits
The European Commission has been at pains to present the DNA as continuity-plus. Net neutrality is preserved, the story goes. Article 93 of the DNA, which safeguards open internet access, is recognisably the descendant of Article 3 of the OIR. Users keep the right to access and distribute content and applications of their choice, traffic management exceptions remain narrow, and commercial practices cannot limit end-user rights. The DNA does not introduce any new legal category for zero rating, nor does it soften the underlying principles.
That is true, as far as it goes. But continuity in the text does not guarantee continuity in practice, and it is worth paying attention to where the resemblance ends. BEREC itself flags one early sign of slippage: the DNA replaces the notion of “end-user” with the narrower “consumer” in Article 96 on transparency. It also warns that Member States may lose the ability to introduce additional monitoring or transparency obligations beyond what the DNA prescribes.
The most sensitive area for future-oriented technologies is the regime for “services other than internet access services which are optimised for specific content, applications or services.” This is where 5G network slicing and many enterprise-grade services come into play. The DNA sticks close to the OIR wording here: specialised services are permitted only where optimisation is genuinely necessary, where sufficient capacity for ordinary internet access is maintained, and where such services do not substitute for or degrade that access.
The text has not changed. But the governance has. The real innovation is procedural and institutional. The DNA explicitly empowers the Commission to adopt implementing acts detailing the conditions for offering these optimised services. What was previously clarified mostly through BEREC’s soft law and case-by-case practice may, in the future, be shaped by binding implementing rules at EU level.
The European digital rights group EDRi has criticised the deletion of most OIR recitals from the proposed DNA as reducing legal clarity, weakening citizens’ rights, and creating space for paid prioritisation and other forms of traffic discrimination. Critically, EDRi warns that giving the Commission unilateral power to decide when such fast lanes are allowed would politicise what has so far been enforced by NRAs and BEREC. That should not be read as a minor procedural concern: it’s a description of who loses accountability and who gains discretion.
The principles are not the problem. The implementing acts are likely to be.
The “Sustainability Clause” and Its Convenient Vagueness
The DNA also contains language that telcos have been lobbying for under various names for years, if not decades. The “fair share” framing failed. The “digital sustainability” framing failed. What remains is something more architecturally embedded: a reference in Recital 164 to traffic handover creating “disproportionate or unsustainable investment needs” for receiving public network operators.
The sustainability clause could be used by dominant network operators to extract fees from content and application providers (CAPs), effectively creating a pay-to-play environment. This raises concerns about potential market distortion, increased costs for consumers, and barriers for innovative or smaller providers seeking fair access.
As Rudolf van der Berg noted earlier this month, Vodafone still complains it cannot handle 7 Tbps of traffic in the UK, while BT handles 30 Tbps. If the numbers do not support the grievance, the grievance tends to look for new regulatory containers to inhabit, and the DNA obliges with several.
The Internet Society has identified the sharpest version of this risk: the conciliation facility can generate a paper trail of alleged “non-cooperation” that is later used to argue voluntary arrangements have failed, paving the way for harder rules and network fees. This is how soft-law mechanisms harden over legislative cycles, and it is precisely the dynamic that the DNA’s three-year review clause makes possible.
To be clear: the most careful independent analysis of the DNA’s interconnection provisions finds that an explicit fair share obligation was rejected. Recital 168 specifically rules out national measures that price interconnection based on the “industrial profile” of the requesting party rather than the technical characteristics of the service. And as Innocenzo Genna’s analysis of the DNA’s fair share provisions concludes, Recital 404 can be read as a clear safeguard against turning ordinary over-the-top (OTT) provider and telco commercial disagreements into regulated disputes used as a lever to introduce fair share through case-law or para-regulatory means.
The safeguards exist. Whether they hold under the political pressures of implementing acts, BEREC guidelines, NRA case-by-case interpretation, and a built-in review mechanism designed to assess whether “voluntary” arrangements are working is a different question. The history of this debate does not invite optimism. And at the very least, a lot of energy is likely to be spent on issues that should not be open to discussion.
The CDN Problem Nobody Is Talking About
One element of the DNA that has received less attention than it deserves is its treatment of Content Delivery Networks (CDNs) and the broader ecosystem of providers who sit between internet users and the services they access.
The Body of European Regulators for Electronic Communications is tasked with issuing best-practice guidelines to encourage cooperation between internet service providers (ISPs) and CAPs and CDNs, including co-deployment of caches and edge computing resources. This sounds like a reasonable efficiency measure. It is not without risk. Voluntary cooperation may translate into unequal bargaining power, where smaller providers have limited leverage to protect commercial interests or maintain independent operations.
ARTICLE 19 has called for the complete removal of the ecosystem cooperation provisions from the DNA, on the basis that where no market failure exists, conciliation and subsequent reviews add no value and serve primarily as a tool for leverage rather than resolution. Removing these articles, the organisation argues, eliminates the risk that they are strengthened during the legislative process into something far more consequential. That last point matters: we are at an early stage of a legislative process, and provisions that look merely unnecessary now can look very different after Council and Parliament have finished with them.
The think tank CEPA adds a structural observation that applies equally here: even a nominally voluntary arbitration or conciliation scheme can quickly become de facto compulsory in practice. Once regulators are formally involved in such processes, the power imbalance is such that regulated companies will experience these interactions as inherently coercive rather than genuinely optional. The word “voluntary” does a lot of work in the DNA. It should not be taken at face value.
The split between telecom networks, telecom services and what runs over them becomes less clear under the DNA’s general authorisation regime, which extends to cover “digital and internet infrastructure and services” alongside traditional telecoms. It does not, on its current wording, impose regulated tariff obligations on CDNs. But it brings them closer to a regulatory architecture designed by and for large network operators. The direction of travel matters, even when you have not yet arrived.
BEREC’s 2027 Agenda, and What Should Be On It
This is the context in which BEREC is being asked to shape its 2027 work programme. The forum agenda included a session on exactly that, chaired by incoming BEREC Chair Alejandra de Iturriaga. The DNA is not yet in force; the legislative process is underway. But BEREC is already being positioned as the technical body that will translate DNA provisions into operational practice, develop the QoS measurement templates, and write the guidelines that NRAs will apply. A useful starting point for anyone tracking the legislative trajectory is the European Parliamentary Research Service (EPRS) briefing on the DNA, published this month, which maps the institutional stakes clearly.
That makes what BEREC does next consequential in ways that go well beyond internal administrative planning.
The Internet Is Not a Telco Product
Europe did not build an open internet by accident. It built one through decades of deliberate architectural choices: separating network infrastructure from services, prohibiting discrimination between traffic, and insisting that the people using the network could decide what ran over it. Those choices were not gifts from telecoms operators. They were fought for, often against telcos, through law, through advocacy, and through regulators willing to hold the line.
The DNA does not tear that architecture down. But it creates enough ambiguity, in specialised services, in ecosystem cooperation, in centralised implementing acts, to let it be gradually hollowed out if the people in the room at BEREC and in the Commission’s implementing act teams are not paying close attention.
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Written by Caroline De Cock, LL.M., Head of Research
