For a decade, Regulation (EU) 2015/2120 — the Open Internet Regulation — has been the quiet backbone of European digital life. It enshrines the right of end-users to access and distribute information of their choice, prohibits blocking and throttling, and constrains paid prioritisation. As Brussels works through the follow-up to the European Commission's February 2024 White Paper How to master Europe's digital infrastructure needs? and the anticipated Digital Networks Act, that backbone is being pulled in directions it was never designed to bend.
The clearest pressure point is the long-running "fair share" or "sending-party-network-pays" proposal championed by Europe's largest telecoms operators and their lobby ETNO. The pitch is familiar: a handful of content and application providers (CAPs) generate the bulk of consumer traffic, so they should write cheques to network operators to fund infrastructure build-out. The pitch is also, on inspection, in tension with the architecture of the open internet that Regulation 2015/2120 was designed to protect.
What the Open Internet Regulation actually says
Article 3 of Regulation 2015/2120 protects end-users' right to access lawful content and run lawful applications, and obliges internet access providers to treat all traffic equally, with narrow, transparent exceptions for reasonable traffic management. The Court of Justice has reinforced this reading. In the joined Telenor Magyarország cases (C-807/18 and C-39/19), decided in September 2020, the CJEU found that commercial zero-rating practices that favour certain applications by exempting them from data caps are incompatible with the regulation. The Court did not balance the practice against commercial benefits; it read Article 3 as a hard rule.
BEREC, the body that issues guidance under the regulation, has consistently warned that fair-share schemes risk eroding this hard rule. Its preliminary assessment, published in October 2022 and reiterated in subsequent reports, found no evidence that current internet traffic patterns justify a mandatory payment regime from CAPs to ISPs, and flagged serious risks for end-user rights, market entry, and innovation.
Why the economic case is weaker than it looks
Telcos point — correctly — to rising capex needs for 5G and fibre. But the leap from "networks need investment" to "large content providers should be billed for traffic that consumers requested" is doing a lot of work. Several features of the European market complicate the story:
- European consumers already pay for broadband; demanding a second payment from the other side of the connection introduces double-charging for the same packets.
- Large CAPs already invest heavily in content delivery networks, peering, and undersea cables that bring traffic closer to European users, often reducing costs for last-mile ISPs.
- Most peering on the European internet is settlement-free or commercially negotiated. Imposing a mandatory termination charge would convert a competitive, voluntary market into a regulated rent.
- If costs rise for CAPs, they are likely to pass them through — either to consumers, to smaller European publishers reliant on those platforms, or to startups that cannot absorb new termination fees.
South Korea's sending-party-pays experiment is the cautionary tale most often cited in Brussels for good reason: it has been associated with reduced content availability, disputes between domestic ISPs and global platforms, and downward pressure on traffic quality for Korean users. It is not a template Europe should import.
The harder problem: specialised services creep
Beyond fair share, the open internet faces a subtler threat: the steady widening of the "specialised services" carve-out in Article 3(5). The regulation permits services optimised for specific content where quality requirements demand it, but only where this does not degrade the general internet. As 5G network slicing matures, telcos have an incentive to reclassify ordinary internet traffic as premium slices. Without rigorous BEREC oversight, the carve-out can swallow the rule.
The Digital Networks Act is the right place to clarify, not dilute, this boundary. A pro-innovation approach would tighten the evidentiary burden on operators seeking specialised-service designations, preserve Article 3's prohibitions on blocking and throttling, and resist any reopening of the zero-rating settlement reached after Telenor Magyarország.
A proportionate path forward
Europe is right to worry about digital infrastructure. But the answer is not to import a network-tax model that BEREC's own analysis cannot justify on the evidence. A better package would:
- Keep Article 3 of Regulation 2015/2120 intact, including its bar on commercial discrimination and the CJEU's reading of it.
- Channel infrastructure support through technology-neutral mechanisms — state aid frameworks, the Connecting Europe Facility, and spectrum policy — that do not pick winners between ISPs and CAPs.
- Use the Digital Networks Act to harmonise authorisation, spectrum, and rights-of-way rules across the 27 member states, where genuine single-market gains exist.
- Empower BEREC to monitor specialised services and network-slicing practices with stronger transparency obligations.
The open internet is one of the EU's quieter regulatory successes. It is the layer beneath the GDPR, the DSA, and the DMA — the assumption that European users can reach the services they choose at the quality they paid for. "Fair share" sounds reasonable until you notice it asks the regulation to do something it was written to prevent. Brussels should keep the open internet open, and find the money for fibre somewhere else.