The evolution of EU communications law and next generation networks: the limits of legal flexibility

Abstract

This thesis analyses the evolution of the EU legal regulatory framework for electronic communications in light of the changes in the law's technological and business environment, namely the shift to Next Generation Networks (NGN). Using systems theory as its central research method, the thesis explores communications law as a self-referential phenomenon which, despite its internal attempts to promote itself by means of responding to the changing environment, remains locked-in by its own autopoietic structures. This is demonstrated by the law's traditional focus on voice telephony as the essential communications service provided in the public interest. Whereas the idea of 'technological neutrality' has enabled the law to embrace new applied technologies such as VoIP, it could not move its attention away from its autopoietic concepts to NGN-related issues such as net neutrality. Even though legal concepts without reference to any particular technology are increasingly used in regulation, as is the case with competition law images of 'relevant markets' and 'market power', the shift to NGN only remains visible to the law on its 'internal screen'. This becomes evident when the implementation of new technologies fails to achieve the results implied by the legal system, namely effective competition among different access infrastructures. Systems theory keeps a distance from both neo-liberal ideas that ideologically reject regulation, as well as from the autopoiesis of the NRAs' and the Commission's harmonising efforts, which inevitably result in more legal rules. Whereas the 'efficiency' of NGN investments cannot be implied based on the mere absence of ex ante regulation, the expected further proliferation of regulation based on the law's autopoietic programmes, although more cognitively open than before, will not be able to take on board all (possibly desirable) solutions that are not foreseen by the EU legal framework.