Lifting a regulatory millstone around 5G investors’ neck – 5G network slicing versus EU-net neutrality?

Highly quality-sensitive 5G use cases, such as metaverse-type applications, connected and autonomous driving or digitalised health applications, are the future of the mobile internet. These use cases will rely on 5G network slicing technology to ensure scalability and individually calibrated Quality of Service (QoS) levels. New electronic communications services ensuring specific QoS levels are subject to EU-net neutrality rules laid down in Regulation (EU) 2015/2120 and are currently being assessed by national regulatory authorities (NRAs) on a case-by-case basis. As acknowledged by the European Commission (EC) in its recent report on the implementation of the provisions of Regulation (EU) 2015/2120, this case-by-case approach results in legal uncertainty and acts as barrier to investments and innovation. In particular, it is often unclear to internet service providers (ISPs) if innovative quality-sensitive content, applications or services may be delivered via specialised services in accordance with Article 3 (5) of Regulation (EU) 2015/2120. The purpose of the article is to show a way to enhance legal certainty in the application of Article 3 (5) of Regulation (EU) 2015/2120 while preserving the fundamental digital rights of end-users regarding equal and non-discriminatory treatment of data traffic by ISPs as well as transparency. Specifically, striking this delicate balance could be achieved by introducing rebuttable presumptions to shift the burden of proving that “optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality” (Article 3 (5) subpara. 1 of Regulation (EU) 2015/2120) and that specialised services are “not […] to the detriment of the availability or general quality of internet access services for end-users” (Article 3 (5) subpara. 2 of Regulation (EU) 2015/2120) away from ISPs and towards NRAs.