Netzneutralität: Regulierungsbedarf?
Authors: Gersdorf Hubertus 
Published: April 2016

Abstract
In principle, all data on the Internet have so far been transmitted on the basis of best-effort, i.e. equally and without change, regardless of content, service, application, origin or destination. Quality of Service (QoS) has not been excluded, but has instead generally been limited to the access network of the Internet Service Provider (access-ISP) (IPTV, VoIP etc.). Now, the ISPs plan to offer such a QoS on the Internet as well by means of various prioritised transport groups. These QoS transport groups are not supposed to displace, but rather to complement the best effort area (QoS and best effort). Hereby the ISP first expect to participate more in the added value of the Internet. Secondly, the problems caused by the bottleneck for timecritical services and other forms of QoS (IPTV, VoIP, gaming etc.) are to be eliminated. Thirdly, various transport groups and various groups of products (IPTV, VOD, interactive services such as gaming etc.) characterised by specific technical features of performance and features of quality are to be composed and marketed by the ISP to the content provider, to the service provider and to the consumer. In order to guarantee such QoS on the Internet, the ISP have to agree on cross-network technical standards for QoS.
Both the European Commission and the German legislator, being competent for transposing the EU directives on telecommunications into national law, take a careful approach to the issue of network neutrality. For the case that ISP limit the access or the use of services the directives provide for transparency rules aimed at guaranteeing the comsumer’s freedom of choice. Beyond that, minimum requirements for the quality of service can be set in order to prevent impairment of services and hindrance or slowdown of data traffic in the nets. Hereby consumers are protected comprehensively. As it stands more regulation is not necessary. The risk of discrimination coming from vertical integration can be addressed by means of sector-specific regulatory law (cf. § 42 German Telecommunications Act - TKG) and by means of general competition law (cf. §§ 19, 20 Act Against Restraints of Competition - GWB, Article 102 Treaty on the Functioning of the European Union - AEUV). The composition of the various QoS transport groups and marketing to the content provider, to the service provider and to the consumer do not as such give rise to a need for regulation. In fact, the formation of (cross-network) QoS transport groups constitutes a pre-condition for consumers booking such QoS on the Internet. However, all content providers and service providers seeking access to QoS transport groups must have such access according to non-discriminatory terms. Such non-discriminatory access can be adequately guaranteed by sector-specific regulatory law and general competition law. At present, subject to the condition of there being a robust and dynamically developing best effort area in addition to QoS transport groups, more regulation is not necessary. However, it cannot be predicted whether the different QoS transport groups will emerge or not. Regulation „at random“ is as pointless as „symbolic regulation“.