— By Innocenzo Genna, Legal specialist in EU digital policy, competition and liberalization regulations
- The state of the debate in Europe
The European debate on fair share finds itself in a dormant phase. After the considerable momentum driven by European Commissioner Thierry Breton between 2022 and 2023, prospects for possible legislative proposals suffered a sharp setback in October 2023, when European governments, meeting at the Telecom Council in Léon, expressed a predominantly opposing view. From that moment, the idea of European fair share regulation entered a regressive phase: whilst still referenced in some important official documents, particularly in the European Commission’s White Paper on connectivity and the Draghi Report on competitiveness, the fair share theme appeared more as an echo of supporting stakeholders’ wishes than as a convinced institutional direction. Within the Commission, fair share began losing its driving force, whilst remaining on the institution’s table as a legacy of the Breton agenda, while the new commissioner Virkkunen no longer championed the debate.
It should be noted, however, that a European fair share proposal has never actually existed. The debate arising from Breton’s media activism never materialised into a formal or even preliminary document – in other words, it never went beyond discussions of mere principle, for example with an impact assessment of a specific model. This was due partly to differing views on the practical implementation of fair share among the very telcos supporting it; partly to BEREC’s intervention, which with a detailed 2022 opinion highlighted inconsistencies and contradictions in Commissioner Breton’s narrative, making it clear how difficult it would be to realise a concrete proposal.
It should come as no surprise, therefore, that European governments, meeting in Council, then took a definitive position on the matter: in the Hungarian Presidency Conclusions on the White Paper, paragraph 29 states that any intervention in IP interconnection markets should be justified by “deficiencies”, meaning a malfunction of the IP interconnection market recognised on the basis of economic analysis, not political narratives. In other words, the Council closes the door on fair share understood as a political solution to reallocate, within the Internet ecosystem, costs and investments deemed incongruous by certain stakeholders.
To the cooling at European level must be added recent tensions between the EU and the USA. The new Trump administration has indeed indicated network fee mechanisms (the American term for “fair share”) as a potential barrier to US trade, as such susceptible to retaliation through tariffs. According to the White House, the new trade agreement between the EU and US, announced on 28 July 2025, will include a commitment whereby “the European Union confirms that it will not adopt or maintain network usage fees”.
This should not lead to the conclusion that the fair share debate has definitively sunset within the EU. Being a cyclical debate – and indeed we are already at the third round, after discussions already held at the OECD in the 1990s and at the ITU in 2012 – nothing prevents relevant proposals from reappearing in the near future, when political conditions allow.
In this regard, it’s worth remembering that the European Commission will present, by the end of 2025, a reform proposal for the European electronic communications regulatory framework called the “Digital Network Act” (“DNA”). At present, we don’t know whether a fair share mechanism will be part of it. The European consultation prospect for the DNA mentions a rather vague and cryptic phrase about how the DNA might confer on BEREC or national authorities the competence to intervene to facilitate a sort of “cooperation” between various actors in the “broader connectivity ecosystem”. It’s unclear, however, what the Commission now has in mind: by introducing a new term, that of “cooperation”, and abandoning the classic models on which the fair share debate had developed, which were based on regulated payments linked to IP interconnection or universal service, the Commission seems to be orienting towards a new path, whose terms are unknown. It’s also possible that the theme is destined to be traded, when negotiations arrive in the co-legislation process, with other topics for which there are greater hopes or ambitions for agreement.
- The recent Italian case: AGCOM and CDNs
The latent cyclical nature of fair share means that stakeholders continue to keep the debate alive, even in the absence of a determined legislative agenda on the point. It’s unsurprising, therefore, that strong discussions arose in Italy when, recently, regulator AGCOM launched a public consultation on the regulatory treatment of CDNs, also to verify their subjection to authorisation rules. Some have feared, others hoped, that the initiative constituted the antechamber to a new legislative framework that, by equating CDNs to public networks, would effectively subject such infrastructures to an obligation to contribute in favour of telcos (following interconnection disputes devolved to AGCOM itself).
Regardless of what AGCOM’s plans might be, it’s worth noting that the Italian regulator appears to have moved within the scope of current regulations, namely the current European Electronic Communications Code, without exceeding its limits. Therefore, if fair share were to emerge, it would be because it’s already provided for by the European Code, not through AGCOM’s legislative innovation.
However, it’s highly doubtful whether the European Code, in its current form, can allow the introduction of national fair share through the interconnection dispute mechanism, as some consultation commentators fear (or hope). Indeed, European interconnection regulation, consolidated for over 20 years and currently expressed in Article 61 of the European Code, aims to facilitate interconnection between networks and therefore end-to-end connectivity, but not to compensate potential investment or profitability imbalances within the Internet ecosystem. Regulatory authorities therefore intervene to facilitate interconnection and guarantee it when unjustifiably refused, not for other purposes. Regulatory intervention can also be invoked to establish interconnection costs, but this is a rare event, because the vast majority of transactions are settlement-free, as the interest in efficient, high-quality connectivity prevails over potential recovery of interconnection costs (whose amount is anyway moderate and moreover capped by the IP transit market). The market also shows situations of paid peering; when tariffs are too high, especially from dominant ISPs, such cases may actually conceal genuine refusals to contract, and therefore potential antitrust abuses, hence the rare disputes.
In any case, in case of disagreement on interconnection costs, there’s no clear legal basis in the European Code to justify payment of a sum going beyond mere interconnection costs, for example in the form of a contribution to infrastructure investments from one company to another. The fair share narrative is alien to the purpose of interconnection as we know it, indeed appears antithetical, since the litigiousness arising from a fair share model based on interconnection disputes would prejudice the rapid and efficient end-to-end connectivity that European interconnection regulation would instead guarantee. In other words, regardless of one’s opinion on fair share, to implement it today through an interconnection dispute would require, preliminarily, a modification of the European Code changing the scope and purpose of classic interconnection.
A different discourse can be made for cases where a content provider might be called upon to make a series of investments, also in cooperation with telecommunications networks with which it interconnects, to guarantee stability and service quality to end users, as happened in Italy with the DAZN case. This wouldn’t be an interconnection dispute or fair share issue, but simply the application of obligations incumbent on a public network operator for transmitting its own content.
- Jurisprudence on interconnection, and the Deutsche Telekom/Meta case
The framework described above appears confirmed by the (rare) jurisprudence on interconnection disputes, generally concerning cases of refusal to interconnect or manifestly abusive costs by some dominant telcos (in Germany, Netherlands, France and Switzerland).
This also applies to the recent Deutsche Telekom/Meta case, normally invoked inappropriately in political or lobbying debates on fair share. It was actually a mere civil, not regulatory, dispute. Deutsche Telekom and Meta ended up before the Cologne judge because the former unilaterally increased peering tariffs to the latter, which, instead of disconnecting and opting for an alternative (namely delivering traffic directed to Deutsche Telekom in transit) continued using the German ISP’s services, believing, pending the dispute’s outcome, it could continue relying on old peering tariffs. The judge ruled against Meta based on simple civil motivations, certainly not on a fair share principle. Put briefly: “If you don’t agree with a new price you must leave, you can’t continue using the services”. Meta, however, chose to take the risk and remained “interconnected” to Deutsche Telekom, probably because it relied on the general market practice of peering based on free-settlement (which is practice, not a legal rule) and on the fact that certain Deutsche Telekom behaviours are potentially censurable as a dominant undertaking on access. This latter point was likely rejected by the German judge because Meta could realistically route traffic alternatively, namely by buying an IP transit service (which Meta indeed eventually did). However, the possibility that a dominant ISP might commit abuses through restrictive or unclear peering policies remains current and had already been evoked by French antitrust in one of the first leading cases in this matter, the 2012 Cogent/Orange case.
In conclusion, the Deutsche Telekom/Meta case was not regulatory litigation for fair share recognition, but a simple civil and contractual dispute concerning payment for services already provided.
- Conclusions
Current European interconnection rules don’t allow forcing a party, whether content provider or electronic communications operator, to repay the other operator’s infrastructure investments with whom it peers, beyond mere interconnection costs. Parties are free to establish tariffs and possibly not interconnect at all, if alternatives exist for routing traffic, and this is why disputes are very rare.
Going beyond this legal framework would require explicit revision of European interconnection rules, thus hypothesising an amendment specifying, as interconnection’s purpose, investment compensation by one party towards another, not simply implementing interconnection between networks. This would be a delicate hypothesis because it would introduce into the peering market a variable of litigiousness that would significantly impact its functioning. Moreover, the principle of investment compensation – absolutely subjective and susceptible to arbitrary applications – might in future prove a boomerang for telcos should certain OTTs want to assert and put on the table their own investments in cloud, AI, software and submarine cables.
It follows that European fair share in the interconnection field would be implemented in genuine terra incognita and should therefore be evaluated with great attention, as indeed recommended by the Council in the aforementioned Hungarian Presidency Conclusions that precisely “brake” on fair share.
Possibilities remain open for imposing fair share by other means, for example through retaliation in the context of the American tariff war or through establishing an ad hoc fund along the lines of that for universal service. But these too would be absolutely unique innovations with currently unpredictable impacts.
It cannot be ruled out, however, that disputes might increase in future due to growing market concentration, both on the telecom and Internet sides. This might concern dominant ISPs applying increasingly restrictive peering policies, against whom judges or antitrust authorities might hypothesise abuse of dominant position regarding termination monopoly; but also against a dominant OTT (perhaps designated as gatekeeper under the DMA) which might be challenged for abusively imposing free peering despite objective interconnection costs that counterparts must bear.
