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Miranda Cole is a partner based in the firm’s Brussels office.  She practices competition and communications law and policy, and has more than 15 years of experience in the field.  Ms. Cole’s competition law expertise encompasses merger control, actions under Articles 101 and 102 TFEU, advisory work and actions before the European courts in Luxembourg.

She has particular expertise in advising companies active in the technology and communications sectors in complex and strategic regulatory and policy matters, with particular expertise regarding the impact of evolving regulatory frameworks on new technologies and services.  In the communications sector she has extensive experience advising in connection with all aspects of European and international regulation, policy and competition law, and counselling in connection with the impact of regulation on transactions.

In the context of its Digital Single Market (“DSM”) Strategy for the European Union (“EU”), the European Commission (“Commission”) published a proposal for an updated Audiovisual Media Services Directive (“AVMSD” or the “Directive”) on 25 May 2016 (the “Proposal”).  In its Communication on the DSM Strategy, the Commission indicated it would review the AVMSD “with a focus on its scope and on the nature of the rules applicable to all market players, in particular measures for the promotion of European works, and the rules on protection of minors and advertising rules.”

Despite a few novelties, the Proposal is generally less far-reaching than expected.  Vice President Ansip explained that, to offer the legal certainty companies need in the audiovisual sector, it is necessary to maintain “existing rules that work” while “deregulating where necessary for traditional sectors like broadcasting […] to improve user protection and to reach a level-playing field.”

The Proposal continues to seek to achieve minimum harmonisation, such that Member States may impose stricter rules (e.g., on advertising).  Therefore, there is no guarantee that the Commission’s aim to align the regimes applicable to all audiovisual media services and provide more flexibility to TV broadcasters will be fulfilled.


Continue Reading The European Commission’s Legislative Proposal on Audiovisual Media Services

In the context of its Digital Single Market (“DSM”) Strategy for the European Union (“EU”), the European Commission (“Commission”) published a Communication on Online Platforms and the Digital Single Market – Opportunities and Challenges for Europe (the “Communication”) on 25 May 2016.  The Communication sets out the Commission’s conclusions and proposals based on the Commission’s Consultation on the regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy (“Consultation”) of 24 September 2015 and a series of workshops and studies.  This note also addresses the Commission’s Communication relating to the collaborative economy published on 2 June 2016.

The Communication makes clear that the Commission will not make broad regulatory proposals encompassing all allegedly potentially problematic aspects of online platforms.  Instead, the Commission proposes a problem-driven approach, such that intervention is only triggered in specific circumstances.  As a result, the Communication provides a road map and some general principles that should guide future intervention.

This more cautious approach may reflect concerns raised by the Commission’s competition directorate, and others, about over-broad regulation in the absence of a clear problem.


Continue Reading The European Commission’s Approach to Online Platforms and the Collaborative Economy

On 25 May 2016, the European Commission (“Commission”) unveiled a package of measures in the context of its Digital Single Market (“DSM”) Strategy for the European Union (“EU”) that included four legislative proposals designed to boost e-commerce in the EU by tackling unjustified geo-blocking, cross-border parcel delivery, consumer protection and EU audiovisual rules.  The package also includes a communication on online platforms, commented here.

Overall the package is more cautious than might have been expected given some of the rhetoric a year or so ago.  The Commission appears to be concerned about interfering unduly with existing market structures and practices, and possibly also about the perpetually difficult interaction between intellectual property and competition law.

One consequence of the package may be that ongoing competition investigations and sector inquiries could have more impact on markets in the short-term than legislation.

Certain aspects of this package will be discussed in three separate notes.  This note focuses on the Commission’s legislative proposals on geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market (the “Proposed Regulation”).  The second note addresses the Commission’s proposals relating to online platforms, and the third the Commission’s proposed revisions to the Audiovidual Media Services Directive (“AVMS”).


Continue Reading The European Commission’s Legislative Proposal on Unjustified Geo-Blocking

By Miranda Cole, Jennifer Boudet and Jérôme de Ponsay

With the European Commission’s recent Digital Single Market (“DSM”) Strategy for the European Union (“EU”) announcements (including several legislative proposals and a Communication on Online Platforms and the Digital Market), a number of the Member States are also very active on the issues.

Since the German

On 27 October 2015, the European Parliament adopted the new Telecoms Single Market legislation without a number of proposed amendments relating to net neutrality.  As a result, while the Regulation requires Internet service providers (“ISPs”) to “treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment,” it provides for the following exceptions to this principle:

  1. ISPs may offer “specialised services” (e.g., IPTV, high-definition videoconferencing and healthcare services) to the extent that this does not have an impact on the general Internet quality.
  2. ISPs may decide not to count capacity used in connection with certain sites or applications towards a consumer’s capacity usage (“zero rating”), subject to a non-discrimination obligation.
  3. ISPs may implement reasonable traffic management measures based on the “different technical quality of service requirements of specific categories of traffic.”  These measures should not be based on commercial considerations.
  4. ISPs will be able to impose traffic management measures to prevent “impending network congestion”.

The four rejected amendments related to these exceptions: network discrimination, equal treatment of all Internet traffic, the potential role of ISPs as gatekeepers, and the use of traffic management other than in connection with congestion.


Continue Reading Rules on Net Neutrality and Roaming Charges Finally Adopted

On 17 June, the UK Competition & Markets Authority (“CMA”) published its report on the commercial use of consumer data collected by companies.  The CMA began its review of the issue with a call for information in January.

In short, the CMA concludes that, while consumer data presents some characteristics that sets it apart from other data, these characteristics are not unique to consumer data and the markets in which it is collected and used.  As a result, existing competition and market tools are effective to tackle conduct that may give rise to competition concerns in these markets.  The German Monopolies Commission reached a similar conclusion in its digital markets report published on 6 June.


Continue Reading UK CMA Publishes its Report on Commercial Use of Consumer Data

Digital markets are currently the focus of much attention in the European Union (“EU”).  The European Commission recently unveiled its Digital Single Market Strategy, which incorporates DG COMP’s e-commerce sector inquiry.

The issue of the regulation of digital markets, potentially beyond the application of competition law, is also being discussed at national level.  On 1 June 2015, the German Monopolies Commission (“MC”) published its report on digital markets (“Competition Policy: The challenge of digital markets”), with a summary in English.  Generally, the MC takes the position that there is no need for a significant modification of the current legal framework, but suggests increased enforcement of the rules.  In an interesting coincidence of timing, Commissioner Vestager recently expressed caution about adopting new regulation of online platforms that might be overtaken by market developments.  This post provides an overview of the key elements of the MC report.
Continue Reading German Monopolies Commission Publishes its Report on Digital Markets

The Regional Court in Hamburg rejected complaints by newspapers Zeit Online and Handelsblatt seeking to have Eyeo GmbH prohibited from selling its AdBlock Plus software. The ruling establishes the important principle that ad-blocking is legal, however there are other cases pending against AdBlock Plus in Germany that suggest that there may be more to come on this issue.

The publishers sought injunctive relief, arguing that AdBlock Plus illegally interfered with their ad-based online business models. AdBlock Plus allows users to block ads by tracking software and malware using a browser plugin which permits some “acceptable ads” to pass through the software’s filter mechanism (the so-called “white-list”). This practice was criticized as being discriminatory by media firms, as Eyeo GmbH gets paid by certain companies to put their ads on the whitelist (i.e. Google, Microsoft and Amazon.com). Users can modify the filter to block all ads.

The Court dismissed the action. The Court concluded that AdBlock Plus does not amount to an anti-competitive restriction of online offers financed through advertising. However, the full reasoning of the Court has not been published yet.


Continue Reading Ad Blocking Declared Legal: German Court Dismisses Discrimination Claims Brought by Publishers, but AdBlock Plus Maker Eyeo is Not Home Free Yet

On 20 April 2015 the Dutch Authority for Consumers and Markets (“ACM”) published new guidance regarding its enforcement priorities in relation to distribution agreements, noting that its enforcement efforts will be focused on agreements having the most significant impact on consumer welfare.  The 28-page document explains that before opening an investigation, the ACM will first