Netzneutralität: Leitbild und Missbrauchsaufsicht

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Abstract Net neutrality is data transportation without differentiation. The superior law is ambiguous about the issue which makes dealing with net neutrality a genuinely political question. The European abuse control has potential to ensure some net neutrality: All network services including data termination are services for consideration consisting of access fees or providing data in exchange for transportation services. Almost all the relevant markets in Germany are dominated, mostly by Deutsche Telekom. Deviations from net neutrality can be addressed by both the Essential Facilities Doctrine and the general categories of Art. 102 TFEU. Discriminatory conduct by dominating companies is prohibited. Though, characterizing certain practices as abusive remains a case-by-case assessment. This results in a fragile and asymmetric level of net neutrality. Antitrust and its abuse control are not sufficient to sustainably guarantee net neutrality. Net neutrality needs to be protected by strict statutory provisions.