On Tuesday, January 20, the European Commission will publish the long-awaited proposal on the Digital Networks Act (DNA) — the initiative to reform the EU regulatory framework for electronic communications, which dates back to 2016. Based on the leaked drafts that have circulated in recent days, some of the proposal’s main features can already be outlined.

The new DNA appears fairly cautious regarding access and competition rules for telecom networks. It introduces evolution, not revolution – significant updates and adaptations, but nothing radical. It is clear that Virkkunen’s approach marks a departure from that of the previous Commission under Breton, which was largely shaped by the financial analyses of the Letta and Draghi reports. The earlier push for aggressive deregulation and, above all, for market consolidation has subsided. Operators remain free to merge, in compliance with antitrust law, but the creation of “European champions” will now be a business choice rather than a political imperative. Virkkunen’s Commission seems to have taken to heart the signals sent by Member States—both through the Council Conclusions of 6 December 2024 and in several multi-governmental papers circulated ahead of the DNA’s release.

The most significant innovations concern spectrum policy. The Commission reaffirms a coordinating role over spectrum allocation and usage conditions across Member States, going as far as to assert a genuine veto power over national measures. The proposal even foresees an exclusive EU competence over spectrum and European satellite services particularly with respect to global constellations such as Starlink and Amazon’s Kuiper. The spectrum licensing regime is also reformed: licences would become indefinite in duration but revocable by national governments. It is too early to say whether this framework will be welcomed by major industry players, many of whom have in recent months advocated instead for fixed-term allocations.

On telecom/OTT regulation, there are some notable – though not radical – updates concerning authorisations, net neutrality, and interconnection. However, the proposal contains no provision for “fair share” payments or levies from OTTs to telcos. The impact of the new rules will require careful examination once the full text is published.

Some OTT players are already raising alarms about threats to business freedom and the open internet, but these protests appear largely rhetorical, without detailed reference to the actual provisions or interests at stake. The reality is that the electronic communications market has evolved: the infrastructures of telcos and cloud providers are increasingly interlinked. This does not mean the two sectors have commercially converged or are in direct competition, as the Commission’s White Paper once suggested. From a technological and infrastructural perspective, telecoms and cloud services remain distinct. Yet it is increasingly difficult to treat them separately when addressing cross-cutting concerns such as security (as seen with NIS2), the fight against illegal content, or technological sovereignty, just to make few examples. Protecting these interests cannot stop at telecom networks alone while ignoring the data processing and storage phases in data centres for the same services. It makes little sense for some infrastructures to fall under national regulatory jurisdiction while others do not. Against this backdrop, the evolving EU framework on general authorisations and interconnection can be understood as an effort to bring telcos and cloud providers under a more integrated regulatory umbrella.

As a legacy of three exhausting years of fair share debate, the DNA proposal introduces mechanisms for voluntary cooperation between OTTs and telcos, with regulators and BEREC acting as neutral facilitators to convene conciliation meetings on technical or commercial agreements. This is complemented by non-binding BEREC guidelines designed to promote best practices for cooperation and efficient service delivery, while clarifying the boundary between technical interconnection and regulatory obligations to ensure legal certainty. Although this is not a fair share system, I remain sceptical about the usefulness and proportionality of such a complex mechanism in a market where operators already negotiate commercially. The main risk is that the guidelines could be distorted or instrumentalised to reintroduce, through the back door, a fair share framework that history has already rejected.

Here is a brief analysis of some specific aspects emerging from the leaked Digital Networks Act (DNA) proposal:  

1. Legal form of the DNA

The DNA will take the form of a Regulation, with direct application and only limited room for national adaptation – no longer a Directive, like the current European Electronic Communications Code. Several Member States had opposed this move, fearing a disruptive overhaul that, in the end, did not materialise.  

2. Wholesale-only regime

The preferential regime for wholesale-only operators is retained (Article 84 DNA, corresponding to Article 80 of the current Code) with only minor adjustments that will require closer examination. This is a significant outcome, as the Commission had previously considered removing this regime under vague “simplification” arguments.  

3. Copper switch-off

The mandatory copper switch-off will apply only from 1 January 2036, with the final sunset date set at 31 December 2035, subject to possible exceptions (Article 58 DNA). Before that date, Member States are required to proceed with the switch-off only in areas where (i) FTTH coverage reaches 95% and (ii) retail prices remain affordable. This represents a rather generous compromise, given that several countries had opposed a binding copper switch-off.  

4. Single Market objective

Among the main objectives (Article 3(1)(b) DNA), the text explicitly mentions the creation of a Single Market for telecom services, reflecting for the first time a clear vision of pan-European services: enabling the management of cross-border networks, the development of trans-European digital infrastructure, and the provision of innovative services.  However, key enablers for such pan-European operation are still missing: the roaming regulation remains outside the reform’s scope, and the rules on functional and structural separation (Articles 77 and 78 of the Code) are abolished. The DNA nonetheless introduces an EU numbering scheme (Article 47) and a form of harmonised broadband wholesale access across the Union (Article 81).  

5. Fair share

The DNA contains no provision imposing fair share payments or mandatory compensation from OTTs to telcos—whether via direct contributions or regulatory dispute resolution. However, Articles 193–196 DNA aim to facilitate cooperation between OTTs and telcos on industrial, technical, and commercial matters to deliver telecom and Internet services “efficiently, optimally, and reliably,” and to support innovation.  BEREC will issue non-binding guidelines and act as a neutral facilitator in voluntary conciliation procedures. This does not amount to fair share, but it is a rather complex and baroque mechanism that could be open to interpretive abuse, albeit with BEREC providing a stabilising role. 

6. Network access and fibre regulation

The rules on network access remain largely unchanged. The framework continues to focus primarily on vertically integrated operators, keeping the wholesale-only model comparatively attractive.  The provisions on functional and structural separation are repealed, though they were never effectively applied in practice. Operators wishing to separate their networks have always been free to do so voluntarily.  

7. Spectrum

The Commission assumes a veto power over national decisions on spectrum management (Article 31 DNA), contrary to the position of several Member States, which insist spectrum remains a national competence.  The DNA introduces “unlimited” spectrum licences, subject to review and possible revocation by Member States every five years. Moreover, the Commission would hold exclusive competence for spectrum and satellite services at European level (except purely national satellites).  

8. Net neutrality

The core principles of net neutrality are preserved, with a slightly expanded and updated regulatory framework. Article 94 DNA (corresponding to Article 3 of the current Net Neutrality Regulation) maintains the fundamental rules but seeks to provide greater legal certainty for specialised services (such as 5G slicing) through future implementing acts by the Commission.  

9. Interconnection  

Interconnection rules undergo meaningful but not radical changes. The new definition (Articles 2 and 33 DNA) removes the term “public”, potentially widening the scope of infrastructures eligible for regulated dispute settlement. This could, in theory, extend interconnection beyond public networks to include private infrastructure.  

Some OTTs and hyperscalers may interpret this as a worst-case scenario, fearing that regulators might treat their private networks as telecom infrastructures and use interconnection rules to advance de facto fair share outcomes.  However, this reading is not fully convincing. Broadening the concept of interconnection simply reflects the hybrid nature of modern network architectures, where cloud, connectivity, and content delivery have become deeply intertwined. Aligning regulation with this technological reality does not automatically convert private networks into regulated utilities. 

Most importantly, any fair share-type obligation would require a clear legal mandate within the DNA itself – something not evident from the current drafts. The recital 427 DNA even acknowledges that traffic exchange agreements between telcos and OTTs generally function effectively on a commercial basis, reinforcing the non-coercive character of the measure.  

10. General authorisations  

Article 9 DNA extends the general authorisation regime for telecom operators to include digital and Internet infrastructure and services. This could mean that cloud providers and CDNs would also need to obtain national authorisation, thereby becoming subject to national regulators and law enforcement oversight. This is a major development: OTTs are likely to protest, invoking fair share-related concerns, but this may be more of a tactical move aimed at avoiding any new regulatory scrutiny of cloud operators.