The proposed empowerment of the European Commission in Article 93(6) of the Digital Networks Act (DNA) to adopt implementing acts “detailing the conditions for the offering of services other than internet access services which are optimised for specific content, applications or services, or a combination thereof” (so‑called specialised services) raises significant concerns in terms of institutional design and regulatory technique. In substance, the provision would enable the Commission to elaborate, through comitology, the operational criteria for specialised services that are currently defined in primary legislation and elaborated by BEREC through non‑binding, yet highly authoritative, technical guidance.

1. A misdiagnosis of an apparent problem 

At present, the Open Internet Regulation (OIR) and BEREC’s Open Internet Guidelines provide a coherent framework: Article 3(5) OIR permits specialised services where optimisation is objectively necessary to meet specific quality requirements, where sufficient network capacity exists in addition to any capacity used for internet access services, and where such services are neither marketed nor used as substitutes for internet access and do not adversely affect the general quality of internet access services. These substantive conditions have been interpreted and applied by NRAs within a stable architecture in which BEREC’s guidance documents supply detailed, technically informed criteria, including on emerging issues such as 5G network slicing. In this context, the introduction of implementing acts appears less a response to an identified enforcement deficit and more a re‑allocation of interpretative authority from an expert body (BEREC) to a politically exposed institution (the Commission) operating through a politicised procedure.

From the vantage point of EU administrative law, this raises questions of necessity and proportionality. Implementing acts under Article 291 TFEU are intended to ensure uniform conditions for implementing legally binding Union acts; they are not a vehicle for re‑opening essentially technical questions that have already been settled through expert guidance and consistent NRA practice. BEREC itself stresses that its Open Internet Guidelines “already provide strong expert guidance in this area” and that forthcoming guidance on 5G network slicing will further refine the analytical tools available to NRAs. In the absence of evidence that specialised services are being blocked or distorted by regulatory uncertainty, it is difficult to see how an empowerment to adopt implementing acts can be justified as necessary to achieve the objectives of the DNA, particularly simplification and legal certainty.

Moreover, there is no empirical indication that the market is constrained by a lack of granular legal norms governing specialised services. Available experience suggests that the main bottleneck is the business case for specialised services—especially in B2B segments—rather than the legal framework: operators have struggled to develop commercially viable offers that would exploit the latitude already granted under the OIR, rather than being prevented from doing so by regulatory ambiguity. The proposal therefore risks misdiagnosing a commercial deployment problem as a regulatory design gap, and then “solving” it by adding a further, politically charged regulatory layer.

2. Specialised services, B2B contracts and the scope of Net Neutrality

A further difficulty lies in the relationship between specialised services – predominantly B2B – and the underlying rationale of net‑neutrality law. The DNA proposal maintains net neutrality as a fundamental principle of the electronic communications framework and carries over most of the substantive provisions of the OIR. These provisions are anchored in the protection of end‑user rights, pluralism and the openness of the public internet; they are not designed to govern bespoke quality‑guaranteed services negotiated between enterprises or institutional users.

Specialised services – if any – are offered in a contractual environment characterised by sophisticated parties, tailored service‑level agreements and strong reliance on general contract law and competition law as the primary instruments of protection. In such B2B contexts, the classic net‑neutrality concerns – non‑discriminatory access for end‑users, freedom of expression, diversity of content – are structurally less pronounced. Subjecting specialised B2B services to a politically contested implementing‑act regime risks importing a consumer‑protection logic into domains where the relevant interests are different and where the existing combination of contract, competition and general regulatory oversight is likely to be sufficient.

Against this background, a more proportionate and conceptually coherent solution would be to rely on interpretative clarification rather than on implementing acts. The DNA could, in its recitals, make explicit that net‑neutrality obligations are primarily designed to safeguard the openness of the public “best‑effort” internet and do not extend to purely B2B specialised services which do not affect the general availability or quality of internet access services for end‑users. Such a recital‑level clarification would deliver legal certainty for operators and users while preserving the existing division of labour: high‑level legislative norms in Article 93 DNA, technical detail in BEREC Guidelines, enforcement by NRAs. It would avoid the institutional and political externalities associated with an implementing‑act empowerment and would arguably better reflect the underlying teleology of net‑neutrality law.

3. Institutional balance, fair‑share precedent and regulatory volatility

The proposed Article 93(6) must also be read in light of the broader trajectory of EU connectivity policy, including the recent “fair‑share” debate. That episode demonstrated the extent to which net‑neutrality and open‑internet issues can become instrumentalised in wider industrial‑policy conflicts, with strong lobbying from large operators seeking to reshape the cost and value distribution in digital infrastructure markets. By granting the Commission a broad power to adopt implementing acts that “detail” the conditions for specialised services, the DNA would create an institutional venue in which similar pressures could be channelled, with potentially significant consequences for the interpretation of open‑internet principles.

From a governance perspective, this move seems at odds with the DNA’s simplification objective. BEREC already criticises the integration of the OIR into the DNA as incomplete, noting in particular that the OIR recitals – which have played a crucial role as an interpretative tool – have not been taken up. At the same time, Article 93(6) introduces a new layer of implementing‑act detail, superimposed on legislative provisions and BEREC guidance. The resulting architecture risks interpretative fragmentation (between guidelines and implementing acts), marginalisation of technical expertise, and dynamic instability: once the Commission holds an implementing‑act lever, stakeholders will have constant incentives to seek revisions that align specialised‑service conditions with their commercial strategies.

These concerns are partially recognised by BEREC, which proposes that, should the legislator nonetheless consider an implementing‑act empowerment necessary, it ought to be conditioned on an opinion from BEREC that the Commission would be obliged to take “utmost account” of. While such a requirement would help preserve a role for technical expertise, it would not fully resolve the structural problem that essentially technical questions about specialised services are being relocated from a specialised regulatory body to a politically sensitive comitology process. A more balanced approach would therefore be: (i) to integrate the OIR recitals into the DNA, thereby preserving the interpretative acquis; (ii) to reaffirm the centrality of BEREC Guidelines as the preferred instrument for elaborating technical net‑neutrality criteria, including for specialised services and 5G network slicing; and (iii) if an implementing‑act empowerment is retained, to confine it strictly to procedural or data‑collection matters, subject to a strong BEREC opinion and to the fullest possible involvement of Member States in the committee procedure.

In sum, the empowerment contemplated in Article 93(6) DNA appears difficult to reconcile with the principles of necessity, proportionality and institutional balance that underpin the EU’s approach to implementing powers. It risks politicising a domain that is better governed by expert technical bodies, without delivering clear benefits in terms of enforcement or legal certainty, and with potentially destabilising consequences for the evolution of net‑neutrality law.