The Kobosko draft report on the Digital Networks Act (DNA) reopens the debate over “fair share”: mandatory contributions by large online providers towards telecommunications networks. It does so not by expressly introducing a network fee, but by extending interconnection negotiation obligations – and binding regulatory dispute resolution – to a new category of “significant traffic providers”.

I personally oppose mandatory network fees for various reasons that I commended in previous articles. Yet the question here is not simply whether one supports their underlying policy objective. It is whether the proposed Kobosko’s provisions provide a sufficiently clear legal framework for pursuing it – and what consequences they may produce even if they ultimately fail to establish a financial contribution.

Fair share has often been presented as something that could be introduced through a short legislative amendment or delivered through a simple regulator’s decision. In reality, it requires difficult choices about beneficiaries, eligible costs, allocation methods, existing infrastructure contributions and safeguards. Referring the matter to a regulator does not make those choices disappear.

Kobosko is right about one structural point: changing the interconnection framework a more correct approach in case you intend to justify a mandatory network fee on the basis of the traffic dimension criterion, while the non-binding ecosystem cooperation provisions proposed in the DNA (articles 191–192)) are completely irrelevant in this respect. Nevertheless, even the new interconnection regime envisaged by MEP Kobosko is still far from delivering a significant result, since it leaves a critical gap between three distinct legal concepts which, instead, should be combined properly to ground a potential network fee regime: an obligation to negotiate, an obligation to interconnect, and an obligation to finance another undertaking’s network.

1. Kobosko’s proposal is not sufficient for fair share, but creates a new obligation

Amendment 184 defines a “significant traffic provider” as an undertaking which, alone or at group level, originates or delivers at least 2% of total downstream traffic delivered to end-users in the Union, measured on average during peak hours over the preceding calendar year. The definition applies irrespective of establishment or status as an electronic communications provider. Traffic delivered through third-party CDNs or transit providers is attributed to the originating undertaking and counted only once.

The definition only creates, via the combination with other DNA articles, an obligation to negotiate interconnection, not a payment obligation. Its significance emerges from the associated Kobosko’s amendments: amendments 379-380 extend the obligation to negotiate interconnection under Article 66 to these providers, while amendment 545 expressly brings disputes involving them within Article 189’s binding dispute-resolution mechanism. That mechanism remains linked to “existing obligations under this Regulation” (in so referring to public networks obligations).

The Kobosko package therefore has real legal effects. The question is which substantive obligations a regulator could enforce – and which remedies it could lawfully impose.

2. An obligation to negotiate is not an entitlement to the agreement sought

The judgment in TeliaSonera Finland, Case C‑192/08, provides a useful starting point. Under the earlier EU framework, the Court distinguished the general obligation to negotiate interconnection between public network operators from specific regulatory powers directed at undertakings controlling access to end-users. It also recognised the importance of genuine, good-faith negotiations.

The judgment does not determine how the future DNA would be interpreted. Its relevance is more basic: requiring an undertaking to negotiate does not automatically entitle its counterparty to the contract, network configuration or price it prefers.

An order to begin or resume effective negotiations is therefore one plausible consequence of the Kobosko package. An obligation to enter into paid peering is not an automatic consequence. Nor, however, should the package be dismissed as incapable of producing decisions on economic terms: regulatory dispute resolution may have substantive effects within the powers conferred by the legislation. Interconnection costs are contemplated, as far as they are necessary and proportionated to enter into a mandatory interconnection agreement. However, as we said, a duty to negotiate is other than the obligation to interconnect.

3. Compulsory interconnection requires its own legal justification

The European Electronic Communications Code distinguishes the general obligation to negotiate from powers to impose specific obligations. Even without a significant market power designation, regulators may impose obligations on undertakings subject to public networks authorisation that control access to end-users, where necessary to secure end-to-end connectivity. In justified cases, these may include an obligation to interconnect networks. The DNA broadly carries forward this architecture.

The distinction matters. An authority’s power to resolve a dispute does not dispense with the need to identify the substantive basis and conditions for the remedy sought.

“Significant traffic provider” status does not, by itself, establish control over access to end-users. The 2% threshold measures an undertaking’s weight in traffic flows, while control of access concerns its functional position in making users reachable. The legislature may attach obligations to the former, but that does not automatically satisfy the conditions attached to the latter.

As an example, let’s consider a (significant traffic) provider already delivering traffic through a transit provider or CDN, with services fully reachable. Against this background, a telco requests a direct paid connection and a contribution towards its investments. The question is not merely whether the provider must negotiate. It is which provision authorises the regulator to replace a functioning delivery arrangement with the telco’s preferred arrangement, and on what basis payment could be required.

Amendment 184’s attribution rule answers a threshold-calculation question. It does not, by itself, prohibit transit, require direct interconnection or create a debt towards every receiving network. Genuine capacity, quality or interoperability problems might justify intervention, but both the problem and the legal basis for the remedy would have to be established. They cannot simply be inferred from the provider’s size.

4. Interconnection remuneration is not the same as network funding

Article 189 DNA, as amended, would expressly cover disputes between telco operators and significant traffic providers. It would not expressly establish an independent obligation to contribute to telco investment or identify the network costs those providers must bear. Expanding the parties subject to dispute resolution does not settle the legal basis of every financial claim they might face.

Payment for a specific interconnection or transport service is one matter. Its price may be commercially agreed and, where the relevant jurisdiction and substantive powers exist, become the subject of a regulatory decision. Likewise, a regulator may need to determine technical and economic conditions to make an applicable obligation effective.

By contrast, a general contribution towards access-network investment, demanded merely because an undertaking originates or delivers substantial traffic, is a different proposition. It requires more than an obligation to negotiate.

The proposed recitals reinforce this distinction. Recital 164a identifies matters such as interconnection capacity, routing, traffic forecasts and cache placement. Recital 164b expressly states that negotiations do not have a predetermined outcome and may produce settlement-free arrangements. Payment to the telco is therefore not presented as the necessary result.

References to investment needs and bargaining asymmetries may support a more interventionist interpretation. But they do not specify who must pay whom, for which costs or under which allocation method. They are not, in my view, sufficient on their own to establish a general entitlement to network-investment contributions.

The objection is not to every regulatory decision with financial consequences. It is to treating the determination of specific interconnection terms as equivalent to creating a network-funding regime.

5. Legal uncertainty can itself encourage disputes

The Kobosko package’s potential harm does not depend solely on whether a regulator eventually upholds a fair-share claim. An enforceable negotiation obligation, combined with binding dispute resolution and uncertainty over economic remedies, could change commercial incentives before any definitive interpretation emerges.

For a telco, the prospect of obtaining additional revenue through a regulatory decision may make a claim commercially attractive even where its legal foundation is uncertain. If the expected return exceeds the costs of pursuing it, litigation – or the threat of it – can become a rational strategy. A favourable decision or settlement obtained by one operator could encourage others to pursue similar claims.

This does not mean executives would be legally required to litigate, or that every claim would be abusive. It means the framework could create competitive pressure to test the regulator’s willingness to award payments. The commercial question might shift from how best to deliver traffic to why an operator should forgo a potential revenue stream available to its competitors.

The effect need not depend on winning. Providers might accept payments to avoid procedural costs, uncertainty and multiple proceedings. Such settlements would not necessarily demonstrate either a market failure or the economic merits of the underlying claim: they could just reflect the cost of resisting it.

Divergent national interpretations could compound the problem. Without sufficiently defined boundaries for economic remedies, legitimate differences in regulatory approach could produce inconsistent outcomes and fragmented interconnection conditions.

These are risks, not inevitable consequences. But they belong in the assessment of the amendments. A regime may impose costs even when the most ambitious claims ultimately fail: resources diverted to disputes, less predictable agreements and greater uncertainty over capacity and investment planning.

6. Conclusion

The Kobosko package creates an enforceable obligation for significant traffic providers to negotiate interconnection. It does not establish with comparable clarity either an obligation to interconnect directly or a telco entitlement to access-network investment contributions. Extending regulatory dispute-resolution jurisdiction cannot, without a further substantive foundation, be equated with introducing fair share.

The central weakness is therefore not an absence of legal effects, but an insufficiently defined transition from compulsory negotiation to financial contribution.

That uncertainty does not make the proposal harmless. It could encourage claims and alter bargaining positions even where existing traffic-delivery arrangements function adequately.