📡 Digital Networks Act: when European regulation moves beyond ADR
- MFSD IP ADR CENTER AND ACADEMY
- Feb 4
- 3 min read
📡Digital Networks Act: when European regulation moves beyond ADR
by Pierfrancesco C. Fasano
Introduction
The Digital Networks Act (DNA) is a proposal adopted on 21 January by the European Commission and marks a pivotal step in the evolution of EU electronic communications law. It is not merely a technical update of the telecommunications framework, but a reform that directly affects the regulatory model itself: for the first time, EU legislation explicitly recognises that negotiation, mediation and out-of-court dispute resolution constitute structural instruments of governance for the digital market.
Recitals (398–401) and Articles 188–190 outline a framework in which conflict is no longer treated as an anomaly to be suppressed, but as a natural feature of the market, to be managed through regulated and institutionalised dialogue processes.
From access to justice to regulation through process
Recital (398) clarifies that out-of-court dispute resolution procedures represent a rapid and efficient tool for ensuring the effective protection of end-users’ rights, including not only consumers but also micro and small enterprises. Member States are required to designate authorities or independent bodies as ADR entities, fully compliant with the requirements set out in Directive 2013/11/EU (the ADR Directive).
This approach is reflected in Article 188, which institutionalises ADR in the telecommunications sector, also imposing direct procedural obligations on operators (transparency, complaint handling, cooperation). ADR is therefore no longer a purely optional remedy, but becomes a structural component of sectoral regulation.
Disputes between undertakings: regulatory administrative justice
Recital (399) and Article 189 introduce an even more advanced model. In the event of disputes between network or service operators within the same Member State, the national regulatory authority is required, upon request of a party, to adopt a binding decision within fixed time limits and on the basis of efficient procedures.
Here mediation gives way to a genuine quasi-judicial function of the regulator: private disputes are absorbed into the public regulatory sphere and resolved in light of the general objectives of the Regulation. Telecommunications law thus becomes one of the few areas in EU law where dispute resolution is an integral part of industrial policy.
Cross-border disputes and the role of BEREC
Recital (401) and Article 190 complete the framework by introducing a multi-level procedure for disputes between undertakings established in different Member States. In such cases, national authorities must involve BEREC (Body of European Regulators for Electronic Communications), which issues a binding opinion guiding the outcome, with which final decisions must comply.
BEREC therefore assumes a novel role: it is not a court, but exercises a form of para-judicial coordination, ensuring coherence, consistency and predictability of regulatory decisions at European level. What emerges is a genuine supranational governance of telecommunications disputes.
The DNA within the DSA–DMA–ADR Directive system
The Digital Networks Act fits coherently within the broader ecosystem of EU digital regulation, alongside the Digital Services Act (DSA) and the Digital Markets Act (DMA).
The structural difference is significant: while DSA and DMA mainly operate through substantive ex ante obligations, the DNA introduces a form of procedural regulation, based on:
an obligation to negotiate in good faith,
institutionalised mediation,
decision-making powers of national authorities,
European-level coordination through BEREC.
This represents the natural evolution of the logic already established by the ADR Directive, but elevated to a completely new level: no longer consumer protection, but the governance of conflicts between systemic actors in the digital market.
From rules to process: a new regulatory rationality
The innovative core of the DNA lies not so much in individual substantive rules, but in the regulatory method. The law does not directly impose economic solutions, but rather designs the process within which parties are required to engage, negotiate and, if necessary, submit to regulatory decision-making.
A model of “regulation through procedure” thus emerges, in which the public function is not to determine market equilibrium, but to ensure that such equilibrium arises through institutional mechanisms for conflict management.
Conclusion: ADR as infrastructure for digital governance
The Digital Networks Act definitively elevates negotiation and mediation to the status of legal infrastructure of European digital governance. The telecommunications sector becomes a testing ground for an advanced regulatory model in which justice is not only adjudication, but process, and in which conflict is not pathology, but a tool for shaping market rules.
From this perspective, ADR is no longer an alternative to regulation: it becomes its operational core. And BEREC emerges as the first truly institutional European arbiter of the digital networks market.
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