Regulatory governance of ICT interoperability under EU law: Building up an appropriate policy framework

“Interoperability” means the ability for two different and independent ICT systems to exchange information and use that information. Having multi-dimensional aspects for the economy and society, the regulation of interoperability is the subject matter of various legal disciplines, i.e. intellectual property legislation, competition law and sector-specific rules e.g. the Electronic Communications Regulatory Framework (ECRF), under EU law. Lack of coherency among such disciplines is a compelling reason to find out the best possible rules to deal with the lack of interoperability and accompanying concerns, including vendor lock-in, switching costs, hindrance of innovation and information flows. On the other hand, each ICT industry has its own rules and standards, which also impacts interoperability. Against this background, drawing the boundaries for the regulation of ICT interoperability becomes more demanding. This study aims to find out whether, or to what extent, ICT interoperability needs to be regulated under EU law, considering the abovementioned concerns. Starting with an investigation of the given legal disciplines with a focus on their measures dealing with lack of interoperability, this study primarily conducts blackletter (doctrinal) analysis based on multi-disciplinary research. After completing the blackletter analysis, the research continues with multiple case studies based on two emerging technologies ‘cloud computing’ and the ‘Internet of Things’ (IoT). These case studies relying on distinct industrial settings, have unravelled the real-life situation from the underlying architectural layers and their interdependencies. Cross analysis of the industrial settings, contributed to the doctrinal findings not only verifying but also advancing them with complementary results, pointing to meaningful and constructive outputs towards a holistic and layered regulatory treatment of ICT interoperability. Overall, the research concludes with important findings regarding how to regulate ICT interoperability at the EU level. First and foremost, it has been established that the EU legal framework is of a limited nature, offering partial solutions and with shortcoming to the lack of interoperability. Secondly, it is found that interoperability is a concept not to be isolated from but to be elaborated with, other related concepts i.e. information flows, and problems i.e. gatekeeping, from a holistic and layered perspective. Thirdly, it has been ended up the ICT interdependencies, which have fully surfaced in the case study research, would be best addressed through a ‘layered regulatory model’ that can favourably respond to both ecosystem and non-ecosystem industrial settings. Fourthly, in dealing with the lack of interoperability and related concerns, the term ‘gatekeeping’ has been revitalised and embedded into this layered model, invigorating this holistic and ex-ante policy approach. Last but not least, the proposed ‘layered regulatory model’ would not only replace the core principles of the ECRF but also expand the EU regulatory vision with the necessary flexibility to cope with the ever fast changing ICT dynamics, going beyond interoperability-based problems.