The Gmail Judgment of the Court of Justice: Some questions answered, new questions raised

After the judgment in the preceding week concerning SkypeOut [ii], this is the second decision of the CJ concerning the application of the current European regulatory framework for electronic communications services on so-called over-the-top (OTT) services, i.e. services for personal communication delivered on the basis of Internet access services provided by different parties.

Unlike the judgment in the SkypeOut case, the judgment in the matter of Gmail finds that the relevant service is not a regulated electronic communications service. This finding, which the court reached in line with the opinion of the European Commission, and which disagrees with the assessment of the German national regulatory authority BNetzA, is based on the following assessment of the relevant facts:

The decisive criterion to determine whether the service is an electronic communication service (ECS) is whether the service consists wholly or mainly in the conveyance of signals (see para. 32 of the Gmail judgment and Art. 2 (c) of Directive 2002/21/EC). The court acknowledges that Google as the provider of web-based e-mail is involved in the conveyance of signals required for the transport of the e-mails (para. 34 of the Gmail judgment). Notwithstanding this, it views this involvement in signal conveyance as insufficient to consider the provider of web-based e-mail as providing an ECS. In the court’s view, a provider of web-based e-mail does not appropriate the signal conveyance carried out by the involved Internet access providers (IAP) and IP network operators to itself in a way that would lead to attributing this signal conveyance to the provider of web-based e-mail. Instead, the court views the activities of the web-based e-mail provider (alone) as insufficient for the ECS qualification (para. 35 to 37 of the judgment).

This stands in contrast to the Skype judgment, where the conveyance of voice signals to a PSTN recipient via usage of (wholesale) PSTN interconnection service providers by Skype was attributed to Skype in its relationship to its end users (para. 38 to 40 of the SkypeOut judgment). The underlying distinction appears to be that for web-based e-mail services, responsibility for the delivery of an e-mail from the sender to the recipient is shared between several parties, namely the IAPs of the sender, the recipient and of the e-mail service provider and other involved IP network operators, while the e-mail service provider’s responsibility for conveyance is limited to bringing the e-mail on its way via the Internet in the customary format and using the common technical protocols.

The conclusion that Gmail is not an ECS is not altered by the fact that Google operates own communications infrastructure which the court views as an operation of an electronic communications network (ECN) that may itself be regulated under the regulatory framework and that may have to be notified to the regulators. Even if this infrastructure may be an ECN, this does not make all services rendered by it ECS (para. 40 of the Gmail judgment). The finding, that Google may operate a regulated ECN is remarkable in itself, however, as it may embolden national regulators to exercise regulatory powers over these activities. Also noteworthy in this respect is that on this point, the German version of the judgment is phrased stronger than the English version. The German version suggests that Google not only “may, […], be subject to the obligation to declare its activity [under the Authorization Directive 2002/20/EC]” but that it actually “is” under this obligation.

While there was an expectation in the market that the two judgments on SkypeOut and Gmail would finally settle the question, whether OTT-services would be treated as ECS, this does not quite seem to be the case. Comparing the two judgments, it appears that the court draws a line between “initiation” of signal conveyance that is, in essence, carried out by others (Gmail), on the one hand, and carrying out or “reselling” the signal conveyance as its own (Skype), on the other. Whether or not, on this basis, OTT-services like messaging reach this threshold of signal conveyance as opposed to mere initiation of conveyance remains undecided. Nonetheless, with the Gmail judgment national regulators will find it hard to argue that other OTT-services like messaging are to be qualified as ECS.

In the future, it is expected that these questions will be resolved by implementation of the European Electronic Communications Code (EECC). Indeed, e-mail and messaging appear to be services that are defined as ‘interpersonal communications services’ in the EECC.

[i] Judgment of the Court (Fourth Chamber) of 13 June 2019 in case C‑193/18,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=214944&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3685894

[ii] Judgment of the Court (Fourth Chamber) of 5 June 2019 in Case C‑142/18 http://curia.europa.eu/juris/document/document.jsf?text=&docid=214741&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5287677