CJEU: Gmail is no telecommunication service

Yesterday, the European Court of Justice (CJEU) handed down a judgement clearly distinguishing Google′s Gmail service from traditional telecommunications services (C-193/18). Thus, Gmail does not have to comply with the extensive regulatory framework for telecommunications. By December 2020, the Member States will have to have implemented new telecommunication laws and the landscape will once again change. However, as of now the regulatory framework does not govern services like Gmail. 

What′s the matter?

For decades, telecommunication meant using a traditional landline. This changed when the first mobile phones not depicting a more or less portable phone booth entered the market in the late 1990s. Today, in a time where most people use their smartphone from dawn till dusk, a plentitude of services is consumed on mobile basis including email connectivity.

In result, the boundaries between the different services have become somewhat blurry. That is why the German Federal Agency for Electricity, Gas, Telecommunications, Post and Rail Networks ("Bundesnetzagentur") urged Google to register its email service Gmail as a telecommunication service. As such registration means becoming subject to sector-specific regulation, Google was not overly flattered. The legal framework we talk about is mainly set out in the Framework Directive 2002/21/EC.

The matter went to court and the Higher Administrative Court North Rhine-Westphalia eventually referred to the CJEU the question how to interpret the term "electronic communications service" as laid down in Article 2 (c) of the Framework Directive 2002/21/EC. On 13 June 2019, the judges in Luxembourg gave their answer.

Decision

In its decision, the CJEU points to the fact that an electronic communication services requires an activity which consists "wholly or mainly in the conveyance of signals on electronic communications networks". The Court stresses the circumstance that Gmail works web-based and thus uses the open internet for its signals. In such a scenario, the service does not build on an electronic communications network in the sense of Article 2 (c). In view of the judges, it is not sufficient that the supplier of a web-based email service actively participates in the sending and receipt of messages. For, it is not the email service provider who offers the actual access to the Internet.

Comment

The decision impacts a wide range of similar web-based services, not limited to email services but in particular covering text and video messaging services. As long as the service itself does not involve the Internet access as such, it does not qualify as an electronic telecommunication service. This will be the status quot least until December 2020.