According to a press release dated 26 February 2018, the Administrative Court of Appeal Munster (Oberverwaltungsgericht Münster) asked the European Court of Justice (ECJ) for a preliminary ruling on the question whether Over-the-Top (OTT) services shall be caught by the European regulatory framework on telecommunications services.
By way of administrative orders, the German Federal Network Authority (Bundesnetzagentur – BNetzA) enforced a specific notification obligation pursuant to section 6 of the German Telecommunications Act (Telekommunikationsgesetz – TKG), which applies to operators of telecommunications services, against Google in relation to its free-of-charge Gmail service. Google took the view that Gmail would not qualify as "operation of telecommunication services" in the meaning of the TKG and, therefore, Google had not notified the Gmail service with the BNetzA.
Google challenged the administrative orders by legal action before the Administrative Court Cologne (Verwaltungsgericht Köln). Google argued that the transmission of emails through the Internet is technically not under Google's control since it is conducted by access providers and not by Google. The Administrative Court Cologne regarded these arguments as irrelevant. By contrast, the transmission services provided by the access providers involved shall be attributed to Google. As a consequence, the Administrative Court Cologne found that Google would qualify as "operator" of the whole communication process. In its judgment of 11 November 2015, case no. 21 K 450/15, the Administrative Court Cologne dismissed Google's action. As a consequence, Gmail would indeed be covered by the notification obligation under section 6 TKG.
Referral to ECJ for a preliminary judgment
In January 2016, Google filed an appeal against the judgment of the Administrative Court Cologne before the Administrative Court of Appeal Munster, case no. 13 A 17/16.
According to a press release of 26 February 2018, the Administrative Court of Appeal Munster suspended the appeal proceedings and referred the case to the European Court of Justice for a preliminary ruling. In the press release, the Court of Appeal Munster summarizes its considerations as follows:
- According to the legal definition in the TKG, telecommunications services are services that are generally provided for a fee and that consist entirely or predominantly of the transmission of signals over telecommunications networks. Google takes the position that this provision is not relevant to webmail services such as Gmail because its service, Gmail, adopts the Internet as an existing telecommunications network without (a) operating it; (b) providing users with access to it; or (c) otherwise controlling data transmission. In addition, webmail services such as Gmail are often provided free of charge for users.
- Since the legal definition in the TKG is based on an almost identical provision in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Directive), the decision of the Court of Appeal Munster on this question will be based on the provisions of European law.
- Therefore, the ECJ will need to assess whether Internet-based email services that are made available via the open Internet and do not themselves provide Internet access qualify as transmission of signals via electronic communications networks, since this may trigger applicability of the Directive.
- In addition, the ECJ will need to give guidance on scope of the term "normally performed for remuneration" in the meaning of Article 2(c) of the Directive.
The legislators are currently discussing whether new regulatory regulations are necessary and should be adopted. However, as long as no legislating initiative has been finalised, the ECJ's preliminary ruling will be expected to be a landmark decision. In particular, it will have a significant impact on companies providing OTT services. Numerous regulatory requirements would need to be observed in the event that the ECJ should conclude that OTT services fall within the definition of telecommunications services.
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