July 1, 2019

The claimant, Google LLC, challenged the decision from the German Federal Agency for Electricity, Gas, Telecommunications, Post and Rail Networks (BNetzA) that its Gmail service was a “telecommunications service” under German law and therefore had to be registered with the BNetzA. The matter eventually reached a German regional Higher Administrative Court, which referred various questions to the CJEU on the interpretation of the Framework Directive (2002/21/EC).

It was not disputed that when data is transmitted via the Gmail service, it remains unchanged, but is broken down into several separate data packets that are transmitted to the recipient by means of standardised email service protocols.

To deliver the email, Google uses email servers which carry out the necessary electronic processing to identify the target server and to send the data packets. The internet routing followed by those data packets through the various internet sub-networks operated by third parties is dynamic and subject to constant changes of which the party sending the data is unaware and over which it is unable to exercise any control. Upon receipt, a target server stores the email in an electronic mail box, which the recipient can then access.

Essentially, the German court asked whether Article 2(c) of the Framework Directive meant that a web-based email service, which does not itself provide internet access, constitutes a service consisting wholly or mainly in the conveyance of signals on electronic communications networks, as a result of the electronic processing that the service provider supplies via its email servers, on the one hand, by assigning to the email addresses the IP addresses of the corresponding terminal devices and, on the other hand, by uploading to or receiving from the open internet the data packets relating to the emails. If not, it asked whether, and if so under which conditions, the provider of such a web-based email service should nevertheless be considered as conveying signals itself, or whether the conveyance of signals should be attributed to it, if it operates its own internet-connected electronic communications networks that can be used for the purposes of providing that service.

The CJEU noted that Article 2(c) defines “electronic communications service” as, “a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting”.

Article 2(c) also states that the concept of “electronic communications service” excludes “services providing, or exercising editorial control over, content transmitted using electronic communications networks and services” and does not include “information society services … which do not consist wholly or mainly in the conveyance of signals on electronic communications networks”.

Further, EU law makes it clear that there is a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility.

The CJEU noted that, according to case law, in order to fall within the scope of the concept of “electronic communications service”, a service must include the conveyance of signals, and the fact that such conveyance is by means of an infrastructure that does not belong to the service provider is of no relevance to the classification of the service, since all that matters is that the service provider is responsible vis-à-vis the end-users for conveyance of the signal in order to supply the service.

Here, it was common ground that the provider of a web-based email service conveyed signals. Google confirmed that, to provide its service, it uploads to the open internet and receives from it, via its email servers, the data packets relating to the emails sent and received, respectively, by the holders of a Gmail account.

However, the CJEU said, this did not necessarily mean that Google’s operations constituted an “electronic communications service”, since the service did not consist wholly or mainly in the conveyance of signals on electronic communications networks.

The CJEU said that it was: (i) the internet access providers (IAPs) of the senders and recipients of the emails and, as the case may be, the web-based email service providers; and (ii) the operators of the various networks constituting the open internet, which essentially conveyed the signals necessary for any web-based email service to function, and it was they who bore responsibility.

The CJEU held that the fact that a supplier of a web-based email service actively participated in the sending and receiving of messages, was not sufficient to say that the service consisted “wholly or mainly in the conveyance of signals on electronic communications networks” within the meaning of Article 2(c).

Accordingly, in these circumstances, the Gmail email service could not be classified as an “electronic communications service”.

The fact that Google also operated its own electronic communications networks in Germany did not call that finding into question. The fact that Google supplied electronic communications services as the operator of its own electronic communications networks, and that it may therefore be obliged to register its activities did not mean that all its web-based services should also be treated as electronic communications services.

Therefore, the CJEU said that Article 2(c) should be interpreted as meaning that a web-based email service, which does not itself provide internet access, such as Google’s Gmail service, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an “electronic communications service” under Article 2(c). (Case C-193/18 Google LLC v Bundesrepublik Deutschland EU:C:2019:498 (13 June 2019) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).