The administrative court of Cologne (21 K 450/15) ruled on 11 Nov 2015 that the e-mail service “Gmail”, run by Google, has to be classified as a telecommunication service within the meaning of the German Telecommunication Act (Telekommunikationsgesetz, TKG). The Federal Network Agency had in the past requested Google to register as telecommunication service provider; Google denied (in particular after being confirmed in its view by an EU Commission statement) and filed and action early 2015.
Under the TKG one of the main characteristics of a telecommunication service is the "conveyance and transmission of signals", which Google argued is not the main characteristic of its services. However, the court took a different approach by arguing that the Google servers were providing transmission services even though the service was provided, like many other so-called "over-the-top services" (OTT) via the open internet.
Telecommunication service providers not only have an obligation to formally notify their service with the Federal Network Agency, but have also to comply with several obligations arising out of the TKG (e.g. data protection, consumer transparency and protection, public security, etc.). Google has appealed against the judgment. If the decision is however confirmed by the higher instance court, this could have far-reaching consequences for all OTT-providers, such as Skype, WhatsApp and many others. The time of the judgement is also rather "explosive" since the question of the classification and regulation of OTT services currently play a quite important role in the ongoing consultation of the European Union for the revision of the telecommunications legal framework. This has been the first ruling ever in this respect in Germany and should, due to the discussions about a new legal framework on telecom laws, be read with care. We will keep you updated.