The scope of regulatory obligations applicable to web-based (Over-the-Top, OTT) services largely depends on whether or not a specific service qualifies as an "electronic communication service" within the meaning of the European Framework Directive for Electronic Communications Networks and Services. This question was highly controversial in regulatory discussions.
In two recent judgments related to OTT services the Court of Justice of the European Union (ECJ) provided, following requests for preliminary rulings by German and Belgium Courts, guidance on the interpretation of the scope of the term "electronic communication service" (ECS):
In its decision dated 13 June 2019 (C-193/18) the ECJ had to decide whether a web-based email service which does not offer access to the Internet qualifies as an ECS. The Court answered this question in the negative in the case at hand. It concluded that the specific email service does not "wholly or mainly" consist in the transmission of signals over telecommunications networks, which would be required to consider this service as an ECS. The ECJ found that while providers of web-based email services regularly perform a transmission of signals, this does not per se mean that such services consist "wholly or mainly" in the transmission of signals over telecommunications networks. The ECJ's decision first takes into account that not only the web-based email services contribute to the conveyance of signals, but also the internet access providers of the senders and recipients of the emails as well as the operators of the various networks that constitute the Internet. The mere fact that providers of web-based email services are active in the sending and receiving of emails (e.g. by matching the IP address of the relevant terminal equipment with the email addresses of the sender/recipient, handing over messages into the Internet or receiving them from the Internet to forward them to the recipient) is not sufficient, in the Court's view, to qualify a web-based email service as an ECS. The Court concluded that where there are no other indications that the provider of the web-based email service is responsible vis-à-vis its customers for the transmission of the signals required for the functioning of the service, such service cannot be classified as ECS. However, the Court also mentioned that the initial proceeding did not refer to service access via "email client" programs. Overall, it appears that from the ECJ's perspective the classification of a service depends on the individual set-up of a service in each specific case taking into account the specifics of the service provided.
In the second case (C-142/18, dated 5 June 2019), originating from a Belgian court, a well-established Voice over IP ("VoIP") service provider had offered a software feature enabling its customers to place VoIP calls to fixed or mobile numbers through telephone networks (PSTN), i.e. a VoIP service enabling a so-called "PSTNbreakout". This VoIP service was regarded as an ECS by the Belgian regulatory authority. The provider has subsequently challenged this finding at court. The ECJ confirmed the Belgian regulator's view based on the finding that the provider of the VoIP service is "responsible" for the transmission of signals over telecommunications networks: The Court found in this context that it is not relevant whether or not a provider contractually excludes its responsibility vis-à-vis the customer for the transmission of signals, since this would allow providers to circumvent the applicable regulatory framework. From the ECJ's perspective, it is rather decisive who is de facto responsible for the transmission of the signals to the customer in the context of the service offered. Where a VoIP provider contracts with a fixed or mobile network carrier to technically enable the PSTN-breakout and offers this functionality as part of its VoIP service to its customers (who themselves have not concluded contracts with this third party carrier), the ECJ considers such a VoIP provider to be responsible to the customers for the conveyance of the relevant signals. As, from the Court's view, such a VoIP service consists at least mainly in the transmission of signals, even if it is the third party carrier who technically performs the transmission through the PSTN network, it qualifies as an ECS under the Framework Directive. Since the VoIP service in question is provided to customers "for remuneration" (which is another criterion for an ECS according to the EU-level definition), the ECJ ruling does not include any findings on the interpretation of this term.
Both judgments indicate that the assessment on whether or not an OTT service qualifies as an ECS needs to be performed on a case-by-case basis. In doing so, the Court seems to put a focus on the question of who is "responsible" for the conveyance of the signals which are essential for the provision of the service. This leaves room for case-by-case decisions of national regulatory authorities, taking into account the specifics of individual services.