On 26 February 2018, the Higher Administrative Court of North Rhine-Westphalia referred the long pending GmaiI /Google Mail case for a preliminary ruling to the CJEU. It concerns the question whether Gmail constitutes a telecommunications service regulated under the TKG and respective EU Directives.
In 2012 and 2014, the Federal Network Agency – aka ”BNetzA” – approached Google to formally register “Gmail” as a telecommunications service under the TKG as the BNetzA views the Gmail emailing service mostly “as a conveyance of signals on electric communication network”.
Google maintained it did not fall under the TKG as it only uses the Internet to delivery their web-based email services while not providing Internet access itself. Furthermore, Gmail provides most of its services free of charge.
In a press release the court paraphrases its questions as follows:
“The CJEU has to clarify whether the Directive also covers Internet-based email services, which are provided via the open Internet and which themselves did not facilitate Internet access, as conveyance of signals on electronic communications networks. Furthermore, the question has to be answered as to how to interpret [the characteristic] ‘normally provided for remuneration’.” Based on current processing times, the CJEU is expected to decide within the next 15 months. It remains to be seen whether and, if so, which Internet-based services will have to comply with the sector-specific regulations. Obviously, this may not stop at emailing – telecommunication may encompass an extremely wide variety of apps and online services facilitating individual communication – think OTT telephone to any social chat functionality.