In a judgment of 27 October 2016, the Correctional Court of Mechelen condemned Skype Communications SARL, a Luxembourg-based entity, for refusing to set up a wiretap that was ordered by the investigating magistrate (“Onderzoeksrechter”/”juge d’instruction”) in Mechelen. The wiretap was ordered as part of an investigation into a Skype user.
Skype argued that the Belgian magistrate did not have jurisdiction over Skype Communications SARL, a Luxembourg entity. Instead of having the order executed on Skype in Luxembourg directly, the Belgian authorities should have relied on the European Convention on Mutual Assistance in Criminal Matters. Skype also pointed out that it is not an electronic communication service provider (“ECS”). Hence, the investigating magistrate could not invoke those specific legal provisions that require an ECS to cooperate with judicial authorities.
In its judgment, the Court confirms that it has jurisdiction to hear the case. To that end, the Court applies a fiction, namely that should the wiretap ordered be set up in Skype’s equipment in Luxembourg, that would ultimately lead to the providing of information to investigators operating on the Belgian territory. Hence, in the eyes of the Court, Skype’s refusal to set up the wiretap caused the information to not be made available to investigators in Belgium, so such refusal should be considered a crime that would have been committed on Belgian territory.
The Court applied a reasoning that was analogous to the Yahoo case decided by the Belgian Court of Cassation. In that case, the Court held that the crime in question (i.e., the refusal to cooperate on the part of the telecom operator) can be deemed to have occurred in the place where the information should have been received, regardless of where the operator was established.
The Court therefore further extrapolated the extraterritorial application of Belgian criminal law, which was laid down in the Yahoo case. What is more is that the Court in Mechelen did it in a context that was fundamentally different from the Yahoo case: the Yahoo case revolved around a mere refusal to provide information to the Belgian investigator (Article 46bis §1 of the Belgian Code of Criminal Procedure), whereas in the Skype case, the order that Skype refused to comply with concerned the set-up of a wiretap, (Articles 88bis §2 and 90quater §2 of the Belgian Code of Criminal Procedure), which is obviously a completely different type of measure.
Through the same fictitious reasoning, the Court made an entire abstraction of the fact that a wiretap requires a technical intervention in Skype’s equipment in Luxembourg (and possibly in other jurisdictions outside Belgium) to neutralize the European Convention on Mutual Assistance in Criminal Matters. This Convention explicitly requires the cooperation between Member States if an interception measure requires an intervention on the territory of another state. By having a court order executed against Skype directly in Luxembourg, the Belgian court most likely violated various provisions of Luxembourg law.
Finally, the Court had no difficulty in qualifying Skype as an ECS. Here again, the Court relied on the Yahoo case in which it was held that the criminal courts can apply an autonomous definition to the ECS concept that is independent of the definition stipulated in the EU directives on electronic communications. In Skype’s case, the Court held that it is sufficient to note that Skype provided “a software that supports communications over the internet”, to qualify it as an ECS.
Here, the question is to what extent is a national judge, be it one of a criminal court, allowed to set aside the definition of a legal concept that is introduced by EU law?
Skype has appealed against the decision of the Correctional Court in Mechelen. This will certainly be continued…
The case can be found here.