• by Ray Schultz , February 27, 2018

The European Court of Justice (ECJ), the EU’s Union’s highest court, has been asked to determine whether Gmail is a telecommunications company and should be regulated as such.

The German Higher Administrative Court Münster referred the case to the ECJ on Monday, according to Deutsche Welle (DW).

The dispute stems from an almost decade-long effort by the German Federal Network Agency to have Gmail declared as a telecom that would fall under German and European telecommunications law. 

Google contends that Gmail is not a paid service and does not transmit through telecommunications networks, Deutsche Welle continues.

However, a German Administrative Court ruled in 2015 that the email service -- which has over 1 billion users -- is a telecom. 

Google appealed that decision, which was “the first time a German court dealt with the legal qualification of over-the-top (OTT) communications services,” the law firm Morrison & Foerster LLP observed in 2015. The argument by the German Federal Network Agency could presumably be extended to other online services, it added.  

In referring the case to the ECJ, the German Higher Administrative Court noted that “the relevant sections in the German Telecommunications Act are based on identical provisions in EU law,” Deutsche Welle states.  

"The ECJ needs to clarify whether internet-based e-mail services provided via the open internet, which do not themselves provide internet access, need to be covered as transmission of signals over electronic communication networks,” the court said, according to Deutsche Welle.

Google reportedly is pleased with the ruling, which effectively negates the 2015 decision. However, at press time, it was not clear whether a loss at the EJC level would mean that Gmail would be viewed as a telecom throughout the EU, not just in Germany.

In 2015, following the administrative court decision, Morrison & Foerster estimated that Gmail would face these additional regulatory burdens if it lost the case:

• Notification requirement (registration as a telecom) with the German Federal Network Agency
• Number portability / support of customer relocation
• Emergency calling
• Customer protection provisions -- e.g., special transparency and information rights
• Public security provisions -- e.g., access to customer data for law enforcement agencies
• IT security requirements -- e.g., security concept and breach notification obligations.

The firm adds that many of these obligations “are clearly tailored towards traditional telecommunications services and would be hard to comply with for providers of Internet communications services like Gmail.”