To be an ECS or not to be
In simple terms, the Court had to decide whether Gmail and SkypeOut respectively consist “wholly or mainly in the conveyance of signals” as required by Article 2(c) of the Framework Directive in order to qualify as ECS.
On the one hand, SkypeOut is a Voice over Internet Protocol (VoIP) service that, in return for remuneration, allows its users to call a fixed or mobile number covered by a national numbering plan from a terminal (e.g. computer, phone, tablet) via the public switched telephone network (PSTN). In order to provide this service, Skype Communications relies on the contribution of Internet Service Providers (“ISP”) and telecommunications service providers for the transmission of signals. On the other hand, Gmail is a web-based email service, which enables its users to transfer data and emails over the internet. Google does not itself provide access to Internet, nor does it transfer the data and emails over the internet. The ECJ considered it insufficient to qualify as ECS that Google assigns the IP addresses and uploads the data packets (i.e. the data and emails that are broken down by Google) to the open internet and receives them from the internet.
As to the qualification of SlypeOut as ECS, the Court stated that Skypeout consists principally in transmitting voice signals. The Court, although acknowledging that Skype is not involved at the technical level, considers that Skype is noneless responsible towards its users for the signals conveyance mainly in view of the agreements concluded between Skype and the telecommunications service providers for the signal transmission to the national mobile or fixed connection point of the user receiving the call.
Impact of the decision
The question arises as to whether these two rulings will still matter after entry into force of Directive 2018/1972 (“EECC”), which broadens the concept of ECS so as to also include interpersonal communications services (“ICS”) which should encapsulate emails and VoIP services.
The answer is yes, it does matter. Firstly, the EECC must be transposed by 21 December 2020, so that in the meantime, the current rules on electronic communications networks and services will still apply, including their interpretation by the ECJ. Secondly, the qualification as ECS triggers the applicability of several national and international/European legal requirements (such as emergency calling, cooperation with authorities, privacy and security obligations), but also has influences on the ECS’s users, subscribers and even law enforcement authorities. Lastly, the ECS definition under the EECC still includes the conveyance of signals as a criterion; besides, certain rules of the EECC only apply to ICS, e.g. information requirement for contracts, quality of services, transparency, publication of information, etc. Henceforth, it is relevant to understand whether a service qualifies as ECS because it consists in the conveyance of signals, or alternatively, because it is an ICS.