OVG Münster: GMail is not a communication service!

GMail is not a telecommunications service. This was the decision of the Higher Administrative Court for the State of North Rhine-Westphalia in Münster in response to a lawsuit filed by Google, changing a contrary ruling by the Cologne Administrative Court.

The proceedings are based on a legal dispute that has been ongoing for several years between the Bonn-based Federal Network Agency, which is responsible for overseeing the telecommunications market in Germany, and Google. The Authority is of the opinion that the e-mail service operated by Google or its Irish subsidiary is a telecommunications service within the meaning of the German Telecommunications Act and that Google is therefore subject to the obligations regulated therein for providers of such services, for example, data protection or public security requirements. In notices issued in July 2012 and December 2014, the Federal Network Agency required Google to register Gmail with it as a telecommunications service. Google sued unsuccessfully before the Cologne Administrative Court and subsequently appealed.

The Higher Administrative Court initially suspended the appeal proceedings and asked the Court of Justice of the European Union to clarify whether e-mail services provided over the open Internet without providing customers with Internet access themselves, as webmail services, are telecommunications services. After the ECJ ruled on the reference for a preliminary ruling on June 13, 2019, the Higher Administrative Court continued the appeal proceedings.

In its ruling, the Higher Administrative Court amended the first-instance decision of the Cologne Administrative Court and overturned the Federal Network Agency’s decisions contested by Google. The fact that Google is actively involved in sending and receiving messages by assigning the IP addresses of the corresponding end devices to the e-mail addresses, breaking down the messages into data packets and feeding them into the open Internet or receiving them from the open Internet so that they are forwarded to their recipients is not sufficient for this service to be classified as a telecommunications service. Rather, it is essentially the Internet access providers of the senders and recipients of e-mails, as well as the operators of the various networks that make up the open Internet, that ensure the signal transmission necessary for GMail to function. Their activities are also not attributable to Google from a functional or evaluative point of view. The fact that Google operates its own network infrastructure in Germany that is connected to the worldwide Internet does not change this assessment.

The Higher Administrative Court did not allow an appeal to the Federal Administrative Court. An appeal may be lodged against this, which will be decided by the Federal Administrative Court.

At Google’s request, the Higher Administrative Court also ordered the Federal Network Agency in a summary proceeding announced today to remove from the public directory maintained by the Federal Network Agency a notification of GMail as a telecommunications service that Google had initially initiated with reservations.