Skype: a telecom operator according to the ECJ

Is Skype a telecom operator ? A hard question for the ECJ

The article 9(1) of the Law of 13 June 2005 on electronic communications (‘LEC’), transposing into Belgian law the Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘Framework Directive’), provides for a notification obligation for the electronic communications services providers before starting their activity.

Facts

In May 2016, the Belgian Institute of Postal Services and Telecommunications (‘the IBPT’ in french) imposed a fine of €223.454 on Skype for refusing to notify itself as a telecom operator for the SkypeOut service. Here, the motivated decision of the IBPT.

SkypeOut is a feature which allows users to make calls from a terminal to a fixed or mobile phone line, using the Internet Protocol (‘IP’) and, more specifically, the so-called « Voice over IP » (‘VoIP’) technique.

In July 2016, Skype brought an action before the cour d’appel de Bruxelles (‘Court of Appeal’) for annulment of the IBPT’s decision. It also asked the court, inter alia, to declare that SkypeOut was not an electronic communications service and that, therefore, Skype was not an electronic communications service provider. In the alternative, it asked the court to refer a question to the European Court of Justice (‘ECJ’) for a preliminary ruling.

The preliminary ruling submitted to the Court of Justice can be summarised as follows:

« Must the definition of an electronic communications service laid down in Article 2(c) of the Framework Directive be understood to mean that a voice-over IP service, made available via software, terminated on a public switched telephone network, to a fixed or mobile number covered by an national numbering plan must be regarded as an electronic communications service ? »

Decision and rationale

In C-142/18 Skype Communications Sarl v IBPT, the ECJ sided with IBPT. On 5 June 2019, Skype was declared to be a « telecoms operator » and therefore subject to EU telecoms regulations.

Indeed, the Court decided that the SkypeOut service constitutes an « electronic communications service » since:

• Skype is remunerated for providing that service (by prepayment or subscription) ;
• it is Skype which, by entering into interconnection agreements with providers of telecommunications services, makes the transmission of signals technically possible and ultimately guarantees to its clients and subscribers the VoIP service offered by means of the SkypeOut feature of its Skype software.

However, is irrelevant according to the ECJ for the qualification of the service, the fact that :

• SkypeOut is only a feature of the Skype software ;
• the signal is transmitted through an infrastructure that does not belong to the service provider. It suffices that this service provider is liable towards end-users for the transmission of the signal that guarantees them the provision of the service to which they subscribe ;
• Skype indicates in its general terms that it assumes no responsibility for the transmission of signals to users of the SkypeOut feature of its Skype software ;
• the VoIP service provided by SkypeOut is also covered by the definition of « information society service » within the meaning of Directive 98/34.

Issue

As a result of such qualification, Skype is obliged to comply with the obligations of telecoms operators under the Framework Directive. Thus, the principles of universal service, protection of subscribers and their personal data and regulated tariffs, for instance, are now applicable to SkypeOut.

To know what the ECJ considers not to be a ECS, read our news about the Gmail case.

In the future, Skype will probably not be the only one having to adapt to these new rules. Indeed, the recent Directive (EU) 2018/1972 establishing the ‘European Electronic Communications Code’ aims to align as much as possible « over-the-top » messaging services (OTT) (such as WhatsApp, Facebook Messenger, Telegram or Snapchat) with the obligations already imposed on traditional telecoms services. The EU member states must apply these regulations at the national level by the end of 2020.