Software Or Service? German Court Asks The CJEU Whether Gmail Is A Regulated Telecommunication Service

On 26 February 2018, the Higher Administrative Court of North Rhine-Westphalia referred the long pending GmaiI /Google Mail case for a preliminary ruling to the CJEU. It concerns the question whether Gmail constitutes a telecommunications service regulated under the TKG and respective EU Directives.

In 2012 and 2014, the Federal Network Agency – aka "BNetzA" – approached Google to formally register "Gmail" as a telecommunications service under the TKG as the BNetzA views the Gmail emailing service mostly "as a conveyance of signals on electric communication network".

Google maintained it did not fall under the TKG as it only uses the Internet to delivery their web-based email services while not providing Internet access itself. Furthermore, Gmail provides most of its services free of charge.