A VoIP service is an electronic communications service when the publisher is remunerated for the provision of this service and the provision is subject to an agreement between the providers of telecommunications services who are duly authorised to send and terminate calls to the PSTN.
ELECTRONIC COMMUNICATIONS SERVICES
Skype offers a functionality that allows the user to make calls to a landline or mobile phone line using VoIP, named SkypeOut.
Institut belge des services postaux et des télécommunications (IBPT), requested Skype to notify its services in accordance with Article 9(1) of the LCE, and enclosed the notification form with its correspondence. Skype has refused to do so because it claims that it does not carry out any activities in Belgium. By decision, IBPT found that Skype had failed to comply with Article 9(1) of the LCE (Loi du 13 juin 2005 relative aux communications électroniques - implementation of the Framework Directive) and that Skype was imposed to a fine of € 223.454.
IBPT stated that SkypeOut was indeed part of an "electronic communications service" within the meaning of Article 2(5) of the LCE. The use of a numbering plan shows that this is a service that is more than just a web application and that does not fall under the content exception referred to in the definition of an electronic communications service. In addition, the fact that Skype does not transmit signals via electronic communications networks does not mean that it is impossible to actually offer electronic communications services. Finally, the SkypeOut service is aimed at users residing on Belgian territory.
The referring court referred four questions to the Court of Justice, which are being examined together. In essence, the referring court asks whether Article 2(c) of the Framework Directive must be interpreted as meaning that the provision by a software publisher of a functionality enabling a user to call a fixed or mobile number via the traditional telephony network (PSTN) from a Member State to an 'electronic' number is an 'electronic' communication service' within the meaning of that provision when the publisher is remunerated for the provision of this service and, with a view to its provision, has to enter into agreements with the providers of telecommunications services who are duly authorised to transmit and drop calls to the PSTN.
The Court states that an electronic communications service is defined as a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks and that service does not extend to services providing or exercising editorial control over content transmitted using electronic communications networks and services or to Information Society services as defined in Article 1 of [Directive 98/34], which do not consist wholly or mainly in the conveyance of signals on 'electronic communications networks'. The Court has also ruled that, in order to come within the definition of an ‘electronic communications service’, a service must include the conveyance of signals, and the fact that the transmission of signals is by means of an infrastructure that does not belong to the service provider is of no relevance to the classification of the nature of the service, since all that matters in that regard is that that provider is responsible vis-à-vis the end-users for transmission of the signal which ensures that they are supplied with the service to which they have subscribed (judgment of 30 April 2014, UPC DTH, C‑475/12, EU:C:2014:285, paragraph 43).
In the present case, the fact that the user of SkypeOut has access to the VoIP service by using an Internet access service provided by an Internet Service provider (ISP), which is itself an electronic communications service, does not mean that that VoIP service itself cannot be regarded as an 'electronic communications service'.
The fact that Skype Communications states in its general terms that it assumes no responsibility for the transmission of signals to users of the SkypeOut feature of its Skype software cannot have any bearing on whether or not the VoIP service which that feature offers is classified as an ‘electronic communications service’. If it were to be included in the general conditions in such a way as to exclude any liability, that would deprive the new regulatory framework for electronic communications services of all significance, the aim of which is to create an internal market for electronic communications with the ultimate aim of ensuring that it is fully governed by competition law. On those grounds, the Court (Fourth Chamber) hereby rules: Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that the provision, by a software publisher, of a feature offering a Voice over Internet Protocol (VoIP) service which allows the user to call a fixed or mobile number covered by a national numbering plan from a terminal via the public switched telephone network (PSTN) of a Member State constitutes an ‘electronic communications service’ within the meaning of that provision, provided that, first, the software publisher is remunerated for the provision of that service and, second, the provision of that service involves the conclusion of agreements between that software publisher and telecommunications service providers that are duly authorised to send and terminate calls to the PSTN.