In December 2015, we reported about a German court that classified Google’s Gmail as a regulated telecommunications service. This court decision added to the discussion of whether and to what extent communications services that are provided “over the top” (OTT) (i.e., via the open Internet) shall be regulated under European telecommunications laws. The Gmail decision also provided momentum for the traditional telcos’ call for a regulatory “level playing field” among traditional telecoms services (e.g., voice telephony over fixed or mobile networks, or SMS services) and OTT services. Google’s appeal against the Gmail decision is still pending so, under current German law, these particular questions will not be finally resolved for quite some time. In a very similar case, the National Regulatory Authority (NRA) of Belgium fined Skype this summer with more than EUR 220,000 for failure to notify itself as a provider of SkypeOut as an – allegedly – regulated telecoms service. And most recently, a Belgian court issued a further fine against Skype for failure to comply with statutory obligations addressed to providers of regulated telecoms services. It can be expected that Skype will appeal this decision.

In September 2016, however, the European Commission presented a new draft directive, the European Communications Code (ECC). The ECC shall enact a specific regulatory framework for OTT communications services. While under this framework many OTT services would only become subject to a limited set of new requirements, others—specifically those that allow a breakout to the public switched telephone network (PSTN)— would then be regulated on the same level as traditional telecoms services.