Skype Communications Sàrl v Institut belge des services postaux et des télécommunications (IBPT).
Date: 2019-06-05
20


In its request for a preliminary ruling, the referring court states that, contrary to what Skype Communications claims, that company does offer a service to Belgian residents, with the result that the SkypeOut service is indeed offered in Belgium. It states, in addition, that the parties to the main proceedings disagree over whether the service provided by SkypeOut consists wholly or mainly in the transmission of signals on electronic communications networks. It notes, in this regard, that the Court ruled, in its judgment of 30 April 2014, UPC DTH (C‑475/12, EU:C:2014:285, paragraph 43), that ‘the fact that the transmission of signals is by means of an infrastructure that does not belong to [the applicant] is of no relevance to the classification of the nature of the service. All that matters in that regard is that [the applicant] 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’.
24


It should be borne in mind, first of all, that an ‘electronic communications service’ is defined, in positive and negative terms, in Article 2(c) of the Framework Directive, and that that definition is reproduced in equivalent terms in Article 1(3) of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21) (judgment of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraphs 36 and 37).
28


As the Court has already held, the various directives forming the new Electronic Communications Services regulatory framework, in particular the Framework Directive and Directive 2002/77, draw a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility. Content and transmission are covered by different measures which pursue their own specific objectives (see, to that effect, judgments of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraph 41, and of 30 April 2014, UPC DTH, C‑475/12, EU:C:2014:285, paragraph 36).
29


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).
33


It follows, first, that the SkypeOut feature principally consists in transmitting voice signals sent by the user making the call to the user receiving the call on electronic communications networks — namely the internet to begin with, then the PSTN — and, second, that Skype Communications must be regarded as assuming responsibility vis-à-vis the users of the SkypeOut feature, who have subscribed to that service or have prepaid their use of it, for the transmission of voice signals on the PSTN, within the meaning of the judgment of 30 April 2014, UPC DTH (C‑475/12, EU:C:2014:285, paragraph 43).
45


To accept that the provider of a service which in practical terms comes under the classification of ‘electronic communications service’ may escape the scope of the Framework Directive by including in its general terms a clause exonerating it from all liability would deprive of all meaning the new Electronic Communications Services regulatory framework, the purpose of which is to establish a genuine internal market for electronic communications in which those communications are ultimately to be governed solely by competition law (see, to that effect, judgments of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraph 45, and of 30 April 2014, UPC DTH, C‑475/12, EU:C:2014:285, paragraph 44).