Request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 19 March 2018 — Google LLC v Bundesrepublik Deutschland

(Case C-193/18)

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Parties to the main proceedings

Applicant: Google LLC

Defendant: Bundesrepublik Deutschland

Questions referred

Must the criterion of ‘a service ... which consists wholly or mainly in the conveyance of signals on electronic communications networks’ in Article 2(c) of Framework Directive 2002/21/EC ¹ be interpreted as meaning that it also includes, or may also include, web-based email services which are supplied over the open internet and do not themselves provide internet access?

Must that criterion be interpreted as meaning, in particular, that the electronic processing service which the provider of such an email service supplies via its email server, by assigning to the email addresses the IP addresses of the physical connections involved and uploading the emails, broken down into data packets, to the open internet, or — conversely — receiving them from there, on the basis of various protocols in the internet protocol suite, is itself to be regarded as a ‘conveyance of signals’, or is it only the transmission of those data packets over the internet by Internet (Access) Providers which constitutes a ‘conveyance of signals’?

Must that criterion be interpreted as meaning, in particular, that the transmission of the email, broken down into data packets, over the open internet by Internet (Access) Providers is attributable to the provider of such an email service, with the result that, to this extent, the provider in question also supplies a service consisting in the ‘conveyance of signals’? If so, under what conditions may such transmission be so attributed?

In the event that the provider of such an email service either conveys signals itself or the conveyance of signals by Internet (Access) Providers is in any event attributable to it, can that criterion be interpreted as meaning, in particular, that such an email service, irrespective of any additional functions of the service, such as the editing, storage and organisation of emails or the management of contact details, and irrespective of the technical effort expended by the provider in connection with individual functions, also consists ‘wholly or mainly’ in the conveyance of signals, given that, if that service is considered in functional terms from the point of view of users, it is its communication function which stands at the forefront?

In the event that the criterion referred to in Question 1 is to be interpreted as meaning that it does not, in principle, include web-based email services which are supplied over the open internet and do not themselves provide internet access, is that criterion nonetheless capable, exceptionally, of being fulfilled where the provider of such an email service simultaneously operates a number of its own internet-connected electronic communications networks which can in any event be used, inter alia, for the purposes of the email service? If so, under which conditions is this possible?

How is the criterion ‘normally provided for remuneration’, laid down in Article 2(c) of Framework Directive 2002/21/EC, to be interpreted?

In particular, does that criterion require the payment of a fee by users or can the remuneration also consist in the provision by users of another form of consideration in the financial interests of the service provider, as, for example, in the case where users actively make available personal or other data or where such data is otherwise captured by the service provider while the service is being used?

In particular, does that criterion necessarily require the remuneration to be paid by the person to whom the service is also provided or may it also be sufficient for the service to be financed in part or in full by third parties, such as, for example, through advertising on the service provider’s website?

In particular, does the word ‘normally’ refer in this context to the circumstances in which the provider of a specific service supplies that service or to the circumstances in which identical or comparable services are generally supplied?

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¹     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 (OJ 2002 L 108, p. 33).