As of 12 September 2025, the Data Act will apply across the EU. As a regulation, it is directly applicable in all Member States and thus has the force of law. It introduces numerous obligations, particularly for connected products and related services.
But does it also apply to electronic communications services (ECS)? Here is a brief clarification. In short: electronic communications services as such are not covered by the Data Act. The regulation does not regulate connectivity itself — it presumes it.
What are electronic communications services?
The term “electronic communications service” is a broad concept in telecommunications law. According to Article 2(4) of the European Electronic Communications Code (EECC), it encompasses three exhaustively listed categories of services. These services are typically offered for remuneration over electronic communications networks and do not consist of content services or editorial control over such content. An ECS is thus intended to ensure the communication process itself.
The three categories are:
- Internet access services within the meaning of the TSM Regulation;
- Interpersonal communications services;
- Services consisting wholly or mainly in the conveyance of signals, such as transmission services used for machine-to-machine communication or broadcasting.
The third category serves as a catch-all for signal transmission services. The first category covers traditional access providers. The second includes both number-based (nbCS) and number-independent (niICS) interpersonal communications services. The decisive factor is connectivity through publicly assigned numbering resources. These services are defined by the following criteria:
- Usually provided for remuneration,
- Enable direct, interpersonal, and interactive information exchange over electronic communications networks between a finite number of persons (any-to-any),
- Recipients are determined by the person initiating or participating in the communication,
- Excludes services that offer interpersonal communication only as an ancillary and inseparable feature of another service.
Typical examples include communications-based over-the-top (OTT) services, which in turn depend on physical connectivity. Software solutions with communication functionality may fall within this group, unless such functionality is merely ancillary. These services were only later brought into the scope of telecoms regulation under the EECC.
How does the Data Act relate to ECS?
The Data Act introduces the concepts of “connected product” and “related service”. Both definitions explicitly exclude ECS through a negative criterion.
In Article 2(5) Data Act, a connected product is defined such that its main function must not be the storage, processing or transmission of data on behalf of another party — other than the user. This already suggests that transmission (as performed by ECS) is excluded from the Data Act’s scope.
Article 2(6) Data Act defines a related service, explicitly stating that it must not be an electronic communications service. The term ECS here includes all three groups listed above — thus also interpersonal and signal transmission services.
This is made particularly clear in Recital 17 of the Data Act:
“Neither the power supply, nor the supply of the connectivity are to be interpreted as related services under this Regulation.”
This confirms the traditional dichotomy: on one side, electronic communications services ensure connectivity, and on the other, content and application services, which require such connectivity.
Role of ECS in regulatory oversight
While the Data Act does not apply to ECS directly, it acknowledges their importance for supervisory purposes. According to Article 37(4) No. 2 Data Act, the competent authority must have experience in both data and electronic communications services. For this reason, the German Federal Network Agency (BNetzA) is expected to assume this role in Germany.
