Case C‑376/22

Google Ireland Limited and Others

v

Kommunikationsbehörde Austria (KommAustria)

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

Judgment of the Court (Second Chamber) of 9 November 2023

(Reference for a preliminary ruling – Directive 2000/31/EC – Information society services – Article 3(1) – Principle of control in the home Member State – Article 3(4) – Derogation from the principle of free movement of information society services – Concept of ‘measures taken against a given information society service’ – Article 3(5) – Possibility of a posteriori notification of measures restricting the free movement of information society services in urgent cases – Failure to provide notification – Enforceability of those measures – Legislation of a Member State imposing on providers of communication platforms, whether established on its territory or not, a set of obligations relating to the monitoring and notification of allegedly unlawful content – Directive 2010/13/EU – Audiovisual media services – Video-sharing platform service)

1. Approximation of laws – Electronic commerce – Directive 2000/31 – Provision of information society services – Derogation from the principle of free movement of information society services – Concept of measures taken against a given information society service – General and abstract measures, aimed at a category of services described in general terms and applying without distinction to any provider of that category of services – Not included – National legislation providing for such measures in respect of communication platform providers – Not permissible

   (European Parliament and Council Directive 2000/31, recitals 5, 6 and 8 and Arts 1(1) and 3(1), (2) and (4))

   (see paragraphs 27-30, 34-36, 42, 47-49, 51, 53-60, operative part)

2. Approximation of laws – Electronic commerce – Directive 2000/31 – Provision of information society services – Derogation from the principle of free movement of information society services – Whether permissible – Conditions

   (European Parliament and Council Directive 2000/31, recital 24 and Art. 3(4))

   (see paragraphs 31-33, 45, 46)

3. Approximation of laws – Electronic commerce – Directive 2000/31 – Provision of information society services – Principle of control in the home Member State – Scope

   (European Parliament and Council Directive 2000/31, recital 22 and Art. 3)

   (see paragraphs 40-44)

Résumé

Google Ireland Limited, Meta Platforms Ireland Limited and Tik Tok Technology Limited are companies established in Ireland which provide, inter alia in Austria, communication platform services.

By its decisions, adopted in 2021, the Kommunikationsbehörde Austria (KommAustria) (the Austrian communications regulatory authority) declared that the three companies referred to above were subject to Austrian law. ( 1 )

Taking the view that that Austrian law, which imposes a set of obligations on providers of communication platform services, whether established in Austria or elsewhere, relating to the monitoring and notification of allegedly unlawful content, should not be applied to them, those companies brought actions against the KommAustria decisions. Those actions were dismissed at first instance.

Following that dismissal, those companies lodged appeals on a point of law before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria). In support of those appeals, they submit in particular that the obligations introduced by the Austrian law are disproportionate and incompatible with the free movement of information society services and with the principle of control of those services by the home Member State, in other words, by the State on whose territory the service provider is established, as laid down in the Directive on electronic commerce. ( 2 )

Having doubts as to the compatibility of the Austrian law and the obligations it imposes on service providers with the Directive on electronic commerce, which allows a Member State other than the home Member State to derogate, under certain conditions, from the principle of free movement of information society services, the Supreme Administrative Court made a reference to the Court of Justice on the interpretation of that directive.

In its judgment, the Court rules on the question whether a Member State of destination of information society services may derogate from the free movement of those services by taking not only individual and specific measures, but also general and abstract measures aimed at a category of given services and, specifically, whether those measures are likely to fall within the concept of ‘measures taken against a given information society service’ within the meaning of the Directive on electronic commerce. ( 3 )

Findings of the Court

First of all, the Court notes that the possibility of derogating from the principle of free movement of information society services concerns, according to the wording of the Directive on electronic commerce, a ‘given information society service’. In this context, the use of the word ‘given’ tends to indicate that the service referred to must be understood as an individualised service. Consequently, Member States cannot adopt general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services.

That assessment is not called into question by the fact that the Directive on electronic commerce uses the concept of ‘measures’. By using such a broad and general term, the EU legislature has left to the discretion of the Member States the nature and form of the measures they may adopt to derogate from the principle of free movement of information society services. However, the use of that term in no way prejudges the substance or material content of those measures.

Next, the Court notes that that literal interpretation is corroborated by the contextual analysis of the Directive on electronic commerce.

The possibility of derogating from the principle of free movement of information society services is subject to the condition that the Member State of destination of those services must first ask the Member State of their origin to take measures, ( 4 ) which presupposes the possibility of identifying the service providers and, consequently, the Member States concerned. If Member States were authorised to restrict the free movement of such services by means of measures of a general and abstract nature applying without distinction to any provider of a category of such services, such identification would be, if not impossible, at least excessively difficult, so that Member States would not be able to comply with such a condition.

Finally, the Court points out that the Directive on electronic commerce is based on the application of the principles of home Member State control and mutual recognition, so that, within the coordinated field, ( 5 ) information society services are regulated solely in the Member State on whose territory the providers of those services are established. However, if Member States of destination were authorised to adopt measures of a general and abstract nature applying without distinction to any provider of a category of such services, whether established in the latter Member State or not, the principle of control in the Member State of origin would be called into question. That principle results in a division of regulatory powers between the Member State of origin and the Member State of destination. To authorise the latter State to adopt such measures would encroach on the regulatory powers of the Member State of origin and would have the effect of subjecting such providers to the legislation of both that State and the Member State or Member States of destination. Calling into question that principle would undermine the system and objectives of the Directive on electronic commerce. Furthermore, to allow the Member State of destination to adopt such measures would undermine mutual trust between Member States and would be in conflict with the principle of mutual recognition.

In addition, the Court states that the Directive on electronic commerce seeks to eliminate legal obstacles to the proper functioning of the internal market arising from divergences in legislation and from the legal uncertainty as to which national rules apply to such services. However, the possibility of adopting the abovementioned measures would ultimately amount to subjecting the service providers concerned to different laws and, consequently, reintroducing the legal obstacles to freedom to provide services which that directive seeks to eliminate.

Thus, the Court concludes that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of ‘measures taken against a given information society service’ within the meaning of the Directive on electronic commerce.

( 1 ) Namely, the Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (Kommunikationsplattformen-Gesetz) (Federal Law on measures for the protection of users of communications platforms) (BGBl. I, 151/2020).

( 2 ) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1) (‘the Directive on electronic commerce’).

( 3 ) Article 3(4) of the Directive on electronic commerce.

( 4 ) Article 3(4)(b) of the Directive on electronic commerce.

( 5 ) Within the meaning of Article 2(h) of the Directive on electronic commerce.