European Commission v Ireland.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:178
• Date: 29 February 2024
• Docket Number: C-679/22
• Celex Number: 62022CJ0679
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Ninth Chamber)

29 February 2024 (*)

(Failure of a Member State to fulfil obligations – Article 258 TFEU – Directive (EU) 2018/1808 – Provision of audiovisual media services – Failure to transpose and to communicate transposition measures – Article 260(3) TFEU – Application for an order to pay a lump sum and a penalty payment)

In Case C‑679/22,

ACTION for failure to fulfil obligations under Article 258 TFEU and Article 260(3) TFEU, brought on 4 November 2022,

European Commission, represented by L. Armati, U. Małecka, L. Malferrari and E. Manhaeve, acting as Agents,

applicant,

v

Ireland, represented by M. Browne, Chief State Solicitor, A. Joyce and D. O’Reilly, acting as Agents, and by B. Doherty, Barrister-at-Law,

defendant,

THE COURT (Ninth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, J.‑C. Bonichot and L.S. Rossi (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the European Commission requests the Court to:

– declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (OJ 2018 L 303, p. 69), or, in any event, by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under Article 2 of that directive;

– order Ireland to pay a lump sum based on a daily amount of EUR 5 544.90 per day and amounting to a minimum of EUR 1 376 000;

– if the failure to fulfil obligations found in the first indent has continued until the date of delivery of the judgment, order Ireland to make a penalty payment of EUR 32 257.20 per day, from that date until the date of compliance with its obligations under Directive 2018/1808, and

– order Ireland to pay the costs.

Legal context

2 Recitals 1, 4 and 16 of Directive 2018/1808 are worded as follows:

‘(1) The last substantive amendment to Council Directive 89/552/EEC [of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23)], subsequently codified by Directive 2010/13/EU of the European Parliament and of the Council [of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1)], was made in 2007 with the adoption of Directive 2007/65/EC of the European Parliament and of the Council [of 11 December 2007 (OJ 2007 L 332, p. 27)]. Since then, the audiovisual media services market has evolved significantly and rapidly due to the ongoing convergence of television and Internet services. Technical developments have allowed for new types of services and user experiences. Viewing habits, particularly those of younger generations, have changed significantly. While the main TV screen remains an important device for sharing audiovisual experiences, many viewers have moved to other, portable devices to watch audiovisual content. Traditional TV content still accounts for a major share of the average daily viewing time.

However, new types of content, such as video clips or user-generated content, have gained an increasing importance and new players, including providers of video-on-demand services and video-sharing platforms, are now well-established. This convergence of media requires an updated legal framework in order to reflect developments in the market and to achieve a balance between access to online content services, consumer protection and competitiveness.

…

(4) Video-sharing platform services provide audiovisual content which is increasingly accessed by the general public, in particular by young people. This is also true with regard to social media services, which have become an important medium to share information and to entertain and educate, including by providing access to programmes and user-generated videos. Those social media services need to be included in the scope of Directive [2010/13]. because they compete for the same audiences and revenues as audiovisual media services. Furthermore, they also have a considerable impact in that they facilitate the possibility for users to shape and influence the opinions of other users. Therefore, in order to protect minors from harmful content and all citizens from incitement to hatred, violence and terrorism, those services should be covered by Directive [2010/13] to the extent that they meet the definition of a video-sharing platform service.

…

(16) Because of the specific nature of audiovisual media services, especially the impact of those services on the way people form opinions, users have a legitimate interest in knowing who is responsible for the content of those services. In order to strengthen freedom of expression, and, by extension, to promote media pluralism and avoid conflicts of interest, it is important for Member States to ensure that users have easy and direct access at any time to information about media service providers. It is for each Member State to decide, in particular with respect to the information which may be provided on ownership structure and beneficial owners.’

3 Article 1 of Directive 2018/1808 amends certain of the provisions of Directive 2010/13 and inserts new provisions into it.

4 Thus, by virtue of Article 1(10) of Directive 2018/1808, an Article 6a has been inserted into Directive 2010/13, which is worded as follows:

‘1. Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of the programme.

The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures.

…

3. Member States shall ensure that media service providers provide sufficient information to viewers about content which may impair the physical, mental or moral development of minors. For this purpose, media service providers shall use a system describing the potentially harmful nature of the content of an audiovisual media service.

…’

5 Likewise, by virtue of Article 1(23) of Directive 2018/1808, a Chapter IXa, entitled ‘Provisions applicable to video-sharing platform services’, has been inserted into Directive 2010/13, which includes, inter alia, Article 28b, paragraph 1 of which states:

‘Without prejudice to Articles 12 to 15 of 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)], Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect:

(a) minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1);

(b) the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter [of Fundamental Rights of the European Union];

(c) the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541 [of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ 2017 L 88, p. 6)]; offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council [of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1)] and offences concerning racism and xenophobia as set out in Article 1 of [Council] Framework Decision 2008/913/JHA [of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ 2008 L 328, p. 55)].’

6 Article 2 of Directive 2018/1808 provides:

‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 19 September 2020. They shall immediately communicate the text of those provisions to the Commission.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.’

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