Opinion of Advocate General Szpunar delivered on 8 June 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:467
• Date: 08 June 2023
• Celex Number: 62022CC0376
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 8 June 2023 (1)

Case C‑376/22

Google Ireland Limited,

Meta Platforms Ireland Limited,

Tik Tok Technology Limited

v

Kommunikationsbehörde Austria (Komm Austria),

Other party:

Bundesministerin für Frauen, Familie, Integration und Medien im Bundeskanzleramt

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

(Reference for a preliminary ruling – Electronic commerce – Directive 2000/31/EC – Communication platform service – Legislation requiring providers of such services to establish a monitoring procedure for allegedly illegal content – Derogation from the country-of-origin principle)

I. Introduction

1. On 19 October 2022, the EU legislature adopted Regulation (EU) 2022/2065 (2) (‘the Digital Services Act’) in order to set out harmonised rules for a safe, predictable and trusted online environment that facilitates innovation and in which fundamental rights are effectively protected. (3) To that end, that regulation imposes a series of obligations on providers of so-called ‘intermediary’ services concerning transparency reporting, designation of points of contact and mechanisms for notification of illegal content. (4) That regulation will become applicable, in principle, from 17 February 2024, without prejudice to its anticipated application to providers of very large online platforms and of very large online search engines. (5)

2. Until that date, the rules on those matters will not be subject to comparable harmonisation at EU level. (6)

3. Recently, some Member States have adopted laws imposing obligations similar to those described above on the providers of information society services accessible on their territories. (7) The Austrian legislation at issue in the present case, adopted in 2020, appears to be part of that trend. (8)

4. However, since 2002, the movement of information society services has, to a large extent, been governed by Directive 2000/31/EC. (9)

5. According to Article 3(1) of Directive 2000/31, each Member State is to ensure that the information society services provided by a service provider established on its territory (the Member State of origin) comply with the national provisions which fall within the ‘coordinated field’, as defined in Article 2(h) of that directive. The principle that information society services must in principle be subject to the legal system of the Member State of origin is referred to as the ‘country-of-origin principle’.

6. As an extension of that logic, under Article 3(2) of Directive 2000/31, Member States may not, in principle, restrict the freedom to provide information society services from another Member State. A Member State other than the Member State of origin may derogate from that principle only by measures which are taken ‘in respect of a given information society service’ and which fulfil the conditions set out in Article 3(4)(a) and (b) of that directive.

7. That is the legal framework governing the first question referred to the Court in the present case. By that question, the referring court seeks to ascertain whether a Member State may derogate from the freedom to provide information society services by taking not only individual and specific measures, but also general and abstract legislative measures relating to a category of given services. At the request of the Court, this Opinion is confined to an analysis of that question.

8. This issue remains relevant under the Digital Services Act, in so far as that regulation repeals neither the country-of-origin principle nor the possibility of derogating from that principle in the cases provided for in Article 3(4) of Directive 2000/31. (10)

II. Legal framework

A. European Union law

9. Article 2(a) of Directive 2000/31 defines the concept of ‘information society services’ by reference to Article 1(1) of Directive (EU) 2015/1535. (11) The latter directive defines an information society service as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.

10. Article 2(h) of Directive 2000/31 defines the ‘coordinated field’ as ‘requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them’.

11. Article 3 of that directive, entitled ‘Internal Market’, is worded as follows:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.

3. Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.

4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:

(a) the measures shall be:

(i) necessary for one of the following reasons:

– public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons,

…

(ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:

– asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,

– notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.

5. Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency.

6. Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’

B. Austrian law

12. The Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (Kommunikationsplattformen-Gesetz) (Austrian Federal Law on measures for the protection of users on communication platforms) (12) (‘the KoPl-G’) was enacted on 23 December 2020 and entered into force on 1 January 2021. Service providers falling within the scope of that law were supposed to comply with the obligations which it imposed by no later than 31 March 2021. (13)

13. Paragraph 1 of the KoPl-G provides:

‘(1) This Law serves to promote the responsible and transparent handling and prompt processing of notifications by users relating to the following content on communication platforms.

(2) Domestic and foreign service providers which provide communication platforms (Paragraph 2(4)) for economic gain shall fall within the scope of this Law, unless:

1. the number of registered users with a right of access to the communication platform in Austria was less than an average of 100 000 persons in the preceding calendar year, and

2. the turnover from the operation of the communication platform in Austria in the preceding calendar year was less than EUR 500 000.

…

(5) Upon application by a service provider, the supervisory authority shall make a declaration on whether that service provider falls within the scope of this Law.

…’

14. Paragraph 2(4) of the KoPl-G defines a ‘communication platform’ as ‘an information society service, the main purpose or an essential function of which is to enable the exchange of information or of representations that have intellectual content, in the form of words, writing, sound or images, between users and a large group of other users by means of mass distribution’.

15. According to Paragraph 3 of the KoPl-G:

‘(1) Service providers shall establish an effective and transparent procedure for handling and processing notifications relating to allegedly illegal content available on the communication platform.

…

(4) In addition, service providers shall ensure that an effective and transparent procedure for reviewing their decisions to block or remove notified content is in place (subparagraph 3(1)). …’

16. According to Paragraph 4(1) of the KoPl-G:

‘Service providers shall be obliged to draw up an annual, or, in the case of communication platforms with over one million registered users, a six-monthly, report on the handling of notifications relating to allegedly illegal content. Service providers shall submit their report to the supervisory authority no later than one month after the end of the period covered by that report and shall simultaneously make the report permanently and easily accessible on their own website.’

17. Paragraph 5 of the KoPl-G provides:

‘(1) Service providers shall appoint a person who fulfils the requirements of Paragraph 9(4) of the Verwaltungsstrafgesetz 1991 (VStG) [(Austrian Law on...