Judgment of the Court Grand Chamber of 26 April 2022, Poland v Parliament and Council, C-401/19

• Date: 26 April 2022
• Year: 2022

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I. FUNDAMENTAL RIGHTS: FREEDOM OF EXPRESSION

Judgment of the Court (Grand Chamber) of 26 April 2022, Poland v Parliament and Council,

C-401/19

Link to the complete text of the judgment

Action for annulment – Directive (EU) 2019/790 – Article 17(4), point (b), and point (c), in fine – Article 11

and Article 17(2) of the Charter of Fundamental Rights of the European Union – Freedom of expression

and information – Protection of intellectual property – Obligations imposed on online content-sharing

service providers – Prior automatic review (filtering) of content uploaded by users

Directive 2019/790 on copyright and related rights in the digital single market

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established a new

specific liability mechanism in respect online content-sharing service providers (‘the providers’).

Article 17 of that directive lays down the principle that the providers are directly liable where works

and other protected subject matter are unlawfully uploaded by users of their services. The providers

concerned may nevertheless be exempted from that liability. To that end, they are, inter alia,

required, in accordance with the provisions of that article,

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actively to monitor the content uploaded

by users, in order to prevent the placing online of the protected subject matter which rightholders do

not wish to make available on those services.

The Republic of Poland brought an action seeking, principally, the annulment of point (b) and point (c),

in fine, of Article 17(4) of Directive 2019/790 and, in the alternative, annulment of that article in its

entirety. It submits, in essence, that those provisions require the providers to carry out – by means of

IT tools for automatic filtering – preventive monitoring of all the content which their users wish to

upload, without providing safeguards to ensure that the right to freedom of expression and

information is respected.

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The Court of Justice, sitting as the Grand Chamber, gives a ruling for the first time on the

interpretation of Directive 2019/790. It dismisses Poland’s action, holding that the obligation of the

providers, laid down by that directive, to carry out a prior automatic review of the content uploaded

by users, is accompanied by appropriate safeguards in order to ensure respect for the right to

freedom of expression and information of those users and a fair balance between that right and the

right to intellectual property.

Findings of the Court

Examining, first of all, the admissibility of the action, the Court finds that point (b) and point (c), in fine,

of Article 17(4) of Directive 2019/790 are not severable from the remainder of Article 17 and that,

consequently, the head of claim seeking annulment of point (b) and point (c), in fine, only is

inadmissible. Article 17 of Directive 2019/790 establishes a new liability regime in respect of the

providers, the various provisions of which form a whole and seek to strike a balance between the

rights and interests of those providers, those of users of their services and those of rightholders.

Consequently, such partial annulment would alter the substance of Article 17.

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Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single

Market and amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92).

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See Article 17(4), point (b), and point (c), in fine, of Directive 2019/790.

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As guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).