Platforms may not have additional obligations imposed on them in a member state other than where they have their registered office

June 13, 2023

The Advocate General has provided an opinion in the case of Case C-376/22 Google Ireland and others v Komm Austria.

Meta Platforms and TikTok challenged a declaration by the Austrian Communications Regulatory Authority (KommAustria) which said that the Austrian Federal Law of 2020 on measures for the protection of users on communication platforms (KoPI-G 1) applied to them, even though they are established in another EU member state, in this case, Ireland.

The KoPI-G 1 aims to strengthen the liability of communication platforms. More specifically, it imposes a general obligation on providers of ‘communication platforms’, whether established in Austria or abroad, to put in place a system for notification and verification of allegedly illegal content. In addition providers are also required to publish regular reports on the handling of such notifications. The obligations under the KoPI-G do not require an individual and specific measure to be adopted beforehand. If the law is breached, providers can be fined.

Google, Meta Platforms and TikTok argued that the KoPI-G is incompatible with the Directive on electronic commerce, and in particular with the country-of-origin principle. The Austria courts referred the issue to the Court of Justice. It asked if a member state may restrict the freedom to provide information society services from other member states by adopting national measures of a general and abstract nature relating to a category, described in general terms, of given information society services (communication platforms), without those measures being taken on a case-by-case basis and identifying platforms by name.

Advocate General Maciej Szpunar emphasised in his opinion that his analysis is based on the premise that the services provided in Austria by the three companies in question constitute information society services.

He highlights that the Directive on electronic commerce prohibits member states from restricting the freedom to provide information society services from another member state.

In principle, the Directive precludes, subject to derogations, a provider of an electronic commerce service from being made subject to stricter requirements than those provided for by the law in its member state of origin. In his view, a member state other than the member state of origin can derogate from the free movement of information society services only by measures taken on a ‘case-by-case’ basis, following prior notification to the European Commission and after asking the member state of origin to take measures in respect of information society services. That did not take place in this case.

Furthermore, to take the view that a general and abstract provision applying to any provider of a category of information society services constitutes a ‘measure’ would be tantamount to authorising the fragmentation of the internal market by national regulations. Moreover, allowing different laws to apply to a provider would run counter to the objective in the Directive of eliminating legal obstacles to the proper functioning of the internal market.

Thus, the Advocate General considers that the Directive on electronic commerce prevents a member state from being able to restrict, in such circumstances and in such a manner, the freedom to provide information society services from another member state.