CJEU rules that a member state may not subject a communication platform provider established in another member state to general and abstract obligations

November 13, 2023

The Court of Justice of the European Union has issued its judgment in C-376/22 Google Ireland and others. The full judgment is not yet available in English.

In 2021, Austria introduced a law requiring domestic and foreign providers of communication platforms to set up mechanisms for reporting and verifying potential illegal content. The law also provides for regular and transparent publication of reports of illegal content. An administrative authority ensures compliance with the law and can impose fines of up to €10 million.

Google Ireland, Meta Platforms Ireland and TikTok, all established in Ireland, argued that the Austrian law is contrary to Directive 2001/31/EC on information society services.

The Austrian courts referred the case to the CJEU.

The CJEU reiterated that the aim of the Directive is to create a legal framework to ensure the free movement of information society services between member states. Consequently, the Directive eliminates the obstacles posed by the different national rules applicable to those services, due to the country of origin principle.

The court accepted that, under strict conditions and in specific cases, member states other than the member state of origin of the service in question may take measures to guarantee public policy, the protection of public health, public security or the protection of consumers. Those specific derogations must be notified to the European Commission and the member state of origin.

However, member states other than the member state of origin may not adopt measures of a general and abstract nature which apply without distinction to any provider of a category information society services. The term “without distinction” means providers established in that member state and providers established in other member states.

The court said that if member states could adopt such general and abstract obligations, that would call into question the principle of control in the member state of origin of the service concerned, on which the Directive is based. If the Member State of destination (in this case, Austria) were authorised to adopt such measures, this would encroach on the regulatory powers of the home member state (in this case, Ireland), Furthermore, it would undermine mutual trust between member state and contravene the principle of mutual recognition. In addition, the platforms concerned would be subject to different laws, which would also have an adverse impact on the freedom to provide services and therefore the proper functioning of the internal market.