On 8 June 2023, the Court of Justice of the EU (CJEU) published Advocate General Maciej Szpunar’s opinion on the additional obligations imposed on the largest platforms (Google, Meta, Tiktok) in a Member State other than the one where they registered their office, except for the measures customised on a case-by-case basis.
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Case facts
Following the introduction of the Digital Service Act, the Austrian legislature adopted the Federal Law on measures for the protection of users on communication platforms (the “KoPI-G”). This requires the service providers of communication platforms to comply with the obligations under the KoPI-G no later than 31 March 2021. In March – April 2021, the Austrian Communications Regulatory Authority (“Komm Austria”) declared that Google (Ireland), Meta (Ireland) and Tiktok fall within this law’s scope. As a result, these companies shall have to install a system of notification, verification of allegedly illegal content and publish regular reports on their notification management. Then, they challenged the compatibility of the KoPI-G with the Directive on electronic commerce 2000/31/EC.
Advocate General’s opinion
Based on the premise of the Supreme Administrative Court of Austria that these companies’ services provided in Austria are information society services, the Advocate General addressed that the Member State cannot restrict the freedom to provide such services from another Member State within the coordinated field by applying stricter requirements than those under the law of its Member State of origin pursuant to the Directive 2000/31/EC. Reiterating his position in Airbnb Ireland case C-390/18 regarding the derogation from the Directive 2000/31/EC country-of-origin principle, he emphasised “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 Commission and after asking the Member State of origin to take measures in respect of information society services, which did not occur in this case”.
In conclusion, he considered that the Directive 2000/31/EC prohibits a Member State from providing the legislative measures restricting the freedom to provide information society services from another Member State.
Press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-06/cp230098en.pdf
Full text of the opinion: https://curia.europa.eu/juris/document/document.jsf?text=&docid=274435&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3042516
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