On Thursday 9 November, the Court of Justice of the European Union provided clarification on the application of the Directive on Information Society Services and, in particular, Electronic Commerce in the Internal Market (2000/31/EC) and the Audiovisual Media Services Directive (2010/13/EU).
In 2021, the Austrian communications regulator (KommAustria) adopted decisions holding that Google Ireland Limited, Meta Platforms Ireland Limited and Tik Tok Technology Limited, which are established in Ireland and provide communication platform services in Austria and elsewhere, were subject to Austrian law. Under this law, providers of communication platform services, whether established in Austria or not, are subject without distinction to obligations relating to the monitoring and notification of illegal content.
Following appeals against KommAustria’s decisions, which were rejected at first instance, the three companies lodged appeals for review with the Austrian Administrative Court, arguing that these obligations were disproportionate and incompatible with the free movement of information society services and with the principle of control of these services by the Member State of origin, enshrined in the electronic commerce directive.
The Austrian Administrative Court referred a question to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the Directive, and in particular Article 3 thereof, and on the compatibility of the obligations imposed by Austrian law with the Directive.
This directive provides for the possibility for a Member State other than the host State of a provider to derogate from the principle of free movement of information society services, but under certain conditions and for a number of specific reasons.
Consequently, in its judgment, the Court concluded that a Member State may not adopt measures aimed at a given category of information society services which are general and abstract and apply to all providers of such services indiscriminately (whether or not they are established in that Member State).
Pursuing its teleological approach, the Court recalled that the objective of the Directive was to create a legal framework to ensure the free movement of information society services between Member States, in particular by removing the obstacles constituted by the different national regimes applicable to those services and by relying on the principles of control in the Member State of origin and mutual recognition.
Link to the judgment: https://aeur.eu/f/9hr (Original version in French by Émilie Vanderhulst)