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Directive limits: Restricting Member State overreach in EU law

Updated: Nov 11, 2023

A Member State is not allowed to use the provisions of a directive to implement general and abstract obligations that give to that state a larger competence than the directive originally intended


ECJ decision issued on 9 November 2023, in Case C‑376/22,



Court's Judgment (Second Chamber) issued on 9 November 2023, in Case C‑376/22, pertains to the interpretation of Directive 2000/31/EC and Directive 2010/13/EU on audiovisual media services. This case involves a dispute between Google Ireland, Meta Platforms Ireland, and Tik Tok Technology on one side, and the Austrian communications regulatory authority, (KommAustria), on the other side. The dispute revolves around Austrian legislation that imposes monitoring and notification obligations for illegal content on communication platforms. The Court's decision is the result of a request for a preliminary ruling in this case. The Court considered control principles in the Member State of origin, as well as the possibility of notifying restrictive measures after they had been implemented in emergency situations. The Court's decision emphasises the importance of upholding the free movement of information society services among Member States, as well as the “country-of-origin principle” outlined in Directive 2000/31. Furthermore, the Court recognised the jurisdiction of the Member State in which the video-sharing platform provider is located, as specified in Directive 2010/13.

In short:


The ECJ upheld the country of origin principle and ruled that Article 3(4) of the Directive 2000/13 does not allow general and abstract restrictions on categories of information society services, only measures targeting identifiable individual services.



Summary of the decision

Facts:

  • The case involves Google Ireland, Meta Platforms Ireland, and TikTok Technology (all of which are based in Ireland), as well as the Austrian communications authority KommAustria.

  • KommAustria declared the companies to be subject to an Austrian law imposing obligations on communication platform providers.

  • The companies filed a legal challenge in Austria, claiming that the law violates EU rules on the freedom to provide services.

  • Legal Issues:

  • Interpretation of Directive 2000/31/EC on e-commerce, specifically Articles 3(4) and (5) on service restrictions.

  • Whether Austrian law imposes measures on a "specific information society service" as defined in Article 3. (4).

  • Whether national measures can be imposed if Article 3 is not followed (5).

  • Directive 2010/13/EU on audiovisual media services, specifically Article 28a(1) on jurisdiction over video-sharing platforms, is being interpreted.

ECJ Decision:

  • General and abstract measures aimed at categories of services do not qualify as measures against a "given service" under Article 3. (4).

  • Article 3(4) refers to measures against individually identifiable services.

  • Procedural requirements in Article 3(4)(b) also support this interpretation.

  • Interpreting Article 3(4) to allow general abstract measures would undermine the Directive's country of origin principle.

  • The ability to restrict services under Article 3(4) was not intended to allow for general regulation of service provider categories.



Commentary

First, the Court's decision recognizes the jurisdiction of the Member State where the video-sharing platform provider is established, as provided for by Directive 2010/13. This is an important step toward preserving the "country-of-origin principle" in the context of internet media platforms.

Second, the Court's interpretation of Article 3(4) of Directive 2000/31 clarifies that Member States are not authorized to adopt general and abstract measures aimed at regulating a category of information society service providers as a whole, even though such measures would combat content which seriously undermines the objectives set out in Article 3(4)(a)(i) of that directive.

As a result, a member state may not use a directive's provisions to implement general and abstract obligations that give that state greater competence than the directive intended. This is because the directives are intended to ensure the proper functioning of the internal market by allowing free movement of information society services between Member States.

For example, Article 3 of Directive 2000/31, titled "Internal Market," states that each Member State must ensure that information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question that fall within the coordinated field. Member States may not restrict another Member State's freedom to provide information society services for reasons falling within the coordinated field.

However, Member States may take measures to deviate from this in the case of a specific information society service if the measures are necessary for reasons such as public policy, public health, public security, or consumer protection, and are proportionate to those objectives.

In an emergency situation, Member States may deviate from the conditions of paragraph 2 of the above article However when this is the case, as outlined in paragraph 4. (b) the measures must be notified to the Commission as soon as possible, indicating the reasons for the Member State's urgency.

As a result, while a Member State has some leeway to implement measures that differ from the provisions of a directive, these measures must be necessary, proportionate, and not restrict another Member State's freedom to provide information society services. They cannot be used to carry out general and abstract obligations that grant the state more authority than the directive intended.



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