Case Summary and Outcome

The Court of Justice of the European Union ruled unanimously that the Austrian Federal Law on measures for the protection of users of communications platforms (KoPl-G) could not be applied to the platform providers as a general and abstract measure. The dispute arose after the Austrian authority declared that several major online platforms established in Ireland were subject to the Austrian law’s transparency and notification obligations. The Court held that under Article 3(4) of Directive 2000/31/EC (E-Commerce Directive), a Member State may only derogate from the principle of free movement of information society services by adopting measures against a specific, individualized service, not against an entire category of services like “communication platforms.” The Court reasoned that allowing general measures would undermine the “country of origin” principle and the internal market framework established by the Directive, as it would subject providers to multiple regulatory regimes and make the required prior notification to other Member States impracticable. Consequently, the Court found the KoPl-G, as a general measure, incompatible with EU law.

Facts

The Plaintiffs are Google Ireland Limited, Meta Platforms Ireland Limited, and TikTok Technology Limited, companies established in Ireland that provide communication platform services in Austria. The Defendant is the Kommunikationsbehörde Austria (KommAustria), the Austrian communications regulatory authority.

Following the entry into force of the Austrian Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (KoPl-G) in 2021, the Plaintiffs requested KommAustria to declare that they did not fall within its scope. The KoPl-G imposes obligations on providers of communication platforms, including establishing procedures for handling user notifications about allegedly illegal content and publishing regular transparency reports. By three decisions in March and April 2021, KommAustria declared that the Plaintiffs were subject to the KoPl-G as they provided “communication platform” services within the meaning of Paragraph 2(4) of that law.

The Plaintiffs brought actions before the Bundesverwaltungsgericht (Federal Administrative Court), which dismissed them. They then appealed on points of law to the Verwaltungsgerichtshof (Supreme Administrative Court), arguing that the KoPl-G could not be applied to them because Austria had failed to notify Ireland and the European Commission of the law as required by Article 3(4)(b) and (5) of Directive 2000/31/EC. They also contended the obligations were disproportionate and contrary to the free movement of services and the “country of origin” principle under Directives 2000/31 and 2010/13.

The Supreme Administrative Court referred the case to the Court of Justice for a preliminary ruling concerning the interpretation of these Directives.

Opinion of Advocate General Szpunar

As part of the CJEU’s procedure, an Advocate General, who is a senior judge, provides an independent legal analysis of the case to assist the Court before its deliberation and final judgment. In his opinion delivered on 8 June 2023, the Advocate General analyzed the first and central question: whether a Member State may derogate from the free movement of digital services by enacting general legislation, such as the KoPl-G. He concluded it may not. He argued that Article 3(4) of Directive 2000/31 must be interpreted as precluding general and abstract legislative measures that apply to an entire category of services. He emphasized that the country-of-origin principle is central, and derogations must be strict, case-specific, and respect the procedural requirement of prior notification to the Commission and the home Member State. Allowing general measures would undermine mutual trust between Member States and fragment the internal market.

Decision Overview

Judge A. Prechal, President of the Chamber, delivered the judgment for the Court (Second Chamber). The primary issues before the Court was whether a Member State may adopt general and abstract legislative measures (like the KoPl-G) that apply to an entire category of information society services (like “communication platforms”) as a derogation from the free movement principle under Article 3(4) of Directive 2000/31/EC, or if such derogations must target a specific, individualized service.

The Plaintiffs argued the KoPl-G was a general measure not notified under Directive 2000/31 and thus inapplicable to them. The Austrian Government defended the law as a necessary protection measure.

The applicable law was Article 3 of Directive 2000/31/EC, which establishes the “country of origin” principle (Article 3(1)-(2)) and provides a limited exception in Article 3(4) allowing Member States to take restrictive measures against a “given information society service” under strict conditions, including prior notification.

The Court began with a textual analysis. The Court noted that Article 3(4) explicitly refers to measures taken against a “given information society service,” using the singular and the adjective “given.” This linguistic choice, the Court held, strongly indicates that the provision contemplates an individualized service provided by specific providers, not a generically described category. The Court underlined that such language excludes the possibility of adopting measures that are broad and abstract, applying without differentiation to any provider within a particular category. It emphasized that while Member States have discretion regarding the form of measures, this does not extend to altering the substantive requirement that the target be specific.

In examining the procedural requirements outlined in Article 3(4)(b), the Court found a crucial contextual argument. It highlighted that paragraph 4(b) requires the Member State of destination to first request intervention from the Member State of origin and then notify both that State and the Commission before taking a measure. This procedure, the Court reasoned, “presupposes that the providers and, consequently, the Member States concerned can be identified.” [para. 35] It found that a general law applying indistinctly to any provider in a category would make identifying and notifying the relevant home Member State “excessively difficult,” thereby undermining the very purpose of this cooperative, prior-notification safeguard [Airbnb Ireland, C‑390/18, (2019)].

Ultimately, the Court grounded its decision in the purpose of the Directive: to ensure the free movement of information society services by eliminating legal obstacles arising from divergent national laws. The country-of-origin principle, enshrined in Article 3(1), is the cornerstone of this system, allocating regulatory responsibility to the Member State where the provider is established to foster mutual trust and legal certainty [eDate Advertising GmbH v X, (2011)]. The Court concluded that interpreting Article 3(4) to permit general measures would “call into question” this foundational principle. It would lead to providers being subject to multiple, overlapping national regimes, thereby “reintroducing the legal obstacles to freedom to provide services which that directive seeks to eliminate.” Such an outcome would fragment the internal market and contradict the Directive’s core objectives.

In conclusion, the Court held that Article 3(4) of Directive 2000/31 precludes a Member State from applying a general and abstract legislative measure, such as the KoPl-G, to information society service providers established in other Member States. As a result, the KoPl-G could not be applied to the Plaintiffs. The Court also noted that the second and third questions depended on an affirmative answer to the first. Since the Court found the answer to the first question to be negative, it considered it unnecessary to address the second and third questions.