Judges F Biltgen, N Wahl (Rapporteur), J Passer, ML Arastey Sahún,
Advocate General M Szpunar
The claimants were companies established in Ireland which provided communication platform services in member states of the European Union, including Austria. In 2021 the Austrian government passed legislation which imposed on such providers, whether established in Austria or elsewhere, a set of obligations regarding the control and notification of allegedly illegal content (“the measures in issue”). The measures in issue, which were general and abstract in nature, were aimed at a category of “given information society services” described in general terms and applying, without distinction, to any provider of that category of services. The claimant providers asked the defendant, the Austrian communications regulatory authority, to declare that they did not fall within the scope of the measures in issue since Ireland and the European Commission were not informed of their adoption, as required by article 3(4)(b) of Parliament and Council Directive 2000/31/EC. Moreover, the providers argued that the measures in issue were disproportionate and incompatible with the principles of freedom to provide, and freedom of movement, of information society services, and with the “member state of origin” principle provided for by the Directive, by which information society services should be supervised in the member state in which the service provider was established. Under article 3(4) of the Directive, member states could take measures, in respect of any “given information society service”, to derogate from the principle of the freedom to provide information society services, subject to, inter alia, procedural requirements under article 3(4)(b). However, the authority declared that the service providers were subject to the Austrian measures in issue. The service providers’ actions challenging the authority’s decisions were dismissed. On the service providers’ appeal, the Austrian Supreme Administrative Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling questions, including, in essence, whether general and abstract measures, aimed at a category of given information society services described in general terms and applying, without distinction, to any provider of that category of services (the measures in issue) fell within the concept of measures taken against a “given information society service” within the meaning of article 3(4) of Directive 2000/31.
On the reference—
Held, (1) since article 3(4) of Parliament and Council Directive 2000/31/EC did not expressly refer to national law, in order to interpret the provision it was necessary to consider its wording, context and objectives. In relation to its wording, the use of the singular and the adjective “given” in the term “given information society service” indicated that article 3(4) referred to an individualised service, provided by one or more providers. Consequently, member states could not adopt general and abstract measures, aimed at a category of given information society services, described in general terms and applying, without distinction, to any provider of that category of services (“the measures in issue”) (judgment, paras 26, 27, 60, operative part).
(2) The context of article 3(4) of Directive 2000/31 and, in particular, the procedural requirements in article 3(4)(b), corroborated such an interpretation. That condition confirmed that member states could not restrict the freedom to provide information society services from other member states by adopting measures such as those in issue. Otherwise it would be excessively difficult, if not impossible, to identify the providers and, consequently, the member states of origin of the service in question, so that the member states would not be able to comply with article 3(4)(b) (judgment, paras 30, 34–36, 60, operative part).
(3) An interpretation of the concept of “measures” taken against a “given information society service”, within the meaning of article 3(4) of Directive 2000/31, which would allow member states to adopt the measures in issue, would call into question the principle of control in the member state of origin of a service provider, on which the Directive was based, and the objective of the proper functioning of the internal market pursued by the Directive. The principle of control in the member state of origin resulted in a division of regulatory powers between that member state and the member state of destination of the service, in this case, Austria. To authorise the member state of destination to adopt, under article 3(4), general and abstract measures that applied without distinction to any provider of a category of such services, whether established in the latter member state or not, would encroach on the regulatory powers of the member state of origin and would have the effect of subjecting providers of the services to the legislation of both the home member state and the member state of destination. Consequently, measures such as those in issue would undermine the system of the Directive which required that the supervision of information society services had to be carried out by the member state of origin, in which the service provider was established. Further, it would undermine the mutual trust between member states and the principle of mutual recognition on which Directive 2000/31 was based. Moreover, the objective of the Directive of contributing to the proper functioning of the internal market by ensuring the free movement of information society services between member states would be jeopardised by such measures, since they could subject the service providers concerned to different laws and, consequently, reintroduce legal obstacles to the freedom to provide services which the Directive sought to eliminate. Last, measures such as those in issue were still subject to the monitoring mechanism by both the Commission and the member state of origin. Accordingly, measures such as those in issue, namely general and abstract measures aimed at a category of given information society services described in general terms and applying, without distinction, to any provider of that category of services, did not fall within the concept of measures taken against a “given information society service” within the meaning of article 3(4) of Directive 2000/31 and member states were not authorised to adopt such measures (judgment, paras 39, 42–44, 47–49, 51, 53, 56–59, 60, operative part).
L Feiler and S Denk or the claimant service providers.
A Posch and G Kunnert, agents, for the Austrian Government.
David Fennelly BL (instructed by M Browne, A Joyce, M Tierney, agents) for Ireland.
B Majczyna, agent, for the Polish Government.
G Braun, SL Kalėda and P-J Loewenthal, agents, for the European Commission.