#ECJ: Combating illegal online content – a Member State may not subject a communication platform provider established in another Member State to general and abstract obligations @Google @Meta#TikTok
Such a national approach is contrary to EU law, which ensures the free movement of information society
services through the principle of control in the Member State of origin of the service concerned
In 2021, Austria introduced a law requiring domestic and foreign providers of communication platforms to set up
mechanisms for reporting and verifying potentially illegal content. That law also provides for regular and
transparent publication of reports of illegal content. An administrative authority ensures compliance with the law
and can impose fines of up to € 10 million.
Google Ireland, Meta Platforms Ireland and Tiktok, three platforms established in Ireland, claim that the Austrian law
is contrary to EU law, namely the directive on information society services
Questioned on that issue by an Austrian court, the Court of Justice reiterated the aim of the directive: to create
a legal framework to ensure the free movement of information society services between Member States.
With this in mind, the directive eliminates the obstacles posed by the different national rules applicable to those
services, thanks to the principle of control in the Member State of origin.
It is true that, under strict conditions and in specific cases, Member States other than the Member State of origin of
the service in question may indeed take measures to guarantee public policy, the protection of public health, public
security or the protection of consumers. Those specific derogations must be notified to the European Commission
and the Member State of origin.
However, Member States other than the Member State of origin of the service in question may not adopt
measures of a general and abstract nature which apply without distinction to any provider of a category of
information society services. The term ‘without distinction’ means providers established in that Member
State and providers established in other Member States.
Indeed, the possibility for those Member States to adopt such general and abstract obligations would call into
question the principle of control in the Member State of origin of the service concerned, on which the directive is
based. If the Member State of destination (in this case, Austria) were authorised to adopt such measures, this would
encroach on the regulatory powers of the home Member State (in this case, Ireland). Furthermore, it would
undermine mutual trust between Member States and contravene the principle of mutual recognition. In addition,
the platforms concerned would be subject to different laws, which would also infringe the freedom to provide
services and therefore the proper functioning of the internal market.
services through the principle of control in the Member State of origin of the service concerned
In 2021, Austria introduced a law requiring domestic and foreign providers of communication platforms to set up
mechanisms for reporting and verifying potentially illegal content. That law also provides for regular and
transparent publication of reports of illegal content. An administrative authority ensures compliance with the law
and can impose fines of up to € 10 million.
Google Ireland, Meta Platforms Ireland and Tiktok, three platforms established in Ireland, claim that the Austrian law
is contrary to EU law, namely the directive on information society services
Questioned on that issue by an Austrian court, the Court of Justice reiterated the aim of the directive: to create
a legal framework to ensure the free movement of information society services between Member States.
With this in mind, the directive eliminates the obstacles posed by the different national rules applicable to those
services, thanks to the principle of control in the Member State of origin.
It is true that, under strict conditions and in specific cases, Member States other than the Member State of origin of
the service in question may indeed take measures to guarantee public policy, the protection of public health, public
security or the protection of consumers. Those specific derogations must be notified to the European Commission
and the Member State of origin.
However, Member States other than the Member State of origin of the service in question may not adopt
measures of a general and abstract nature which apply without distinction to any provider of a category of
information society services. The term ‘without distinction’ means providers established in that Member
State and providers established in other Member States.
Indeed, the possibility for those Member States to adopt such general and abstract obligations would call into
question the principle of control in the Member State of origin of the service concerned, on which the directive is
based. If the Member State of destination (in this case, Austria) were authorised to adopt such measures, this would
encroach on the regulatory powers of the home Member State (in this case, Ireland). Furthermore, it would
undermine mutual trust between Member States and contravene the principle of mutual recognition. In addition,
the platforms concerned would be subject to different laws, which would also infringe the freedom to provide
services and therefore the proper functioning of the internal market.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of Justice about the interpretation of EU law or the
validity of an EU act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to
dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or
tribunals before which a similar issue is raise.
have been brought before them, to refer questions to the Court of Justice about the interpretation of EU law or the
validity of an EU act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to
dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or
tribunals before which a similar issue is raise.
1 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market
particular electronic commerce, in the Internal Market