ECJ AG: Austrian Communications Act Contrary to EU law

Jun 23, 2023 Benn-Ibler Rechtsanwälte

In his opinion, the Advocate General (AG) of the European Court of Justice (ECJ) is of the opinion that the Austrian Communications Platforms Act, which is part of a package of laws intended to counter online hate, violates EU law.

In the original proceedings, Google, Meta (Facebook) and TikTok had applied to the Austrian Communications Authority (hereinafter KommAustria), for a declaration that the Austrian Communications Platforms Act does not apply to them under Section 1(5) Kommunikationsplattformen-Gesetz, hereinafter KoPl-G). However, KommAustria ruled that these businesses were indeed subject to the KoPl-G, as they offer communication platforms in Austria. The platform operators challenged this decision (unsuccessfully) before the Austrian Federal Administrative Court. The Administrative Court subsequently suspended the proceedings and referred them to the ECJ for a preliminary ruling.

According to Art 3 (2) of Directive 2000/31, Member States may not restrict the free movement of information society services from another Member State for reasons falling within the coordinated field (under the country-of-origin principle). By way of derogation, Member States may take measures with regard to a particular information society service in order to protect public order, including the protection of minors and the fight against incitement to hatred.

The KoPl-G generally requires communication platforms to implement a reporting and action procedure for allegedly illegal content and to draw up reports on the handling of such notices. These obligations do not require the prior enactment of an individually specific legal act.

According to the Advocate General, a Member State other than the Member State of origin may only provide for exceptions to the free movement of information society services by means of measures related to the specific individual case, and only after prior notification to the Commission and a request to the Member State of origin to take measures, which, however, did not happen in the case of the KoPl-G. If general and abstract regulations were thus permitted, this would amount to fragmentation of the EU market.

Opinion, C-376/22 (08.06.2023)