Opinion of the Advocate General — ECLI:EU:C:2025:709
Date: 2025-09-18
Language of the case: French

summary application, an additional pleading, a reply 
and three new pleadings, registered on 7 February, 9 May and 21 November 2022, 
7 September and 5 December 2023, and 19 January 2024 at the secretariat of the 
EN 
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judicial section of the Council of State, WebGroup Czech Republic requests that 
the Council of State: 
(1) annul as ultra vires décret No 2021-1306 du 7 octobre 2021 relatif aux 
modalités de mise en œuvre des mesures visant à protéger les mineurs contre 
l’accès à des sites diffusant un contenu pornographique (Decree No 2021-1306 of 
7 October 2021 on the detailed rules for implementing measures to protect minors 
from accessing websites containing pornographic content); 
(2) […] 
It submits that the decree which it is challenging: 
- is vitiated by a formal defect in that it and the Law of 30 July 2020 on which 
it is based were not notified to the European Commission and the Czech Republic 
in accordance with Article 3 of Directive 2000/31/EC of 8 June 2000 on certain 
legal aspects of information society services, in particular electronic commerce, in 
the Internal Market; 
- is inadequate since it does not specify the nature of the technical measures to 
be implemented to prevent minors from accessing pornographic content on the 
internet; 
- infringes the principles of legal certainty and proportionality enshrined in 
European Union law, Article 16 of the Declaration of the Rights of Man and of the 
Citizen of 1789, the right to a fair trial, guaranteed by Article 6 of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms and 
the freedom of expression, guaranteed by Article 10 of that convention; 
- disregards the objectives of Directive 2000/31/EC of 8 June 2000 by 
imposing measures of a general and abstract nature 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. 
By two statements of defence, registered on 9 September 2022 and 9 January 
2024, the ministre de la culture (French Minister for Culture) contends that the 
action should be dismissed. She submits that the pleas raised by the applicant 
company are unfounded. 
By a statement of defence, registered on 10 January 2024, the Premier ministre 
(French Prime Minister) stated that he echoed the observations of the Minister for 
Culture. 
By two statements in intervention, registered on 15 November 2022 and 7 March 
2023, the associations ‘Osez le féminisme!’ and ‘Le Mouvement du Nid’ submit 
that the action should be dismissed. They maintain that their intervention is 
admissible and the pleas raised in the application are unfounded. 
WEBGROUP CZECH REPUBLIC AND NKL ASSOCIATES 
 
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By two statements in intervention, registered on 10 July and 20 September 2023, 
the association ‘Les effronté-E-S’ submits that the action should be dismissed. It 
maintains that its intervention is admissible and the pleas raised in the application 
are unfounded. 
2. Under No 461195, by a summary application, an additional pleading, a reply 
and three new pleadings, registered on 7 February, 9 May and 21 November 2022, 
7 September and 5 December 2023 and 19 January 2024 at the secretariat of the 
judicial section of the Council of State, NKL Associates sro requests that the 
Council of State: 
(1) annul as ultra vires Decree No 2021-1306 of 7 October 2021 on the detailed 
rules for implementing measures to protect minors from accessing websites 
containing pornographic content; 
(2) […] 
It submits that the decree which it is challenging: 
- is vitiated by a formal defect in that it and the Law of 30 July 2020 on which 
it is based were not notified to the European Commission and the Czech Republic 
in accordance with Article 3 of Directive 2000/31/EC of 8 June 2000 on certain 
legal aspects of information society services, in particular electronic commerce, in 
the Internal Market; 
- is inadequate since it does not specify the nature of the technical measures to 
be implemented to prevent minors from accessing pornographic content on the 
internet; 
- infringes the principles of legal certainty and proportionality enshrined in 
European Union law, Article 16 of the Declaration of the Rights of Man and of the 
Citizen of 1789, the right to a fair trial, guaranteed by Article 6 of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms and 
the freedom of expression, guaranteed by Article 10 of that convention; 
- is inconsistent with the objectives of Directive 2000/31/EC of 8 June 2000 
by imposing measures of a general and abstract nature 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. 
By two statements of defence, registered on 9 September 2022 and 8 January 
2024, the Minister for Culture contends that the action should be dismissed. She 
submits that the pleas raised by the applicant company are unfounded. 
By a statement of defence, registered on 10 January 2024, the Prime Minister 
stated that he echoed the observations of the Minister for Culture. 
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By two statements in intervention, registered on 15 November 2022 and 7 March 
2023, the associations ‘Osez le féminisme!’ and ‘Le Mouvement du Nid’ submit 
that the action should be dismissed. They maintain that their intervention is 
admissible and the pleas raised in the application are unfounded. 
By two statements in intervention, registered on 10 July and 20 September 2023, 
the association ‘Les effronté-E-S’ submits that the action should be dismissed. It 
maintains that its intervention is admissible and the pleas raised in the application 
are unfounded. 
Having regard to the other documents in the files; 
Having regard to: 
- the Treaty on the Functioning of the European Union; 
- Directive 2000/31/EC of the European Parliament and of the Council of 
8 June 2000; 
- the code pénal (Criminal Code); 
- […]; 
- Law No 2020-936 of 30 July 2020; 
- […]; 
[…] 
Whereas: 
1 In order to combat the increasing exposure of young minors to pornographic 
content and the harmful effects of such exposure on their psychological 
development and on violence against women, the Law of 30 July 2020 to protect 
victims of domestic violence was intended to strengthen, with regard to 
pornographic websites that allow minors to access their content, the effectiveness 
of the provisions of Article 227-24 of the Criminal Code, which has long punished 
‘the manufacture, transport, distribution by whatever means and however 
supported, of a message bearing a pornographic or violent character or a 
character seriously violating human dignity or constituting an incitement to 
terrorism or inciting minors to engage in games that place them in physical 
danger, or the trafficking in such a message, … where the message may be seen or 
perceived by a minor’ by three years’ imprisonment and a fine of EUR 75 000. 
2 To that end, Article 22 of the Law of 30 July 2020, in the first place, added clarity 
to Article 227-24 of the Criminal Code, transcribing the settled case-law of the 
Cour de cassation (Court of Cassation), to the effect that the offence described in 
that article was constituted ‘including where access by a minor to the messages 
WEBGROUP CZECH REPUBLIC AND NKL ASSOCIATES 
 
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mentioned in the first paragraph is the result of that minor simply declaring that 
he or she is at least 18 years of age’. 
3 In the second place, Article 23 of that law established a procedure enabling the 
President of the Autorité de régulation de la communication audiovisuelle et 
numérique (Authority for the regulation of audiovisual and digital communication, 
France; ‘Arcom’), where he finds that a person whose activity is to publish an 
online public communication service allows minors to access pornographic 
content in breach of Article 227-24 of the Criminal Code, to issue that person with 
a formal notice ordering him or her to take any measure likely to prevent minors 
from accessing the offending content within a period of 15 days. If the person 
served with the formal notice fails to comply with that order, the President of 
Arcom may bring an action before the President of the tribunal judiciaire de Paris 
(Court of Paris) seeking an order that access to that service and its referencing by 
a search engine or a directory be terminated. Article 23 of the law refers to a 
decree to specify the conditions for its application. On that basis, the decree of 
7 October 2021 on the detailed rules for implementing measures to protect minors 
from accessing websites containing pornographic content specified the procedures 
by which the President of Arcom may implement the procedure laid down in 
Article 23 of the law. 
4 By two applications which should be joined to give a ruling by way of a single 
decision, WebGroup Czech Republic and NKL Associates sro seek the annulment 
as ultra vires of that decree. 
The interventions by the associations ‘Osez le féminisme’, ‘Mouvement du Nid’ 
and ‘Les effronté-E-S’: 
5 Having regard to the subject matter and nature of the dispute, the associations 
‘Osez le féminisme’, ‘Mouvement du Nid’ and ‘Les effronté-E-S’ have 
demonstrated, by their objects as provided for in their statutes and their action, a 
sufficient interest in upholding the contested decree. Their interventions are 
therefore admissible. 
The plea in law alleging that the contested decree lacks precision: 
6 […] [Rejection of the plea by the referring court] 
The pleas in law alleging reliance on the principles of legal certainty and 
proportionality, the right to a fair trial and freedom of expression: 
7 […] [Rejection of the pleas by the referring court] 
Reliance on Directive 2000/31/EC of 8 June 2000: 
8 In accordance with Article 1 of 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: ‘1. This Directive seeks to contribute 
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to the proper functioning of the internal market by ensuring the free movement of 
information society services between the Member States. 2. This Directive 
approximates, to the extent necessary for the achievement of the objective set out 
in paragraph 1, certain national provisions on information society services 
relating to the internal market, the establishment of service providers, commercial 
communications, electronic contracts, the liability of intermediaries, codes of 
conduct, out-of-court dispute settlements, court actions and cooperation between 
Member States.’ 
9 Under Article 2 of that directive: ‘For the purpose of this Directive, the following 
terms shall bear the following meanings: … (h) “coordinated field”: requirements 
laid down in Member States’ legal systems applicable to information society 
service providers or information society services, regardless of whether they are 
of a general nature or specifically designed for them. (i) The coordinated field 
concerns requirements with which the service provider has to comply in respect 
of: – the taking up of the activity of an information society service, such as 
requirements concerning qualifications, authorisation or notification, – the 
pursuit of the activity of an information society service, such as requirements 
concerning the behaviour of the service provider, requirements regarding the 
quality or content of the service including those applicable to advertising and 
contracts, or requirements concerning the liability of the service provider.’ 
10 In accordance with Article 3 of that directive: ‘1. Each Member State shall ensure 
that the information society services provided by a service provider established on 
its territory comply with the national provisions applicable in the Member State in 
question which fall within the coordinated field. 2. Member States may not, for 
reasons falling within the coordinated field, restrict the freedom to provide 
information society services from another Member State. … 4. Member States may 
take measures to derogate from paragraph 2 in respect of a given information 
society service if the following conditions are fulfilled: (a) the measures shall be: 
(i) necessary for one of the following reasons: – public policy, in particular the 
prevention, investigation, detection and prosecution of criminal offences, 
including the protection of minors and the fight against any incitement to hatred 
on grounds of race, sex, religion or nationality, and violations of human dignity 
concerning individual persons, – the protection of public health, – public security, 
including the safeguarding of national security and defence, – the protection of 
consumers, including investors; (ii) taken against a given information society 
service which prejudices the objectives referred to in point (i) or which presents a 
serious and grave risk of prejudice to those objectives; (iii) proportionate to those 
objectives; (b) before taking the measures in question and without prejudice to 
court proceedings, including preliminary proceedings and acts carried out in the 
framework of a criminal investigation, the Member State has: – asked the Member 
State referred to in paragraph 1 to take measures and the latter did not take such 
measures, or they were inadequate, – notified the Commission and the Member 
State referred to in paragraph 1 of its intention to take such measures. …’. 
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11 Article 14(3) of the directive, which is applicable where an information society 
service is provided that consists of the storage of information provided by a 
recipient of the service, provides as follows: ‘This Article shall not affect the 
possibility for a court or administrative authority, in accordance with Member 
States’ legal systems, of requiring the service provider to terminate or prevent an 
infringement, nor does it affect the possibility for Member States of establishing 
procedures governing the removal or disabling of access to information.’ 
12 Recital 8 of the directive states: ‘The objective of this Directive is to create a legal 
framework to ensure the free movement of information society services between 
Member States and not to harmonise the field of criminal law as such’. According 
to recital 45: ‘The limitations of the liability of intermediary service providers 
established in this Directive do not affect the possibility of injunctions of different 
kinds; such injunctions can in particular consist of orders by courts or 
administrative authorities requiring the termination or prevention of any 
infringement, including the removal of illegal information or the disabling of 
access to it’. Lastly, recital 48 of that directive states: ‘This Directive does not 
affect the possibility for Member States of requiring service providers, who host 
information provided by recipients of their service, to apply duties of care, which 
can reasonably be expected from them and which are specified by national law, in 
order to detect and prevent certain types of illegal activities.’ 
13 By its judgment of 9 November 2023, Google Ireland Limited, Meta Platforms 
Ireland Limited, Tik Tok Technology Limited v Kommunikationsbehörde Austria 
(KommAustria) (C-376/22), the Court of Justice of the European Union held, in 
paragraphs 42 to 44 of that judgment, that ‘Directive 2000/31 is … based on the 
application of the principles of home Member State control and mutual 
recognition, so that, within the coordinated field defined in Article 2(h) of that 
directive, information society services are regulated solely in the Member State on 
whose territory the providers of those services are established’, in order to 
conclude that, ‘consequently, it is the responsibility of each Member State as the 
Member State where information society services originate to regulate those 
services and, on that basis, to protect the general interest objectives referred to in 
Article 3(4)(a)(i) of Directive 2000/31’ and ‘moreover, in accordance with the 
principle of mutual recognition, it is for each Member State, as the Member State 
of destination of information society services, not to restrict the free movement of 
those services by requiring compliance with additional obligations, falling within 
the coordinated field, which it has adopted’. On those grounds, the Court ruled 
that ‘Article 3(4) of Directive 2000/31/EC … must be interpreted as meaning that 
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 do not fall within the concept of measures 
taken against a “given information society service” within the meaning of that 
provision’. 
14 In the first place, the applicants submit that the provisions of the contested decree 
and those of the Law of 30 July 2020, which they are also challenging by way of 
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exception, are inconsistent with the objectives of Directive 2000/31/EC in so far 
as they establish a procedure intended to enable an administrative authority to give 
formal notice to a person whose activity consists in publishing an online 
communication service to put an end to a criminal offence. 
15 In that regard, however, the contested provisions, in so far as they establish a 
procedure whereby an administrative authority may give formal notice to 
information society service providers to put an end to an infringement and bring 
an action for failure to fulfil obligations before a court in the event of failure to 
comply with its formal notice, do not, in themselves, lay down any rule relating to 
the substance of the obligation in question. Consequently, and to that extent, they 
cannot be regarded as infringing, for reasons falling within ‘coordinated field’ of 
Directive 2000/31/EC, the freedom to provide information society services, since 
the directive, in accordance with the excerpts cited in paragraphs 11 and 12, must 
not affect the possibility for a court or administrative authority, in accordance with 
Member States’ legal systems, to require the service provider to terminate or 
prevent an infringement. Accordingly, the applicants are not justified in claiming 
that the contested provisions, in so far as they provide for a mechanism enabling 
an administrative authority to give formal notice to a service provider to put an 
end to an infringement, are unlawful on the ground that they are inconsistent with 
the objectives of Article 3 of Directive 2000/31/EC. 
16 In the second place, however, the applicants also submit that the contested 
provisions do not merely lay down a procedure enabling an administrative 
authority to order a service provider to bring an infringement to an end, but that 
they also have the effect, having regard to the substance of the criminal offence at 
issue, clarified by the addition to Article 227-24 of the Criminal Code of the 
provisions, stemming from the Law of 30 July 2020, cited in paragraph 2 above, 
of requiring service providers established in other Member States of the European 
Union to put in place technical measures to block access by minors to the content 
that they broadcast. In that regard, the response to the plea alleging infringement 
of the objectives of Directive 2000/31/EC depends, having regard to the wording 
of the directive as interpreted by the Court of Justice of the European Union in the 
judgment referred to in paragraph 13, on the answers to be given to the questions 
[set out in the operative part] […]: 
[…] [Repetition of the questions in the operative part] 
17 Those questions are decisive for the outcome of the dispute before the Council of 
State. They present serious difficulties. It is therefore necessary to refer the matter 
to the Court of Justice of the European Union pursuant to Article 267 of the 
Treaty on the Functioning of the European Union and, pending a ruling from the 
Court, to stay the proceedings. 
H E R E B Y O R D E R S: 
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Article 1: The interventions in support of the defendants, submitted by the 
associations ‘Osez le féminisme’, ‘Le Mouvement du Nid’ and ‘Les effronté-E-S’, 
are permitted. 
Article 2: The proceedings brought by WebGroup Czech Republic and NKL 
Associates sro shall be stayed pending a ruling by the Court of Justice of the 
European Union on the following questions: 
(a) In the first place, must provisions falling within the scope of criminal law, in 
particular general and abstract provisions which refer to certain conduct as 
constituting a criminal offence liable to prosecution, be regarded as falling with 
the scope of the ‘coordinated field’ of Directive 2000/31/EC of the European 
Parliament and of the Council of 8 June 2000 where they are capable of applying 
both to the conduct of an information society service provider and to that of any 
other natural or legal person? Or must it be considered, since the sole purpose of 
the directive is to harmonise certain legal aspects of such services without 
harmonising the field of criminal law as such and since it lays down only 
requirements applicable to services, that such criminal provisions cannot be 
regarded as requirements applicable to the taking up and pursuit of the activity of 
the information society services falling within the ‘coordinated field’ of that 
directive? In particular, do the criminal provisions intended to ensure the 
protection of minors fall within the scope of that ‘coordinated field’? 
(b) Must the requirement that publishers of online communication services are 
to put in place measures to prevent minors from accessing pornographic content 
which they broadcast be regarded as falling with the scope of the ‘coordinated 
field’ of Directive 2000/31/EC, which harmonises only certain legal aspects of the 
services concerned, whereas, if that obligation concerns the pursuit of the activity 
of an information society service, in so far as it relates to the behaviour of the 
service provider and the quality or the content of the service, it does not concern, 
however, the establishment of service providers, commercial communications, 
electronic contracts, the rules on the liability of intermediaries, codes of conduct, 
out-of-court dispute settlements, court actions or cooperation between Member 
States and, therefore, does not relate to any of the subjects governed by the 
harmonising provisions of Chapter II of that directive? 
(c) If the answer to the preceding questions is in the affirmative, how should the 
requirements of Directive 2000/31/EC be reconciled with those arising from the 
protection of human rights and fundamental freedoms in the European Union, in 
particular the protection of human dignity and the best interests of the child, 
guaranteed by Articles 1 and 24 of the Charter of Fundamental Rights of the 
European Union and by Article 8 of the European Convention for the Protection 
of Human Rights and Fundamental Freedoms, where the mere adoption of 
individual measures taken in respect of a given service does not appear to be such 
as to ensure effective protection of those rights? Is there a general principle of EU 
law that allows Member States to take, in particular in case of an emergency, 
measures – including when they are general and abstract with regard to a category 
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of service providers – that are required to protect minors against violations of their 
dignity and integrity, by way of derogation, where necessary, in respect of 
providers governed by Directive 2000/31/EC, from the principle of regulation of 
those providers by their State of origin laid down in that directive?  
[…] 
[Procedural information]