Opinion of the Advocate General — ECLI:EU:C:2023:467
Date: 2023-06-08
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-376/22 – 1 
Case C-376/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 June 2022 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
24 May 2022 
Appellants on a point of law: 
Google Ireland Limited 
Meta Platforms Ireland Limited 
Tik Tok Technology Limited 
Defendant: 
Kommunikationsbehörde Austria (KommAustria) 
  
Subject matter of the main proceedings 
Kommunikationsplattformen-Gesetz (Law on communications platforms, 
Austria) – Directive 2000/31/EC – Directive 2010/13/EU – Measure taken against 
a given information society service 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Must Article 3(4)(a)(ii) of Directive 2000/31/EC of the European Parliament 
and of the Council of 8 June 2000 on certain legal aspects of information society 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-376/22 
 
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services, in particular electronic commerce, in the Internal Market (‘Directive on 
electronic commerce’) (OJ 2000 L 178, p. 1), be interpreted as meaning that a 
measure taken against a ‘given information society service’ can also be 
understood as a legislative measure relating to a general category of certain 
information society services (such as communications platforms), or does the 
existence of a measure within the meaning of that provision require that a decision 
be taken in relation to a specific individual case (for example, concerning a 
communications platform identified by name)? 
2. Must Article 3(5) of Directive 2000/31 be interpreted as meaning that failure 
to notify the measure taken to the Commission and the Member State in which the 
platform is established, which, under that provision, must be notified ‘in the 
shortest possible time’ (ex post facto) in the case of urgency, means that – 
following the expiry of a sufficient period for the (ex post facto) notification – that 
measure must not be applied to a given service? 
3. Does Article 28a(1) of Directive 2010/13/EU of the European Parliament 
and of the Council of 10 March 2010 on the coordination of certain provisions laid 
down by law, regulation or administrative action in Member States concerning the 
provision of audiovisual media services (Audiovisual Media Services Directive) 
(OJ 2010 L 095, p. 1), as amended by Directive (EU) 2018/1808 of the European 
Parliament and of the Council of 14 November 2018 amending Directive 
2010/13/EU on the coordination of certain provisions laid down by law, regulation 
or administrative action in Member States concerning the provision of audiovisual 
media services (Audiovisual Media Services Directive) in view of changing 
market realities (OJ 2018 L 303, p. 69), preclude the application of a measure as 
provided for in Article 3(4) of Directive 2000/31 where it does not relate to 
broadcasts and user-generated videos made available on a video-sharing platform? 
Provisions of Community law relied on 
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 (‘Directive on electronic 
commerce’ – E-Commerce Directive) 
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 
2010 on the coordination of certain provisions laid down by law, regulation or 
administrative action in Member States concerning the provision of audiovisual 
media services (Audiovisual Media Services Directive) 
Provisions of national law relied on 
Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf 
Kommunikationsplattformen [Federal Law on measures for the protection of users 
GOOGLE IRELAND AND OTHERS 
 
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on communications platforms] (Kommunikationsplattformen-Gesetz [Law on 
communications platforms]) – KoPl-G) 
Paragraph 1(1) This Federal Law serves to ensure that notices by users relating to 
content on communications platforms which is of the type referred to below are 
handled in a responsible and transparent manner and dealt with without delay.  
(4) Service providers which operate video-sharing platforms (point 12 of 
Paragraph 2) are exempt from the obligations of this Federal Law with regard to 
broadcasts (point 9 of Paragraph 2) and user-generated videos (point 7 of 
Paragraph 2) which are provided on such platforms. 
(5) At the request of a service provider, the supervisory authority is required to 
determine whether the service provider comes within the scope of this Federal 
Law. 
Paragraph 3(1) Service providers must establish an effective and transparent 
procedure for handling and dealing with notices relating to allegedly illegal 
content available on the communications platform. 
Paragraph 4(1) Service providers are obliged to draw up an annual, or, in the case 
of communications platforms with over one million registered users, six-monthly, 
report on the handling of notices relating to allegedly illegal content. The report 
shall be submitted to the supervisory authority no later than one month after the 
end of the period covered by the report and shall at the same time be made 
available on its own website on a permanent basis and in an easily accessible 
manner. 
Paragraph 8(1) The supervisory authority within the meaning of this Federal Law 
is the Kommunikationsbehörde Austria (Austrian Communications Authority; 
‘KommAustria’), established in accordance with Paragraph 1 of the 
KommAustria-Gesetz (Law on KommAustria; ‘the KOG’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Austrian Kommunikationsplattformen-Gesetz (Law on communications 
platforms; ‘the KoPl-G’), which aims to enhance the ‘platform accountability’ of 
the providers of such platforms, covers domestic and foreign service providers and 
obliges them, inter alia, to set up a notice and action procedure for allegedly 
illegal content, to draw up and publish regular transparency reports on the 
handling of such notices, and to appoint authorised agents and persons authorised 
to accept service.  
2 The platforms are subject to supervision by KommAustria, which can impose 
fines in the case of infringements.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-376/22 
 
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3 The KoPl-G is an example of legislation that various Member States have already 
adopted or intended to adopt on issues such as the removal of illegal content 
online, diligence, notice and action procedures and transparency. The Austrian 
legislature took the view that, due to the urgency of the issue, national measures 
were required until a European regime is created. 
4 The Austrian legislature considered that the measures set out in the KoPl-G are 
compatible with Directive 2000/31/EC. However, the appellants on a point of law 
claim that the country-of-origin principle of that directive precludes the 
applicability of the KoPl-G to their activities. Since the first appellant on a point 
of law (Google Ireland Limited) and the third appellant on a point of law (Tik Tok 
Technology Limited) must also be regarded as providers of video-sharing 
platforms, the question also arises as to whether, in the light of Article 28a of 
Directive 2010/13/EU, the origin principle, which was provided for specifically in 
respect of video-sharing platforms, precludes the application of the KoPl-G to 
content of those platforms which does not consist of broadcasts or user-generated 
videos. 
5 The three sets of main proceedings, which have been joined, each concern the 
question as to the applicability of the KoPl-G to a provider of a communications 
platform which is established in Ireland. All three appellants on a point of law 
sought a finding that the KoPl-G is not applicable to them. In all three cases, 
KommAustria found that the KoPl-G is applicable; the service providers 
concerned each brought an appeal on the merits before the 
Bundesverwaltungsgericht (Federal Administrative Court, Austria). 
6 The Federal Administrative Court dismissed all three of those appeals as 
unfounded. It stated, in essence, that the origin principle of Directive 2000/31 
does not apply without restriction and that derogations are necessary, in particular 
in order to maintain or achieve a high level of protection for highly valued 
interests (such as the protection of minors or human dignity). According to the 
Federal Administrative Court, the KoPl-G pursues such objectives and, 
furthermore, establishes only the legal basis for specific measures in individual 
cases. The finding of non-applicability was sought even before specific measures 
had been taken and therefore before the various service providers had been 
individualised. However, specific measures against individual addressees can be 
adopted only in the event of frequent infringements; the KoPl-G establishes only 
the legal basis required in that regard and therefore does not run counter to the 
origin principle of Directive 2000/31. 
7 The Federal Administrative Court also held that, to date, the Member State of 
establishment of the appellants on a point of law has not been asked to take 
measures itself. Nor was the European Commission notified of such restrictive 
measures in advance. However, no measures within the meaning of Article 3(4) of 
Directive 2000/31 have been taken – only the necessary legal basis has been 
established. The KoPl-G itself does not provide that the Member State of 
establishment must be asked to take measures or that the European Commission 
GOOGLE IRELAND AND OTHERS 
 
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must be informed. Nor is provision made for informing it ex post facto. However, 
for the purposes of an interpretation in conformity with the directives, 
Paragraph 23(1) and (2) of the E-Commerce-Gesetz (Law on e-commerce, 
Austria), which transposed Article 3(4)(b) and (5) of Directive 2000/31 into 
national law, is applicable to the taking of measures. With regard to video-sharing 
platforms, the Federal Administrative Court stated that the KoPl-G exempts 
service providers which operate video-sharing platforms from their obligations 
with regard to broadcasts and user-generated videos provided on those platforms. 
8 In their appeals on a point of law against those findings of the Federal 
Administrative Court, the appellants on a point of law claim that the applicability 
of the KoPl-G to their platforms was wrongly confirmed. They submit that, since 
neither Ireland nor the Commission was notified, that law should not apply to 
them, as it imposes direct obligations on them (for example, the obligation to set 
up a notice and action procedure), which is contrary to the country-of-origin 
principle. Furthermore, the restriction of the freedom to provide services imposed 
by the KoPl-G was not examined on a case-by-case basis and the obligations 
imposed by that law are disproportionate. 
9 The first and third appellants on a point of law also submit that the country-of-
origin principle of Directive 2010/13 has also been infringed, since, in accordance 
with the finding of the Federal Administrative Court, services constituting video-
sharing platform services are also covered. The comments on the videos also form 
part of the video-sharing platform services. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 It is common ground that the services offered by the appellants on a point of law 
in (inter alia) Austria are information society services within the meaning of 
Article 2(a) of Directive 2000/31. The Verwaltungsgerichtshof (Supreme 
Administrative Court, Austria) proceeds on the assumption that those services are 
to be regarded as communications platforms within the meaning of the KoPl-G 
and that the appellants on a point of law are subject to that law. Furthermore, the 
first and third appellants on a point of law are service providers which operate 
video-sharing platforms, which are exempt from the obligations of the KoPl-G 
with regard to broadcasts and user-generated videos made available on those 
platforms, but not with regard to other communications or offerings in which 
thoughts are expressed (in particular comments) which are distributed on those 
platforms. 
Question 1 
11 According to Article 3(2) of Directive 2000/31, Member States may not, for 
reasons falling within the coordinated field, restrict the freedom to provide 
information society services from another Member State. According to 
Article 2(h) of Directive 2000/31, the coordinated field covers requirements laid 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-376/22 
 
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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.  
12 The KoPl-G contains a number of provisions laying down certain obligations as to 
conduct for domestic and foreign service providers, without adopting an 
individual, specific legal act (for example, the establishment of a notice and 
review system). It is only if those obligations are not complied with that the 
supervisory authority can issue enforcement measures or impose fines. In 
addition, service providers can apply to the supervisory authority for a statement 
as to whether they come within the scope of that law. Those statements are issued 
with regard to specific communications platforms offered by the applicant 
concerned.  
13 The referring court takes the view that, by virtue of the obligations laid down in 
the KoPl-G, that law lays down requirements relating to the exercise of the 
activities of an information society service and therefore affects the coordinated 
field within the meaning of Article 2(h) of Directive 2000/31. It must therefore be 
examined whether the conditions for a derogation from Article 3(2) of the 
directive are fulfilled. 
14 In order for that to be the case, three requirements must be met cumulatively. 
First, the restrictive measure concerned must be necessary in the interests of 
public policy, the protection of public health, public security or the protection of 
consumers; second, it must be taken against a given information society service 
which actually prejudices or presents a risk to those objectives; and, third, it must 
be proportionate to those objectives. In addition, the Member State of 
establishment and the Commission must be notified of the intention to take such 
measures. 
15 The Supreme Administrative Court provisionally proceeds on the assumption that 
the first and third requirements are met. With regard to the second requirement, 
however, the question arises as to whether the obligations under the KoPl-G 
constitute a measure relating to a given information society service (which 
prejudices or presents a risk to the protection objectives). 
16 The Austrian legislature considered that the obligations provided for constituted 
‘measures’ within the meaning of Article 3(4) of Directive 2000/31. However, the 
Supreme Administrative Court takes the view that it is not certain whether a 
general and abstract rule which lays down general obligations without an 
individual, specific legal act being adopted can in fact constitute such a measure. 
It raises the question as to whether a measure which is directed at a general 
category of service providers rather than individualised service providers is 
permissible. It refers to the Opinion of the Advocate General in Case C-390/18, 
according to which measures under Article 3(4) of Directive 2000/31 can be 
adopted only on an ad hoc basis. However, that question remained unanswered in 
the corresponding judgment, with the result that it remains open whether measures 
GOOGLE IRELAND AND OTHERS 
 
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such as those provided for in the KoPl-G, which relate to domestic and foreign 
service providers in a general manner, are to be regarded as measures relating to 
‘a given information society service’.  
17 The fact that, under Directive 2000/31, the Member State of origin must be asked 
to take measures before the measure is taken also militates against a general and 
abstract measure being considered to constitute a measure within the meaning of 
Article 3(4) of the directive, since, when a law such as the KoPl-G is being 
passed, it is not necessarily known in which other Member States service 
providers may be affected. 
18 However, if such a general and abstract rule does not constitute a measure relating 
to a given service within the meaning of Article 3(4) of Directive 2000/31, the 
country-of-origin principle would, in the view of the referring court, preclude 
obligations such as those under the KoPl-G. In that case, the findings made by the 
supervisory authority and confirmed by the Supreme Administrative Court in 
relation to the applicability of the KoPl-G to the appellants on a point of law 
should not have been made.  
Question 2 
19 Under Article 3(4)(b) of Directive 2000/31, before taking the measures in 
question, a Member State must notify the Commission and the Member State in 
whose territory the service provider is established of its intention to take the 
measures in question. Prior to that, the Member State must have unsuccessfully 
asked the Member State of establishment to take measures. Neither the Republic 
of Ireland nor the European Commission was informed by Austria prior to the 
adoption of the KoPl-G.  
20 The Supreme Administrative Court therefore proceeds on the assumption that, 
even if the obligations provided for in that law were to be regarded as constituting 
measures relating to a given information society service and the other 
requirements referred to above were also met, the KoPl-G would, in the absence 
of prior notification, be applicable to the appellants on a point of law only if there 
were a case of urgency within the meaning of Article 3(5) of the directive. That 
provision was expressly referred to in the explanatory notes to the KoPl-
G. However, there is no indication that the Member State of establishment or the 
Commission was notified ex post facto, with the result that they were in any event 
not notified ‘in the shortest possible time’, as provided for in Article 3(5) of 
Directive 2000/31. The question therefore arises as to whether the requirement of 
ex post facto notification is a mere administrative rule, or whether failure to 
comply with that requirement can lead to the impermissibility of the measure 
taken.  
21 An interpretation of Article 3(5) of Directive 2000/31 is therefore requested in 
order to be able to assess whether the failure to give notification ex post facto 
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means that the KoPl-G cannot be applied to the appellants on a point of law, even 
if all the requirements of Article 3(4)(a) of the directive are otherwise met.  
Question 3 
22 If the obligations under the KoPl-G are to be assessed as constituting measures 
relating to a given service, which are in principle applicable to the services offered 
by the appellants on a point of law, the question arises, in connection with the 
providers which also offer a video-sharing platform service, as to whether, with 
regard to service providers established in another Member State, the country-of-
origin principle of Directive 2010/13 precludes the application of the obligations 
under the KoPl-G to content which does not consists of broadcasts or user-
generated videos. 
23 The Supreme Administrative Court takes the view that the reference to Directive 
2000/31 in Article 28a(1) of Directive 2010/13 is to be interpreted broadly to the 
effect that, under the conditions laid down in Directive 2000/31, it is also possible 
to take the measures referred to. In that case, the application of measures which 
are permissible under Article 3(4) of Directive 2000/31 to video-sharing platform 
services would therefore be permissible unless this interferes with the field 
harmonised by Directive 2010/13. 
24 Since broadcasts and user-generated videos provided on video-sharing platforms 
are excluded from the scope of the KoPl-G but are an essential element of the 
term ‘video-sharing platform service’, the Supreme Administrative Court takes the 
view that application of the obligations under the KoPl-G is likely to be 
compatible with Directive 2010/13, provided that the conditions under 
Article 3(4) of Directive 2000/31 are met.