Google, Meta Platforms and Tik Tok are challenging before the Austrian and European Courts the Austrian Communications Authority’s (KommAustria) determination that the Austrian Federal Act on Measures for the Protection of Users of Communication Platforms (KoPl-G) applies to them even though they are established in another Member State, namely Ireland.
Google, Meta Platforms and Tik Tok argue that the KoPl-G is incompatible with the E-Commerce Directive, in particular the country-of-origin principle.
The Austrian Administrative Court has therefore referred questions to the Court of Justice on the compatibility of those acts. In particular, it asks whether a Member State may restrict the free movement of information society services from other Member States by means of national measures of a general and abstract nature.
In his Opinion, the Advocate General points out that his analysis is based on the premise that the services provided in Austria by the three companies in question are information society services.
The services offered by Google, Meta Platforms and Tik Tok therefore qualify as information society services within the meaning of Article 2(a) of Directive 2000/31.
The Advocate General argues that a Member State other than the Member State of origin may derogate from the free movement of information society services only by means of measures adopted “on a case-by-case basis”, after prior notification to the Commission and a request to the Member State of origin to take measures in respect of information society services, which is not the case here.
The Advocate General therefore considers that that directive precludes a Member State from restricting, in such circumstances and in such a manner, the free movement of information society services from another Member State.