Regulation: European justice rules in favor of Google, Meta and TikTok

Can an EU Member State impose stricter obligations on platforms than those already provided for by the country where their European headquarters are located, Ireland in most cases? The question to be decided by the Court of Justice of the European Union (CJEU) was by no means theoretical. She was even eagerly awaited by Google, Meta and TikTok, by whom the affair had started.

But on Thursday, the Advocate General of the CJEU, the Polish Maciej Szpunar, gave them partial reason. In his “conclusions”, it considers that platforms cannot be subject to stronger obligations than those provided for by the country of domicile in Europe. Otherwise, the free movement of digital services in the EU, protected by the 2000 e-commerce directive, would be violated. And the domestic market too burst.

On the other hand, the Member States can take measures “on a case-by-case basis”, but after notification to the European Commission. The platforms must also be named. In other words, all “national measures of a general and abstract nature aimed at [une plateforme] described in general terms” are excluded.

Risk of fragmentation

With this position, the Advocate General above all wanted to avoid the fragmentation of European digital law into 27 national laws. “The Member States are all eager to find a definitive solution to the problems posed by the Gafa in terms of competition, content or data, explains Sonia Cissé, partner at the firm Linklaters. There was therefore a real risk of fragmentation. In this case, the Advocate General says: “where there is a European directive or regulation, the States will not be able to go further”.

In fact, many countries hoped to take advantage of the DSA-DMA (the two European regulations governing the platforms) to take, in national law, measures that are stricter or complementary to those provided for by the new European framework. In France, the bill carried by Minister Jean-Noël Barrot provides for example the prohibition of ographic sites for those under 18, or an anti-scam filter, which do not appear in the DSA-DMA.

Admittedly, the CJEU is not required to follow the conclusions of the Advocate General, who “enlightens” the court on the cases to be dealt with. However, the Web giants score a first point. Because the conclusions of Maciej Szpunar reinforce the famous principle of the “country of origin”. Whether in tax or data protection matters, platforms often put forward this principle to avoid being regulated twice (in the country of origin and those where they operate).

Austria, the starting point of the affair

For the record, the case started in Austria, when Meta, Google and TikTok challenged a new law adopted in 2020 in the country to regulate social networks. The three giants argued that the text was incompatible with the 2000 e-commerce directive. Opposite, the Austrian communications regulator (KommAustria) considered on the contrary that it was indeed applicable.

In 2022, the Austrian Administrative Court then sent a request for a preliminary ruling to the CJEU. Luxembourg judges will now deliberate on the case. They will render their judgment at a later date. Contacted, Meta declined to comment, while TikTok and Google have yet to respond to our requests for clarification.