EU Digital Regulation: Harmonization and Member State Prerogatives
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Themes
Digital internal market, European Union, legal harmonization, Directive 2000/31/EC, information society services, country of origin principle, state interventions, public order, digital regulation, European integration, national sovereignty, coordinated regulation, Court of Justice of the European Union, CJEU, Case C-376/22, normative unity, mutual recognition, institutional transparency, digital services regulation, public security, consumer protection, restrictive measures, EU law, procedural guarantees, digital public order, free movement of services, European digital regulation, harmonized regulation, normative fragmentation.
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Abstract
The European Union's efforts to create a unified digital internal market through strengthened legal harmonization, as reflected in the Court of Justice's judgment in Case C-376/22.
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[...] This sought-after consistency between the normative bodies reflects the European Union's desire to establish a harmonized framework, while allowing Member States to take precise and justified measures in the event of proven risks. The CJEU also notes that general measures introduce a normative duality that is detrimental to the principle of harmonization pursued by Union law. The fundamental objective of Directive 2000/31/CE is to provide service providers with a stable, clear, and predictable legal framework, based on mutual recognition of national regulations. [...]
[...] By allowing the free movement of services without being subject to competing regulations, this principle strengthens economic integration and the competitiveness of digital players within the European market. In the Google Ireland e.a. case, the CJEU recalls that this principle guarantees providers a stable and predictable legal framework, ruling out any competing regulation imposed by the State of destination. This affirmation is in line with the Alpine Investments judgment (C-384/93), where the Court had specified that the multiplication of competing regulations compromised the free provision of cross-border services and imposed disproportionate constraints on economic operators. In the case Centro Europa 7 v. [...]
[...] However, this national regulation had not been notified to the European Commission, in breach of the prescriptions of Article paragraph point of Directive 2000/31/CE. The CJEU was therefore requested to rule on a fundamental question: whether « general and abstract measures » aiming at an entire category of service providers can they be qualified as « measures taken against a given service » in the sense of this directive? By answering in the negative, the Court has reaffirmed with force the principle of regulation by the country of origin and censored unilateral regulations incompatible with the principle of mutual recognition of national laws. [...]
[...] The CJEU considered that this omission constituted a violation of the principles of loyal cooperation and rendered the measure unenforceable against the providers concerned. Directive 2015/1535/EU on the transparency of national measures also imposes on Member States the obligation to notify the Commission of any technical rule likely to restrict the free provision of services. In the CIA Security International judgment (C-194/94), the CJEU had already affirmed that the absence of prior notification rendered a measure legally unenforceable against the operators concerned. [...]
[...] The principle of the country of origin, enshrined in Article paragraph of Directive 2000/31/EC, forms the foundation of this harmonization. This principle assigns exclusive competence to the State of establishment to regulate digital services, thereby guaranteeing providers a single submission to the legislation of that State. This mechanism aims to offer operators the essential legal security, enabling them to anticipate and predict the obligations incumbent upon them. This legal security implies not only clear and accessible standards but also stable and coherent ones, to avoid any overlap of competing regulations that could weaken their activities. [...]
