Europaudvalget 2023-24
EUU Alm.del
Offentligt
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EUROPEAN COMMISSION
Brussels, 25.10.2023
C(2023) 7417 final
Her Excellency
Catherine Colonna
Minister of Europe and Foreign Affairs
37, Quai d’Orsay
F-75351 Paris
France
Purpose:
Notification 2023/461/FR
Legislative provisions to secure and regulate the digital space
Issue of the detailed opinion pursuant to Article 6(2) of Directive (EU)
2015/1535 of 9 September 2015
Issue of comments pursuant to Article 5(2) of Directive (EU)
2015/1535 of 9 September 2015
Madam Minister,
As part of the notification procedure provided for in Directive (EU) 2015/1535 (
1
), the
French authorities notified the Commission on 24 July 2023 of Articles 1 to 10a, 22, 28,
29 and 36 of the draft “Legislative
provisions to secure and regulate the digital space
“
(hereinafter referred to as “the notified draft”). This notification follows on from
notification 2023/352/FR “Bill
to Secure and Regulate the Digital Space”
(hereinafter
“notification 2023/352/FR”) concerning the previous draft legislative provisions, prior to
the French Senate's amendments. Compared to notification 2023/352/FR, in this
notification the French authorities have formally notified the Commission of Articles 1,
2, 3, 4, 5, 6, 7, 9, 10 and 36 of the draft law following the amendments of the French
Senate, and added the following provisions which were not included in the previous
notification: Articles 2a, 4a, 4b, 5a, 10a A, 10a, 22, 28 and 29. (
2
) (
3
)
1
() Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying
down a procedure for the provision of information in the field of technical regulations and rules on
Information Society services, OJ L 241 dated 17.9.2015, p. 1.
2
() The following assessment takes into account the clarifications provided by the French authorities,
including those concerning notification 2023/352/FR, insofar as these clarifications concern the provisions
which are also part of this notification and are still relevant.
3
() This detailed opinion and comments are limited to the provisions of the bill that have been notified.
European Commission, 1049 Brussels, BELGIUM – Tel. + 32 22991111
Office: BERL 10/222-Tel. direct line + 32 22990200
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The examination of the relevant notified provisions led the Commission to issue the
following detailed opinion and comments.
1. Introduction
The Commission shares the objectives of the notified provisions to protect minors online,
in particular against content that may be prejudicial to the state of health, physical,
mental and moral development of minors, such as pornographic content. Although such
content may be legal in the Member States, minors should not have access to it when
using online services. To ensure that minors can use online services safely, platforms that
may be used by minors must play their part and assume their responsibilities quickly.
The Commission also notes that the objectives of the notified provisions are clearly
aligned with those of the European legal framework for online services, in particular
Regulation (EU) 2022/2065 (the Digital Services Act, hereinafter “the DSA”)
4
) and
Directive 2000/31/EC (Directive on Electronic Commerce)(
5
).
In this context, the Commission would like to emphasize that the DSA provides an
effective EU-wide regulatory solution to the problems that the notified provisions aim to
resolve. The DSA provides for a common set of EU rules that impose a wide range of
obligations on hosting service providers and online platforms to combat illegal and
harmful content online, while strengthening the European single market. As an EU
Regulation, the DSA is directly applicable in all Member States, without the need for
implementing measures.
While the DSA is directly applicable, as explained below, the European legal framework
provides tools that could enable the French authorities to achieve their objectives, in
particular: (i) Article 3 of the Directive on electronic commerce as regards restrictions
which France wishes to impose on information society services which are not established
in France; and (ii) Article 9 of the DSA as regards the possibility of issuing orders to
providers of intermediary services on a cross-border basis.
The Commission invites the French authorities to make use of these tools when preparing
the final version of the law, in the light of the following detailed opinion and comments.
2. Detailed opinion
2.1. Evaluation in the light of the Directive on electronic commerce
a)
Applicability of the Directive on electronic commerce
The notified bill falls within the scope of the Directive on electronic commerce.
Firstly, concerning the personal scope of application of the notified provisions: according
to the notified draft and as confirmed by the French authorities in their responses, the
category of “online
public communication services”
used in the notified bill is defined in
4
() Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a
Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) OJ L 277,
27.10.2022, p. 1-102.
5
() 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), OJ L 178, 17.7.2000, p. 1-16.
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Article 1 of Law 2004-575 of 21 June 2004 on confidence in the digital economy, which
transposes the Directive on electronic commerce into French law. (
6
) Therefore, the
notified draft applies to information society services as defined in Article 1(1)(b) of
Directive (EU) 2015/1535 and therefore also within the meaning of Articles 1 and 2 of
the Directive on electronic commerce, insofar as they fulfil the conditions set out therein.
(
7
)
Secondly, concerning the material scope of the notified provisions: the rules set out in the
notified draft concern in particular content moderation and the access by minors to
information society services. These obligations therefore fall within the coordinated field
of the Directive on electronic commerce, as set out in Article 2(h) and (i) thereof, and
have therefore been analysed in the light of this Directive.
b) Article 3(1), (2) and (4) of the Directive on electronic commerce
The Commission notes that the provisions of the notified draft apply to information
society services offering their services on French territory, irrespective of their Member
State of establishment.
In this respect, the Commission recalls that Article 3(1) and (2) of the Directive on
electronic commerce establish the “principle of control by the country of origin”
according to which information society services must be regulated at the source of their
activity. They are therefore, as a general rule, subject to the law of the Member State in
which the providers of these services are established.
However, this principle is not absolute. Article 3(4) of the Directive on electronic
commerce defines the circumstances and procedures under which a Member State of
destination may derogate from this principle in order to impose certain measures.(
8
)
The Commission calls on the French authorities to make full use of the flexibilities
offered by Article 3(4) of the Directive on electronic commerce.
2.2. Evaluation in light of the DSA
a) Applicability of the DSA
The notified bill falls within the scope of the DSA.
Firstly, concerning the personal scope of the notified provisions: according to the
information provided in the notification, Articles 1 to 6 of the notified draft amend
French Law No 2004-575 of 21 June 2004 on confidence in the digital economy. In their
responses to the Commission's request for additional information, the French authorities
state that the concept of “online
public communication services”
of the notified draft
includes providers of intermediary services, hosting services and online platforms as
defined in Article 3 of the DSA (
9
). The French authorities also explain that Article 22 of
6
() Under this Article, the “online
public communication services”
are defined, echoing the definition of
information society services set out in Directive (EU) 2015/1535.
7
() In particular, “any
service normally provided for remuneration, remotely by electronic means and at the
individual request of a recipient of services”.
8
() Cfr. Opinion of the Advocate General in Case C-376/22, ECLI:EU:C:2023:467, paragraphs 63 to 74,
published on 8 June 2023.
9
() Article 3 of the DSA defines intermediary services by reference to the definition set out in point (b) of
Article 1(1) of Directive (EU) 2015/1535, and thus as information society services within the meaning of
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the notified draft defines the relevant service categories within its scope by aligning them
with the definitions in the DSA and that “Internet
service providers”
constitute mere
transport services within the meaning of Article 3(g)(i) of the DSA. The French
authorities also point out that the provisions of the notified draft apply to all “online
public communication services”
including those not established in France (
10
) and
including very large online platforms or very large online search engines (
11
).
Secondly, concerning the material scope of the notified provisions: the French authorities
confirm that the objective of the notified draft is to enhance the security and reliability of
the online space, in particular as regards the protection of minors against illegal or
harmful content. This concern is one of the main policy objectives pursued by the DSA,
as explained in recitals 40, 71 and 81 of the Regulation. The notified draft therefore aims
to achieve the same objectives as those pursued by the DSA, which includes, of course,
protection of minors against harmful content, such as pornographic content, throughout
the EU..
b) Harmonisation effect of the DSA
The DSA aims to contribute to the proper functioning of the internal market for
intermediary services by establishing harmonised rules for a safe, predictable and reliable
online environment. In particular, it establishes a regulatory framework concerning the
accountability and responsibilities of intermediary service providers with regard to their
obligations to combat illegal and harmful content on their services. This is emphasised in
recital 9 of the DSA.
In this context, the Commission recalls that, being a Regulation, as a general rule, the
DSA does not require national implementing measures. Consequently, insofar as the
notified provisions reproduce or correspond to the same obligations covered by the DSA,
they are not in conformity with the DSA. The Commission draws the attention of the
French authorities, for example, to the second subparagraph of Article 22(5)(III), (V) and
(VIII) of the notified draft, which fall within the scope of Articles 6, 16 and 18 of the
DSA. (
12
) The Commission calls on the French authorities to ensure that the final law is
in line with the principle of direct applicability of the DSA in all Member States. (
13
)
The Commission also recalls that the protection of minors, a particularly vulnerable
category of recipients of online intermediary services, is an essential aspect of the DSA.
The DSA contains a provision devoted to the protection of minors online (Article 28). In
addition, the DSA also includes important additional obligations applicable to very large
online platforms and very large online search engines with regard to the protection of
Article 2(a) of the Directive on electronic commerce.
10
() In this regard, see section 2.1(b) of this letter.
11
() In this regard, see section 2.2(c) of this letter.
12
() The Commission notes that Article 22(5)(III) of the notified bill appears to reproduce
verbatim
Article
6 of the DSA.
13
() Cfr.
Case
40/69,
Bollmann,
EU:C:1970:12, para 4; Case 74/69,
KrohnEU:C:1970:58,
paras 4 and 6;
and combined cases C-539/10 P & C-550/10 P,
Stichting Al-Aqsa,
EU:C:2012:711, para 87. The
Commission notes that the report of the French Council of State on the draft that was to become the
notified bill reached the same conclusion: “
The Council of State considers that these provisions do not
face any obstacles but propose not to retain those which go beyond what strictly require the
implementation of the “DSA” Regulation.
“ (points 52 and 55). avis_ce_ecoi2309270l_cm_10.05.2023.pdf
(legifrance.gouv.fr).
The Commission notes that the measures transposing Articles 12 to 15 of the Directive on electronic
commerce into French law (which have been repealed and replaced by Articles 4 to 8 of the DSA), as well
as any reference to these transposition measures in national law, should also be formally repealed.
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minors. These must (i) identify and (ii) mitigate any systemic risk to the protection of
minors and the rights of children (Articles 34 and 35).
In particular, the DSA refers to age verification systems as an example of effective and
targeted enforcement measures to protect children's rights (Article 35). The Commission
services have announced a cooperation exercise with Member States in the specific area
of age verification systems for the implementation of DSA rules. The Commission is
committed to working with the national authorities of the Member States with relevant
expertise to identify best practices and standards in the field of age verification. This
cooperation would build on existing measures at national level, including those resulting
from the transposition of Directive (EU) 2018/1808 (
14
), and take into account the
relevant ongoing initiatives, as well as the state of the art and current market practices.
The resulting best practices and standards could then form part of a Europe-wide solution
that could be transmitted to online platforms for the implementation of their DSA
obligations. Given the particular expertise of the French Media Regulatory Authority
(ARCOM) and the Centre of expertise for digital platform regulation (PEReN) in this
field, France is set to play a guiding role in this exercise, for the benefit of the whole new
generation of Europeans.
However, in the absence of a EU-wide solution to verify the age of users, the
Commission understands France’s wish to introduce transitional measures within its
jurisdiction in compliance with EU law. In this context, national law could provide for a
transitional solution but it should also envisage a mechanism to withdraw or repeal any
national measures that become redundant once the European technical solution is
implemented.
c) Monitoring and enforcement system
To ensure that the DSA is fully effective in the pursuit of our shared objectives, in
particular the protection of minors, it is essential to preserve the harmonising effect of the
DSA and also its supervision and enforcement system.
In accordance with Chapter IV of the DSA, the supervision and enforcement of the DSA
are based on close cooperation, on the one hand, between the appointed national digital
services coordinators (and other competent authorities) under the country of origin
principle and, on the other hand, between these national authorities and the Commission
(Articles 55 and 56 of the DSA).
In this respect, the Commission notes that the notified draft entrusts the supervision and
enforcement of the notified provisions to the French authorities alone, including with
regard to service providers outside the jurisdiction of France (
15
) and very large online
platforms or very large online search engines.
The Commission calls on the French authorities to ensure that the final law is aligned
with DSA's supervision and enforcement architecture. (
16
)
14
15
() OJ No. L 303, 28.11.2018, p. 69.
() In this regard, see section 2.1(b) of this letter.
16
() In its aforementioned report, the Council of State also noted that the Commission is the only body
competent for the monitoring and enforcement of the DSA’s obligations under Section 5 of Chapter III
with regard to designate very large online platforms and very large search engines (point 64).
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d) Absence of general monitoring obligations
The DSA does not define what constitutes illegal content. It is solely up to Member
States, such as France, to determine what is considered a (criminal) offence in their
territory, which may result in the issuance of removal orders against intermediary service
providers, in particular to take down or render impossible access to certain content
considered illegal under national law.
In this context, it is also up to the Member States to identify the competent national
authorities empowered to issue orders to intermediary service providers following the
establishment of an offence, including those established outside France.
However, it is essential to ensure that the interpretation of the relevant provisions is in
line with Article 8 of the DSA (which prohibits obligations of general monitoring and
active fact-finding of illegality by platforms) and the relevant fundamental rights.
In particular, this concerns:
-
Obligations of online platform providers whose activity is not editors of content:
in particular, the obligation to display a prior warning message to users before
accessing certain types of pornographic content should only apply provided they
are made aware of the existence of such content on their services (Article 4A of
the notified draft).
Obligations to implement measures to block any other account held by a
convicted person, and to prevent the creation of new accounts by a convicted
person, throughout the execution of the sentence: in particular, it would be
desirable to make it clear that it is exclusively for the administrative authority to
identify “other accounts”.
-
***
For the reasons set out above, the Commission hereby issues a detailed opinion pursuant
to in Article 6(2) of Directive (EU) 2015/1535.
The Commission reminds the French authorities that, in accordance with this Article, the
issuing of a detailed opinion entails the Member State which is the author of the draft
technical regulation concerned postponing its adoption for 4 months from the date of its
notification. This deadline therefore ends on 27 November 2023.
Furthermore, the Commission draws the attention of the French authorities to the fact
that, under this provision, the Member State to which a detailed opinion is addressed is
required to inform the Commission of the action it intends to take on such an opinion.
In particular with regard to age verification, the Commission invites the French
authorities to exchange information at technical level, to ensure that national technical
standards encourage the development of technical solutions at EU level, without
hindering this progress. In addition, the Commission invites the French authorities to
communicate to it, as soon as it is adopted, the final text of the draft technical regulation
concerned, in accordance with Article 5(3) of Directive (EU) 2015/1535.
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If the French authorities fail to comply with the obligations laid down in Directive (EU)
2015/1535 or if the text of the draft technical regulation under consideration is adopted
without taking account of the objections raised or is otherwise contrary to EU law, the
Commission reserves the right to initiate proceedings against France in accordance with
Article 258 of the TFEU.
3. Comments
The Commission notes that several provisions of the notified draft empower the
competent French authorities to issue orders to intermediary service providers, including
to block access or remove certain content deemed illegal under national law, or to block
access to services that wholly or substantially reproduce the same content.
In this respect, the Commission would like to remind the French authorities, on the one
hand, of the importance of ensuring compliance with Article 8 of the DSA (
17
) and, on the
other hand, of the procedures and conditions set out in Article 9 of the DSA to ensure
that these orders can produce all the intended effects in the architecture of the DSA.
Article 9 of the DSA states that such orders may be issued on a cross-border basis and it
lays down certain specific minimum conditions which administrative or judicial orders
issued by a Member State must fulfil in order for their transmission to give rise to the
obligation for intermediary service providers to inform the competent authorities of the
effect given to these orders.
***
The Commission services are open to close cooperation and discussion with the French
authorities on possible solutions to the problems identified, in full compliance with EU
law.
Yours faithfully,
For the Commission,
Thierry Breton
Member of the Commission
CERTIFIED COPY
For the Secretary-General
Martine DEPREZ
Director
Decision-making & Collegiality
EUROPEAN COMMISSION
17
() Case C-18/18,
Glawischnig-Piesczek vs Facebook,
ECLI: EU:C:2019:821.
7