Ceci est une version HTML d'une pièce jointe de la demande d'accès à l'information 'Commission Comments re: Austrian Communication Platforms Act'.



Ref. Ares(2021)745433 - 29/01/2021
Message 301
Communication from the Commission - TRIS/(2020) 03550
Directive (EU) 2015/1535
Notification: 2020/0544/A, 2020/0548/A
Request for supplementary information from the Commission.
Solicitud de información complementaria - Žádost o doplňující informace - Anmodning om supplerende
oplysninger - Ersuchen um ergänzende Informationen - Lisateabe edastamise palve - Αίτηση συμπληρωματικών
πληροφοριών - Request for additional information - Demande d'informations complémentaires - Domanda di
informazioni complementari - Pieprasījums papildus informācijai - Papildomos informacijos užklausa - Kiegészítő
információ kérése - Talba għal tagħrif addizzjonali - Verzoek om aanvullende inlichtingen - Prośba o uzupełnienie
informacji - Pedido de informacoes complementares - Žiadosť o dodatočné informácie - Zahteva za dodatne
informacije - Lisätietopyyntö - Begäran om kompletterande upplysningar - Искане за допълнителна информация
- Solicitare de informaţii suplimentare.
(MSG: 202003550.EN)
1. MSG 301 IND 2020 0544 A EN 02-12-2020 29-09-2020 COM INFOSUP 02-12-2020
1. MSG 301 IND 2020 0548 A EN 03-12-2020 29-09-2020 COM INFOSUP 03-12-2020
2. Commission
3. DG GROW/B/2 - N105 04/63
4. 2020/0544/A, 2020/0548/A - SERV60, SERV60
5. -
6. Within the framework of the notification procedure under Directive (EU) 2015/1535 laying down a procedure for
the provision of information in the field of technical regulations and of rules on Information Society services, the
Austrian authorities notified to the Commission on 1 September 2020 the “Draft Federal Act on measures to
protect users on communication platforms (Communication Platforms Act)” (Notification 2020/544/A) and on 2
September 2020 the “Draft Federal Act establishing penal and media policy measures to combat hate on the
Internet” (Notification 2020/548/A).
In order to allow the Commission services to complete their analysis under the relevant provisions of EU law, the
Austrian authorities are kindly invited to reply to the following request for supplementary information.
With regards to notification 2020/544/A:
1. In the explanatory notes of the impact assessment document, the Austrian authorities expressly recognize the
on-going legislative work on the Digital Services Act, which adoption is envisaged before the end of the year. The
Commission would welcome further information on the reasons that, in the view of the Austrian authorities, would
justify the need to propose national legislation at this stage, which would largely overlap with an on-going EU
initiative. 
2. The notification message states that “Communication platforms within the meaning of this Act are information
society services whose main purpose or essential function is to enable the exchange of messages or
presentations with intellectual content in words, writing, sound or images between users with a larger group of
people by means of mass distribution.” The Austrian authorities are kindly requested to confirm if the new
obligations resulting from the notified draft will apply to information society services, including video-sharing
platform services, when they fulfil the thresholds set out in § 1(2) of the notified draft regardless of whether these
are established outside the territory of Austria, according to the jurisdiction criteria set out in Directive 2000/31/EC
(the “e-Commerce Directive”), and related CJEU case law, and Article 28a of the revised Directive (EU) 2018/1808
(Audiovisual Media Services Directive or “AVMSD”), respectively.
3. The Commission services kindly ask the Austrian authorities whether they have assessed which (or an
approximate number of) communication platforms that are not established in Austria according to the jurisdiction
criteria set out in the e-Commerce Directive and related ECJ case-law would fulfil the thresholds set out in § 1(2)
and thus fall under the scope of the notified draft. The Commission services would also like to know how many of
those platforms would constitute video-sharing platform providers not established or deemed to be established in
the territory of Austria according to Article 28a of the AVMSD. In addition, the Commission services would like to
know whether the Austrian authorities have assessed the costs that such providers would incur in in order to
comply with the obligations set out in the notified draft. 
4. In order to understand the impact and reasoning of the notified draft, the Commission services kindly ask the
Austrian authorities to provide some real life examples, beyond the normative definitions, of the services included
under the category of communication platforms (§ 2(4) of the notified draft). In particular, whether platform services
for the exchange of opinions/reviews, search engines or individual websites such as opinion blogs are included in
that definition. 

5. The Commission services would welcome more information on the assessment of the proportionality of the
envisaged obligations for communication platforms in relation to the objective to be attained. In particular, whether
and how the Austrian authorities have assessed the impact of those obligations on freedom to provide services and
freedom of establishment, freedom to conduct a business and freedom of expression, as established in the Treaty
on the Functioning of the European Union (“TFEU”) and related CJEU case law.
6. The Commission services kindly ask the Austrian authorities to clarify whether they are resorting to the urgency
procedure set out in Article 3(5) of the e-Commerce Directive as per references to such provision in the special
part § 1 of the impact assessment document. The Austrian authorities are also kindly requested to provide more
information on any actions taken with regards to the procedural requirements under Article 3(4)(b) of the
e-Commerce Directive. 
7. The Austrian authorities are invited to clarify whether the requirement to appoint a national representative in
Austria would also apply to service providers under the jurisdiction of other Member States and, if affirmative, the
Commission services would welcome further clarifications with regard to how this could be reconciled with the
country of origin principle of the e-Commerce Directive and, in the case of video-sharing platforms, of the AVMSD.
8. § 1(2) of the notified draft envisages that a service provider would be exempted from the obligations under the
notified draft if - the number of users in Austria authorised to access the communication platform by means of
registration did not exceed an average of 100’000 people in the previous quarter; and - the turnover achieved with
the operation of the communication platform in Austria did not exceed EUR 500‘000 in the previous year. The
Commission services would welcome further explanations concerning the foreseen exemption, in particular on
how it reconciles with the AVMSD Article 28b obligations that are applicable to all video-sharing platforms
irrespective of their size. Further, the Commission services would like to better understand whether the Austrian
authorities have assessed the possibility to apply less burdensome measures (such as including the relevant
requirements in platforms’ terms of use also to platforms below the threshold) and, if yes, what the outcome is of
such an assessment.
With regards to notification 2020/548/A:
9. The Commission services understand that § 76a of the Code of Criminal Procedure (StPO) already allows some
authorities to request users’ master data and access data from communication service providers, and that the
notified draft would extend this procedure to other internet service providers, in particular over-the-top (OTT)
media services. The Commission services would be interested to understand what kind of data precisely is
covered by this procedure and whether this data is stored by the service providers for commercial purposes, or
pursuant to a data retention obligation? The Commission services would also like to better understand which
authorities can request such data under this procedure.
The Austrian authorities are kindly invited to reply by 15 October 2020.
Joaquim Nunes de Almeida
Director
European Commission
Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: xxxxxxxxxxxxxxxxxxxxxxxxx@xx.xxxxxx.xx