In November 2023, ECNL along with La Quadrature du Net, Access Now, ARTICLE 19, European Digital Rights (EDRi) and Wikimedia France launched a case against the French decree implementing the European Union’s (EU) Regulation on addressing the dissemination of terrorist content online (TCO, also known as “TERREG”). The goal was to obtain the annulment of this dangerous regulation by the Court of Justice of the European Union (CJEU).
Sadly, the French supreme administrative court, the Conseil d’État, rejected the organisations’ arguments and demand for referring the case to the CJEU in its decision released yesterday.
It is an extremely disappointing outcome for two main reasons.
- First, the French court illegitimately captures the legal debate over the conformity of the regulation with EU primary law, and notably the Charter of Fundamental Rights, which should in principle take place at the EU level. According to the EU Treaties, the CJEU is the primary jurisdiction responsible for ruling on the legality of EU acts – which was the organisations’ main ask. By carrying out the legality assessment on its own terms, the French court is de facto depriving the CJEU from the possibility to exercise its exclusive competences.
- Second, the decision also means that law enforcement authorities across the EU may continue to use the excessive censorship powers under the TCO Regulation for the foreseeable future. The organisations that challenged the Regulation have voiced concerns about potential violations of fundamental rights since the publication of the legislative proposal in 2018 and its inadequate safeguards. Looking at the data available on the regulation implementation, there are concerning indications that some Member States have used it as a political tool of repression against specific types of online expression.
For example, of all 349 removal orders issued in the EU between June 2022 and April 2024, 249 were issued by German authorities following the events of October 7th in Israel. This is highly alarming given the increasing restrictions in Germany of people’s exercise of freedom of expression and of freedom of assembly and association regarding the Israel/Palestine context (including, amongst others, protest bans, cancellations of events and suppression of student-led initiatives, etc.).
The organisations insist on the urgent need to remove the TCO disproportionate censorship powers out of police authorities’ hands and to protect people’s ability to freely express themselves online, especially in a context of shrinking civic space across the whole continent. They commit to seeking other litigation opportunities to obtain the CJEU’s review of the legality of the TCO Regulation.