In November 2023, La Quadrature du Net, Access Now, ARTICLE 19, European Center for Not-for-Profit Law (ECNL), European Digital Rights (EDRi) and Wikimedia France filed a complaint 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) for its incompatibility with the EU Charter of Fundamental Rights. Unfortunately, in a decision released on Monday, the French supreme administrative court, the Conseil d’État, rejected the organisations’ arguments and their request to refer the case to the CJEU.
It is an extremely disappointing outcome for two main reasons. First, the French court illegitimately appropriated the legal debate over the TCO regulation’s compatibility with EU primary law. This matter should, however, be addressed 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 request. By carrying out its own legality assessment, the French court is de facto preventing the CJEU from exercising its exclusive competences.
Second, the decision also means that law enforcement authorities across the EU can continue to use the excessive censorship powers under the TCO Regulation for the foreseeable future. Since the proposal was first published in 2018, the organisations that challenged the TCO Regulation have consistently voiced concerns about potential violations of fundamental rights due to its inadequate safeguards. Looking at the data available on the regulation implementation, there are concerning indications that some Member States may be using TERREG as a political tool to suppress certain 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 2023 in Israel. This is highly alarming given the increasing crackdown in Germany on freedom of expression and on freedom of assembly and association, targeting those speaking up for Palestinian rights (including protest bans, cancellations of events, suppression of student-led initiatives, etc.).
The organisations insist on the urgent need to remove the TERREG 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. We commit to seek other litigation opportunities to obtain the CJEU’s review of the legality of the TCO Regulation.