A Case Study of Judicial-Legislative Interactions via the Lens of the DSA’s Host Liability Rules

This paper explores the relationship between the Court of Justice of the European Union and the EU Legislature. Taking intermediary liability rules for hosts under Article 14 of the e-Commerce Directive (ECD) and its subsequent revision under the Digital Services Act (DSA) as a case study, the paper explores this relationship. The analysis focuses on the distinction between ‘active’ and ‘neutral’ roles for hosts developed by the Court of Justice in its case law. The paper shows how the Court’s rulings shaped the application of host liability rules under the ECD, subsequently impacted their revision during the DSA negotiations, and how the Legislature addressed the uncertainty created by its case law on voluntary investigations via the introduction of a ‘Good Samaritan’ clause. Methodologically the paper draws on legal scholarship and political science literature, employing a mixed methods approach which combines doctrinal analysis, process tracing, and a law attainment typology to explore these dynamics. The paper concludes that while the Court’s jurisprudence was important during negotiations, it also highlights the challenges it posed as both a form of legal regulation, and by extension as a tool of integration. These issues necessitating legislative intervention. The paper’s findings lend weight to the increasing body of literature in legal scholarship which argues that there has been a shift in European integration dynamics, with positive integration playing an increasingly important role.