§ 721 · Medzinárodná pôsobnosť

Článok 3

Vnútorný trh

Každý členský štát zabezpečí, aby služby informačnej spoločnosti poskytované poskytovateľom služieb, ktorý má sídlo na jeho území, boli v súlade s vnútroštátnymi ustanoveniami, ktoré sa uplatňujú v príslušnom členskom štáte a ktoré spadajú do koordinovanej oblasti.

Členské štáty nemôžu z dôvodov spadajúcich do koordinovanej oblasti obmedziť slobodu poskytovania služieb informačnej spoločnosti z iného členského štátu.

Odseky 1 a 2 sa neuplatňujú na oblasti uvedené v prílohe.

Členské štáty môžu prijať opatrenia na výnimku z odseku 2 v súvislosti s určitou danou službou informačnej spoločnosti, ak sú splnené tieto podmienky:

(a) opatrenia sú:

(i) nevyhnutné pre jeden z týchto dôvodov:

- verejného záujmu, najmä z dôvodu prevencie, vyšetrovania, odhaľovania a stíhania trestných činov, vrátane ochrany neplnoletých osôb a boja proti všetkým formám podnecovania nenávisti z dôvodu rasy, pohlavia, náboženstva alebo štátnej príslušnosti a hanobenia ľudskej dôstojnosti jednotlivých osôb,

- ochrany zdravia obyvateľstva,

- verejnej bezpečnosti, vrátane zabezpečenia bezpečnosti a obrany štátu,

- ochrany spotrebiteľov, vrátane investorov;

(ii) prijaté proti určitej službe informačnej spoločnosti, ktorá škodí cieľom uvedeným v bode (i) alebo, ktorá predstavuje skutočné a závažné riziko poškodenia týchto cieľov;

(iii) primerane týmto cieľom;

(b) pred prijatím predmetných opatrení a bez dopadu na súdne konania, vrátane predbežných konaní a aktov vykonávaných v rámci vyšetrovania trestných činov, členský štát:

- požiadal členský štát uvedený v odseku 1, aby prijal opatrenia a tento takéto opatrenia neprijal, alebo boli neprimerané,

- oznámi Komisii a členskému štátu uvedenému v odseku 1 svoj úmysel prijať také opatrenia.

Členské štáty môžu v naliehavom prípade prijať výnimku z podmienok ustanovených v odseku 4 písm. b). Ak ide o takýto prípad, opatrenia musia byť čo najskôr oznámené Komisii a členskému štátu uvedenému v odseku 1, s uvedením dôvodov, prečo členský štát považuje prípad za naliehavý.

Bez toho, aby bola dotknutá možnosť členského štátu pokračovať v príslušných opatreniach, Komisia preskúma zlučiteľnosť oznámených opatrení s právom spoločenstva v čo najkratšom možnom čase; ak príde k záveru, že opatrenie je nezlučiteľné s právom spoločenstva, Komisia požiada príslušný členský štát, aby neprijal navrhované opatrenia alebo urýchlene ukončil príslušné opatrenia.

**Joined Cases C-509/09 and C-161/10**

**eDate Advertising GmbH**

**v**

**X**

**and**

**Olivier Martinez and Robert Martinez**

**v**

**MGN Limited**

(References for a preliminary ruling from the Bundesgerichtshof and from the tribunal de grande instance de Paris)

(Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)

Summary of the Judgment

1\. *Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website – Place where the harmful event occurs – Definition*

*(Council Regulation No 44/2001, Art. 5(3))*

2\. *Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website*

*(Council Regulation No 44/2001, Art. 5(3))*

3\. *Approximation of laws – Electronic commerce – Directive 2000/31 – Provisions concerning the internal market – Obligation, for the Member States, not to make the suppliers of services subject to stricter requirements than those laid down by the Member State in which that service provider is established – Scope*

*(European Parliament and Council Directive 2000/31, Art. 3)*

The rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.

However, when a victim relies on a personality right by means of content placed on an internet site, in so far as the scope of the diffusion of content place online is in principle universal, the difficulties in giving effect to the criterion relating to the occurrence of damage due to the diffusion of information require the connecting criteria to be adapted in such a way that the victim of such an infringement may bring an action, in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred.

Given that the impact which material placed online is liable to have on an individual’s personality rights may best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice. That place corresponds in general to the habitual residence of the victim, but it may also be a Member State where the victim does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.

The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued.

(see paras 40-41, 46-50)

Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

(see para. 52, operative part 1)

Article 3 of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of that directive, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

(see para. 68, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

25 October 2011 ([\*](#Footnote*))

(Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)

In Joined Cases C‑509/09 and C‑161/10,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany) (C‑509/09) and the Tribunal de grande instance de Paris (France) (C‑161/10), made by decisions of 10 November 2009 and 29 March 2010, received at the Court, respectively, on 9 December 2009 and 6 April 2010, in the proceedings

**eDate Advertising GmbH**

v

**X**

and

**Olivier Martinez,**

**Robert Martinez**

v

**MGN Limited,**

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, U. Lõhmus and M. Safjan (Rapporteur), Presidents of Chambers, E. Levits, A. Ó Caoimh, L. Bay Larsen, and T. von Danwitz, Judges,

Advocate General: P. Cruz Villalón,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 December 2010,

after considering the observations submitted on behalf of:

– eDate Advertising GmbH, by H. Graupner and M. Dörre, Rechtsanwälte,

– X, by A. Stopp, Rechtsanwalt,

– MGN Limited, by C. Bigot, avocat,

– the German Government, by J. Möller and J. Kemper, acting as Agents,

– the French Government, by G. de Bergues and B. Beaupère‑Manokha, acting as Agents,

– the Danish Government, by C. Vang, acting as Agent,

– the Greek Government, by S. Chala, acting as Agent,

– the Italian Government, by W. Ferrante, acting as Agent,

– the Luxembourg Government, by C. Schiltz, acting as Agent,

– the Austrian Government, by C. Pesendorfer and E. Riedl, acting as Agents,

– the United Kingdom Government, by F. Penlington, acting as Agent, and by J. Stratford, QC,

– the European Commission, by M. Wilderspin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 29 March 2011,

gives the following

**Judgment**

1 The present references for a preliminary ruling concern the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Regulation’) and Article 3(1) and (2) of 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 2000 L 178, p. 1; ‘the Directive’).

2 The references have been made in two sets of proceedings, between, firstly, X and eDate Advertising GmbH (‘eDate Advertising’) and, secondly, Olivier and Robert Martinez, on the one hand, and MGN Limited (‘MGN’), on the other hand, concerning the civil liability of those defendants in respect of information and photographs published on the internet.

**Legal context**

*The Regulation*

3 Recital 11 in the preamble to the Regulation states:

‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’

4 Article 2(1) of the Regulation, which appears in Section 1 (‘General provisions’) of Chapter II (‘Jurisdiction’) thereof, provides as follows:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

5 Article 3(1) of the Regulation provides:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

6 In Section 2, entitled ‘Special jurisdiction’, of Chapter II, Article 5(3) is worded as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

…

3\. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

*The Directive*

7 The fourth clause in recital 22 in the preamble to the Directive reads as follows:

‘\[M\]oreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established.’

8 Recital 23 in the preamble to the Directive states:

‘This Directive neither aims to establish additional rules on private international law relating to conflicts of law nor does it deal with the jurisdiction of Courts; provisions of the applicable law designated by rules of private international law must not restrict the freedom to provide information society services as established in this Directive.’

9 Recital 25 in the preamble to the Directive states:

‘National courts, including civil courts, dealing with private law disputes can take measures to derogate from the freedom to provide information society services in conformity with conditions established in this Directive.’

10 In accordance with Article 1(1) thereof, the Directive has as its objective to ‘contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.’

11 Article 1(4) of the Directive is worded as follows:

‘This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.’

12 Under Article 2(h)(i) of the Directive:

‘The coordinated field concerns requirements with which the service provider has to comply in respect of:

– the taking-up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service, including those applicable to advertising and contracts, or requirements concerning the liability of the service provider’.

13 Article 3(1) and (2) of the Directive provides:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’

14 Article 3(4) of the Directive sets out the conditions under which Member States may take, in respect of a given information society service, measures that derogate from Article 3(2).

**The disputes in the main proceedings and the questions referred for a preliminary ruling**

*Case C-509/09*

15 In 1993, X, who is domiciled in Germany, was sentenced by a German court, together with his brother, to life imprisonment for the murder of a well‑known actor. He was released on parole in January 2008.

16 eDate Advertising, which is established in Austria, operates an internet portal under the address ‘www.rainbow.at’. In the section ‘Info‑News’, on the pages dedicated to old news, the defendant made access to a report, dated 23 August 1999, available for purposes of consultation until 18 June 2007. That report, which named X and his brother, stated that they had both lodged appeals against their conviction with the Bundesverfassungsgericht (Federal Constitutional Court) in Karlsruhe (Germany). In addition to a brief description of the crime committed in 1990, the lawyer instructed by the convicted men is quoted as saying that they intended to prove that several of the principal witnesses for the prosecution had not told the truth at the trial.

17 X called upon eDate Advertising to desist from reporting that matter and to give an undertaking that it would refrain from future publication. eDate Advertising did not reply to that letter but, on 18 June 2007, removed the disputed information from its website.

18 By his action before the German courts, X calls upon eDate Advertising to refrain from using his full name when reporting about him in connection with the crime committed. The main contention of eDate Advertising is that the German courts have no international jurisdiction in the matter. As the action was successful in both lower courts, eDate Advertising continues, before the Bundesgerichtshof (German Federal Court of Justice), to seek to have the action dismissed.

19 The Bundesgerichtshof notes that the outcome of the action is dependent on whether the lower courts were correct in holding that they have international jurisdiction to rule on the dispute pursuant to Article 5(3) of the Regulation.

20 If the international jurisdiction of the German courts is established, the Bundesgerichtshof states that the question then arises as to whether German or Austrian law applies. That depends on the interpretation of Article 3(1) and (2) of the Directive.

21 On the one hand, the country-of-origin principle may have a corrective effect on a substantive law level. The substantive law outcome under the law declared to be applicable pursuant to the conflict-of-laws rules of the State in which the court seised is situated is, in individual cases, altered in its content, where appropriate, and reduced to the less stringent requirements of the law of the country of origin. According to this interpretation, the country-of-origin principle does not affect the national conflict-of-laws rules of the State in which the court seised is situated and applies – in the same way as the fundamental freedoms set out in the EC Treaty – only in the context of an individual cost/benefit comparison at a national law level.

22 On the other hand, Article 3 of the Directive may establish a general principle with regard to conflict-of-laws rules that leads to the exclusive application of the law in force in the country of origin and the ousting of the national conflict-of-laws rules.

23 The Bundesgerichtshof states that if the country-of-origin principle were to be considered to be an obstacle to the application of law on a substantive level, German private international law would be applicable and the decision under challenge would then have to be set aside and the action ultimately dismissed, since the applicant’s claim seeking an injunction under German law would have to be refused. By contrast, if the country-of-origin principle were to be treated as a conflict-of-laws rule, X’s claim for an injunction would then have to be assessed according to Austrian law.

24 In those circumstances, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is the phrase “the place where the harmful event... may occur” in Article 5(3) of \[the Regulation\] to be interpreted as meaning, in the event of (possible) infringements of the right to protection of personality by means of content on an internet website,

that the person concerned may also bring an action for an injunction against the operator of the website, irrespective of the Member State in which the operator is established, in the courts of any Member State in which the website may be accessed,

or

does the jurisdiction of the courts of a Member State in which the operator of the website is not established require that there be a special connection between the contested content or the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility?

2\. If such a special domestic connecting factor is necessary:

What are the criteria which determine that connection?

Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at the internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests – the applicant’s interest in respect for his right to protection of personality and the operator’s interest in the design of his website and in news reporting – may actually have occurred or may occur in the State of the court seised?

Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised?

3\. If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised:

Must Article 3(1) and (2) of \[the Directive\] be interpreted as meaning:

that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law they also require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-laws rules,

or

do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-laws rules is altered and reduced to the requirements of the country of origin?

In the event that Article 3(1) and (2) of \[the Directive\] has a conflict-of-laws character:

Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-laws rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible?’

*Case C‑161/10*

25 Before the Tribunal de grande instance de Paris (Paris Regional Court), the French actor Olivier Martinez and his father, Robert Martinez, complain of interference with their private lives and infringement of the right of Olivier Martinez to his image by reason of the posting, on the website accessible at the internet address ‘www.sundaymirror.co.uk’, of a text in English, dated 3 February 2008, entitled ‘Kylie Minogue is back with Olivier Martinez’, with details of their meeting.

26 On the basis of Article 9 of the French Civil Code, which provides that ‘everyone has the right to respect for his private life’, the present action has been brought against MGN, a company governed by English law, which publishes the website of the British newspaper the *Sunday Mirror*. That company raises the objection that the Tribunal de grande instance de Paris lacks jurisdiction as there is no sufficient connecting link between the act of placing the text and images at issue online and the alleged damage in French territory, whereas the applicants, by contrast, take the view that such a connecting link is unnecessary and that, in any event, there is such a link.

27 The national court states that, where the internet is the medium for a harmful event, that harmful event can be deemed to have occurred in the territory of a Member State only if there is a sufficient, substantial or significant link connecting it with that territory.

28 The national court takes the view that the answer to the question whether a court of a Member State has jurisdiction to deal with an action alleging infringement of personality rights committed via the internet, from a website published by a person domiciled in another Member State and essentially intended for the public in that other Member State, does not follow clearly from the terms of Articles 2 and 5(3) of the Regulation.

29 In those circumstances, the Tribunal de grande instance de Paris decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘Must Articles 2 and 5(3) of \[the Regulation\] be interpreted to mean that a court or tribunal of a Member State has jurisdiction to hear an action brought in respect of an infringement of personality rights allegedly committed by the placing online of information and/or photographs on an internet site published in another Member State by a company domiciled in that second State – or in a third Member State, but in any event a State other than the first Member State:

– on the sole condition that the internet site can be accessed from the first Member State,

– on the sole condition that there is, between the harmful act and the territory of the first Member State, a link which is sufficient, substantial or significant and, in that case, whether that link can be created by:

– the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all hits on that page,

– the residence, or nationality, of the person who complains of the infringement of his or her personality rights or, more generally, of the persons concerned,

– the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s intention to address specifically the public of the first Member State,

– the place where the events described occurred and/or where the photographic images put on line were taken,

– other criteria?’

30 By order of 29 October 2010, the President of the Court of Justice, in accordance with Article 43 of the Rules of Procedure of the Court, decided to join Cases C‑509/09 and C‑161/10 for the purposes of the oral hearing and the judgment.

**Admissibility**

31 The Italian Government expresses the view that the questions submitted in Case C‑509/09 should be declared inadmissible for lack of relevance to the dispute in the main proceedings. An injunction, it argues, is an emergency judicial instrument and therefore presupposes current harmful behaviour. It is, however, evident from the presentation of the facts in this case that the behaviour regarded as harmful was no longer current at the time when the application for an injunction was made, given that the operator of the website had already removed the information in dispute prior to the commencement of proceedings.

32 It should be recalled in this regard that, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see Case C‑52/09 *TeliaSonera Sverige* \[2011\] ECR I‑0000, paragraph 15 and the case-law cited).

33 The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, inter alia where the problem is hypothetical (see *TeliaSonera Sverige*, paragraph 16).

34 It does not, however, appear that, in the case in the main proceedings, the application for an injunction became devoid of purpose by reason of the fact that the website operator had already removed the information in dispute before proceedings were commenced. Indeed, as is set out at paragraph 18 of this judgment, the injunction application was successful in the two lower courts.

35 In any event, the Court has already noted that, in the light of its wording, Article 5(3) of the Regulation does not require the current existence of damage (see, to that effect, Case C‑167/00 *Henkel* \[2002\] ECR I‑8111, paragraphs 48 and 49). It follows that an action seeking to prevent a repetition of behaviour regarded as wrongful comes within the scope of that provision.

36 In those circumstances, the reference for a preliminary ruling must be held to be admissible.

**Consideration of the questions referred**

*Interpretation of Article 5(3) of the Regulation*

37 By the first two questions in Case C‑509/09 and the single question in Case C‑161/10, which it is appropriate to examine together, the national courts ask the Court, in essence, how the expression ‘the place where the harmful event occurred or may occur’, used in Article 5(3) of the Regulation, is to be interpreted in the case of an alleged infringement of personality rights by means of content placed online on an internet website.

38 In order to answer those questions, it should be borne in mind, first, that, according to settled case-law, the provisions of the Regulation must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑189/08 *Zuid‑Chemie* \[2009\] ECR I‑6917, paragraph 17 and the case-law cited).

39 Second, in so far as the Regulation now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the Regulation whenever the provisions of those Community instruments may be regarded as equivalent (*Zuid‑Chemie*, paragraph 18).

40 It is settled case-law that the rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of the Regulation is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (*Zuid‑Chemie*, paragraph 24 and the case-law cited).

41 It must also be borne in mind that the expression ‘place where the harmful event occurred’ is intended to cover both the place where the damage occurred and the place of the event giving rise to it. Those two places could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings (see Case C‑68/93 *Shevill and Others* \[1995\] ECR I‑415, paragraphs 20 and 21).

42 In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (*Shevill and Others*, paragraph 33).

43 In that regard, the Court has also stated that, while it is true that the limitation of the jurisdiction of the courts in the State of distribution solely to damage caused in that State presents disadvantages, the plaintiff always has the option of bringing his entire claim before the courts either of the defendant’s domicile or of the place where the publisher of the defamatory publication is established (*Shevill and Others*, paragraph 32).

44 Those considerations may, as was noted by the Advocate General at point 39 of his Opinion, also be applied to other media and means of communication and may cover a wide range of infringements of personality rights recognised in various legal systems, such as those alleged by the applicants in the main proceedings.

45 However, as has been submitted both by the referring courts and by the majority of the parties and interested parties which have submitted observations to the Court, the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control.

46 It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.

47 The difficulties in giving effect, within the context of the internet, to the criterion relating to the occurrence of damage which is derived from *Shevill and Others* contrasts, as the Advocate General noted at point 56 of his Opinion, with the serious nature of the harm which may be suffered by the holder of a personality right who establishes that information injurious to that right is available on a world-wide basis.

48 The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice, referred to in paragraph 40 above.

49 The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.

50 The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction (see Case C‑144/10 *BVG* \[2011\] ECR I‑0000, paragraph 33) also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see Case C‑533/07 *Falco Privatstiftung and Rabitsch* \[2009\] ECR I‑3327, paragraph 22 and the case-law cited).

51 Moreover, instead of an action for liability in respect of all of the damage, the criterion of the place where the damage occurred, derived from *Shevill and Others*, confers jurisdiction on courts in each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

52 Consequently, the answer to the first two questions in Case C‑509/09 and the single question in Case C‑161/10 is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

*Interpretation of Article 3 of the Directive*

53 By its third question in Case C‑509/09, the Bundesgerichtshof asks whether the provisions of Article 3(1) and (2) of the Directive have the character of a conflict-of-laws rule in the sense that, for the field of private law, they also require the exclusive application, for information society services, of the law in force in the country of origin, to the exclusion of national conflict-of-laws rules, or whether they operate as a corrective to the law declared to be applicable pursuant to the national conflict-of-laws rules in order to adjust it in accordance with the requirements of the country of origin.

54 Those provisions must be analysed by taking account not only of their wording, but also of the context in which they occur and the objectives pursued by the rules of which they are part (see Case C‑156/98 *Germany* v *Commission* \[2000\] ECR I‑6857, paragraph 50, Case C‑306/05 *SGAE* \[2006\] ECR I‑11519, paragraph 34, and Case C‑162/09 *Lassal* \[2010\] ECR I‑0000, paragraph 49).

55 In that sense, the enacting terms of a European Union act are indissociably linked to the reasons given for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑298/00 P *Italy* v *Commission* \[2004\] ECR I‑4087, paragraph 97 and the case-law cited, and *Lassal*, paragraph 50).

56 The Directive, which was adopted on the basis of Articles 47(2) EC, 55 EC and 95 EC, has the objective, as set out in Article 1(1) thereof, of contributing to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. Recital 5 in the preamble lists, as legal obstacles to the proper functioning of the internal market in that field, divergences in legislation and legal uncertainty as regards which national rules apply to such services.

57 For the majority of the aspects of electronic commerce, however, the Directive is not intended to achieve harmonisation of substantive rules, but defines a ‘coordinated field’ in the context of which the mechanism in Article 3 must allow, according to recital 22 in the preamble to the Directive, information society services to be, in principle, subject to the law of the Member State in which the service provider is established.

58 In that regard, it must be noted, firstly, that the law of the Member State in which the service provider is established includes the private law field, which is apparent from, inter alia, recital 25 in the preamble to the Directive and from the fact that the annex thereto sets out the private-law rights and obligations to which the Article 3 mechanism does not apply. Secondly, the application thereof to the liability of service providers is expressly provided for by the second indent of Article 2(h)(i) of the Directive.

59 A reading of Article 3(1) and (2) of the Directive in the light of the abovementioned provisions and objectives shows that the mechanism provided for by the Directive prescribes, also in private law, respect for the substantive law requirements in force in the country in which the service provider is established. In the absence of binding harmonisation provisions adopted at European Union level, only the acknowledgement of the binding nature of the national law to which the legislature has decided to make the service providers and their services subject can guarantee the full effect of the free provision of those services. Article 3(4) of the Directive confirms such a reading in that it sets out the conditions under which Member States may derogate from Article 3(2), which must be regarded as being exhaustive.

60 The interpretation of Article 3 of the Directive must, however, also take account of Article 1(4) thereof, according to which the Directive does not establish additional rules on private international law relating to conflicts of laws.

61 In that regard, it must be noted, firstly, that an interpretation of the internal market rule enshrined in Article 3(1) of the Directive as meaning that it leads to the application of the substantive law in force in the Member State of establishment does not determine its classification as a rule of private international law. That paragraph principally imposes on Member States the obligation to ensure that the information society services provided by a service provider established on their territory comply with the national provisions applicable in the Member States in question which fall within the coordinated field. The imposition of such an obligation is not in the nature of a conflict-of-laws rule designed to resolve a specific conflict between several laws which may be applicable.

62 Secondly, Article 3(2) of the Directive prohibits Member States from restricting, for reasons falling within the coordinated field, the freedom to provide information society services from another Member State. By contrast, it is apparent from Article 1(4) of the Directive, read in the light of recital 23 in the preamble thereto, that host Member States are in principle free to designate, pursuant to their private international law, the substantive rules which are applicable so long as this does not result in a restriction of the freedom to provide electronic commerce services.

63 It follows that Article 3(2) of the Directive does not require transposition in the form of a specific conflict-of-laws rule.

64 The provisions of Article 3(1) and (2) of the Directive must, however, be interpreted in such a way as to guarantee that the coordinated approach chosen by the European Union legislature will effectively allow the free movement of information society services between the Member States.

65 In this regard, it must be recalled that the Court has already ruled that it must be possible to apply mandatory provisions of a directive that are necessary to achieve the objectives of the internal market notwithstanding a choice of different law (see, to that effect, Case C‑381/98 *Ingmar* \[2000\] ECR I‑9305, paragraph 25, and Case C‑465/04 *Honyvem Informazioni Commerciali* \[2006\] ECR I‑2879, paragraph 23).

66 In relation to the mechanism provided for by Article 3 of the Directive, it must be held that the fact of making electronic commerce services subject to the legal system of the Member State in which their providers are established pursuant to Article 3(1) does not allow the free movement of services to be fully guaranteed if the service providers must ultimately comply, in the host Member State, with stricter requirements than those applicable to them in the Member State in which they are established.

67 It follows that Article 3 of the Directive precludes, subject to derogations authorised in accordance with the conditions set out in Article 3(4), a provider of an electronic commerce service from being made subject to stricter requirements than those provided for by the substantive law in force in the Member State in which that service provider is established.

68 In light of the foregoing, the answer to the third question in Case C‑509/09 is that Article 3 of the Directive must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of the Directive, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

**Costs**

69 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national courts, the decisions on costs are a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1\. **Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.**

2\. **Article 3 of 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’), must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.**

\[Signatures\]

---

[\*](#Footref*) Languages of the cases: German and French.

**Case C-28/04**

**Tod’s SpA and Tod’s France SARL**

**v**

**Heyraud SA**

(Reference for a preliminary ruling from the Tribunal de grande instance de Paris)

(Equal treatment – Principle of non-discrimination on grounds of nationality – Copyright and related rights)

Judgment of the Court (Second Chamber), 30 June 2005

Summary of the Judgment

1\. *Community law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibited — Scope — Copyright and related rights — Included*

*(Art. 12 EC)*

2\. *Community law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibited — Copyright protection afforded by the law of a Member State subject to a distinguishing criterion based on the country of origin of the work — Not permissible*

*(Art. 12 EC)*

1\. Copyright and related rights, which by reason in particular of their effects on intra-Community trade in goods and services fall within the scope of application of the EC Treaty, are necessarily subject to the general principle of non-discrimination laid down by the first paragraph of Article 12 EC.

(see para. 18)

2\. Article 12 EC, which lays down the general principle of non discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.

(see para. 36, operative part)

JUDGMENT OF THE COURT (Second Chamber)

30 June 2005 ([\*](#Footnote*))

(Equal treatment – Principle of non-discrimination on grounds of nationality – Copyright and related rights)

In Case C-28/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal de grande instance de Paris (France), made by decision of 5 December 2003, received at the Court on 28 January 2004, in the proceedings

**Tod’s SpA,**

**Tod’s France SARL**

v

**Heyraud SA,**

intervener:

**Technisynthèse,**

THE COURT (Second Chamber),

composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, P. Kūris and G. Arestis, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Tod’s SpA and Tod’s France SARL, by C. de Haas, avocat,

– Heyraud SA and Technisynthèse, by C. Menage, avocat,

– the French Government, by G. de Bergues and A. Bodard-Hermant, acting as Agents,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by P. Gentili, avvocato dello Stato,

– the Commission of the European Communities, by K. Banks, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1 The reference for a preliminary ruling concerns the interpretation of Article 12 EC.

2 That reference was made in proceedings between Tod’s SpA (‘Tod’s’) and Tod’s France SARL (‘Tod’s France’), claimants in the main proceedings, and Heyraud SA (‘Heyraud’), defendant in the main proceedings, and Technisynthèse, intervener in the main proceedings, concerning an action for infringement of registered designs of shoes.

**The international rules**

3 Article 2(7) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’), is worded as follows:

‘… it shall be a matter for legislation in the countries of the Union \[for the protection of the rights of authors in their literary and artistic works; “the Union”\] to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.’

4 Article 5(1) of the Berne Convention states:

‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.’

5 Article 5(4) of the Berne Convention provides:

‘The country of origin shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.’

**The main proceedings and the question referred for a preliminary ruling**

6 It is apparent from the order for reference that Tod’s is a company established under Italian law which claims to be the proprietor of artistic intellectual property rights in the shoes distributed under the Tod’s and Hogan trade marks. Tod’s France is the distributor of those shoes in France.

7 Having learnt that Heyraud was offering for sale and selling under the Heyraud name designs of shoes which copied or at least imitated the principal characteristics of the Tod’s and Hogan designs, Tod’s arranged for a bailiff’s report to be drawn up on 8 February 2000. On 13 February 2002, the claimants in the main proceedings brought an action against Heyraud before the referring court. Technisynthèse, a subsidiary of the Eram group, entered the proceedings as a voluntary intervener in support of Heyraud.

8 The subject‑matter of the main proceedings consists, inter alia, of an action for infringement of registered designs of shoes bearing the Tod’s and Hogan trade marks, against which Heyraud raises a plea of inadmissibility under Article 2(7) of the Berne Convention. Heyraud contends that, under that provision, Tod’s is not entitled to claim copyright protection in France for designs that do not qualify for such protection in Italy.

9 Tod’s replies, inter alia, that application of the provision in question constitutes discrimination within the meaning of Article 12 EC.

10 The referring court takes the view that the use of the phrase ‘shall be entitled … only’ in the second sentence of Article 2(7) of the Berne Convention has the effect of depriving Union nationals who, in the country of origin of their work, enjoy only the protection granted in respect of designs and models, of the right to bring proceedings based on copyright in the countries of the Union which allow cumulation of protection.

11 According to that court, while it appears that that provision makes no distinction based on the nationality of the proprietor of the copyright, it remains the case that its scope under Community law is debatable where the country of origin of the ‘published’ work will most commonly be the country of which the author is a national or in which he has his habitual residence, and where the country of origin of an ‘unpublished’ work will, under Article 5(4)(c) of that convention, be the country of which the author is a national.

12 Taking the view that the outcome of the proceedings before it hinges on the interpretation of Article 12 EC, the Tribunal de grande instance de Paris decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does Article 12 … EC …, which lays down the general principle of non-discrimination on grounds of nationality, mean that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinction based on the country of origin of the work?’

**Preliminary observations**

13 Tod’s and Tod’s France are unsure as to the relevance of the question referred by the national court. The conditions for the application of Article 2(7) of the Berne Convention to the main proceedings are not satisfied. Moreover, they are surprised at that question in view of the fact that there is clear guidance in French case‑law – which they none the less dispute – according to which that provision does not give rise to discrimination.

14 It is to be remembered in this regard that it is not for the Court of Justice to rule on the applicability of provisions of national or, in this case, international law which are relevant to the outcome of the main proceedings. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the legislative context, as described in the order for reference, in which the question put to it is set (see, to that effect, Case C‑475/99 *Ambulanz Glöckner* \[2001\] ECR I-8089, paragraph 10, and Case C‑153/02 *Neri* \[2003\] ECR I-13555, paragraphs 34 and 35).

15 With regard to the purported guidance for the French courts found in their case‑law, it is sufficient to recall that the second paragraph of Article 234 EC provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (Case 283/81 *Cilfit* *and Others* \[1982\] ECR 3415, paragraph 6).

16 Moreover, while most of the observations submitted to the Court also relate, at least in part, to Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ 1998 L 289, p. 28), there is no need for the Court to rule on the interpretation of the provisions of that directive.

17 It must be pointed out that the referring court’s question to the Court concerns only the interpretation of Article 12 EC. Moreover, as the Commission of the European Communities rightly observes, the facts in the main proceedings, which gave rise to a bailiff’s report drawn up on 8 February 2000, occurred before the expiry of the time‑limit for the transposition of Directive 98/71 by the Member States, namely 28 October 2001.

**The question referred for a preliminary ruling**

18 It should be recalled that copyright and related rights, which by reason in particular of their effects on intra-Community trade in goods and services fall within the scope of application of the EC Treaty, are necessarily subject to the general principle of non-discrimination laid down by the first paragraph of Article 12 EC (Joined Cases C-92/92 and C-326/92 *Phil Collins and Others* \[1993\] ECR I-5145, paragraph 27, and Case C-360/00 *Ricordi* \[2002\] ECR I-5089, paragraph 24).

19 Moreover, as the Court has consistently held, the rules regarding equality of treatment between nationals and non-nationals prohibit not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see, inter alia, Case C‑29/95 *Pastoors and Trans-Cap* \[1997\] ECR I-285, paragraph 16, and Case C‑224/00 *Commission* v *Ital* y \[2002\] ECR I-2965, paragraph 15).

20 It is apparent from the order for reference that application, in the national law of a Member State, of Article 2(7) of the Berne Convention leads to a distinction based on the criterion of the country of origin of the work. In particular, the effect of such application is that no advantageous treatment, namely the enjoyment of twofold protection based, firstly, on the law relating to designs and, secondly, on the law of copyright, will be granted to the author of a work the country of origin of which is another Member State which affords that work only protection under the law relating to designs. By contrast, the abovementioned advantageous treatment is granted, in particular, to authors of a work the country of origin of which is the first Member State.

21 It is therefore necessary to examine whether, by adopting a distinguishing criterion based on the country of origin of the work, the application of rules such as those at issue in the main proceedings may constitute indirect discrimination by reason of nationality within the meaning of the case‑law cited in paragraph 19 of the present judgment.

22 Heyraud and Technisynthèse, as well as the French Government, argue that that is not the case. The latter maintains, in particular, that, in view of the high mobility of designers and their successors in title in the field of the applied arts, the place of first publication of a design does not necessarily coincide with the nationality of its author and that, more often than not, the two do not coincide. It follows that the application of Article 2(7) of the Berne Convention does not substantially, or in the great majority of cases, operate to the detriment of nationals of other Member States and that that provision does not, therefore, give rise to indirect discrimination.

23 However, that argument cannot be accepted.

24 The existence of a link between the country of origin of a work within the meaning of the Berne Convention, on the one hand, and the nationality of the author of that work, on the other, cannot be denied.

25 In the case of unpublished works, that link is not in any doubt since it is expressly provided for in Article 5(4)(c) of the Berne Convention.

26 As regards published works, the country of origin is essentially, as Article 5(4)(a) of that convention indicates, the country where the work was first published. The author of a work first published in a Member State will, in the majority of cases, be a national of that State, whereas the author of a work published in another Member State will generally be a person who is not a national of the first Member State.

27 It follows that the application of rules such as those at issue in the main proceedings is liable to operate mainly to the detriment of nationals of other Member States and thus give rise to indirect discrimination on grounds of nationality (see, to that effect, Case C-279/93 *Schumacker* \[1995\] ECR I‑225, paragraphs 28 and 29, and *Pastoors and Trans-Cap*, cited above, paragraph 17).

28 However, that finding is not sufficient under the Court’s case-law to justify the conclusion that the rules at issue are incompatible with Article 12 EC. For that it would also be necessary for the application of those rules not to be justified by objective circumstances (see, to that effect, Case C-398/92 *Mund & Fester* \[1994\] ECR I‑467, paragraphs 16 and 17, and *Pastoors and Trans-Cap*, paragraph 19).

29 The French Government is of the opinion that Article 2(7) of the Berne Convention is in any event justified by a legitimate objective and that it is appropriate and necessary for the achievement of that objective.

30 It argues that the purpose of the Berne Convention is the protection of literary and artistic works and that Article 2(7) and Article 5(4) of that convention specify the conditions under which such works are to be protected by copyright on the basis of an objective criterion based on the law applicable to the classification of the work. In its view, where a design cannot aspire to classification as an artistic work in the country where it was first published, it is not entitled to such protection in the States party to the Berne Convention since it does not exist as an artistic work. Article 2(7) thus concerns not the detailed rules for the exercise of copyright, but the law applicable to the artistic classification of the work.

31 However, those considerations do not lead to the conclusion that there are objective circumstances capable of justifying the application of rules such as those at issue in the main proceedings.

32 As is apparent from Article 5(1) of the Berne Convention, the purpose of that convention is not to determine the applicable law on the protection of literary and artistic works, but to establish, as a general rule, a system of national treatment of the rights appertaining to such works.

33 Article 2(7) of that convention contains, for its part, as the Commission rightly observes, a rule of reciprocity under which a country of the Union grants national treatment, that is to say, twofold protection, only if the country of origin of the work also does so.

34 It should be recalled that it is settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (Case C-405/01 *Colegio de Oficiales de la Marina Mercante Española* \[2003\] ECR I-10391, paragraph 61 and the case‑law cited).

35 Since no other objective circumstance capable of justifying rules such as those at issue in the main proceedings has been relied on, those rules must be considered to constitute indirect discrimination on grounds of nationality prohibited by Article 12 EC.

36 The answer to the question referred must therefore be that Article 12 EC, which lays down the general principle of non‑discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.

**Costs**

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

**Article 12 EC, which lays down the general principle of non‑discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.**

\[Signatures\]

---

[\*](#Footref*) Language of the case: French.

JUDGMENT OF THE COURT (First Chamber)

15 March 2012 ( [\*1](#t-ECR_62010CJ0292_EN_01-E0001) )

‛Jurisdiction and the enforcement of judgments in civil and commercial matters — Public notification of legal documents — Lack of known domicile or place of abode of the defendant in the territory of a Member State — Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ — Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet — Place where the harmful event occurred or may occur’

In Case C-292/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Landgericht Regensburg (Germany), made by decision of 17 May 2010, received at the Court on 11 June 2010, in the proceedings

G

v

Cornelius de Visser,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, M. Safjan (Rapporteur), A. Borg Barthet, J.-J. Kasel and M. Berger, Judges,

Advocate General: P. Cruz Villalón,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 25 May 2011,

after considering the observations submitted on behalf of:

| — | the Danish Government, by C. Vang, acting as Agent, |

| --- | --- |

| — | Ireland, by D. O’Hagan, acting as Agent and A. Collins, SC, and M Noonan, Barrister-at-law |

| --- | --- |

| — | the Italian Government, by G. Palmieri, acting as Agent, assisted by S. Varone, avvocato dello Stato, |

| --- | --- |

| — | the Luxembourg Government, by C. Schiltz, acting as Agent, |

| --- | --- |

| — | the Hungarian Government, by Z. Fehér, K. Szíjjártó and K. Molnár, acting as Agents, |

| --- | --- |

| — | the Netherlands Government, by C. Wissels, acting as Agent, |

| --- | --- |

| — | the European Commission, by M. Wilderspin and S. Grünheid, acting as Agents, |

| --- | --- |

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

| 1 | This reference for a preliminary ruling concerns the interpretation of Articles 6 TEU and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 3(1) and (2) of 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 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)), Articles 4(1), 5(3) and 26(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ([OJ 2001 L 12, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2001:012:TOC)) and Article 12 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims ([OJ 2004 L 143, p. 15](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2004:143:TOC)). |

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| 2 | The reference has been made in proceedings between Ms G and Mr de Visser concerning an action for liability arising from the uploading onto an internet site of photographs in which she appears partly naked. |

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Legal context

European Union law

Directive 2000/31

| 3 | The 23rd recital in the preamble to Directive 2000/31 states: ‘This Directive neither aims to establish additional rules on private international law relating to conflicts of law nor does it deal with the jurisdiction of Courts; provisions of the applicable law designated by rules of private international law must not restrict the freedom to provide information society services as established in this Directive.’ |

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| 4 | In accordance with Article 1 thereof, the directive seeks ‘to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States’. |

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| 5 | Article 1(4) of the directive is worded as follows: ‘This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.’ |

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| 6 | Article 3 of the directive, entitled ‘Internal market’, provides in paragraph 1: ‘Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.’ |

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| 7 | Article 3(2) of Directive 2000/31 provides: ‘Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’ |

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Regulation No 44/2001

| 8 | Recital 2 in the preamble to Regulation No 44/2001 states: ‘Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.’ |

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| 9 | Article 2 of that regulation provides: ‘1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. 2\. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.’ |

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| 10 | Article 3(1) of that regulation provides: ‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’ |

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| 11 | Article 4 of the regulation is worded as follows: ‘1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State. 2\. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.’ |

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| 12 | In Chapter II, section 2, entitled ‘Special jurisdiction’, Article 5(3) of Regulation No 44/2001 provides: ‘A person domiciled in a Member State may, in another Member State, be sued: … \| (3) \| in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’ \| \| --- \| --- \| | (3) | in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’ |

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| (3) | in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’ |

| 13 | Article 26 of that regulation, in section 8, entitled ‘Examination as to jurisdiction and admissibility’ of that Chapter, reads as follows: ‘1. Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation. 2\. The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. 3\. Article 19 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters \[[OJ 2000 L 160, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:160:TOC)\] shall apply instead of the provisions of paragraph 2 if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to this Regulation. 4\. Where the provisions of Regulation No 1348/2000 are not applicable, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters \[‘the Hague Convention 1965’\] shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention.’ |

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| 14 | In Chapter III of Regulation No 44/2001, entitled ‘Recognition and enforcement’, Article 34(2) provides that a judgment is not to be recognised: ‘where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.’ |

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| 15 | Article 59 of Regulation No 44/2001 provides: ‘1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. 2\. If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State.’ |

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Regulation No 805/2004

| 16 | Pursuant to Article 1 thereof, the purpose of Regulation No 805/2004 is to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement. |

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| 17 | Article 5 of that regulation, entitled ‘Abolition of exequatur’, is worded as follows: ‘A judgment which has been certified as a European Enforcement Order in the Member State of origin shall be recognised and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition.’ |

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| 18 | Article 12(1) of that regulation reads as follows: ‘A judgment on a claim that is uncontested within the meaning of Article 3(1)(b) or (c) can be certified as a European Enforcement Order only if the court proceedings in the Member State of origin met the procedural requirements as set out in this Chapter.’ |

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| 19 | Under Article 14(1) and (2) of Regulation No 805/2004: ‘1. Service of the document instituting the proceedings or an equivalent document and any summons to a court hearing on the debtor may also have been effected by one of the following methods: \| (a) \| personal service at the debtor’s personal address on persons who are living in the same household as the debtor or are employed there; \| \| --- \| --- \| \| (b) \| in the case of a self-employed debtor or a legal person, personal service at the debtor’s business premises on persons who are employed by the debtor; \| \| --- \| --- \| \| (c) \| deposit of the document in the debtor’s mailbox; \| \| --- \| --- \| \| (d) \| deposit of the document at a post office or with competent public authorities and the placing in the debtor’s mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits; \| \| --- \| --- \| \| (e) \| postal service without proof pursuant to paragraph 3 where the debtor has his address in the Member State of origin; \| \| --- \| --- \| \| (f) \| electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance. \| \| --- \| --- \| 2\. For the purposes of this Regulation, service under paragraph 1 is not admissible if the debtor’s address is not known with certainty.’ Regulation (EC) No 1393/2007 | (a) | personal service at the debtor’s personal address on persons who are living in the same household as the debtor or are employed there; | (b) | in the case of a self-employed debtor or a legal person, personal service at the debtor’s business premises on persons who are employed by the debtor; | (c) | deposit of the document in the debtor’s mailbox; | (d) | deposit of the document at a post office or with competent public authorities and the placing in the debtor’s mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits; | (e) | postal service without proof pursuant to paragraph 3 where the debtor has his address in the Member State of origin; | (f) | electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance. |

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| (a) | personal service at the debtor’s personal address on persons who are living in the same household as the debtor or are employed there; |

| (b) | in the case of a self-employed debtor or a legal person, personal service at the debtor’s business premises on persons who are employed by the debtor; |

| (c) | deposit of the document in the debtor’s mailbox; |

| (d) | deposit of the document at a post office or with competent public authorities and the placing in the debtor’s mailbox of written notification of that deposit, provided that the written notification clearly states the character of the document as a court document or the legal effect of the notification as effecting service and setting in motion the running of time for the purposes of time limits; |

| (e) | postal service without proof pursuant to paragraph 3 where the debtor has his address in the Member State of origin; |

| (f) | electronic means attested by an automatic confirmation of delivery, provided that the debtor has expressly accepted this method of service in advance. |

| 20 | In accordance with Article 1(2) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 ([OJ 2007 L 324, p. 79](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2007:324:TOC)), that regulation does not apply where the address of the person to be served with the document is not known. |

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| 21 | Article 19 of Regulation No 1393/2007, headed ‘Defendant not entering an appearance’, is worded as follows: ‘1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that: \| (a) \| the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or \| \| --- \| --- \| \| (b) \| the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; \| \| --- \| --- \| and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. 2\. Each Member State may make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled: \| (a) \| the document was transmitted by one of the methods provided for in this Regulation; \| \| --- \| --- \| \| (b) \| a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; \| \| --- \| --- \| \| (c) \| no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. \| \| --- \| --- \| 3\. Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures. 4\. When a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiry of the time for appeal from the judgment if the following conditions are fulfilled: \| (a) \| the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; \| \| --- \| --- \| \| (b) \| the defendant has disclosed a prima facie defence to the action on the merits. \| \| --- \| --- \| An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Member State may make it known, in accordance with Article 23(1), that such application will not be entertained if it is filed after the expiry of a time to be stated by it in that communication, but which shall in no case be less than one year following the date of the judgment. 5\. Paragraph 4 shall not apply to judgments concerning the status or capacity of persons.’ | (a) | the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or | (b) | the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; | (a) | the document was transmitted by one of the methods provided for in this Regulation; | (b) | a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; | (c) | no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. | (a) | the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; | (b) | the defendant has disclosed a prima facie defence to the action on the merits. |

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| (a) | the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or |

| (b) | the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; |

| (a) | the document was transmitted by one of the methods provided for in this Regulation; |

| (b) | a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; |

| (c) | no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. |

| (a) | the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; |

| (b) | the defendant has disclosed a prima facie defence to the action on the merits. |

National law

| 22 | Paragraphs 185, 186 and 188 of the German Code of Civil Procedure (Zivilprozessordnung) contain the following provisions on notification by publication: ‘Paragraph 185 Service by public notice Service may be effected by public notice (service by public notice) if: 1\. the abode of a person is unknown and it is not possible to serve the documents upon a representative or authorised recipient; 2\. it is not possible to serve documents upon legal persons obliged to register a domestic business address with the Commercial Register, either at the address entered therein or at the address entered in the Commercial Register of a person authorised to receive service of documents, or at any other domestic address obtained without any investigations having been carried out; 3\. it is not possible to serve documents abroad, or if such service is unlikely to offer any prospect of success; or 4\. the documents cannot be served because the place of service is the residence of a person who, pursuant to Paragraphs 18 to 20 of the Law on the constitution of courts \[Gerichtsverfassungsgesetz\], does not fall within the jurisdiction. Paragraph 186 Approval and implementation of service by public notice (1) The court hearing the case shall decide whether or not to approve service by public notice. The decision may be given without a hearing being held. (2) Service by public notice shall be implemented by affixing a notice to the court’s bulletin board or by publishing the notice in an electronic information system that is publicly accessible in the court. Additionally, the notice may be published in an electronic information and communications system established by the court for such notices. The notice must state: \| 1. \| the person on whose behalf the documents are to be served, \| \| --- \| --- \| \| 2. \| the name of the party to whom documents are to be served and the address last known, \| \| --- \| --- \| \| 3. \| the date, the reference number of the document, and the designation of the subject matter of the proceedings, and \| \| --- \| --- \| \| 4. \| the office at which the document may be inspected. \| \| --- \| --- \| The notice must indicate that a document is being served by public notice, that this service may cause time periods to elapse, and that once the time-limits have expired, the party to whom the documents are being served in this way may have forfeited rights. When serving summonses in this way, the notice must indicate that the document contains a summons to a hearing and that, should the party fail to comply with it, such failure may be to the party’s legal detriment. (3) The files shall record when the notice was displayed on the bulletin board and when it was removed. … Paragraph 188 Time at which service by publication has been effected The document shall be deemed served when one month has elapsed since the notice was first displayed on the bulletin board. The court hearing the case may set a longer period.’ | 1. | the person on whose behalf the documents are to be served, | 2. | the name of the party to whom documents are to be served and the address last known, | 3. | the date, the reference number of the document, and the designation of the subject matter of the proceedings, and | 4. | the office at which the document may be inspected. |

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| 1. | the person on whose behalf the documents are to be served, |

| 2. | the name of the party to whom documents are to be served and the address last known, |

| 3. | the date, the reference number of the document, and the designation of the subject matter of the proceedings, and |

| 4. | the office at which the document may be inspected. |

| 23 | Paragraph 331 of the German Code of Civil Procedure, entitled ‘Default judgment against the defendant’, provides: ‘1. If the applicant seeks default judgment against the defendant because the latter has failed to appear at the hearing, it shall be presumed that the facts as submitted to the court by the applicant in oral argument have been admitted. This shall not apply to any submissions to the court regarding its jurisdiction pursuant to Paragraphs 29(2) or 38. 2\. In so far as the claim for relief is justified by the facts as submitted to the court by the applicant, the court shall decide in accordance with the application filed; where this is not the case, the action shall be dismissed. 3\. If the defendant has failed, contrary to the first sentence of Paragraph 276(1) and (2), to notify the court of his intention to defend himself against the action, the court shall take its decision, upon application by the applicant, without a hearing; this shall not apply if the defendant’s declaration is received before the judgment signed by the judges has been forwarded to the court registry. Such an application may already be made in the statement of claim. The court may also take a decision without a hearing where the submission made to the court by the applicant does not justify a demand for relief in an ancillary claim, provided that the applicant has been made aware of this option prior to the decision being delivered.’ |

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The dispute in the main proceedings and the questions referred for a preliminary ruling

| 24 | Mr de Visser is the owner of a domain name and runs the internet site www.\*\*\*\*\*.de. Under the link ‘Fotos und Videos’ (photos and videos) of that internet site, it is possible to see a photograph of Ms G. After having clicked on the link ‘für weitere Fotos hier klicken’ (click here for more photos), it is possible to see various photographs of her in which she is shown partly naked. |

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| 25 | That situation arises from the fact that, in about 2003, Ms G was interested in the internet site and the services offered by Mr de Visser and contacted him for that reason. Subsequently, Mr de Visser, through a colleague and a photographer instructed by him, took photographs of Ms G in Germany, with their intended use being ‘für eine Party’ (for a party). Nevertheless, Ms G never agreed that those photographs should be published. The question of putting those photographs online on the internet was, in addition, never discussed with her and so is not the subject-matter of any specific agreement. |

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| 26 | It was not until 2009 that Ms G was shown the photographs in question online on the internet by work colleagues. |

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| 27 | Both the legal information of the internet site in question and the DENIC database (domain registry of.de) give as ‘Admin-C’ (administrative contact) Mr N\*\*\*\*\*, with an address in Dortmund in Germany. However, there is no registration under that name in the Dortmund telephone directory. |

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| 28 | The location of the server hosting the internet site in question is unknown. |

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| 29 | In the legal information of the internet site www.\*\*\*\*\*.de, Mr de Visser is registered as owner of the domain with an address in Terneuzen and a postal address in Venlo. It has not, however, been possible to effect service at those addresses in the Netherlands, since both letters were returned marked ‘Unknown at this address’. The Consulate of the Kingdom of the Netherlands in Munich stated, on request, that Mr de Visser was not listed in any population register in the Netherlands. |

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| 30 | After the grant of legal aid to Ms G, the national court ordered, on 8 February 2010, service by public notice of the initiating application and a preliminary written procedure. Previously, in the context of the application proceedings for legal aid, attempts had been made in vain to send Mr de Visser the draft initiating application by standard post to various addresses. |

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| 31 | Service by public notice of the initiating application, in accordance with the German Code of Civil Procedure, was effected by affixing a notice of that service to the bulletin board of the Landgericht Regensburg from 11 February to 15 March 2010. On the date of adoption of the decision for reference, the time-limits set for Mr de Visser in that notice by which he was to inform the court whether he would defend the action had expired without reaction from him. According to the national court, having regard to the circumstances, it is necessary to assume that, at that date, he was not aware of the proceedings commenced before it. |

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| 32 | That court adds that if the possibility of service by public notice of the initiating application under national law were to have to give way to the rules of European Union law, the only possibility remaining for Ms G would be for her to give other addresses for Mr de Visser at which service could be effected, and she will be unable to do so without knowing those addresses or being able to discover them. That would be likely to be incompatible with the first paragraph of Article 47 of the Charter, since Ms G would then be de facto deprived of her guaranteed right to an effective legal remedy. |

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| 33 | Having certain doubts, in addition, as to the applicability and interpretation of Regulation No 44/2001 and the determination of the substantive law applicable to the case in the main proceedings, the Landgericht Regensburg decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling. \| ‘(1) \| Does the first half-sentence of the first subparagraph of Article 6(1) \[TEU\], in conjunction with the first sentence of the second paragraph of Article 47 of the Charter …, or other European legislation preclude ‘service by public notice’ under national law (pursuant to Paragraphs 185 to 188 of the German Zivilprozessordnung, through the posting for one month of the notification of the service on the notice board of the court ordering the notification) if the opponent in a civil action (in its very early stages) gives an address in the territory of the European Union (‘Union territory’) on his website, but service is not possible because the defendant’s whereabouts in the Union territory are not known and it cannot otherwise be established where he is currently residing? \| \| --- \| --- \| \| (2) \| If the answer to Question \[(1)\] is in the affirmative: Must the national court refuse, in accordance with past case-law of the Court (most recently Case [C-341/06 Petersen \[\[2010\] ECR I-47\]](http://eur-lex.europa.eu/query.html?DN=62006C?0341&locale=EN)), to apply national rules permitting service by public notice even if national law grants such power of rejection only to the (German) Bundesverfassungsgericht (Federal Constitutional Court)? and Should the applicant communicate to the court a new address at which a further attempt can be made to serve the application on the defendant to enable her to assert her rights, since under national law the trial could not be conducted without service by public notice and without knowledge of the defendant’s whereabouts? \| \| --- \| --- \| \| (3) \| If the answer to Question \[(1)\] is in the negative: Is, in the present case, a default judgment pursuant to Paragraph 331 of the Zivilprozessordnung, that is an enforcement order for uncontested claims within the meaning of \[Regulation No 805/2004\], precluded by Article 26(2) of \[Regulation No 44/2001\], in so far as an order is sought for the payment of compensation for pain and suffering amounting to at least EUR 20 000 plus interest and legal costs of EUR 1 419.19 plus interest? \| \| --- \| --- \| The following questions are referred subject to the condition that it is possible for the applicant to continue the action in accordance with the Court’s answers to Questions \[(1)\] to \[(3)\]: \| (4) \| Having regard to Article 4(1) and Article 5(3) of Regulation No 44/2001, is that Regulation also applicable in cases in which the whereabouts of the defendant in a civil action, who has been sued for an injunction, information and compensation for pain and suffering because of the operation of a website, who is (presumed to be) a Union citizen within the meaning of the second sentence of Article 9 TEU, are unknown, it therefore being conceivable, but by no means certain, that he is currently residing outside the Union territory and also outside the residual treaty area governed by the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on 16 September 1988 (‘Lugano Convention’), and the precise location of the server on which the website is stored is also unknown, although it seems logical to assume that it is in the Union territory? \| \| --- \| --- \| \| (5) \| If Regulation No 44/2001 is applicable in this case, is the phrase ‘the place where the harmful event … may occur’ in Article 5(3) of that Regulation to be interpreted as meaning, in the event of (possible) infringements of personality by means of content on an Internet website, that the person concerned (‘the applicant’) may also bring an action for an injunction, for information and for compensation for pain and suffering against the operator of the website (‘the defendant’), irrespective of where the defendant is established (in or outside the Union territory), in the courts of any Member State in which the website may be accessed, or is it necessary, in order to establish jurisdiction of the courts of a Member State in which the defendant is not established or there are no indications that he is resident, that there be a special connection between the contested content of the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility? \| \| --- \| --- \| \| (6) \| If such a special domestic connecting factor is necessary: What are the criteria which determine that connection? Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at Internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests — the applicant’s interest in respect of her right to protection of personality and the operator’s interest in the design of his website — may actually have occurred or may occur in the State of the court seised or has occurred, in that one or more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website? \| \| --- \| --- \| \| (7) \| Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised? \| \| --- \| --- \| \| (8) \| If the referring court has jurisdiction for the action according to the above questions: Do the legal principles laid down in the Court’s judgment in Case [C-68/93 Shevill and Others \[1995\] ECR I-415](http://eur-lex.europa.eu/query.html?DN=61993C?0068&locale=EN) also apply in the case described above? \| \| --- \| --- \| \| (9) \| If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised or has occurred, in that one of more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website, and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised, or if Regulation No 44/2001 is in no way applicable to the present case: Must Article 3(1) and (2) of \[Directive 2000/31\] be interpreted as meaning that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law also they require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-law rules, or do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-law rules is altered and adjusted to the requirements of the country of origin? \| \| --- \| --- \| \| (10) \| In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-law rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible? \| \| --- \| --- \| \| (11) \| In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Must the designation of the place of establishment of the service provider be geared to his (presumed) current whereabouts, his whereabouts when the publication of the photographs of the applicant first began or the (presumed) location of the server on which the website is stored?’ \| \| --- \| --- \| | ‘(1) | Does the first half-sentence of the first subparagraph of Article 6(1) \[TEU\], in conjunction with the first sentence of the second paragraph of Article 47 of the Charter …, or other European legislation preclude ‘service by public notice’ under national law (pursuant to Paragraphs 185 to 188 of the German Zivilprozessordnung, through the posting for one month of the notification of the service on the notice board of the court ordering the notification) if the opponent in a civil action (in its very early stages) gives an address in the territory of the European Union (‘Union territory’) on his website, but service is not possible because the defendant’s whereabouts in the Union territory are not known and it cannot otherwise be established where he is currently residing? | (2) | If the answer to Question \[(1)\] is in the affirmative: Must the national court refuse, in accordance with past case-law of the Court (most recently Case [C-341/06 Petersen \[\[2010\] ECR I-47\]](http://eur-lex.europa.eu/query.html?DN=62006C?0341&locale=EN)), to apply national rules permitting service by public notice even if national law grants such power of rejection only to the (German) Bundesverfassungsgericht (Federal Constitutional Court)? and Should the applicant communicate to the court a new address at which a further attempt can be made to serve the application on the defendant to enable her to assert her rights, since under national law the trial could not be conducted without service by public notice and without knowledge of the defendant’s whereabouts? | (3) | If the answer to Question \[(1)\] is in the negative: Is, in the present case, a default judgment pursuant to Paragraph 331 of the Zivilprozessordnung, that is an enforcement order for uncontested claims within the meaning of \[Regulation No 805/2004\], precluded by Article 26(2) of \[Regulation No 44/2001\], in so far as an order is sought for the payment of compensation for pain and suffering amounting to at least EUR 20 000 plus interest and legal costs of EUR 1 419.19 plus interest? | (4) | Having regard to Article 4(1) and Article 5(3) of Regulation No 44/2001, is that Regulation also applicable in cases in which the whereabouts of the defendant in a civil action, who has been sued for an injunction, information and compensation for pain and suffering because of the operation of a website, who is (presumed to be) a Union citizen within the meaning of the second sentence of Article 9 TEU, are unknown, it therefore being conceivable, but by no means certain, that he is currently residing outside the Union territory and also outside the residual treaty area governed by the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on 16 September 1988 (‘Lugano Convention’), and the precise location of the server on which the website is stored is also unknown, although it seems logical to assume that it is in the Union territory? | (5) | If Regulation No 44/2001 is applicable in this case, is the phrase ‘the place where the harmful event … may occur’ in Article 5(3) of that Regulation to be interpreted as meaning, in the event of (possible) infringements of personality by means of content on an Internet website, that the person concerned (‘the applicant’) may also bring an action for an injunction, for information and for compensation for pain and suffering against the operator of the website (‘the defendant’), irrespective of where the defendant is established (in or outside the Union territory), in the courts of any Member State in which the website may be accessed, or is it necessary, in order to establish jurisdiction of the courts of a Member State in which the defendant is not established or there are no indications that he is resident, that there be a special connection between the contested content of the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility? | (6) | If such a special domestic connecting factor is necessary: What are the criteria which determine that connection? Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at Internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests — the applicant’s interest in respect of her right to protection of personality and the operator’s interest in the design of his website — may actually have occurred or may occur in the State of the court seised or has occurred, in that one or more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website? | (7) | Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised? | (8) | If the referring court has jurisdiction for the action according to the above questions: Do the legal principles laid down in the Court’s judgment in Case [C-68/93 Shevill and Others \[1995\] ECR I-415](http://eur-lex.europa.eu/query.html?DN=61993C?0068&locale=EN) also apply in the case described above? | (9) | If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised or has occurred, in that one of more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website, and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised, or if Regulation No 44/2001 is in no way applicable to the present case: Must Article 3(1) and (2) of \[Directive 2000/31\] be interpreted as meaning that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law also they require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-law rules, or do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-law rules is altered and adjusted to the requirements of the country of origin? | (10) | In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-law rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible? | (11) | In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Must the designation of the place of establishment of the service provider be geared to his (presumed) current whereabouts, his whereabouts when the publication of the photographs of the applicant first began or the (presumed) location of the server on which the website is stored?’ |

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| ‘(1) | Does the first half-sentence of the first subparagraph of Article 6(1) \[TEU\], in conjunction with the first sentence of the second paragraph of Article 47 of the Charter …, or other European legislation preclude ‘service by public notice’ under national law (pursuant to Paragraphs 185 to 188 of the German Zivilprozessordnung, through the posting for one month of the notification of the service on the notice board of the court ordering the notification) if the opponent in a civil action (in its very early stages) gives an address in the territory of the European Union (‘Union territory’) on his website, but service is not possible because the defendant’s whereabouts in the Union territory are not known and it cannot otherwise be established where he is currently residing? |

| (2) | If the answer to Question \[(1)\] is in the affirmative: Must the national court refuse, in accordance with past case-law of the Court (most recently Case [C-341/06 Petersen \[\[2010\] ECR I-47\]](http://eur-lex.europa.eu/query.html?DN=62006C?0341&locale=EN)), to apply national rules permitting service by public notice even if national law grants such power of rejection only to the (German) Bundesverfassungsgericht (Federal Constitutional Court)? and Should the applicant communicate to the court a new address at which a further attempt can be made to serve the application on the defendant to enable her to assert her rights, since under national law the trial could not be conducted without service by public notice and without knowledge of the defendant’s whereabouts? |

| (3) | If the answer to Question \[(1)\] is in the negative: Is, in the present case, a default judgment pursuant to Paragraph 331 of the Zivilprozessordnung, that is an enforcement order for uncontested claims within the meaning of \[Regulation No 805/2004\], precluded by Article 26(2) of \[Regulation No 44/2001\], in so far as an order is sought for the payment of compensation for pain and suffering amounting to at least EUR 20 000 plus interest and legal costs of EUR 1 419.19 plus interest? |

| (4) | Having regard to Article 4(1) and Article 5(3) of Regulation No 44/2001, is that Regulation also applicable in cases in which the whereabouts of the defendant in a civil action, who has been sued for an injunction, information and compensation for pain and suffering because of the operation of a website, who is (presumed to be) a Union citizen within the meaning of the second sentence of Article 9 TEU, are unknown, it therefore being conceivable, but by no means certain, that he is currently residing outside the Union territory and also outside the residual treaty area governed by the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on 16 September 1988 (‘Lugano Convention’), and the precise location of the server on which the website is stored is also unknown, although it seems logical to assume that it is in the Union territory? |

| (5) | If Regulation No 44/2001 is applicable in this case, is the phrase ‘the place where the harmful event … may occur’ in Article 5(3) of that Regulation to be interpreted as meaning, in the event of (possible) infringements of personality by means of content on an Internet website, that the person concerned (‘the applicant’) may also bring an action for an injunction, for information and for compensation for pain and suffering against the operator of the website (‘the defendant’), irrespective of where the defendant is established (in or outside the Union territory), in the courts of any Member State in which the website may be accessed, or is it necessary, in order to establish jurisdiction of the courts of a Member State in which the defendant is not established or there are no indications that he is resident, that there be a special connection between the contested content of the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility? |

| (6) | If such a special domestic connecting factor is necessary: What are the criteria which determine that connection? Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at Internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests — the applicant’s interest in respect of her right to protection of personality and the operator’s interest in the design of his website — may actually have occurred or may occur in the State of the court seised or has occurred, in that one or more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website? |

| (7) | Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised? |

| (8) | If the referring court has jurisdiction for the action according to the above questions: Do the legal principles laid down in the Court’s judgment in Case [C-68/93 Shevill and Others \[1995\] ECR I-415](http://eur-lex.europa.eu/query.html?DN=61993C?0068&locale=EN) also apply in the case described above? |

| (9) | If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised or has occurred, in that one of more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website, and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised, or if Regulation No 44/2001 is in no way applicable to the present case: Must Article 3(1) and (2) of \[Directive 2000/31\] be interpreted as meaning that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law also they require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-law rules, or do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-law rules is altered and adjusted to the requirements of the country of origin? |

| (10) | In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-law rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible? |

| (11) | In the event that Article 3(1) and (2) of \[Directive 2000/31\] have a conflict-of-laws character: Must the designation of the place of establishment of the service provider be geared to his (presumed) current whereabouts, his whereabouts when the publication of the photographs of the applicant first began or the (presumed) location of the server on which the website is stored?’ |

| 34 | By letter of 28 October 2011, the Registry of the Court sent the national court a copy of the judgment in Joined Cases [C-509/09 and C-161/10 eDate Advertising and Others \[2011\] ECR I-10269](http://eur-lex.europa.eu/query.html?DN=62009C?0509&locale=EN), requesting it to state whether, in the light of that judgment, it wished to maintain Questions (5) to (11) in its reference for a preliminary ruling. |

| --- | --- |

| 35 | By decisions of 10 and 16 November 2011, received by the Court on 10 and 16 November 2011 respectively, the national court stated that it withdrew Questions (5) to (10) but wished to maintain Question (11), reformulating it as follows: ‘Taking account of the judgment … in Joined Cases C-509/09 and C-161/10 eDate Advertising and Others, are Articles 3(1) and (2) of \[Directive 2000/31\] to be interpreted as meaning that, if the place of establishment of the service provider is unknown and it is possible that he is outside the territory of the European Union, the law to be applied in the coordinated field is to be derived solely from the law of the Member State in which the injured person has his domicile or permanent residence, or must it be ensured in the coordinated field under \[Directive 2000/31\] that the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State whose nationality the service provider probably holds, or in this case, must it be ensured in the coordinated field under \[Directive 2000/31\] that the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in all of the Member States?’ |

| --- | --- |

| 36 | In those circumstances, the Court is called upon to rule only on the first four questions initially referred and the last question as reformulated. |

| --- | --- |

Consideration of the questions referred

The fourth question

| 37 | By its fourth question, which it is appropriate to consider first, the national court asks, in essence, whether, in circumstances such as those of the main proceedings, Article 4(1) of Regulation No 44/2001 is to be interpreted as precluding the application of Article 5(3) of that regulation to an action for liability arising from the operation of an internet site brought against a defendant who is probably a European Union citizen but whose whereabouts are unknown. |

| --- | --- |

| 38 | In the decision for reference, that court states that, despite the fact that many factors indicate that the defendant is in the territory of the European Union, that is not absolutely certain. It therefore has questions particularly as regards the interpretation of the criterion ‘is not domiciled in a Member State’ which would, by virtue of Article 4(1) of Regulation No 44/2001, require the application of national rules of jurisdiction rather than the uniform rules of that regulation. |

| --- | --- |

| 39 | In that regard, it must be borne in mind, firstly, that where the domicile of a defendant who is a Member State national is unknown, the application of the uniform rules of jurisdiction established by Regulation No 44/2001 instead of those in force in the different Member States meets the essential requirement of legal certainty and the objective, pursued by that regulation, of strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see, to that effect, Case [C-327/10 Hypoteční banka \[2011\] ECR I-11543](http://eur-lex.europa.eu/query.html?DN=62010C?0327&locale=EN), paragraph 44). |

| --- | --- |

| 40 | Secondly, the expression ‘is not domiciled in a Member State’, used in Article 4(1) of Regulation No 44/2001, must be understood as meaning that application of the national rules rather than the uniform rules of jurisdiction is possible only if the court seised of the case holds firm evidence to support the conclusion that the defendant, a citizen of the European Union not domiciled in the Member State of that court, is in fact domiciled outside the European Union (see, to that effect, Hypoteční banka, paragraph 42). |

| --- | --- |

| 41 | In the absence of such firm evidence, the international jurisdiction of a court of a Member State is established, by virtue of Regulation No 44/2001, when the conditions for application of one of the rules of jurisdiction laid down by that regulation are met, including in particular that in Article 5(3) thereof, in matters relating to tort, delict or quasi-delict. |

| --- | --- |

| 42 | In the light of the foregoing, the answer to the fourth question is that, in circumstances such as those in the main proceedings, Article 4(1) of Regulation No 44/2001 must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not have firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. |

| --- | --- |

The first question and the first part of the third question

| 43 | By its first question and the first part of its third question, which it is appropriate to consider together, the national court asks, in essence, whether European Union law must be interpreted as precluding the delivery of a judgment by default against a defendant on whom, because it was impossible to locate him, the document instituting proceedings was served by public notice under national law. |

| --- | --- |

| 44 | In that regard, it must be pointed out from the outset that the purpose of Regulation No 44/2001, like the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ([OJ 1978 L 304, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1978:304:TOC)), as amended by the successive conventions relating to the accession of new Member States to that convention, is not to unify the procedural rules of the Member States, but to determine which court has jurisdiction in disputes concerning civil and commercial matters in relations between Member States and to facilitate the enforcement of judgments (Hypoteční banka, paragraph 37). |

| --- | --- |

| 45 | While, in the absence of systematic regulation of national procedures by European Union law, it is therefore for the Member States, in the context of their procedural autonomy, to lay down the procedural rules applicable to actions brought before their courts, those rules must not infringe European Union law, including, in particular, the provisions of Regulation No 44/2001. |

| --- | --- |

| 46 | It follows that, within the scope of that regulation, a national court, by virtue of a provision of its domestic law, may carry on proceedings against a person whose domicile is unknown only if it is not precluded by the rules of jurisdiction laid down in that regulation. |

| --- | --- |

| 47 | As regards the requirements to be met during the proceedings, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed (see Case [125/79 Denilauler \[1980\] ECR 1553](http://eur-lex.europa.eu/query.html?DN=61979??0125&locale=EN), paragraph 13, and Case [C-394/07 Gambazzi \[2009\] ECR I-2563](http://eur-lex.europa.eu/query.html?DN=62007C?0394&locale=EN), paragraph 23). |

| --- | --- |

| 48 | None the less, the requirement that the rights of the defence be observed, as also stated in Article 47 of the Charter, must be implemented with due regard to the applicant’s right to bring an action before a court to rule on the merits of his claim. |

| --- | --- |

| 49 | In that regard, the Court has held, in paragraph 29 of the judgment in Gambazzi, that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be subject to restrictions. However, such restrictions must in fact correspond to the objectives of public interest pursued by the measure in question and must not constitute, with regard to the aim pursued, a disproportionate breach of those rights. |

| --- | --- |

| 50 | In that regard, it must be borne in mind that the Court has already held that the objective of avoiding situations of denial of justice, which the applicant would face should it not be possible to determine the defendant’s domicile, constitutes such an objective of public interest (Hypoteční banka, paragraph 51). |

| --- | --- |

| 51 | The requirement relating to the need to avoid a disproportionate interference with the rights of the defence is expressed by the rule in Article 26(2) of Regulation No 44/2001, pursuant to which a court must stay the proceedings so long as it has not been established that that defendant has been able to receive the document instituting proceedings or an equivalent document in sufficient time to enable him to arrange for his defence or that all necessary steps have been taken to this end. |

| --- | --- |

| 52 | Firstly, it must be noted from the outset that, in circumstances such as those in the main proceedings, the applicability of that provision is not precluded by the rules referred to in Article 26(3) and (4) of Regulation No 44/2001, namely Article 19 of Regulation No 1393/2007 or Article 15 of the 1965 Hague Convention. |

| --- | --- |

| 53 | It is true that the question whether the document instituting proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, (Case [C-522/03 Scania Finance France \[2005\] ECR I-8639](http://eur-lex.europa.eu/query.html?DN=62003C?0522&locale=EN), paragraph 30) and, a fortiori, in the light of the provisions of that regulation. Nevertheless, that rule applies only in so far as those provisions apply. Both Article 1(2) of Regulation No 1393/2007 and the second paragraph of Article 1 of the 1965 Hague Convention specify that those instruments ‘shall not apply where the address of the person to be served with the document is not known’. |

| --- | --- |

| 54 | The view must therefore be taken that, in circumstances such as those of the main proceedings, neither Article 19 of Regulation No 1393/2007 nor Article 15 of the 1965 Hague Convention is applicable, failing knowledge of the defendant’s address. |

| --- | --- |

| 55 | As regards, secondly, the interpretation of Article 26(2) of Regulation No 44/2001, that provision must be understood, as the Court has recently held, as meaning that a court having jurisdiction pursuant to that regulation may reasonably continue proceedings, in the case where it has not been established that the defendant has been enabled to receive the document instituting the proceedings, only if all necessary steps have been taken to ensure that the defendant can defend his interests. To that end, the court seised of the matter must be satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant (see Hypoteční banka, paragraph 52). |

| --- | --- |

| 56 | It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the main proceedings, of ‘service by public notice’ constitutes a restriction of the defendant’s rights of defence. That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, failing such service, that right would be meaningless (see Hypoteční banka, paragraph 53). |

| --- | --- |

| 57 | In contrast to the situation of the defendant, who, when deprived of the opportunity to defend himself effectively, will have the opportunity to ensure respect for the rights of the defence by opposing, in accordance with Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him, the applicant runs the risk of being deprived of all possibility of recourse (see Hypoteční banka, paragraph 54). |

| --- | --- |

| 58 | It is apparent, furthermore, from the case-law of the European Court of Human Rights that the right to a fair trial, guaranteed by Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which corresponds to the second paragraph of Article 47 of the Charter, does not preclude ‘summons by public notice’, provided that the rights of those concerned are properly protected (see judgment of the European Court of Human Rights in Nunes Dias v. Portugal, Reports of Judgments and Decisions 2003-IV). |

| --- | --- |

| 59 | The answer to the first question and the first part of the third question is therefore that European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant. |

| --- | --- |

The second question

| 60 | In view of the reply given in the above paragraph to the first question, it is unnecessary to answer the second question. |

| --- | --- |

The second part of the third question

| 61 | By the second part of its third question, the national court wishes to know, in essence, whether European Union law must be interpreted as precluding certification as a European Enforcement Order within the meaning of Regulation No 805/2004 of a judgment by default issued against a defendant whose address is unknown. |

| --- | --- |

| 62 | A judgment by default is indeed one of the enforcement titles within the meaning of Article 3 of that regulation which may be certified as a European Enforcement Order. As recital 6 in the preamble to Regulation No 805/2004 states, the absence of objections from the debtor as stipulated in Article 3(1)(b) of that regulation can take the shape of default of appearance at a court hearing or of failure to comply with an invitation by the court to give written notice of an intention to defend the case. |

| --- | --- |

| 63 | Nevertheless, under Article 14(2) of that regulation, ‘for the purposes of this Regulation, service under paragraph 1 is not admissible if the debtor’s address is not known with certainty’. |

| --- | --- |

| 64 | It is therefore apparent from the very wording of Regulation No 805/2004 that a judgment by default issued in circumstances where it is impossible to ascertain the domicile of the defendant cannot be certified as a European Enforcement Order. That conclusion also follows from an analysis of the objectives and scheme of that regulation. The regulation institutes a derogation from the common system of recognition of judgments, the conditions of which are, as a matter of principle, to be interpreted strictly. |

| --- | --- |

| 65 | Thus, recital 10 in the preamble to Regulation No 805/2004 states that where a court in a Member State has given judgment on an uncontested claim in the absence of participation of the debtor in the proceedings, the abolition of any checks in the Member State of enforcement is inextricably linked to and dependent upon the existence of a sufficient guarantee of observance of the rights of the defence. |

| --- | --- |

| 66 | As is clear from paragraph 57 of the present judgment, the defendant, by opposing, in accordance with Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him, will have the opportunity to ensure respect for his rights of defence. That guarantee would, however, be lacking if, in circumstances such as those of the main proceedings, a judgment by default issued against a defendant who was unaware of the proceedings was certified as a European Enforcement Order. |

| --- | --- |

| 67 | It should therefore be held that a judgment by default issued against a defendant whose address is unknown must not be certified as a European Enforcement Order within the meaning of Regulation No 805/2004. |

| --- | --- |

| 68 | Consequently, the answer to the second part of the third question is that European Union law must be interpreted as precluding certification as a European Enforcement Order within the meaning of Regulation No 805/2004 of a judgment by default issued against a defendant whose address is unknown. |

| --- | --- |

The eleventh question

| 69 | By its 11th question, the national court asks, in essence, whether Article 3(1) and (2) of Directive 2000/31 is to be interpreted as meaning that it applies in a situation where the place of establishment of the information society service provider is unknown. |

| --- | --- |

| 70 | In that regard, it is clearly apparent from the judgment in eDate Advertising and Others that the establishment of the provider in another Member State constitutes both the reason for and the condition for application of the mechanism laid down in Article 3 of Directive 2000/31. That mechanism seeks to ensure the free movement of information society services between Member States by making those services subject to the legal system of the Member State in which their providers are established (eDate Advertising and Others, paragraph 66). |

| --- | --- |

| 71 | Since application of Article 3(1) and (2) of that directive is thus subject to the identification of the Member State in whose territory the information society service provider is actually established (eDate Advertising and Others, paragraph 68), it is for the national court to ascertain whether the defendant is actually established in the territory of a Member State. In the absence of such establishment, the mechanism laid down in Article 3(2) of Directive 2000/31 does not apply. |

| --- | --- |

| 72 | In those circumstances, the answer to the 11th question is that Article 3(1) and (2) of Directive 2000/31 does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established. |

| --- | --- |

Costs

| 73 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (First Chamber) hereby rules: |

| --- | --- |

| | \| 1. \| In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. \| \| --- \| --- \| | 1. | In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 1. | In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. |

| | \| 2. \| European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant. \| \| --- \| --- \| | 2. | European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 2. | European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant. |

| | \| 3. \| European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown. \| \| --- \| --- \| | 3. | European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 3. | European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown. |

| | \| 4. \| Article 3(1) and (2) of 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 does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established. \| \| --- \| --- \| | 4. | Article 3(1) and (2) of 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 does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 4. | Article 3(1) and (2) of 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 does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established. |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62010CJ0292_EN_01-E0001) ) Language of the case: German.

JUDGMENT OF THE COURT (Second Chamber)

9 November 2023 ( [\*1](#t-ECR_62022CJ0376_EN_01-E0001) )

(Reference for a preliminary ruling – Directive 2000/31/EC – Information society services – Article 3(1) – Principle of control in the home Member State – Article 3(4) – Derogation from the principle of free movement of information society services – Concept of ‘measures taken against a given information society service’ – Article 3(5) – Possibility of a posteriori notification of measures restricting the free movement of information society services in urgent cases – Failure to provide notification – Enforceability of those measures – Legislation of a Member State imposing on providers of communication platforms, whether established on its territory or not, a set of obligations relating to the monitoring and notification of allegedly unlawful content – Directive 2010/13/EU – Audiovisual media services – Video-sharing platform service)

In Case C‑376/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 24 May 2022, received at the Court on 10 June 2022, in the proceedings

Google Ireland Limited,

Meta Platforms Ireland Limited,

Tik Tok Technology Limited

v

Kommunikationsbehörde Austria (KommAustria),

intervening party:

Bundesministerin für Frauen, Familie, Integration und Medien im Bundeskanzleramt,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl (Rapporteur), J. Passer and M.L. Arastey Sahún, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | Google Ireland Limited and Tik Tok Technology Limited, by L. Feiler, Rechtsanwalt, |

| --- | --- |

| – | Meta Platforms Ireland Limited, by S. Denk, Rechtsanwalt, |

| --- | --- |

| – | the Austrian Government, by A. Posch and G. Kunnert, acting as Agents, |

| --- | --- |

| – | Ireland, by M. Browne, A. Joyce and M. Tierney, acting as Agents, and by D. Fennelly, Barrister-at-Law, |

| --- | --- |

| – | the Polish Government, by B. Majczyna, acting as Agent, |

| --- | --- |

| – | the European Commission, by G. Braun, S.L. Kalėda and P.-J. Loewenthal, acting as Agents, |

| --- | --- |

after hearing the Opinion of the Advocate General at the sitting on 8 June 2023,

gives the following

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation, first, of Article 3(4) and (5) of 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 ([OJ 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)) and, secondly, of Article 28a(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) ([OJ 2010 L 95, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2010:095:TOC)), as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 ([OJ 2018 L 303, p. 69](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2018:303:TOC)) (‘Directive 2010/13’). |

| --- | --- |

| 2 | The request has been made in proceedings between Google Ireland Limited, Meta Platforms Ireland Limited and Tik Tok Technology Limited, companies established in Ireland, and the Kommunikationsbehörde Austria (KommAustria) (the Austrian communications regulatory authority) concerning decisions by the latter declaring that those companies are subject to the Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (Kommunikationsplattformen-Gesetz) (Federal Law on measures for the protection of users of communications platforms) (BGBl. I, 151/2020, ‘the KoPl-G’). |

| --- | --- |

Legal context

European Union law

Directive 2000/31

| 3 | Recitals 5, 6, 8, 22 and 24 of Directive 2000/31 state as follows: \| ‘(5) \| The development of information society services within the Community is hampered by a number of legal obstacles to the proper functioning of the internal market which make less attractive the exercise of the freedom of establishment and the freedom to provide services; these obstacles arise from divergences in legislation and from the legal uncertainty as to which national rules apply to such services; in the absence of coordination and adjustment of legislation in the relevant areas, obstacles might be justified in the light of the case-law of the Court of Justice of the European Communities; legal uncertainty exists with regard to the extent to which Member States may control services originating from another Member State. \| \| --- \| --- \| \| (6) \| In the light of Community objectives, of Articles 43 and 49 of the Treaty and of secondary Community law, these obstacles should be eliminated by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market; by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty. \| \| --- \| --- \| … \| (8) \| The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such. \| \| --- \| --- \| … \| (22) \| Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives; to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens; in order to improve mutual trust between Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate; moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established. \| \| --- \| --- \| … \| (24) \| In the context of this Directive, notwithstanding the rule on the control at source of information society services, it is legitimate under the conditions established in this Directive for Member States to take measures to restrict the free movement of information society services.’ \| \| --- \| --- \| | ‘(5) | The development of information society services within the Community is hampered by a number of legal obstacles to the proper functioning of the internal market which make less attractive the exercise of the freedom of establishment and the freedom to provide services; these obstacles arise from divergences in legislation and from the legal uncertainty as to which national rules apply to such services; in the absence of coordination and adjustment of legislation in the relevant areas, obstacles might be justified in the light of the case-law of the Court of Justice of the European Communities; legal uncertainty exists with regard to the extent to which Member States may control services originating from another Member State. | (6) | In the light of Community objectives, of Articles 43 and 49 of the Treaty and of secondary Community law, these obstacles should be eliminated by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market; by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty. | (8) | The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such. | (22) | Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives; to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens; in order to improve mutual trust between Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate; moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established. | (24) | In the context of this Directive, notwithstanding the rule on the control at source of information society services, it is legitimate under the conditions established in this Directive for Member States to take measures to restrict the free movement of information society services.’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(5) | The development of information society services within the Community is hampered by a number of legal obstacles to the proper functioning of the internal market which make less attractive the exercise of the freedom of establishment and the freedom to provide services; these obstacles arise from divergences in legislation and from the legal uncertainty as to which national rules apply to such services; in the absence of coordination and adjustment of legislation in the relevant areas, obstacles might be justified in the light of the case-law of the Court of Justice of the European Communities; legal uncertainty exists with regard to the extent to which Member States may control services originating from another Member State. |

| (6) | In the light of Community objectives, of Articles 43 and 49 of the Treaty and of secondary Community law, these obstacles should be eliminated by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market; by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty. |

| (8) | The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such. |

| (22) | Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives; to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens; in order to improve mutual trust between Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate; moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established. |

| (24) | In the context of this Directive, notwithstanding the rule on the control at source of information society services, it is legitimate under the conditions established in this Directive for Member States to take measures to restrict the free movement of information society services.’ |

| 4 | Article 1(1) of that directive provides: ‘This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.’ |

| --- | --- |

| 5 | Article 2 of that directive provides: ‘For the purpose of this Directive, the following terms shall bear the following meanings: \| (a) \| “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; \| \| --- \| --- \| … \| (h) \| “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| \| --- \| --- \| …’ | (a) | “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; | (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; |

| (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. |

| 6 | Article 3 of that directive, entitled ‘Internal market’, is worded as follows: ‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. 2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. … 4\. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: \| (a) \| the measures shall be: \\| (i) \\| necessary for one of the following reasons: \\\| – \\\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of public health, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| public security, including the safeguarding of national security and defence, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of consumers, including investors; \\\| \\\| --- \\\| --- \\\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| – \\| the protection of public health, \\| – \\| public security, including the safeguarding of national security and defence, \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| – \\| the protection of public health, \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| – \\| the protection of consumers, including investors; \\| \\| (ii) \\| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \\| \\| --- \\| --- \\| \\| (iii) \\| proportionate to those objectives; \\| \\| --- \\| --- \\| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| (iii) \| proportionate to those objectives; \| \| (b) \| before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \\| – \\| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \\| \\| --- \\| --- \\| \\| – \\| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \\| \\| --- \\| --- \\| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| 5\. Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency. 6\. Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’ | (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives; | (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives; |

| (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; |

| – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, |

| – | the protection of public health, |

| – | public security, including the safeguarding of national security and defence, |

| – | the protection of consumers, including investors; |

| (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; |

| (iii) | proportionate to those objectives; |

| (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, |

| – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

Directive 2010/13

| 7 | Article 1 of Directive 2010/13 states: ‘1. For the purposes of this Directive, the following definitions shall apply: … \| (aa) \| “video-sharing platform service” means a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC \[of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) ([OJ 2002 L 108, p. 33](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2002:108:TOC))\] and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing; \| \| --- \| --- \| …’ | (aa) | “video-sharing platform service” means a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC \[of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) ([OJ 2002 L 108, p. 33](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2002:108:TOC))\] and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (aa) | “video-sharing platform service” means a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC \[of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) ([OJ 2002 L 108, p. 33](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2002:108:TOC))\] and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing; |

| 8 | Article 28a(1) and (5) of that directive provides: ‘1. For the purposes of this Directive, a video-sharing platform provider established on the territory of a Member State within the meaning of Article 3(1) of Directive \[2000/31\] shall be under the jurisdiction of that Member State. … 5\. For the purposes of this Directive, Article 3 and Articles 12 to 15 of Directive \[2000/31\] shall apply to video-sharing platform providers deemed to be established in a Member State in accordance with paragraph 2 of this Article.’ |

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Directive (EU) 2015/1535

| 9 | Article 1(1)(e) to (g) of 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 of rules on Information Society services ([OJ 2015 L 241, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2015:241:TOC)), sets out the following definitions: \| ‘(e) \| “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. … \| \| --- \| --- \| \| (f) \| “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. … \| \| --- \| --- \| \| (g) \| “draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’ \| \| --- \| --- \| | ‘(e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. … | (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. … | (g) | “draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. … |

| (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. … |

| (g) | “draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’ |

| 10 | The first subparagraph of Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’ |

| --- | --- |

Austrian law

| 11 | Paragraph 1 of the KoPl-G provides: ‘1. This Law serves to promote the responsible and transparent handling and prompt processing of notifications by users relating to the following content on communication platforms. 2\. Domestic and foreign service providers which provide communication platforms (Paragraph 2(4)) for economic gain shall fall within the scope of this Law, unless: \| (1) \| the number of registered users with a right of access to the communication platform in Austria was less than an average of 100000 persons in the preceding calendar year, and \| \| --- \| --- \| \| (2) \| the turnover from the operation of the communication platform in Austria in the preceding calendar year was less than EUR 500000. \| \| --- \| --- \| … 4\. Service providers of video-sharing platforms (Paragraph 2(12)) are exempt from the obligations laid down in this Law in respect of programmes (Paragraph 2(9)) and videos created by users (Paragraph 2(7)) provided on those platforms. 5\. Upon application by a service provider, the supervisory authority shall make a declaration on whether that service provider falls within the scope of this Law. …’ | (1) | the number of registered users with a right of access to the communication platform in Austria was less than an average of 100000 persons in the preceding calendar year, and | (2) | the turnover from the operation of the communication platform in Austria in the preceding calendar year was less than EUR 500000. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (1) | the number of registered users with a right of access to the communication platform in Austria was less than an average of 100000 persons in the preceding calendar year, and |

| (2) | the turnover from the operation of the communication platform in Austria in the preceding calendar year was less than EUR 500000. |

| 12 | Paragraph 2 of the KoPl-G provides: ‘For the purpose of this Law, the following terms shall bear the following meanings: … \| (2) \| “information society service”: a service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient of services …, in particular on-line trading of products and services, on-line information provision, on-line advertising, electronic search engines and data retrieval facilities, as well as services enabling information to be transmitted over an electronic network, access to such a network or the storage of information concerning a user …; \| \| --- \| --- \| \| (3) \| “service provider”: the natural or legal person who provides a communication platform; \| \| --- \| --- \| \| (4) \| “communication platform”: an information society service, the main purpose or an essential function of which is to enable the exchange of information or of representations that have intellectual content, in the form of words, writing, sound or images, between users and a large group of other users by means of mass distribution; \| \| --- \| --- \| … \| (6) \| “user”: any person using a communication platform, whether or not they are registered on that platform; \| \| --- \| --- \| \| (7) \| “user-generated video”: a set of moving images with or without sound constituting an individual item, irrespective of its length, that is created by a user and uploaded to a video-sharing platform by that user or any other user; \| \| --- \| --- \| … \| (9) \| “programme”: a single self-contained item of audiovisual media service consisting, irrespective of its length, of a set of moving images with or without sound, as part of a schedule or catalogue established by a media service provider; that concept includes feature films, music videos, sports events, sitcoms, documentaries, news programmes, arts and culture programmes, children’s programmes and original drama; \| \| --- \| --- \| … \| (12) \| “video-sharing platform service”: a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes (point 9), user-generated videos (point 7), or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point 1 of Article 2 of \[Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code ([OJ 2018 L 321, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2018:321:TOC))\] and the organisation of which is determined by the video-sharing platform provider (including by automatic means or algorithms, in particular by displaying, tagging and sequencing).’ \| \| --- \| --- \| | (2) | “information society service”: a service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient of services …, in particular on-line trading of products and services, on-line information provision, on-line advertising, electronic search engines and data retrieval facilities, as well as services enabling information to be transmitted over an electronic network, access to such a network or the storage of information concerning a user …; | (3) | “service provider”: the natural or legal person who provides a communication platform; | (4) | “communication platform”: an information society service, the main purpose or an essential function of which is to enable the exchange of information or of representations that have intellectual content, in the form of words, writing, sound or images, between users and a large group of other users by means of mass distribution; | (6) | “user”: any person using a communication platform, whether or not they are registered on that platform; | (7) | “user-generated video”: a set of moving images with or without sound constituting an individual item, irrespective of its length, that is created by a user and uploaded to a video-sharing platform by that user or any other user; | (9) | “programme”: a single self-contained item of audiovisual media service consisting, irrespective of its length, of a set of moving images with or without sound, as part of a schedule or catalogue established by a media service provider; that concept includes feature films, music videos, sports events, sitcoms, documentaries, news programmes, arts and culture programmes, children’s programmes and original drama; | (12) | “video-sharing platform service”: a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes (point 9), user-generated videos (point 7), or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point 1 of Article 2 of \[Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code ([OJ 2018 L 321, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2018:321:TOC))\] and the organisation of which is determined by the video-sharing platform provider (including by automatic means or algorithms, in particular by displaying, tagging and sequencing).’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (2) | “information society service”: a service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient of services …, in particular on-line trading of products and services, on-line information provision, on-line advertising, electronic search engines and data retrieval facilities, as well as services enabling information to be transmitted over an electronic network, access to such a network or the storage of information concerning a user …; |

| (3) | “service provider”: the natural or legal person who provides a communication platform; |

| (4) | “communication platform”: an information society service, the main purpose or an essential function of which is to enable the exchange of information or of representations that have intellectual content, in the form of words, writing, sound or images, between users and a large group of other users by means of mass distribution; |

| (6) | “user”: any person using a communication platform, whether or not they are registered on that platform; |

| (7) | “user-generated video”: a set of moving images with or without sound constituting an individual item, irrespective of its length, that is created by a user and uploaded to a video-sharing platform by that user or any other user; |

| (9) | “programme”: a single self-contained item of audiovisual media service consisting, irrespective of its length, of a set of moving images with or without sound, as part of a schedule or catalogue established by a media service provider; that concept includes feature films, music videos, sports events, sitcoms, documentaries, news programmes, arts and culture programmes, children’s programmes and original drama; |

| (12) | “video-sharing platform service”: a service as defined by Articles 56 and 57 \[TFEU\], where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes (point 9), user-generated videos (point 7), or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point 1 of Article 2 of \[Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code ([OJ 2018 L 321, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2018:321:TOC))\] and the organisation of which is determined by the video-sharing platform provider (including by automatic means or algorithms, in particular by displaying, tagging and sequencing).’ |

| 13 | Paragraph 3 of the KoPl-G is worded as follows: ‘1. Service providers shall establish an effective and transparent procedure for handling and processing notifications relating to allegedly illegal content available on the communication platform. … 4\. In addition, service providers shall ensure that an effective and transparent procedure for reviewing their decisions to block or remove notified content is in place (subparagraph 3(1)). … …’ |

| --- | --- |

| 14 | According to Paragraph 4(1) of the KoPl-G: ‘Service providers shall be obliged to draw up an annual, or, in the case of communication platforms with over one million registered users, a six-monthly, report on the handling of notifications relating to allegedly illegal content. Service providers shall submit their report to the supervisory authority no later than one month after the end of the period covered by that report and shall simultaneously make the report permanently and easily accessible on their own website.’ |

| --- | --- |

| 15 | Paragraph 5 of the KoPl-G provides: ‘1. Service providers shall appoint a person who fulfils the requirements of Paragraph 9(4) of the Verwaltungsstrafgesetz 1991 – VStG (Law on administrative penalties 1991, BGBl., 52/1991). That person shall: \| (1) \| ensure compliance with the provisions of this Law, \| \| --- \| --- \| \| (2) \| have authority to issue orders so as to make it possible to ensure compliance with the provisions of this Law, \| \| --- \| --- \| \| (3) \| have the necessary German language knowledge to be able to cooperate with administrative and judicial authorities, \| \| --- \| --- \| \| (4) \| have the resources required to carry out his or her tasks. \| \| --- \| --- \| … 4\. The service provider shall appoint a natural or legal person as its representative responsible for the service of administrative and judicial documents. Subparagraph 1(3), the first sentence of subparagraph 2 and subparagraph 3 shall apply. 5\. The regulatory authority shall be informed without delay of the identity of the trustee in charge and the trustee responsible for notifications.’ | (1) | ensure compliance with the provisions of this Law, | (2) | have authority to issue orders so as to make it possible to ensure compliance with the provisions of this Law, | (3) | have the necessary German language knowledge to be able to cooperate with administrative and judicial authorities, | (4) | have the resources required to carry out his or her tasks. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (1) | ensure compliance with the provisions of this Law, |

| (2) | have authority to issue orders so as to make it possible to ensure compliance with the provisions of this Law, |

| (3) | have the necessary German language knowledge to be able to cooperate with administrative and judicial authorities, |

| (4) | have the resources required to carry out his or her tasks. |

The dispute in the main proceedings and the questions referred for a preliminary ruling

| 16 | The appellants in the main proceedings, Google Ireland, Meta Platforms Ireland and Tik Tok Technology are companies established in Ireland which provide, inter alia in Austria, communication platform services. |

| --- | --- |

| 17 | Following the entry into force of the KoPl-G in 2021, they asked KommAustria to declare, under Paragraph 1(5) of that law, that they did not fall within its scope. |

| --- | --- |

| 18 | By three decisions dated 26 March, 31 March and 22 April 2021, that authority declared that the appellants in the main proceedings fell within the scope of the KoPl-G on the ground that they each provided a ‘communication platform’ service within the meaning of Paragraph 2(4) of that law. |

| --- | --- |

| 19 | The appellants in the main proceedings brought actions against those decisions before the Bundesverwaltungsgericht (Federal Administrative Court, Austria), which dismissed those actions as unfounded. |

| --- | --- |

| 20 | In support of the appeals on a point of law brought by the appellants in the main proceedings against those dismissal decisions before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the referring court, the appellants in the main proceedings submit that, since Ireland and the European Commission were not informed of the adoption of the KoPl-G under Article 3(4)(b) and Article 3(5) of Directive 2000/31, that law cannot be relied on against them. Moreover, the obligations introduced by that law would be disproportionate and incompatible with the free movement of services and with the ‘country of origin principle’ provided for by Directive 2000/31 and, as regards video-sharing platform services, by Directive 2010/13. |

| --- | --- |

| 21 | In that regard, first, that court states that the appeals on a point of law raise the question whether the KoPl-G or the obligations which it imposes on service providers constitute measures taken in respect of a ‘given information society service’ within the meaning of Article 3(4) of Directive 2000/31. The referring court has doubts in that respect in so far as the provisions of the KoPl-G are general and abstract and impose general obligations on providers of information society services which are applicable in the absence of any individual and specific act. |

| --- | --- |

| 22 | Secondly, assuming that the conditions laid down in Article 3(4)(a) of Directive 2000/31 are satisfied, that court asks how Article 3(5) of that directive is to be interpreted in order to determine whether the KoPl-G may be relied on against the appellants in the main proceedings even though notice of it has not been given. |

| --- | --- |

| 23 | Thirdly, still assuming that the obligations imposed by the KoPl-G on providers of communication platform services are to be classified as measures taken in respect of a ‘given information society service’ within the meaning of Article 3(4) of Directive 2000/31, that court wonders whether those obligations, subject to fulfilment of the conditions laid down in Article 3(4)(a) of that directive, apply, in principle, to the services provided by the appellants in the main proceedings as providers of communication platform services. If so, it would then be necessary to determine, as regards providers of video-sharing platform services within the meaning of Article 1(aa) of Directive 2010/13, whether the principle of control in the home Member State, which also applies in the context of that directive by virtue of Article 28a(1) thereof, which makes reference to Article 3 of Directive 2000/31, precludes the obligations imposed by the KoPl-G on service providers established on the territory of another Member State from applying to the content of those platforms where it does not consist of programmes or videos created by users. |

| --- | --- |

| 24 | In those circumstances the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: \| ‘(1) \| Must Article 3(4)(a)(ii) of Directive \[2000/31\] be interpreted as meaning that a measure taken against a “given information society service” can also be understood as a legislative measure relating to a general category of \[given\] information society services (such as communications platforms), or does the existence of a measure within the meaning of that provision require that a decision be taken in relation to a specific individual case (for example, concerning a communications platform identified by name)? \| \| --- \| --- \| \| (2) \| Must Article 3(5) of Directive 2000/31 be interpreted as meaning that failure to notify the measure taken to the Commission and the Member State in which the platform is established, which, under that provision, must be notified “in the shortest possible time” (ex post facto) in the case of urgency, means that – following the expiry of a sufficient period for the (ex post facto) notification – that measure must not be applied to a given service? \| \| --- \| --- \| \| (3) \| Does Article 28a(1) of \[Directive 2010/13\] preclude the application of a measure as provided for in Article 3(4) of Directive 2000/31 where it does not relate to broadcasts and user-generated videos made available on a video-sharing platform?’ \| \| --- \| --- \| | ‘(1) | Must Article 3(4)(a)(ii) of Directive \[2000/31\] be interpreted as meaning that a measure taken against a “given information society service” can also be understood as a legislative measure relating to a general category of \[given\] information society services (such as communications platforms), or does the existence of a measure within the meaning of that provision require that a decision be taken in relation to a specific individual case (for example, concerning a communications platform identified by name)? | (2) | Must Article 3(5) of Directive 2000/31 be interpreted as meaning that failure to notify the measure taken to the Commission and the Member State in which the platform is established, which, under that provision, must be notified “in the shortest possible time” (ex post facto) in the case of urgency, means that – following the expiry of a sufficient period for the (ex post facto) notification – that measure must not be applied to a given service? | (3) | Does Article 28a(1) of \[Directive 2010/13\] preclude the application of a measure as provided for in Article 3(4) of Directive 2000/31 where it does not relate to broadcasts and user-generated videos made available on a video-sharing platform?’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(1) | Must Article 3(4)(a)(ii) of Directive \[2000/31\] be interpreted as meaning that a measure taken against a “given information society service” can also be understood as a legislative measure relating to a general category of \[given\] information society services (such as communications platforms), or does the existence of a measure within the meaning of that provision require that a decision be taken in relation to a specific individual case (for example, concerning a communications platform identified by name)? |

| (2) | Must Article 3(5) of Directive 2000/31 be interpreted as meaning that failure to notify the measure taken to the Commission and the Member State in which the platform is established, which, under that provision, must be notified “in the shortest possible time” (ex post facto) in the case of urgency, means that – following the expiry of a sufficient period for the (ex post facto) notification – that measure must not be applied to a given service? |

| (3) | Does Article 28a(1) of \[Directive 2010/13\] preclude the application of a measure as provided for in Article 3(4) of Directive 2000/31 where it does not relate to broadcasts and user-generated videos made available on a video-sharing platform?’ |

Consideration of the questions referred

The first question

| 25 | By its first question the referring court asks, in essence, whether Article 3(4) of Directive 2000/31 must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services fall within the concept of measures taken against a ‘given information society service’ within the meaning of that provision. |

| --- | --- |

| 26 | In that regard, it should be borne in mind that, for the purposes of interpreting a provision of EU law the terms of which do not expressly refer to national law, it is necessary, in accordance with the settled case-law of the Court, to consider not only its wording but also its context and the objectives pursued by the rules of which it is part (judgment of 15 September 2022, Fédération des entreprises de la beauté, [C‑4/21](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A681&locale=en), [EU:C:2022:681](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A681), paragraph [47](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A681&anchor=#point47) and the case-law cited). |

| --- | --- |

| 27 | In the first place, as regards the wording of Article 3(4) of Directive 2000/31, it should be noted that that provision refers to a ‘given information society service’. The use of the singular and the adjective ‘given’ tends to indicate that the service referred to must be understood as an individualised service provided by one or more service providers and that, consequently, Member States cannot adopt, under Article 3(4), general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services. |

| --- | --- |

| 28 | The fact that the concept of ‘measures’ may include a wide range of measures adopted by the Member States does not call that assessment into question. |

| --- | --- |

| 29 | By using such a broad and general term, the EU legislature has left to the discretion of the Member States the nature and form of the measures which they may adopt under Article 3(4) of Directive 2000/31. However, the use of that term in no way prejudges the substance or material content of those measures. |

| --- | --- |

| 30 | In the second place, the context of that article and, in particular, the procedural requirements laid down in Article 3(4)(b) of Directive 2000/31 corroborate such an interpretation. |

| --- | --- |

| 31 | In that regard, it should be recalled that, under Article 3(4) of that directive, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to two cumulative conditions (judgment of 19 December 2019, Airbnb Ireland, [C‑390/18](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&locale=en), [EU:C:2019:1112](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112), paragraph [83](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&anchor=#point83)). |

| --- | --- |

| 32 | Under Article 3(4)(a) of Directive 2000/31, the restrictive measure concerned must be necessary in the interests of public policy, the protection of public health, public security or the protection of consumers; it must be taken against an information society service which actually undermines those objectives or constitutes a serious and grave risk to those objectives and, finally, it must be proportionate to those objectives. |

| --- | --- |

| 33 | Moreover, Article 3(4)(b) of Directive 2000/31 provides that, before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State concerned must not only have asked the Member State on whose territory the provider of the service in question is established to take measures and the latter did not take them or they were inadequate, but must also have notified the Commission and that Member State of its intention to take the restrictive measures concerned. |

| --- | --- |

| 34 | The condition set out in the previous paragraph tends to confirm that Member States may not restrict the freedom to provide information society services from other Member States by adopting measures of a general and abstract nature relating to a category, described in general terms, of given information society services. |

| --- | --- |

| 35 | By requiring Member States in which an information society service is provided which intend, as Member States of destination of that service, to adopt measures on the basis of Article 3(4) of Directive 2000/31, to ask the Member State of origin of that service, that is to say the Member State on whose territory the provider of that service is established, to take measures, that provision presupposes that the providers and, consequently, the Member States concerned can be identified. |

| --- | --- |

| 36 | If Member States were authorised to restrict the free movement of information society services by means of measures of a general and abstract nature applying without distinction to any provider of a category of those services, such identification would be, if not impossible, at least excessively difficult, so that Member States would not be able to comply with such a procedural requirement. |

| --- | --- |

| 37 | Furthermore, as the Advocate General observed in point 68 of his Opinion, if Article 3(4) of Directive 2000/31 were to be understood as including measures of a general and abstract nature which apply without distinction to any provider of a category of information society services, then the prior notification provided for in the second indent of Article 3(4)(b) of that directive would be likely to duplicate that required by Directive 2015/1535. |

| --- | --- |

| 38 | In essence, that directive requires Member States to notify the Commission of any draft technical regulation whose rules on services include requirements of a general nature relating to the taking up and pursuit of information society service activities. |

| --- | --- |

| 39 | In the third place, interpreting the concept of measures taken against a ‘given information society service’, within the meaning of Article 3(4) of Directive 2000/31, as meaning that Member States may adopt measures of a general and abstract nature applying without distinction to any provider of a category of information society services would call into question the principle of control in the Member State of origin on which that directive is based and the objective of the proper functioning of the internal market pursued by that directive. |

| --- | --- |

| 40 | In that regard, it should be recalled that Article 3 of Directive 2000/31 is a central provision in the scheme and system put in place by that directive, in so far as it enshrines that principle, which is also referred to in recital 22 of that directive, which states that ‘information society services should be supervised at the source of the activity’. |

| --- | --- |

| 41 | Under Article 3(1) of Directive 2000/31, each Member State is to ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. Article 3(2) of that directive states that Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. |

| --- | --- |

| 42 | Directive 2000/31 is thus based on the application of the principles of home Member State control and mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (see, to that effect, judgment of 25 October 2011, eDate Advertising and Others, [C‑509/09 and C‑161/10](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A685&locale=en), [EU:C:2011:685](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A685), paragraphs [56](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A685&anchor=#point56) to [59](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A685&anchor=#point59)). |

| --- | --- |

| 43 | Consequently, it is the responsibility of each Member State as the Member State where information society services originate to regulate those services and, on that basis, to protect the general interest objectives referred to in Article 3(4)(a)(i) of Directive 2000/31. |

| --- | --- |

| 44 | Moreover, in accordance with the principle of mutual recognition, it is for each Member State, as the Member State of destination of information society services, not to restrict the free movement of those services by requiring compliance with additional obligations, falling within the coordinated field, which it has adopted. |

| --- | --- |

| 45 | That being so, as is apparent from recital 24 of Directive 2000/31, the EU legislature considered it legitimate, notwithstanding the ‘rule on the control at source of information society services’, another expression of the principle of control in the Member State of origin referred to in Article 3(1) of that directive, for Member States to be able, under the conditions laid down in that directive, to take measures to restrict the free movement of information society services. |

| --- | --- |

| 46 | Article 3(4) of Directive 2000/31 thus allows, under certain conditions, a Member State in which an information society service is provided to derogate from the principle of free movement of information society services. |

| --- | --- |

| 47 | However, interpreting that provision as authorising Member States to adopt measures of a general and abstract nature applying without distinction to any provider of a category of information society services would call into question the principle of control in the Member State of origin set out in Article 3(1) of Directive 2000/31. |

| --- | --- |

| 48 | The principle of control in the Member State of origin results in a division of regulatory powers between the Member State of origin of an information society service provider and the Member State in which the service concerned is provided, that is to say the Member State of destination. |

| --- | --- |

| 49 | To authorise the second Member State to adopt, under Article 3(4) of Directive 2000/31, measures of a general and abstract nature applying without distinction to any provider of a category of such services, whether established in the latter Member State or not, would encroach on the regulatory powers of the first Member State and would have the effect of subjecting such providers to the legislation of both the home Member State and the Member State or Member States of destination. |

| --- | --- |

| 50 | However, it is clear from recital 22 of Directive 2000/31 that, as has been pointed out in paragraph 40 of the present judgment, in the system established by that directive, the EU legislature provided for the supervision of information society services to be carried out at the source of the activity, that is to say, by the Member State in which the service provider is established, with the threefold objective of ensuring effective protection of public interest objectives, improving mutual trust between Member States and effectively guaranteeing freedom to provide services and legal certainty for suppliers and their recipients. |

| --- | --- |

| 51 | Consequently, by calling into question the principle of control in the Member State of origin laid down in Article 3(1) of Directive 2000/31, the interpretation of Article 3(4) set out in paragraph 47 above would undermine the system and objectives of that directive. |

| --- | --- |

| 52 | As the Commission has pointed out, the possibility of derogating from the principle of free movement of information society services, provided for in Article 3(4) of that directive, was not designed to allow Member States to adopt general and abstract measures aimed at regulating a category of information society service providers as a whole, even though such measures would combat content which seriously undermines the objectives set out in Article 3(4)(a)(i) of that directive. |

| --- | --- |

| 53 | Furthermore, to allow the Member State of destination to adopt general and abstract measures aimed at regulating the provision of information society services by providers not established on its territory would undermine mutual trust between Member States and would be in conflict with the principle of mutual recognition on which Directive 2000/31 is based, as has been recalled in paragraph 42 of the present judgment. |

| --- | --- |

| 54 | In addition, still taking a purposive interpretation of Article 3(4) of Directive 2000/31 and of the concept of measures taken against a ‘given information society service’, it follows from Articles 1(1) and 3(2) of that directive, read in the light of recital 8 thereof, that the objective of that directive is to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between Member States. |

| --- | --- |

| 55 | With that in mind, as is clear from recitals 5 and 6 of that directive, the directive seeks to eliminate legal obstacles to the proper functioning of the internal market, namely obstacles arising from divergences in legislation and from the legal uncertainty as to which national rules apply to such services. |

| --- | --- |

| 56 | However, to allow Member States to adopt, under Article 3(4) of Directive 2000/31, measures of a general and abstract nature aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services would ultimately amount to subjecting the service providers concerned to different laws and, consequently, reintroducing the legal obstacles to freedom to provide services which that directive seeks to eliminate. |

| --- | --- |

| 57 | Lastly, it should be recalled that the objective of Directive 2000/31 of ensuring the freedom to provide information society services between Member States is pursued by way of a mechanism for monitoring measures capable of undermining it, which makes it possible for both the Commission and the Member State on whose territory the service provider in question is established to ensure that those measures are necessary in furtherance of overriding reasons in the general interest (judgment of 19 December 2019, Airbnb Ireland, [C‑390/18](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&locale=en), [EU:C:2019:1112](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112), paragraph [91](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&anchor=#point91)). |

| --- | --- |

| 58 | However, holding that measures of a general and abstract nature which are aimed at a category of given information society services described in general terms do not fall within the concept of measures taken against a ‘given information society service’, within the meaning of Article 3(4) of Directive 2000/31, does not have the effect of exempting such measures from that monitoring mechanism. |

| --- | --- |

| 59 | On the contrary, the consequence of such an interpretation is that Member States are not, as a matter of principle, authorised to adopt such measures, so that verification that those measures are necessary to satisfy overriding reasons in the general interest is not even required. |

| --- | --- |

| 60 | In the light of all the foregoing considerations, the answer to the first question is that Article 3(4) of Directive 2000/31 must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of measures taken against a ‘given information society service’ within the meaning of that provision. |

| --- | --- |

The second and third questions

| 61 | It is apparent from the order for reference, as summarised in paragraphs 22 and 23 of the present judgment, that the referring court asks the second and third questions only if the Court considers that it must answer the first question in the affirmative. |

| --- | --- |

| 62 | However, as has been concluded in paragraph 60 above, the answer to the first question is in the negative. |

| --- | --- |

| 63 | It follows that, in view of the answer given to the first question, it is not necessary to answer the second and third questions. |

| --- | --- |

Costs

| 64 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (Second Chamber) hereby rules: |

| --- | --- |

| | Article 3(4) of 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 |

| --- | --- |

| | must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of measures taken against a ‘given information society service’ within the meaning of that provision. |

| --- | --- |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62022CJ0376_EN_01-E0001) ) Language of the case: German.

JUDGMENT OF THE COURT (Grand Chamber)

19 December 2019 ( [\*1](#t-ECR_62018CJ0390_EN_01-E0001) )

(Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action)

In Case C‑390/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris, France), made by decision of 7 June 2018, received at the Court on 13 June 2018, in the criminal proceedings against

X,

interveners:

YA,

Airbnb Ireland UC,

Hôtelière Turenne SAS,

Association pour un hébergement et un tourisme professionnels (AHTOP),

Valhotel,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, E. Juhász, M. Ilešič, J. Malenovský, D. Šváby (Rapporteur) and N. Piçarra, Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2019,

after considering the observations submitted on behalf of:

| – | Airbnb Ireland UC, by D. Van Liedekerke, O.W. Brouwer and A.A.J. Pliego Selie, advocaten, |

| --- | --- |

| – | the Association pour un hébergement et un tourisme professionnels (AHTOP), by B. Quentin, G. Navarro and M. Robert, avocats, |

| --- | --- |

| – | the French Government, by E. de Moustier and R. Coesme, acting as Agents, |

| --- | --- |

| – | the Czech Government, by M. Smolek, J. Vláčil and T. Müller, acting as Agents, |

| --- | --- |

| – | the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent, |

| --- | --- |

| – | the Luxembourg Government, initially by D. Holderer, and subsequently by T. Uri, acting as Agents, |

| --- | --- |

| – | the European Commission, by L. Malferrari, É. Gippini Fournier and S.L. Kalėda, acting as Agents, |

| --- | --- |

after hearing the Opinion of the Advocate General at the sitting on 30 April 2019,

gives the following

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation of Article 3 of 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 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)). |

| --- | --- |

| 2 | The request has been made in criminal proceedings against X, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person without a professional licence. |

| --- | --- |

Legal context

EU law

Directive 98/34

| 3 | Point 2 of the first paragraph of Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC)), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC)) (‘Directive 98/34’), provides the following: ‘For the purposes of this Directive, the following meanings shall apply: … \| 2. \| “service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. \| \| --- \| --- \| For the purposes of this definition: \| – \| “at a distance” means that the service is provided without the parties being simultaneously present, \| \| --- \| --- \| \| – \| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, \| \| --- \| --- \| \| – \| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \| \| --- \| --- \| …’ | 2. | “service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. | – | “at a distance” means that the service is provided without the parties being simultaneously present, | – | “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, | – | “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. |

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| 2. | “service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. |

| – | “at a distance” means that the service is provided without the parties being simultaneously present, |

| – | “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, |

| – | “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. |

Directive (EU) 2015/1535

| 4 | 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 of rules on Information Society services ([OJ 2015 L 241, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2015:241:TOC)) repealed and replaced Directive 98/34 as of 7 October 2015. |

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| 5 | Article 1(1)(b) of Directive 2015/1535 states: ‘For the purposes of this Directive, the following definitions apply: … \| (b) \| “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: \\| (i) \\| “at a distance” means that the service is provided without the parties being simultaneously present; \\| \\| --- \\| --- \\| \\| (ii) \\| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; \\| \\| --- \\| --- \\| \\| (iii) \\| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \\| \\| --- \\| --- \\| An indicative list of services not covered by this definition is set out in Annex I.’ \| (i) \| “at a distance” means that the service is provided without the parties being simultaneously present; \| (ii) \| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; \| (iii) \| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| “at a distance” means that the service is provided without the parties being simultaneously present; \| \| (ii) \| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; \| \| (iii) \| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \| | (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: \| (i) \| “at a distance” means that the service is provided without the parties being simultaneously present; \| \| --- \| --- \| \| (ii) \| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; \| \| --- \| --- \| \| (iii) \| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \| \| --- \| --- \| An indicative list of services not covered by this definition is set out in Annex I.’ | (i) | “at a distance” means that the service is provided without the parties being simultaneously present; | (ii) | “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; | (iii) | “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. |

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| (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: \| (i) \| “at a distance” means that the service is provided without the parties being simultaneously present; \| \| --- \| --- \| \| (ii) \| “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; \| \| --- \| --- \| \| (iii) \| “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. \| \| --- \| --- \| An indicative list of services not covered by this definition is set out in Annex I.’ | (i) | “at a distance” means that the service is provided without the parties being simultaneously present; | (ii) | “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; | (iii) | “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. |

| (i) | “at a distance” means that the service is provided without the parties being simultaneously present; |

| (ii) | “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; |

| (iii) | “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request. |

| 6 | Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft. …’ |

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| 7 | Under the second paragraph of Article 10 of Directive 2015/1535, references to Directive 98/34 are henceforth to be construed as references to Directive 2015/1535. |

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Directive 2000/31

| 8 | Recital 8 of Directive 2000/31 states: ‘The objective of this Directive is to create a legal framework to ensure the freedom of information society services between Member States and not to harmonise the field of criminal law as such.’ |

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| 9 | In the version before the entry into force of Directive 2015/1535, Article 2(a) of Directive 2000/31 defined ‘information society services’ as services within the meaning of point 2 of the first paragraph of Article 1 of Directive 98/34. Since that directive entered into force, that reference must be understood as being made to Article 1(1)(b) of Directive 2015/1535. |

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| 10 | Article 2(h) of Directive 2000/31 provides: \| ‘(h) \| “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \\| (i) \\| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\\| – \\\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\\| \\\| --- \\\| --- \\\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| (ii) \\| The coordinated field does not cover requirements such as: \\\| – \\\| requirements applicable to goods as such, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| requirements applicable to the delivery of goods, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| requirements applicable to services not provided by electronic means.’ \\\| \\\| --- \\\| --- \\\| \\| – \\| requirements applicable to goods as such, \\| – \\| requirements applicable to the delivery of goods, \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| requirements applicable to goods as such, \\| \\| – \\| requirements applicable to the delivery of goods, \\| \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| (ii) \| The coordinated field does not cover requirements such as: \\| – \\| requirements applicable to goods as such, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to the delivery of goods, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \\| --- \\| --- \\| \| – \| requirements applicable to goods as such, \| – \| requirements applicable to the delivery of goods, \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| (ii) \| The coordinated field does not cover requirements such as: \\| – \\| requirements applicable to goods as such, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to the delivery of goods, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \\| --- \\| --- \\| \| – \| requirements applicable to goods as such, \| – \| requirements applicable to the delivery of goods, \| – \| requirements applicable to services not provided by electronic means.’ \| \| – \| requirements applicable to goods as such, \| \| – \| requirements applicable to the delivery of goods, \| \| – \| requirements applicable to services not provided by electronic means.’ \| | ‘(h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| (ii) \| The coordinated field does not cover requirements such as: \\| – \\| requirements applicable to goods as such, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to the delivery of goods, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \\| --- \\| --- \\| \| – \| requirements applicable to goods as such, \| – \| requirements applicable to the delivery of goods, \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| requirements applicable to goods as such, \| \| – \| requirements applicable to the delivery of goods, \| \| – \| requirements applicable to services not provided by electronic means.’ \| | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; | (ii) | The coordinated field does not cover requirements such as: \| – \| requirements applicable to goods as such, \| \| --- \| --- \| \| – \| requirements applicable to the delivery of goods, \| \| --- \| --- \| \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| | – | requirements applicable to goods as such, | – | requirements applicable to the delivery of goods, | – | requirements applicable to services not provided by electronic means.’ |

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| ‘(h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| (ii) \| The coordinated field does not cover requirements such as: \\| – \\| requirements applicable to goods as such, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to the delivery of goods, \\| \\| --- \\| --- \\| \\| – \\| requirements applicable to services not provided by electronic means.’ \\| \\| --- \\| --- \\| \| – \| requirements applicable to goods as such, \| – \| requirements applicable to the delivery of goods, \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| requirements applicable to goods as such, \| \| – \| requirements applicable to the delivery of goods, \| \| – \| requirements applicable to services not provided by electronic means.’ \| | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; | (ii) | The coordinated field does not cover requirements such as: \| – \| requirements applicable to goods as such, \| \| --- \| --- \| \| – \| requirements applicable to the delivery of goods, \| \| --- \| --- \| \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| | – | requirements applicable to goods as such, | – | requirements applicable to the delivery of goods, | – | requirements applicable to services not provided by electronic means.’ |

| (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, |

| – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| (ii) | The coordinated field does not cover requirements such as: \| – \| requirements applicable to goods as such, \| \| --- \| --- \| \| – \| requirements applicable to the delivery of goods, \| \| --- \| --- \| \| – \| requirements applicable to services not provided by electronic means.’ \| \| --- \| --- \| | – | requirements applicable to goods as such, | – | requirements applicable to the delivery of goods, | – | requirements applicable to services not provided by electronic means.’ |

| – | requirements applicable to goods as such, |

| – | requirements applicable to the delivery of goods, |

| – | requirements applicable to services not provided by electronic means.’ |

| 11 | Article 3(2) and (4) to (6) of that directive states the following: ‘2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. … 4\. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: \| (a) \| the measures shall be: \\| (i) \\| necessary for one of the following reasons: \\\| – \\\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of public health, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| public security, including the safeguarding of national security and defence, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of consumers, including investors; \\\| \\\| --- \\\| --- \\\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| – \\| the protection of public health, \\| – \\| public security, including the safeguarding of national security and defence, \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| – \\| the protection of public health, \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| – \\| the protection of consumers, including investors; \\| \\| (ii) \\| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \\| \\| --- \\| --- \\| \\| (iii) \\| proportionate to those objectives; \\| \\| --- \\| --- \\| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| (iii) \| proportionate to those objectives; \| \| (b) \| before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \\| – \\| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \\| \\| --- \\| --- \\| \\| – \\| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \\| \\| --- \\| --- \\| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| 5\. Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph 4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph 1, indicating the reasons for which the Member State considers that there is urgency. 6\. Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.’ | (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives; | (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives; \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives; |

| (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; |

| – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, |

| – | the protection of public health, |

| – | public security, including the safeguarding of national security and defence, |

| – | the protection of consumers, including investors; |

| (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; |

| (iii) | proportionate to those objectives; |

| (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, |

| – | notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

Directive 2006/123/EC

| 12 | Article 3(1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ([OJ 2006 L 376, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2006:376:TOC)) provides: ‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’ |

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French law

| 13 | Article 1 of Law No 70-9 of 2 January 1970 regulating the conditions for the exercise of activities relating to certain transactions concerning real property and financial goodwill (JORF of 4 January 1970, p. 142), in the version applicable to the facts in the main proceedings (‘the Hoguet Law’), provides: ‘The provisions of the present law apply to all natural or legal persons who lend themselves to or give their assistance on a regular basis, even in an ancillary capacity, to any transaction affecting the goods of others and relative to: 1\. the purchase, sale, search for, exchange, leasing or sub-leasing, seasonal or otherwise, furnished or unfurnished, of existing buildings or those under construction; …’ |

| --- | --- |

| 14 | Article 3 of that law provides: ‘The activities listed in Article 1 may be practised only by natural persons or legal entities holding a professional licence that has been issued, for a period and in accordance with rules laid down by a decree of the Council of State, by the President of the Regional Chamber of Commerce and Industry or by the President of the Île-de-France Regional Chamber of Commerce and Industry, listing the transactions which those persons may carry out. … That licence may be issued only to natural persons on condition that they: 1\. provide proof of their professional credentials; 2\. provide proof of a financial guarantee permitting the reimbursement of funds …; 3\. take out insurance against the financial consequences of their civil and professional liability; 4\. are not caught by one of the validation or disqualification conditions … …’ |

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| 15 | Article 5 of that law provides: ‘The persons referred to in Article 1 who receive or possess sums of money … must respect the conditions laid down by the decree of the Council of State, in particular the formalities of record keeping and the delivery of receipts, as well as other obligations arising from that mandate.’ |

| --- | --- |

| 16 | Article 14 of that law is worded as follows: ‘The following acts are punishable by 6 months’ imprisonment and a fine of EUR 7 500: \| (a) \| lending oneself to or providing assistance on a regular basis, even in an ancillary capacity, to the transactions listed in Article 1 without holding a valid licence issued in accordance with Article 3, or after such a licence has been restored, or if the aforesaid licence has not been restored after a declaration of non-competence from the appropriate administrative body; \| \| --- \| --- \| …’ | (a) | lending oneself to or providing assistance on a regular basis, even in an ancillary capacity, to the transactions listed in Article 1 without holding a valid licence issued in accordance with Article 3, or after such a licence has been restored, or if the aforesaid licence has not been restored after a declaration of non-competence from the appropriate administrative body; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | lending oneself to or providing assistance on a regular basis, even in an ancillary capacity, to the transactions listed in Article 1 without holding a valid licence issued in accordance with Article 3, or after such a licence has been restored, or if the aforesaid licence has not been restored after a declaration of non-competence from the appropriate administrative body; |

| 17 | Article 16 of the Hoguet Law provides: ‘The following acts are punishable by 2 years’ imprisonment and a fine of EUR 30000: 1\. receiving or possessing at the time of the transactions listed in Article 1, in whatever capacity or manner, sums of money, goods, or stocks and bonds that are: \| (a) \| in breach of Article 3; \| \| --- \| --- \| \| (b) \| in breach of the conditions laid down in Article 5 regarding the keeping of records and the delivery of receipts when such documents and receipts are legally required; \| \| --- \| --- \| …’ | (a) | in breach of Article 3; | (b) | in breach of the conditions laid down in Article 5 regarding the keeping of records and the delivery of receipts when such documents and receipts are legally required; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | in breach of Article 3; |

| (b) | in breach of the conditions laid down in Article 5 regarding the keeping of records and the delivery of receipts when such documents and receipts are legally required; |

The dispute in the main proceedings and the questions referred for a preliminary ruling

| 18 | Airbnb Ireland UC, a company established in Dublin (Ireland) under Irish law, is part of the Airbnb Group, made up of a number of companies directly or indirectly owned by Airbnb Inc., which is established in the United States. Airbnb Ireland offers an electronic platform the purpose of which is, on payment of a commission, to establish contact, in particular in France, between, on the one hand, hosts, whether professionals or private individuals, with accommodation to rent and, on the other, people looking for such accommodation. Airbnb Payments UK Ltd, a company established in London (United Kingdom) under the law of the United Kingdom, provides online payment services as part of that contact service and manages the payment activities of the Group in the European Union. In addition, Airbnb France SARL, a company established under French law and a supplier to Airbnb Ireland, is responsible for promoting that platform among users in the French market by organising, inter alia, advertising campaigns for target audiences. |

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| 19 | Apart from the service of connecting hosts and guests using its electronic platform which centralises offers, Airbnb Ireland offers the hosts a certain number of other services, such as a format for setting out the content of their offer, with an option for a photography service, and also with an option for civil liability insurance and a guarantee against damages for up to EUR 800000. Furthermore, it provides them with an optional tool for estimating the rental price having regard to the market averages taken from that platform. In addition, if a host accepts a guest, the guest will transfer to Airbnb Payments UK the rental price to which is added 6% to 12% of that amount in respect of charges and the service provided by Airbnb Ireland. Airbnb Payments UK holds the money on behalf of the guest and then, 24 hours after the guest checks in, sends the money to the host by transfer, thus giving the guest assurance that the property exists and the host a guarantee of payment. Finally, Airbnb Ireland has put in place a system whereby the host and the guest can leave an evaluation on a scale of zero to five stars, and that evaluation is available on the electronic platform at issue. |

| --- | --- |

| 20 | In practice, as is apparent from the explanations provided by Airbnb Ireland, internet users looking for rental accommodation connect to its electronic platform, identify the place where they wish to go to and the period and number of persons of their choice. On that basis, Airbnb Ireland provides them with the list of available accommodation matching those criteria so that the users can select the accommodation of their choice and proceed to reserve it online. |

| --- | --- |

| 21 | In that context, users of the electronic platform at issue, both hosts and guests, conclude a contract with Airbnb Ireland for the use of that platform and with Airbnb Payments UK for the payments made via that platform. |

| --- | --- |

| 22 | On 24 January 2017, the Association pour un hébergement et un tourisme professionnels (Association for professional tourism and accommodation, AHTOP) lodged a complaint together with an application to be joined as a civil party to the proceedings, inter alia, for the practice of activities concerning the mediation and management of buildings and businesses without a professional licence, under the Hoguet Law, between 11 April 2012 and 24 January 2017. |

| --- | --- |

| 23 | In support of its complaint, AHTOP claims that Airbnb Ireland does not merely connect two parties through its platform; it also offers additional services which amount to an intermediary activity in property transactions. |

| --- | --- |

| 24 | On 16 March 2017, after that complaint was lodged, the Public Prosecutor attached to the Tribunal de grande instance de Paris (Regional Court, Paris, France) brought charges, inter alia, for handling monies for activities concerning the mediation and management of buildings and businesses by a person with no professional licence, contrary to the Hoguet Law, for the period between 11 April 2012 and 24 January 2017. |

| --- | --- |

| 25 | Airbnb Ireland denies acting as a real estate agent and argues that the Hoguet Law is inapplicable on the ground that it is incompatible with Directive 2000/31. |

| --- | --- |

| 26 | In that context, the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) is uncertain whether the service provided by Airbnb Ireland should be classified as an ‘information society service’ within the meaning of that directive and, if so, whether it precludes the Hoguet Law from being applied to that company in the main proceedings or whether, on the contrary, that directive does not preclude criminal proceedings being brought against Airbnb Ireland on the basis of that law. |

| --- | --- |

| 27 | In those circumstances the investigating judge of the tribunal de grande instance de Paris (Regional Court, Paris) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: \| ‘(1) \| Do the services provided in France by … Airbnb Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services established in Article 3 of \[Directive 2000/31\]? \| \| --- \| --- \| \| (2) \| Are the restrictive rules relating to the exercise of the profession of real estate agent in France laid down by \[the Hoguet Law\] enforceable against Airbnb Ireland?’ \| \| --- \| --- \| | ‘(1) | Do the services provided in France by … Airbnb Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services established in Article 3 of \[Directive 2000/31\]? | (2) | Are the restrictive rules relating to the exercise of the profession of real estate agent in France laid down by \[the Hoguet Law\] enforceable against Airbnb Ireland?’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(1) | Do the services provided in France by … Airbnb Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services established in Article 3 of \[Directive 2000/31\]? |

| (2) | Are the restrictive rules relating to the exercise of the profession of real estate agent in France laid down by \[the Hoguet Law\] enforceable against Airbnb Ireland?’ |

Consideration of the questions referred

Admissibility of the request for a preliminary ruling

| 28 | Airbnb Ireland claims that the referring court is wrong to take the view that the activities of Airbnb Ireland come within the scope of the Hoguet Law. The French Government expressed the same view at the hearing. |

| --- | --- |

| 29 | In that regard, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 22 June 2010, Melki and Abdeli, [C‑188/10 and C‑189/10](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A363&locale=en), [EU:C:2010:363](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A363&lang=EN&format=pdf&target=null), paragraph [27](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A363&lang=EN&format=html&target=null&anchor=#point27)). |

| --- | --- |

| 30 | In the present case, as the French Government acknowledges, in essence, the referring court raises the issue of the enforceability of the provisions of the Hoguet Law against Airbnb Ireland because it implicitly considers that the intermediation service provided by that company falls within the material scope of that law. |

| --- | --- |

| 31 | However, it is not manifestly apparent that the referring court’s interpretation of the Hoguet Law is clearly precluded in the light of the wording of the provisions of national law contained in the order for reference (see, by analogy, judgment of 22 June 2010, Melki and Abdeli, [C‑188/10 and C‑189/10](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A363&locale=en), [EU:C:2010:363](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A363&lang=EN&format=pdf&target=null), paragraph [28](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2010%3A363&lang=EN&format=html&target=null&anchor=#point28)). |

| --- | --- |

| 32 | Airbnb Ireland further submits that the order for reference contains a summary of French national legislation and that it should have taken into consideration other provisions of that legislation. For its part, the Commission argues that that decision is vitiated by a lack of factual details. |

| --- | --- |

| 33 | In the present case, the order for reference sets out briefly but precisely the relevant national legal context and the origin and nature of the dispute. It follows that the referring court has defined the factual and legal context of its request for an interpretation of EU law sufficiently and that it has provided the Court with all the information necessary to enable it to reply usefully to that request (judgment of 23 March 2006, Enirisorse, [C‑237/04](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2006%3A197&locale=en), [EU:C:2006:197](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A197&lang=EN&format=pdf&target=null), paragraph [19](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2006%3A197&lang=EN&format=html&target=null&anchor=#point19)). |

| --- | --- |

| 34 | In those circumstances, this request for a preliminary ruling cannot be considered to be inadmissible in its entirety. |

| --- | --- |

Preliminary observations

| 35 | In their observations, AHTOP and the Commission respectively argue that the legislation at issue in the main proceedings must be assessed having regard, not only to Directive 2000/31, but also to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications ([OJ 2005 L 255, p. 22](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2005:255:TOC)) and Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC ([OJ 2007 L 319, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2007:319:TOC)). |

| --- | --- |

| 36 | In that regard, it should be pointed out that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to rule on the case before it. In that context, the Court may extract from all the information provided by the national court, in particular from the grounds of the order for reference, the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings in order to reformulate the questions referred to it and to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in those questions (see, to that effect, judgment of 16 July 2015, Abcur, [C‑544/13 and C‑545/13](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A481&locale=en), [EU:C:2015:481](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A481&lang=EN&format=pdf&target=null), paragraphs [33](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A481&lang=EN&format=html&target=null&anchor=#point33) and [34](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A481&lang=EN&format=html&target=null&anchor=#point34) and the case-law cited). |

| --- | --- |

| 37 | However, it is for the national court alone to determine the subject matter of the questions which it wishes to refer to the Court. Thus, where the request itself does not reveal a need to reformulate those questions, the Court cannot, at the request of one of the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union, examine questions which have not been submitted to it by the national court. If, in view of developments during the proceedings, the national court were to consider it necessary to obtain further interpretations of EU law, it would be for it to make a fresh reference to the Court (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, [C‑98/14](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A386&locale=en), [EU:C:2015:386](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A386&lang=EN&format=pdf&target=null), paragraph [48](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A386&lang=EN&format=html&target=null&anchor=#point48) and the case-law cited). |

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| 38 | In the present case, and in the absence of any mention of Directives 2005/36 and 2007/64 in the questions referred or indeed of any other explanations in the order for reference that require the Court to consider the interpretation of those directives in order to provide a useful reply to the referring court, there is no reason for the Court to examine the arguments relating to those directives, which would effectively result in the Court modifying the substance of the questions referred to it. |

| --- | --- |

The first question

| 39 | By its first question, the referring court asks, in essence, whether Article 2(a) of Directive 2000/31 must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of other services, such as a format for setting out the content of their offer, a photography service, civil liability insurance and a guarantee against damages, a tool for estimating the rental price or payment services for those accommodation services, must be classified as an ‘information society service’ under Directive 2000/31. |

| --- | --- |

| 40 | As a preliminary point, it should be stated, first — and this is not disputed by any of the parties or by the other interested parties involved in the present proceedings — that the activity of intermediation at issue in the main proceedings comes under the notion of ‘service’ within the meaning of Article 56 TFEU and Directive 2006/123. |

| --- | --- |

| 41 | Secondly, it must nevertheless be recalled that, under Article 3(1) of Directive 2006/123, that directive does not apply if its provisions conflict with a provision of another EU act governing specific aspects of access to, or the exercise of, a service activity in specific services or for specific professions. |

| --- | --- |

| 42 | Therefore, in order to determine whether a service such as the one at issue in the main proceedings comes under Directive 2006/123, as is claimed by AHTOP and the French Government, or by contrast, under Directive 2000/31, as is maintained by Airbnb Ireland, the Czech and Luxembourg Governments and the Commission, it is necessary to determine whether such a service must be qualified as an ‘information society service’, within the meaning of Article 2(a) of Directive 2000/31. |

| --- | --- |

| 43 | In that regard, and bearing in mind the period covered by the facts referred to in the complaint lodged by AHTOP and the criminal proceedings with an ancillary civil action pending before the referring court, the definition of the notion of ‘information society service’ under Article 2(a) of Directive 2000/31, was successively referred to in point 2 of the first paragraph of Article 1 of Directive 98/34 and then, as of 7 October 2015, in Article 1(1)(b) of Directive 2015/1535. That definition was not, however, amended on the entry into force, on 7 October 2015, of Directive 2015/1535, for which reason only that directive will be referred to in this judgment. |

| --- | --- |

| 44 | Under Article 1(1)(b) of Directive 2015/1535, the concept of an ‘information society service’ covers ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. |

| --- | --- |

| 45 | In the present case, the referring court states, as is clear from paragraph 18 above, that the service at issue in the main proceedings, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services so as to enable the former to reserve accommodation. |

| --- | --- |

| 46 | It follows, first of all, that that service is provided for remuneration, even though the remuneration received by Airbnb Payments UK is only collected from the guest and not also from the host. |

| --- | --- |

| 47 | Next, in so far as the host and the guest are connected by means of an electronic platform without the intermediation service provider, on the one hand, or the host or guest, on the other, being present at the same time, that service constitutes a service which is provided electronically and at a distance. Indeed, at no point during the process of concluding the contracts between, on the one hand, Airbnb Ireland or Airbnb Payments UK and, on the other, the host or the guest, do the parties come into contact other than by means of the Airbnb Ireland electronic platform. |

| --- | --- |

| 48 | Finally, the service in question is provided at the individual request of the recipients of the service, since it involves both the placing online of an advertisement by the host and an individual request from the guest who is interested in that advertisement. |

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| 49 | Therefore, such a service meets the four cumulative conditions laid down in Article 1(1)(b) of Directive 2015/1535 and therefore, in principle, constitutes an ‘information society service’ within the meaning of Directive 2000/31. |

| --- | --- |

| 50 | However, as the parties and the other interested parties involved in the present proceedings submit, the Court has held that, although an intermediation service which satisfies all of those conditions, in principle, constitutes a service distinct from the subsequent service to which it relates and must therefore be classified as an ‘information society service’, that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (see, to that effect, judgment of 20 December 2017, Asociación Profesional Elite Taxi, [C‑434/15](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A981&locale=en), [EU:C:2017:981](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=pdf&target=null), paragraph [40](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=html&target=null&anchor=#point40)). |

| --- | --- |

| 51 | In the present case, AHTOP essentially claims that the service provided by Airbnb Ireland forms an integral part of an overall service, whose main component is the provision of an accommodation service. To that end, it submits that Airbnb Ireland does not just connect two parties through its electronic platform of the same name, but also offers additional services which are characteristic of an intermediary activity in property transactions. |

| --- | --- |

| 52 | However, although it is true that the purpose of the intermediation service provided by Airbnb Ireland is to enable the renting of accommodation — and it is common ground that that comes under Directive 2006/123 — the nature of the links between those services does not justify departing from the classification of that intermediation service as an ‘information society service’ and therefore the application of Directive 2000/31 to it. |

| --- | --- |

| 53 | Such an intermediation service cannot be separated from the property transaction itself, in that it is intended not only to provide an immediate accommodation service, but also, on the basis of a structured list of the places of accommodation available on the electronic platform of the same name and corresponding to the criteria selected by the persons looking for short-term accommodation, to provide a tool to facilitate the conclusion of contracts concerning future interactions. It is the creation of such a list for the benefit both of the hosts who have accommodation to rent and persons looking for that type of accommodation which constitutes the essential feature of the electronic platform managed by Airbnb Ireland. |

| --- | --- |

| 54 | In that regard, because of its importance, the compiling of offers using a harmonised format, coupled with tools for searching for, locating and comparing those offers, constitutes a service which cannot be regarded as merely ancillary to an overall service coming under a different legal classification, namely provision of an accommodation service. |

| --- | --- |

| 55 | In addition, a service such as the one provided by Airbnb Ireland is in no way indispensable to the provision of accommodation services, both from the point of view of the guests and the hosts who use it, since both have a number of other, sometimes long-standing, channels at their disposal, such as estate agents, classified advertisements, whether in paper or electronic format, or even property lettings websites. In that regard, the mere fact that Airbnb Ireland is in direct competition with those other channels by providing its users, both hosts and guests, with an innovative service based on the particular features of commercial activity in the information society does not permit the inference that it is indispensable to the provision of an accommodation service. |

| --- | --- |

| 56 | Finally, it is not apparent, either from the order for reference or from the information in the file before the Court, that Airbnb Ireland sets or caps the amount of the rents charged by the hosts using that platform. At most, it provides them with an optional tool for estimating their rental price having regard to the market averages taken from that platform, leaving responsibility for setting the rent to the host alone. |

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| 57 | As such, it follows that an intermediation service such as the one provided by Airbnb Ireland cannot be regarded as forming an integral part of an overall service, the main component of which is the provision of accommodation. |

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| 58 | None of the other services mentioned in paragraph 19 above, taken together or in isolation, call into question that finding. On the contrary, such services are ancillary in nature, given that, for the hosts, they do not constitute an end in themselves, but rather a means of benefiting from the intermediation service provided by Airbnb Ireland or of offering accommodation services in the best conditions (see, by analogy, judgments of 21 February 2008, Part Service, [C‑425/06](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2008%3A108&locale=en), [EU:C:2008:108](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A108&lang=EN&format=pdf&target=null), paragraph [52](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2008%3A108&lang=EN&format=html&target=null&anchor=#point52); of 10 November 2016, Baštová, [C‑432/15](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A855&locale=en), [EU:C:2016:855](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A855&lang=EN&format=pdf&target=null), paragraph [71](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A855&lang=EN&format=html&target=null&anchor=#point71); and of 4 September 2019, KPC Herning, [C‑71/18](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A660&locale=en), [EU:C:2019:660](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2019%3A660&lang=EN&format=pdf&target=null), paragraph [38](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2019%3A660&lang=EN&format=html&target=null&anchor=#point38)). |

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| 59 | First of all, that is the case as regards the fact that, in addition to its activity of connecting hosts and guests via the electronic platform of the same name, Airbnb Ireland provides hosts with a format for setting out the content of their offer, an optional photography service for the rental property and a system for rating hosts and guests which is available to future hosts and guests. |

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| 60 | Such tools form part of the collaborative model inherent in intermediation platforms, which makes it possible, first, for those seeking accommodation to make a fully informed choice from among the accommodation offerings proposed by the hosts on the platform and, secondly, for hosts to be fully informed of the reliability of the guests with whom they might engage. |

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| 61 | Next, that is the case with regard to the fact that Airbnb Payments UK, a company within the Airbnb Group, is responsible for collecting the rents from the guests and then transferring those rents to the hosts, in accordance with the conditions set out in paragraph 19 above. |

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| 62 | Such payment conditions, which are common to a large number of electronic platforms, are a tool for securing transactions between hosts and guests, and their presence alone cannot modify the nature of the intermediation service, especially where such payment conditions are not accompanied, directly or indirectly, by price controls for the provision of accommodation, as was pointed out in paragraph 56 above. |

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| 63 | Finally, nor is the fact that Airbnb Ireland offers hosts a guarantee against damage and, as an option, civil liability insurance capable of modifying the legal classification of the intermediation service provided by that platform. |

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| 64 | Even taken together, the services, optional or otherwise, provided by Airbnb Ireland and referred to in paragraphs 59 to 63 above, do not call into question the separate nature of the intermediation service provided by that company and therefore its classification as an ‘information society service’, since they do not substantially modify the specific characteristics of that service. In that regard, it is also paradoxical that such added-value ancillary services provided by an electronic platform to its customers, in particular to distinguish itself from its competitors, may, in the absence of additional elements, result in the nature and therefore the legal classification of that platform’s activity being modified, as was observed by the Advocate General in point 46 of his Opinion. |

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| 65 | Furthermore, and contrary to what AHTOP and the French Government maintain, the rules for the functioning of an intermediation service such as the one provided by Airbnb cannot be equated to those of the intermediation service which gave rise to the judgments of 20 December 2017, Asociación Profesional Elite Taxi ([C‑434/15](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A981&locale=en), [EU:C:2017:981](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=pdf&target=null), paragraph [39](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=html&target=null&anchor=#point39)), and of 10 April 2018, Uber France ([C‑320/16](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A221&locale=en), [EU:C:2018:221](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2018%3A221&lang=EN&format=pdf&target=null), paragraph [21](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2018%3A221&lang=EN&format=html&target=null&anchor=#point21)). |

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| 66 | Apart from the fact that those judgments were given in the specific context of urban passenger transport to which Article 58(1) TFEU applies and that the services provided by Airbnb Ireland are not comparable to those that were at issue in the cases giving rise to the judgments referred to in the previous paragraph, the ancillary services referred to in paragraphs 59 to 63 above do not provide evidence for the same level of control found by the Court in those judgments. |

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| 67 | Thus, the Court stated in those judgments that Uber exercised decisive influence over the conditions under which transport services were provided by the non-professional drivers using the application made available to them by that company (judgments of 20 December 2017, Asociación Profesional Elite Taxi, [C‑434/15](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2017%3A981&locale=en), [EU:C:2017:981](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=pdf&target=null), paragraph [39](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2017%3A981&lang=EN&format=html&target=null&anchor=#point39), and of 10 April 2018, Uber France, [C‑320/16](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A221&locale=en), [EU:C:2018:221](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2018%3A221&lang=EN&format=pdf&target=null), paragraph [21](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2018%3A221&lang=EN&format=html&target=null&anchor=#point21)). |

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| 68 | The matters mentioned by the referring court and recalled in paragraph 19 above do not establish that Airbnb Ireland exercises such a decisive influence over the conditions for the provision of the accommodation services to which its intermediation service relates, particularly since Airbnb Ireland does not determine, directly or indirectly, the rental price charged, as was established in paragraphs 56 and 62 above, still less does it select the hosts or the accommodation put up for rent on its platform. |

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| 69 | In the light of the foregoing, the answer to the first question is that Article 2(a) of Directive 2000/31, which refers to Article 1(1)(b) of Directive 2015/1535, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. |

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The second question

Jurisdiction

| 70 | The French Government submits that the Court manifestly lacks jurisdiction to answer the second question, inasmuch as the referring court is asking the Court of Justice to decide whether the activities of Airbnb Ireland fall within the material scope of the Hoguet Law and therefore to interpret French law. |

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| 71 | It is, however, clear from the wording of the second question that the referring court is not thereby asking the Court whether the Hoguet Law applies to the activities of Airbnb Ireland, but whether that law, which it finds to be restrictive of the freedom to provide information society services, is enforceable against that company. |

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| 72 | That question which is closely linked to the power given in Article 3(4)(a) of Directive 2000/31 to Member States to derogate from the principle of the freedom to provide information society services and to the obligation for those Member States to give the Commission and the relevant Member State notification of the measures adversely affecting that principle, as provided for in Article 3(4)(b) of that directive, is a question concerning the interpretation of EU law. |

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| 73 | Therefore, the Court has jurisdiction to answer that question. |

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Admissibility

| 74 | In the alternative, the French Government submits that, since the referring court has failed to establish that the activities of Airbnb Ireland fall within the material scope of the Hoguet Law, its second question does not set out the reasons why it is unsure as to the interpretation of Directive 2000/31 and does not identify the link which that court establishes between that directive and the Hoguet Law. It does not therefore satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and is accordingly inadmissible. |

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| 75 | In that regard, as was set out in paragraph 30 above, it is clear from the second question that, according to the referring court, the intermediation service provided by Airbnb Ireland through the electronic platform of the same name falls within the material scope of that law. |

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| 76 | In addition, by referring to the restrictive nature of that law as regards services such as the intermediation service at issue in the main proceedings and the principle of the freedom to provide information society services, recognised in Articles 1 and 3 of Directive 2000/31, while setting out the difficulties of interpreting that directive with regard to the question whether national legislation such as the Hoguet Law may be enforced against Airbnb Ireland, the referring court satisfies the minimum requirements laid down by Article 94 of the Rules of Procedure. |

| --- | --- |

| 77 | Accordingly, the second question is admissible. |

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Substance

| 78 | By its second question, the referring court asks the Court of Justice whether the legislation at issue in the main proceedings is enforceable against Airbnb Ireland. |

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| 79 | That question is prompted by the argument advanced by Airbnb Ireland concerning the incompatibility of the provisions of the Hoguet Law at issue in the main proceedings with Directive 2000/31 and, more particularly, by the fact that the French Republic has not satisfied the conditions laid down in Article 3(4) of that directive allowing Member States to adopt measures restricting the freedom to provide information society services. |

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| 80 | The second question should therefore be construed as asking whether Article 3(4) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures do not satisfy all the conditions laid down by that provision. |

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| 81 | As a preliminary point, it should be noted that the legislation at issue in the main proceedings, as the referring court points out, is restrictive of the freedom to provide information society services. |

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| 82 | First, the requirements of the Hoguet Law mentioned by the referring court, principally the obligation to hold a professional licence, concern access to the activity of connecting hosts who have places of accommodation and persons seeking that type of accommodation within the meaning of Article 2(h)(i) of Directive 2000/31 and do not come under any of the excluded categories referred to in Article 2(h)(ii) of that directive. Secondly, they apply inter alia to service providers established in Member States other than the French Republic, thereby making the provision of their services in France more difficult. |

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| 83 | Under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to two cumulative conditions. |

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| 84 | First, under Article 3(4)(a) of Directive 2000/31, the restrictive measure concerned must be necessary in the interests of public policy, the protection of public health, public security or the protection of consumers; it must be taken against an information society service which actually undermines those objectives or constitutes a serious and grave risk to those objectives and, finally, it must be proportionate to those objectives. |

| --- | --- |

| 85 | Secondly, under the second indent of Article 3(4)(b) of that directive, before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State concerned must notify the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt the restrictive measures concerned. |

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| 86 | With regard to the second condition, the French Government accepts that the Hoguet Law did not give rise to a notification by the French Republic either to the Commission or to the Member State of establishment of Airbnb Ireland, that is to say, Ireland. |

| --- | --- |

| 87 | It must be stated at the outset that the fact that that law predates the entry into force of Directive 2000/31 cannot have had the consequence of freeing the French Republic of its notification obligation. As the Advocate General stated in point 118 of his Opinion, the EU legislature did not make provision for a derogation authorising Member States to maintain measures predating that directive and which could restrict the freedom to provide information society services without complying with the conditions laid down for that purpose by that directive. |

| --- | --- |

| 88 | It is therefore necessary to determine whether a Member State’s failure to fulfil its obligation to give prior notification of the measures restricting the freedom to provide information society services coming from another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the legislation concerned unenforceable against individuals, in the same way as a Member State’s failure to fulfil its obligation to give prior notification of the technical rules, laid down in Article 5(1) of Directive 2015/1535, has that consequence (see, to that effect, judgment of 30 April 1996, CIA Security International, [C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null), paragraph [54](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point54)). |

| --- | --- |

| 89 | In that regard, it should, first, be pointed out that the second indent of Article 3(4)(b) of Directive 2000/31 imposes a specific obligation for Member States to notify the Commission and the Member State on whose territory the service provider in question is established of their intention to adopt measures restricting the freedom to provide information society services. |

| --- | --- |

| 90 | From the point of view of its content, the obligation laid down in that provision is therefore sufficiently clear, precise and unconditional to confer on it direct effect and, therefore, it may be invoked by individuals before the national courts (see, by analogy, judgment of 30 April 1996, CIA Security International, [C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null), paragraph [44](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point44)). |

| --- | --- |

| 91 | Secondly, it is common ground that, as is apparent from Article 3(2) of Directive 2000/31, read in conjunction with recital 8 of that directive, the objective of that directive is to ensure the freedom to provide information society services between Member States. That objective is pursued by way of a mechanism for monitoring measures capable of undermining it, which makes it possible for both the Commission and the Member State on whose territory the service provider in question is established to ensure that those measures are necessary in furtherance of overriding reasons in the general interest. |

| --- | --- |

| 92 | In addition, and as is apparent from Article 3(6) of that directive, the Commission, which is responsible for examining without delay the compatibility with EU law of the notified measures, is required, when it reaches the conclusion that the proposed measures are incompatible with EU law, to ask the Member State concerned to refrain from adopting those measures or to put an end to the measures in question as a matter of urgency. Thus, under that procedure, the Commission can avoid the adoption or at least the maintenance of obstacles to trade contrary to the TFEU, in particular by proposing amendments to be made to the national measures concerned (see, by analogy, judgment of 30 April 1996, CIA Security International, [C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null), paragraph [41](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point41)). |

| --- | --- |

| 93 | It is true, as the Spanish Government, in particular, submits and as is apparent from Article 3(6) of Directive 2000/31, that the second indent of Article 3(4)(b) of that directive, unlike Article 5(1) of Directive 2015/1535, does not formally impose any standstill obligation on a Member State which intends to adopt a measure restricting the freedom to provide an information society service. However, as was pointed out in paragraph 89 above, except in duly justified urgent cases, the Member State concerned must give prior notification to the Commission and the Member State on whose territory the service provider in question is established of its intention to adopt such a measure. |

| --- | --- |

| 94 | In view of the matters raised in paragraphs 89 to 92 above, the prior notification obligation established by the second indent of Article 3(4)(b) of Directive 2000/31 is not simply a requirement to provide information, comparable to the one at issue in the case which gave rise to the judgment of 13 July 1989, Enichem Base and Others ([380/87](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1989%3A318&locale=en), [EU:C:1989:318](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1989%3A318&lang=EN&format=pdf&target=null), paragraphs [19](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1989%3A318&lang=EN&format=html&target=null&anchor=#point19) to [24](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1989%3A318&lang=EN&format=html&target=null&anchor=#point24)), but rather an essential procedural requirement which justifies the unenforceability of non-notified measures restricting the freedom to provide an information society service against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, [C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null), paragraphs [49](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point49) and [50](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point50)). |

| --- | --- |

| 95 | Thirdly, the extension to Directive 2000/31 of the solution adopted by the Court in the judgment of 30 April 1996, CIA Security International ([C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null)), in relation to Directive 2015/1535, is all the more justified, as was correctly pointed out by the Commission at the hearing, by the fact that the notification obligation under the second indent of Article 3(4)(b) of Directive 2000/31, like the measure at issue in the case which gave rise to that judgment, is not intended to prevent a Member State from adopting measures falling within its own field of competence and which could affect the freedom to provide services, but to prevent a Member State from impinging on the competence, as a matter of principle, of the Member State where the provider of the information society service concerned is established. |

| --- | --- |

| 96 | It follows from the foregoing that a Member State’s failure to fulfil its obligation to give notification of a measure restricting the freedom to provide an information society service provided by an operator established on the territory of another Member State, laid down in the second indent of Article 3(4)(b) of Directive 2000/31, renders the measure unenforceable against individuals (see, by analogy, judgment of 30 April 1996, CIA Security International, [C‑194/94](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1996%3A172&locale=en), [EU:C:1996:172](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=pdf&target=null), paragraph [54](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A1996%3A172&lang=EN&format=html&target=null&anchor=#point54)). |

| --- | --- |

| 97 | In that regard, it must also be pointed out that, as was the case in relation to the technical rules of which the Member State did not give notification in accordance with Article 5(1) of Directive 2015/1535, the fact that a non-notified measure restricting the freedom to provide information society services is unenforceable may be relied on, not only in criminal proceedings (see, by analogy, judgment of 4 February 2016, Ince, [C‑336/14](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A72&locale=en), [EU:C:2016:72](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A72&lang=EN&format=pdf&target=null), paragraph [84](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A72&lang=EN&format=html&target=null&anchor=#point84)), but also in a dispute between individuals (see, by analogy, judgment of 27 October 2016, James Elliott Construction, [C‑613/14](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A821&locale=en), [EU:C:2016:821](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A821&lang=EN&format=pdf&target=null), paragraph [64](./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2016%3A821&lang=EN&format=html&target=null&anchor=#point64) and the case-law cited). |

| --- | --- |

| 98 | Therefore, in proceedings such as those at issue in the main proceedings, in which, in the course of an action before a criminal court, an individual seeks compensation from another individual for harm originating in the offence being prosecuted, a Member State’s failure to fulfil its obligation to give notification of that offence under the second indent of Article 3(4)(b) of Directive 2000/31 makes the national provision laying down that offence unenforceable against the individual being prosecuted and enables that person to rely on that failure to fulfil an obligation, not only in criminal proceedings brought against that individual, but also in the claim for damages brought by the individual who has been joined as a civil party. |

| --- | --- |

| 99 | Bearing in mind that the French Republic did not give notification of the Hoguet Law and given the cumulative nature of the conditions laid down in Article 3(4) of Directive 2000/31, recalled in paragraphs 84 and 85 above, the view must be taken that that law cannot, on any view, be applied to an individual in a situation like that of Airbnb Ireland in the main proceedings, regardless of whether that law satisfies the other conditions laid down in that provision. |

| --- | --- |

| 100 | In the light of the foregoing, the answer to the second question is that the second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. |

| --- | --- |

Costs

| 101 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (Grand Chamber) hereby rules: |

| --- | --- |

| | \| 1. \| Article 2(a) of 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’), which refers to Article 1(1)(b) of 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 of rules on Information Society services, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. \| \| --- \| --- \| | 1. | Article 2(a) of 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’), which refers to Article 1(1)(b) of 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 of rules on Information Society services, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 1. | Article 2(a) of 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’), which refers to Article 1(1)(b) of 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 of rules on Information Society services, must be interpreted as meaning that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31. |

| | \| 2. \| The second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. \| \| --- \| --- \| | 2. | The second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| 2. | The second indent of Article 3(4)(b) of Directive 2000/31 must be interpreted as meaning that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide an information society service which that individual provides from another Member State, where those measures were not notified in accordance with that provision. |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62018CJ0390_EN_01-E0001) ) Language of the case: French.

**Joined Cases C-509/09 and C-161/10**

**eDate Advertising GmbH**

**v**

**X**

**and**

**Olivier Martinez and Robert Martinez**

**v**

**MGN Limited**

(References for a preliminary ruling from the Bundesgerichtshof and from the tribunal de grande instance de Paris)

(Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)

Summary of the Judgment

1\. *Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website – Place where the harmful event occurs – Definition*

*(Council Regulation No 44/2001, Art. 5(3))*

2\. *Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website*

*(Council Regulation No 44/2001, Art. 5(3))*

3\. *Approximation of laws – Electronic commerce – Directive 2000/31 – Provisions concerning the internal market – Obligation, for the Member States, not to make the suppliers of services subject to stricter requirements than those laid down by the Member State in which that service provider is established – Scope*

*(European Parliament and Council Directive 2000/31, Art. 3)*

The rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.

However, when a victim relies on a personality right by means of content placed on an internet site, in so far as the scope of the diffusion of content place online is in principle universal, the difficulties in giving effect to the criterion relating to the occurrence of damage due to the diffusion of information require the connecting criteria to be adapted in such a way that the victim of such an infringement may bring an action, in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred.

Given that the impact which material placed online is liable to have on an individual’s personality rights may best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice. That place corresponds in general to the habitual residence of the victim, but it may also be a Member State where the victim does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.

The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued.

(see paras 40-41, 46-50)

Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

(see para. 52, operative part 1)

Article 3 of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of that directive, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

(see para. 68, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

25 October 2011 ([\*](#Footnote*))

(Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)

In Joined Cases C‑509/09 and C‑161/10,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany) (C‑509/09) and the Tribunal de grande instance de Paris (France) (C‑161/10), made by decisions of 10 November 2009 and 29 March 2010, received at the Court, respectively, on 9 December 2009 and 6 April 2010, in the proceedings

**eDate Advertising GmbH**

v

**X**

and

**Olivier Martinez,**

**Robert Martinez**

v

**MGN Limited,**

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, U. Lõhmus and M. Safjan (Rapporteur), Presidents of Chambers, E. Levits, A. Ó Caoimh, L. Bay Larsen, and T. von Danwitz, Judges,

Advocate General: P. Cruz Villalón,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 December 2010,

after considering the observations submitted on behalf of:

– eDate Advertising GmbH, by H. Graupner and M. Dörre, Rechtsanwälte,

– X, by A. Stopp, Rechtsanwalt,

– MGN Limited, by C. Bigot, avocat,

– the German Government, by J. Möller and J. Kemper, acting as Agents,

– the French Government, by G. de Bergues and B. Beaupère‑Manokha, acting as Agents,

– the Danish Government, by C. Vang, acting as Agent,

– the Greek Government, by S. Chala, acting as Agent,

– the Italian Government, by W. Ferrante, acting as Agent,

– the Luxembourg Government, by C. Schiltz, acting as Agent,

– the Austrian Government, by C. Pesendorfer and E. Riedl, acting as Agents,

– the United Kingdom Government, by F. Penlington, acting as Agent, and by J. Stratford, QC,

– the European Commission, by M. Wilderspin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 29 March 2011,

gives the following

**Judgment**

1 The present references for a preliminary ruling concern the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Regulation’) and Article 3(1) and (2) of 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 2000 L 178, p. 1; ‘the Directive’).

2 The references have been made in two sets of proceedings, between, firstly, X and eDate Advertising GmbH (‘eDate Advertising’) and, secondly, Olivier and Robert Martinez, on the one hand, and MGN Limited (‘MGN’), on the other hand, concerning the civil liability of those defendants in respect of information and photographs published on the internet.

**Legal context**

*The Regulation*

3 Recital 11 in the preamble to the Regulation states:

‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’

4 Article 2(1) of the Regulation, which appears in Section 1 (‘General provisions’) of Chapter II (‘Jurisdiction’) thereof, provides as follows:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

5 Article 3(1) of the Regulation provides:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

6 In Section 2, entitled ‘Special jurisdiction’, of Chapter II, Article 5(3) is worded as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

…

3\. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

*The Directive*

7 The fourth clause in recital 22 in the preamble to the Directive reads as follows:

‘\[M\]oreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established.’

8 Recital 23 in the preamble to the Directive states:

‘This Directive neither aims to establish additional rules on private international law relating to conflicts of law nor does it deal with the jurisdiction of Courts; provisions of the applicable law designated by rules of private international law must not restrict the freedom to provide information society services as established in this Directive.’

9 Recital 25 in the preamble to the Directive states:

‘National courts, including civil courts, dealing with private law disputes can take measures to derogate from the freedom to provide information society services in conformity with conditions established in this Directive.’

10 In accordance with Article 1(1) thereof, the Directive has as its objective to ‘contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.’

11 Article 1(4) of the Directive is worded as follows:

‘This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.’

12 Under Article 2(h)(i) of the Directive:

‘The coordinated field concerns requirements with which the service provider has to comply in respect of:

– the taking-up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service, including those applicable to advertising and contracts, or requirements concerning the liability of the service provider’.

13 Article 3(1) and (2) of the Directive provides:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’

14 Article 3(4) of the Directive sets out the conditions under which Member States may take, in respect of a given information society service, measures that derogate from Article 3(2).

**The disputes in the main proceedings and the questions referred for a preliminary ruling**

*Case C-509/09*

15 In 1993, X, who is domiciled in Germany, was sentenced by a German court, together with his brother, to life imprisonment for the murder of a well‑known actor. He was released on parole in January 2008.

16 eDate Advertising, which is established in Austria, operates an internet portal under the address ‘www.rainbow.at’. In the section ‘Info‑News’, on the pages dedicated to old news, the defendant made access to a report, dated 23 August 1999, available for purposes of consultation until 18 June 2007. That report, which named X and his brother, stated that they had both lodged appeals against their conviction with the Bundesverfassungsgericht (Federal Constitutional Court) in Karlsruhe (Germany). In addition to a brief description of the crime committed in 1990, the lawyer instructed by the convicted men is quoted as saying that they intended to prove that several of the principal witnesses for the prosecution had not told the truth at the trial.

17 X called upon eDate Advertising to desist from reporting that matter and to give an undertaking that it would refrain from future publication. eDate Advertising did not reply to that letter but, on 18 June 2007, removed the disputed information from its website.

18 By his action before the German courts, X calls upon eDate Advertising to refrain from using his full name when reporting about him in connection with the crime committed. The main contention of eDate Advertising is that the German courts have no international jurisdiction in the matter. As the action was successful in both lower courts, eDate Advertising continues, before the Bundesgerichtshof (German Federal Court of Justice), to seek to have the action dismissed.

19 The Bundesgerichtshof notes that the outcome of the action is dependent on whether the lower courts were correct in holding that they have international jurisdiction to rule on the dispute pursuant to Article 5(3) of the Regulation.

20 If the international jurisdiction of the German courts is established, the Bundesgerichtshof states that the question then arises as to whether German or Austrian law applies. That depends on the interpretation of Article 3(1) and (2) of the Directive.

21 On the one hand, the country-of-origin principle may have a corrective effect on a substantive law level. The substantive law outcome under the law declared to be applicable pursuant to the conflict-of-laws rules of the State in which the court seised is situated is, in individual cases, altered in its content, where appropriate, and reduced to the less stringent requirements of the law of the country of origin. According to this interpretation, the country-of-origin principle does not affect the national conflict-of-laws rules of the State in which the court seised is situated and applies – in the same way as the fundamental freedoms set out in the EC Treaty – only in the context of an individual cost/benefit comparison at a national law level.

22 On the other hand, Article 3 of the Directive may establish a general principle with regard to conflict-of-laws rules that leads to the exclusive application of the law in force in the country of origin and the ousting of the national conflict-of-laws rules.

23 The Bundesgerichtshof states that if the country-of-origin principle were to be considered to be an obstacle to the application of law on a substantive level, German private international law would be applicable and the decision under challenge would then have to be set aside and the action ultimately dismissed, since the applicant’s claim seeking an injunction under German law would have to be refused. By contrast, if the country-of-origin principle were to be treated as a conflict-of-laws rule, X’s claim for an injunction would then have to be assessed according to Austrian law.

24 In those circumstances, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is the phrase “the place where the harmful event... may occur” in Article 5(3) of \[the Regulation\] to be interpreted as meaning, in the event of (possible) infringements of the right to protection of personality by means of content on an internet website,

that the person concerned may also bring an action for an injunction against the operator of the website, irrespective of the Member State in which the operator is established, in the courts of any Member State in which the website may be accessed,

or

does the jurisdiction of the courts of a Member State in which the operator of the website is not established require that there be a special connection between the contested content or the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility?

2\. If such a special domestic connecting factor is necessary:

What are the criteria which determine that connection?

Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at the internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests – the applicant’s interest in respect for his right to protection of personality and the operator’s interest in the design of his website and in news reporting – may actually have occurred or may occur in the State of the court seised?

Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised?

3\. If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised:

Must Article 3(1) and (2) of \[the Directive\] be interpreted as meaning:

that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law they also require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-laws rules,

or

do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-laws rules is altered and reduced to the requirements of the country of origin?

In the event that Article 3(1) and (2) of \[the Directive\] has a conflict-of-laws character:

Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-laws rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible?’

*Case C‑161/10*

25 Before the Tribunal de grande instance de Paris (Paris Regional Court), the French actor Olivier Martinez and his father, Robert Martinez, complain of interference with their private lives and infringement of the right of Olivier Martinez to his image by reason of the posting, on the website accessible at the internet address ‘www.sundaymirror.co.uk’, of a text in English, dated 3 February 2008, entitled ‘Kylie Minogue is back with Olivier Martinez’, with details of their meeting.

26 On the basis of Article 9 of the French Civil Code, which provides that ‘everyone has the right to respect for his private life’, the present action has been brought against MGN, a company governed by English law, which publishes the website of the British newspaper the *Sunday Mirror*. That company raises the objection that the Tribunal de grande instance de Paris lacks jurisdiction as there is no sufficient connecting link between the act of placing the text and images at issue online and the alleged damage in French territory, whereas the applicants, by contrast, take the view that such a connecting link is unnecessary and that, in any event, there is such a link.

27 The national court states that, where the internet is the medium for a harmful event, that harmful event can be deemed to have occurred in the territory of a Member State only if there is a sufficient, substantial or significant link connecting it with that territory.

28 The national court takes the view that the answer to the question whether a court of a Member State has jurisdiction to deal with an action alleging infringement of personality rights committed via the internet, from a website published by a person domiciled in another Member State and essentially intended for the public in that other Member State, does not follow clearly from the terms of Articles 2 and 5(3) of the Regulation.

29 In those circumstances, the Tribunal de grande instance de Paris decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘Must Articles 2 and 5(3) of \[the Regulation\] be interpreted to mean that a court or tribunal of a Member State has jurisdiction to hear an action brought in respect of an infringement of personality rights allegedly committed by the placing online of information and/or photographs on an internet site published in another Member State by a company domiciled in that second State – or in a third Member State, but in any event a State other than the first Member State:

– on the sole condition that the internet site can be accessed from the first Member State,

– on the sole condition that there is, between the harmful act and the territory of the first Member State, a link which is sufficient, substantial or significant and, in that case, whether that link can be created by:

– the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all hits on that page,

– the residence, or nationality, of the person who complains of the infringement of his or her personality rights or, more generally, of the persons concerned,

– the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s intention to address specifically the public of the first Member State,

– the place where the events described occurred and/or where the photographic images put on line were taken,

– other criteria?’

30 By order of 29 October 2010, the President of the Court of Justice, in accordance with Article 43 of the Rules of Procedure of the Court, decided to join Cases C‑509/09 and C‑161/10 for the purposes of the oral hearing and the judgment.

**Admissibility**

31 The Italian Government expresses the view that the questions submitted in Case C‑509/09 should be declared inadmissible for lack of relevance to the dispute in the main proceedings. An injunction, it argues, is an emergency judicial instrument and therefore presupposes current harmful behaviour. It is, however, evident from the presentation of the facts in this case that the behaviour regarded as harmful was no longer current at the time when the application for an injunction was made, given that the operator of the website had already removed the information in dispute prior to the commencement of proceedings.

32 It should be recalled in this regard that, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see Case C‑52/09 *TeliaSonera Sverige* \[2011\] ECR I‑0000, paragraph 15 and the case-law cited).

33 The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, inter alia where the problem is hypothetical (see *TeliaSonera Sverige*, paragraph 16).

34 It does not, however, appear that, in the case in the main proceedings, the application for an injunction became devoid of purpose by reason of the fact that the website operator had already removed the information in dispute before proceedings were commenced. Indeed, as is set out at paragraph 18 of this judgment, the injunction application was successful in the two lower courts.

35 In any event, the Court has already noted that, in the light of its wording, Article 5(3) of the Regulation does not require the current existence of damage (see, to that effect, Case C‑167/00 *Henkel* \[2002\] ECR I‑8111, paragraphs 48 and 49). It follows that an action seeking to prevent a repetition of behaviour regarded as wrongful comes within the scope of that provision.

36 In those circumstances, the reference for a preliminary ruling must be held to be admissible.

**Consideration of the questions referred**

*Interpretation of Article 5(3) of the Regulation*

37 By the first two questions in Case C‑509/09 and the single question in Case C‑161/10, which it is appropriate to examine together, the national courts ask the Court, in essence, how the expression ‘the place where the harmful event occurred or may occur’, used in Article 5(3) of the Regulation, is to be interpreted in the case of an alleged infringement of personality rights by means of content placed online on an internet website.

38 In order to answer those questions, it should be borne in mind, first, that, according to settled case-law, the provisions of the Regulation must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑189/08 *Zuid‑Chemie* \[2009\] ECR I‑6917, paragraph 17 and the case-law cited).

39 Second, in so far as the Regulation now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the Regulation whenever the provisions of those Community instruments may be regarded as equivalent (*Zuid‑Chemie*, paragraph 18).

40 It is settled case-law that the rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of the Regulation is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (*Zuid‑Chemie*, paragraph 24 and the case-law cited).

41 It must also be borne in mind that the expression ‘place where the harmful event occurred’ is intended to cover both the place where the damage occurred and the place of the event giving rise to it. Those two places could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings (see Case C‑68/93 *Shevill and Others* \[1995\] ECR I‑415, paragraphs 20 and 21).

42 In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (*Shevill and Others*, paragraph 33).

43 In that regard, the Court has also stated that, while it is true that the limitation of the jurisdiction of the courts in the State of distribution solely to damage caused in that State presents disadvantages, the plaintiff always has the option of bringing his entire claim before the courts either of the defendant’s domicile or of the place where the publisher of the defamatory publication is established (*Shevill and Others*, paragraph 32).

44 Those considerations may, as was noted by the Advocate General at point 39 of his Opinion, also be applied to other media and means of communication and may cover a wide range of infringements of personality rights recognised in various legal systems, such as those alleged by the applicants in the main proceedings.

45 However, as has been submitted both by the referring courts and by the majority of the parties and interested parties which have submitted observations to the Court, the placing online of content on a website is to be distinguished from the regional distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content. That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control.

46 It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to assess the damage caused exclusively within that Member State.

47 The difficulties in giving effect, within the context of the internet, to the criterion relating to the occurrence of damage which is derived from *Shevill and Others* contrasts, as the Advocate General noted at point 56 of his Opinion, with the serious nature of the harm which may be suffered by the holder of a personality right who establishes that information injurious to that right is available on a world-wide basis.

48 The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice, referred to in paragraph 40 above.

49 The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person may also have the centre of his interests in a Member State in which he does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.

50 The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction (see Case C‑144/10 *BVG* \[2011\] ECR I‑0000, paragraph 33) also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see Case C‑533/07 *Falco Privatstiftung and Rabitsch* \[2009\] ECR I‑3327, paragraph 22 and the case-law cited).

51 Moreover, instead of an action for liability in respect of all of the damage, the criterion of the place where the damage occurred, derived from *Shevill and Others*, confers jurisdiction on courts in each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

52 Consequently, the answer to the first two questions in Case C‑509/09 and the single question in Case C‑161/10 is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

*Interpretation of Article 3 of the Directive*

53 By its third question in Case C‑509/09, the Bundesgerichtshof asks whether the provisions of Article 3(1) and (2) of the Directive have the character of a conflict-of-laws rule in the sense that, for the field of private law, they also require the exclusive application, for information society services, of the law in force in the country of origin, to the exclusion of national conflict-of-laws rules, or whether they operate as a corrective to the law declared to be applicable pursuant to the national conflict-of-laws rules in order to adjust it in accordance with the requirements of the country of origin.

54 Those provisions must be analysed by taking account not only of their wording, but also of the context in which they occur and the objectives pursued by the rules of which they are part (see Case C‑156/98 *Germany* v *Commission* \[2000\] ECR I‑6857, paragraph 50, Case C‑306/05 *SGAE* \[2006\] ECR I‑11519, paragraph 34, and Case C‑162/09 *Lassal* \[2010\] ECR I‑0000, paragraph 49).

55 In that sense, the enacting terms of a European Union act are indissociably linked to the reasons given for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑298/00 P *Italy* v *Commission* \[2004\] ECR I‑4087, paragraph 97 and the case-law cited, and *Lassal*, paragraph 50).

56 The Directive, which was adopted on the basis of Articles 47(2) EC, 55 EC and 95 EC, has the objective, as set out in Article 1(1) thereof, of contributing to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. Recital 5 in the preamble lists, as legal obstacles to the proper functioning of the internal market in that field, divergences in legislation and legal uncertainty as regards which national rules apply to such services.

57 For the majority of the aspects of electronic commerce, however, the Directive is not intended to achieve harmonisation of substantive rules, but defines a ‘coordinated field’ in the context of which the mechanism in Article 3 must allow, according to recital 22 in the preamble to the Directive, information society services to be, in principle, subject to the law of the Member State in which the service provider is established.

58 In that regard, it must be noted, firstly, that the law of the Member State in which the service provider is established includes the private law field, which is apparent from, inter alia, recital 25 in the preamble to the Directive and from the fact that the annex thereto sets out the private-law rights and obligations to which the Article 3 mechanism does not apply. Secondly, the application thereof to the liability of service providers is expressly provided for by the second indent of Article 2(h)(i) of the Directive.

59 A reading of Article 3(1) and (2) of the Directive in the light of the abovementioned provisions and objectives shows that the mechanism provided for by the Directive prescribes, also in private law, respect for the substantive law requirements in force in the country in which the service provider is established. In the absence of binding harmonisation provisions adopted at European Union level, only the acknowledgement of the binding nature of the national law to which the legislature has decided to make the service providers and their services subject can guarantee the full effect of the free provision of those services. Article 3(4) of the Directive confirms such a reading in that it sets out the conditions under which Member States may derogate from Article 3(2), which must be regarded as being exhaustive.

60 The interpretation of Article 3 of the Directive must, however, also take account of Article 1(4) thereof, according to which the Directive does not establish additional rules on private international law relating to conflicts of laws.

61 In that regard, it must be noted, firstly, that an interpretation of the internal market rule enshrined in Article 3(1) of the Directive as meaning that it leads to the application of the substantive law in force in the Member State of establishment does not determine its classification as a rule of private international law. That paragraph principally imposes on Member States the obligation to ensure that the information society services provided by a service provider established on their territory comply with the national provisions applicable in the Member States in question which fall within the coordinated field. The imposition of such an obligation is not in the nature of a conflict-of-laws rule designed to resolve a specific conflict between several laws which may be applicable.

62 Secondly, Article 3(2) of the Directive prohibits Member States from restricting, for reasons falling within the coordinated field, the freedom to provide information society services from another Member State. By contrast, it is apparent from Article 1(4) of the Directive, read in the light of recital 23 in the preamble thereto, that host Member States are in principle free to designate, pursuant to their private international law, the substantive rules which are applicable so long as this does not result in a restriction of the freedom to provide electronic commerce services.

63 It follows that Article 3(2) of the Directive does not require transposition in the form of a specific conflict-of-laws rule.

64 The provisions of Article 3(1) and (2) of the Directive must, however, be interpreted in such a way as to guarantee that the coordinated approach chosen by the European Union legislature will effectively allow the free movement of information society services between the Member States.

65 In this regard, it must be recalled that the Court has already ruled that it must be possible to apply mandatory provisions of a directive that are necessary to achieve the objectives of the internal market notwithstanding a choice of different law (see, to that effect, Case C‑381/98 *Ingmar* \[2000\] ECR I‑9305, paragraph 25, and Case C‑465/04 *Honyvem Informazioni Commerciali* \[2006\] ECR I‑2879, paragraph 23).

66 In relation to the mechanism provided for by Article 3 of the Directive, it must be held that the fact of making electronic commerce services subject to the legal system of the Member State in which their providers are established pursuant to Article 3(1) does not allow the free movement of services to be fully guaranteed if the service providers must ultimately comply, in the host Member State, with stricter requirements than those applicable to them in the Member State in which they are established.

67 It follows that Article 3 of the Directive precludes, subject to derogations authorised in accordance with the conditions set out in Article 3(4), a provider of an electronic commerce service from being made subject to stricter requirements than those provided for by the substantive law in force in the Member State in which that service provider is established.

68 In light of the foregoing, the answer to the third question in Case C‑509/09 is that Article 3 of the Directive must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of the Directive, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

**Costs**

69 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national courts, the decisions on costs are a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

1\. **Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.**

2\. **Article 3 of 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’), must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of Directive 2000/31, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.**

\[Signatures\]

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[\*](#Footref*) Languages of the cases: German and French.

JUDGMENT OF THE COURT (Second Chamber)

30 May 2024 ( [\*1](#t-ECR_62022CJ0662_EN_01-E0001) )

(Reference for a preliminary ruling – Freedom to provide services – Providers of information society services – Obligation to be entered in the register of communications operators – Obligation to provide information on structure and organisation – Obligation to make a financial contribution – Directive 2000/31/EC – Coordinated field – Principle of control in the home Member State – Exemptions – Concept of measures ‘taken against a given information society service’ – Regulation (EU) 2019/1150 – Objective)

In Joined Cases C‑662/22 and C‑667/22,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decisions of 10 October 2022, received at the Court on 19 and 21 October 2022, in the proceedings

Airbnb Ireland UC (C‑662/22),

Amazon Services Europe Sàrl (C‑667/22)

v

Autorità per le Garanzie nelle Comunicazioni,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl (Rapporteur), J. Passer and M.L. Arastey Sahún, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | Airbnb Ireland UC, by F. Angeloni, M. Berliri, S. Borocci, G. Gelera, L. Nascimbene, I. Perego, G.M. Roberti, avvocati, and D. Van Liedekerke, advocaat, |

| --- | --- |

| – | Amazon Services Europe Sàrl, by F. Angeloni, M. Berliri, S. Borocci, G. Gelera and F. Moretti, avvocati, |

| --- | --- |

| – | the Italian Government, by G. Palmieri, acting as Agent, and by L. Delbono and R. Guizzi, avvocati dello Stato, |

| --- | --- |

| – | the Czech Government, by M. Smolek, T. Suchá and J. Vláčil, acting as Agents, |

| --- | --- |

| – | Ireland, by M. Browne, Chief State Solicitor, A. Joyce and M. Tierney, acting as Agents, and by D. Fennelly, Barrister-at-Law, |

| --- | --- |

| – | the European Commission, by L. Armati, M. Escobar Gómez, S.L. Kalėda and L. Malferrari, acting as Agents, |

| --- | --- |

after hearing the Opinion of the Advocate General at the sitting on 11 January 2024,

gives the following

Judgment

| 1 | These requests for a preliminary ruling concern the interpretation of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services ([OJ 2019 L 186, p. 57](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2019:186:TOC)), 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 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)), 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 of rules on Information Society services ([OJ 2015 L 241, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2015:241:TOC)), Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ([OJ 2006 L 376, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2006:376:TOC)), as well as Article 56 TFEU. |

| --- | --- |

| 2 | The requests have been made in proceedings between, in Case C‑662/22, Airbnb Ireland UC (‘Airbnb’), a company incorporated under Irish law, and, in Case C‑667/22, Amazon Services Europe Sàrl (‘Amazon’), a company incorporated under Luxembourg law, and the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) (‘AGCOM’) concerning measures adopted by the latter with regard to providers of online intermediation services. |

| --- | --- |

Legal context

European Union law

Regulation 2019/1150

| 3 | Recitals 3, 7 and 51 of Regulation 2019/1150 state as follows: \| ‘(3) \| Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. \| \| --- \| --- \| … \| (7) \| A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. \| \| --- \| --- \| … \| (51) \| Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ \| \| --- \| --- \| | ‘(3) | Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. | (7) | A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. | (51) | Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ |

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| ‘(3) | Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. |

| (7) | A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. |

| (51) | Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ |

| 4 | Article 1 of that regulation states: ‘1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down rules to ensure that business users of online intermediation services and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities. 2\. This Regulation shall apply to online intermediation services and online search engines provided, or offered to be provided, to business users and corporate website users, respectively, that have their place of establishment or residence in the Union and that, through those online intermediation services or online search engines, offer goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services and irrespective of the law otherwise applicable. … 5\. This Regulation shall be without prejudice to Union law, in particular Union law applicable in the areas of judicial cooperation in civil matters, competition, data protection, trade secrets protection, consumer protection, electronic commerce and financial services.’ |

| --- | --- |

| 5 | Article 2(1) of that regulation provides: ‘For the purposes of this Regulation, the following definitions apply: \| (1) \| “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. \| \| --- \| --- \| | (1) | “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (1) | “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. |

Directive 2000/31

| 6 | Under Article 1 of Directive 2000/31: ‘1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. … 5\. This Directive shall not apply to: \| (a) \| the field of taxation; \| \| --- \| --- \| …’ | (a) | the field of taxation; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | the field of taxation; |

| 7 | Article 2(h) of that directive provides: ‘For the purpose of this Directive, the following terms shall bear the following meanings: … \| (h) \| “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \\| (i) \\| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\\| – \\\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\\| \\\| --- \\\| --- \\\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| …’ \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| | (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| …’ | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| …’ | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, |

| – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| 8 | Article 3 of that directive states: ‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. 2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. … 4\. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: \| (a) \| the measures shall be: \\| (i) \\| necessary for one of the following reasons: \\\| – \\\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of public health, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| public security, including the safeguarding of national security and defence, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of consumers, including investors; \\\| \\\| --- \\\| --- \\\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| – \\| the protection of public health, \\| – \\| public security, including the safeguarding of national security and defence, \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| – \\| the protection of public health, \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| – \\| the protection of consumers, including investors; \\| \\| (ii) \\| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \\| \\| --- \\| --- \\| \\| (iii) \\| proportionate to those objectives\[.\] \\| \\| --- \\| --- \\| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| (iii) \| proportionate to those objectives\[.\] \| \| (b) \| before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \\| – \\| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \\| \\| --- \\| --- \\| \\| – \\| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \\| \\| --- \\| --- \\| …’ \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| | (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives\[.\] | (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| …’ | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

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| (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives\[.\] |

| (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; |

| – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, |

| – | the protection of public health, |

| – | public security, including the safeguarding of national security and defence, |

| – | the protection of consumers, including investors; |

| (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; |

| (iii) | proportionate to those objectives\[.\] |

| (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| …’ | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, |

| – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

Directive 2006/123

| 9 | Article 1(1) of Directive 2006/123 provides: ‘This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.’ |

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| 10 | According to Article 3(1) of that directive: ‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’ |

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| 11 | Article 16 of that directive states: ‘1. Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory. Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles: \| (a) \| non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; \| \| --- \| --- \| \| (b) \| necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; \| \| --- \| --- \| \| (c) \| proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. \| \| --- \| --- \| 2\. Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements: … \| (b) \| an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; \| \| --- \| --- \| …’ | (a) | non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; | (b) | necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; | (c) | proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. | (b) | an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; |

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| (a) | non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; |

| (b) | necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; |

| (c) | proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. |

| (b) | an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; |

Directive 2015/1535

| 12 | Article 1(1) of Directive 2015/1535 provides: ‘For the purposes of this Directive, the following definitions apply: … \| (b) \| “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. \| \| --- \| --- \| … \| (e) \| “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. \| \| --- \| --- \| … \| (f) \| “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. \| \| --- \| --- \| …’ | (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. | (e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. | (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. |

| (e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. |

| (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. |

| 13 | The first subparagraph of Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’ |

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Italian law

Law No 249/97

| 14 | Legge n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 establishing the Communications Regulatory Authority and telecommunications and broadcasting standards) of 31 July 1997 (Ordinary Supplement to GURI No 177 of 31 July 1997), as amended by legge n. 178 – Bilancio di previsione dello Stato per l’anno finanziario 2021 e bilancio pluriennale per il triennio 2021-2023 (Law No 178 on the State budget for the 2021 financial year and the multiannual budget for the three-year period 2021-2023) of 30 December 2020 (Ordinary Supplement to GURI No 322 of 30 December 2020) (‘Law No 249/97’), provides, in Article 1(6)(a)(5) and (c)(14-bis): ‘The responsibilities of \[AGCOM\] are identified as follows: (a) the Infrastructure and Networks Committee has the following functions: … (5) it shall maintain the Register of Communications Operators \[(“the RCO”)\], in respect of which, pursuant to the present law, … providers of online intermediation services and online search engines offering services in Italy, even if they are not established in Italy …, shall be required to be entered … \[It\] shall adopt a regulation specifically concerning the organisation and maintenance of the \[RCO\] and the definition of criteria for determining \[which\] persons are required to register other than those already registered in the \[RCO\] on the date of entry into force of the present law; … (c) the Board: … (14-bis) shall ensure the adequate and effective enforcement of Regulation \[2019/1150\], including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information’. |

| --- | --- |

| 15 | Article 1(31) of Law No 249/97 provides: ‘Persons who fail to comply with orders and formal notices issued by \[AGCOM\] under the present law shall be liable to a fine …. If the non-compliance concerns measures taken so far as concerns the infringement of the rules on dominant positions or pursuant to Regulation \[2019/1150\], each person concerned shall be fined a sum which shall not be less than 2% and not more than 5% of that person’s turnover in the last financial year for which the accounts have been closed prior to notification \[of the notice of non-compliance\] …’ |

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Law No 266/05

| 16 | Article 1(66-bis) of legge n. 266 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2006) (Law No 266 laying down provisions for the preparation of the annual and multiannual State budget (Finance Law 2006)) of 23 December 2005 (Ordinary Supplement to GURI No 302 of 29 December 2005), as amended by Law No 178 of 30 December 2020 (‘Law No 266/05’), provides: ‘For the year 2021, the amount of the contribution due by the providers of online intermediation services and online search engines referred to in Article 1(6)(a)(5) of Law \[No 249/97\] shall be set at a level equal to 0.15% of the revenues generated in national territory, even if those revenues are recorded in the financial statements of undertakings established abroad, relating to the value of production, which results from the financial statements for the previous year, or, for persons not required to draw up such financial statements, from equivalent elements in other accounting records which certify the total value of production. For subsequent years, any change in the level and terms of the contribution may be decided by \[AGCOM\] up to a maximum of 0.2% of the revenues assessed in accordance with the preceding sentence.’ |

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Decision No 666/08

| 17 | On 26 November 2008, AGCOM adopted delibera n. 666/08/CONS – Regolamento per l’organizzazione e la tenuta del Registro degli operatori di comunicazione (Decision No 666/08/CONS, governing the organisation and maintenance of the Register of Communications Operators) (GURI No 25 of 31 January 2009) (‘Decision No 666/08’). |

| --- | --- |

| 18 | Article 2 of the rules for the organisation and maintenance of the RCO (‘the AGCOM rules on the RCO’), which are set out in Annex A to Decision No 666/08, lists the categories of persons who are required to be entered in the RCO. |

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| 19 | Under Article 5 of the AGCOM rules on the RCO: ‘1. The persons referred to in Article 2 of these rules shall submit to \[AGCOM\] \[their\] application for entry in the \[RCO\] … 3\. The persons referred to in Article 2, each according to its legal nature, shall submit the declarations relating to the objects of the company, the administrative body, the structure of the company and the activity carried out in accordance with Annex B \[to Decision No 666/08\]. …’ |

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| 20 | Article 24 of those rules provides: ‘Infringements of these rules shall be punished in accordance with Article 1(29) \[to\] (32) of Law \[No 249 of 31 July 1997\].’ |

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| 21 | Annex B to Decision No 666/08 concerns the declarations required for entry in the RCO. |

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Decision No 200/21

| 22 | On 17 June 2021, AGCOM adopted delibera n. 200/21/CONS – Modifiche alla delibera n. 666/08/CONS recante ‘regolamento per la tenuta del Registro degli Operatori di Comunicazione’ a seguito dell’entrata in vigore della legge 30 dicembre 2020, n. 178 – Bilancio di previsione dello Stato per l’anno finanziario 2021 e bilancio pluriennale per il triennio 2021-2023 (Decision No 200/21/CONS, amending Decision No 666/08/CONS containing the ‘rules for maintaining the Register of Communications Operators’ following the entry into force of the Law of 30 December 2020, No 178, concerning the State’s forecast balance sheet for the financial year 2021 and the multiannual balance sheet for the three-year period 2021-2023) (‘Decision No 200/21’). |

| --- | --- |

| 23 | As set out in the preamble to Decision No 200/21: ‘… \[having regard to\] Regulation \[2019/1150\] and, in particular, Article 1(2) \[thereof\] … \[whereas\] Law \[No 178 of 30 December 2020\] provided, pursuant to Regulation 2019/1150, inter alia, for the obligation to be entered in the \[RCO\] for providers of online intermediation services and online search engines offering services in Italy, even if they are not established there …’ |

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| 24 | Article 1(1) of that decision amended the list in Article 2 of the AGCOM rules on the RCO to include the following categories of persons: ‘… m. providers of online intermediation services: natural or legal persons which, even if they are not established or resident in national territory, provide or offer to provide online intermediation services, as defined by Regulation 2019/1150, to business users established or resident in Italy; n. providers of online search engine: natural or legal persons which, even if they are not established or resident in national territory, provide or offer to provide an online search engine, as defined by Regulation 2019/1150, in the Italian language or to users established or resident in Italy. …’ |

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| 25 | Article 3 of that decision amended Annex B to Decision No 666/08, in particular by inserting the following text: ‘… Declarations concerning the shareholding of providers of electronic communications services, economic operators engaged in call centre activities, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines: \| 1. \| Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \\| (a) \\| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \\| \\| --- \\| --- \\| \\| (b) \\| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \\| \\| --- \\| --- \\| \\| (c) \\| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \\| \\| --- \\| --- \\| \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| 2. \| Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ \| \| --- \| --- \| | 1. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| --- \| --- \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| --- \| --- \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| | (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. | (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; | (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). | 2. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ |

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| 1. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| --- \| --- \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| --- \| --- \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| | (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. | (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; | (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). |

| (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. |

| (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; |

| (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). |

| 2. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ |

Decision No 14/21

| 26 | Provvedimento presidenziale n. 14/21/PRES – recante ‘Misura e modalità di versamento del contributo dovuto all’Autorità per le Garanzie nelle Comunicazioni per l’anno 2021 dai soggetti che operano nel settore dei servizi di intermediazione online e dei motori di ricerca online’ (Presidential Decision No 14/21/PRES, on the ‘Rates and manner of payment of the contribution payable to the Communications Regulatory Authority for the year 2021 by persons operating in the online intermediation services and online search engines sector’) of 5 November 2021, ratified by AGCOM by delibera n. 368/21/CONS (Decision No 368/21/CONS) of 11 November 2021 (GURI No 304 of 23 December 2021) (‘Decision No 14/21’), specified the level and terms of payment, by providers of online intermediation services and online search engines, of the contribution provided for in Article 1(66-bis) of Law No 266/05. |

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The disputes in the main proceedings and the questions referred for a preliminary ruling

| 27 | Airbnb, which has its registered office in Ireland, operates the eponymous online property intermediation portal, which facilitates the connection of renters who have accommodation with persons seeking accommodation. Airbnb collects from the customer the payment relating to the provision of the accommodation before the start of the rental period and, retaining a commission, transfers that payment to the lessor after the rental period has begun, if there has been no challenge on the part of the lessee. |

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| 28 | Amazon, which has its registered office in Luxembourg, operates an online platform seeking to connect sellers and consumers with a view to carrying out transactions between them for the sale of goods. |

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| 29 | Following amendments to the national legal framework resulting, on the one hand, from Law No 178 of 30 December 2020 and, on the other, from Decisions No 200/21 and No 14/21, adopted by the Italian authorities inter alia with a view to ensuring the application of Regulation 2019/1150 (‘the contested national measures’), Airbnb and Amazon, as providers of online intermediation services, are now required, on pain of penalties, to be entered in a register maintained by AGCOM, the RCO, and to communicate, as a result, certain information to that authority, as well as to pay a financial contribution to it. |

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| 30 | Airbnb and Amazon each brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which is the referring court, seeking, inter alia, the annulment of Decisions No 200/21 and No 14/21. |

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| 31 | Before the referring court, Airbnb and Amazon submit that the contested national measures, in so far as they impose on them the obligations referred to in paragraph 29 of the present judgment, are contrary to the principle of the freedom to provide services, to Regulation 2019/1150 and to several directives. |

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| 32 | In that regard, that court recalls, in the first place, that, following the adoption of Regulation 2019/1150, the Italian legislature amended, by Law No 178 of 30 December 2020, Law No 249 of 31 July 1997 and Law No 266 of 23 December 2005. |

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| 33 | Thus, first, the obligation to be entered in the RCO, maintained by AGCOM, was extended to providers of online intermediation services and online search engines (‘the service providers concerned’) offering services on the territory of the Italian Republic, even if they are not established in that Member State (Article 1(6)(a)(5) of Law No 249/97). |

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| 34 | Secondly, AGCOM is responsible for ensuring that Regulation 2019/1150 is implemented, in particular by gathering information (Article 1(6)(c)(14-bis) of Law No 249/97). |

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| 35 | Thirdly, in the event of non-compliance with the measures adopted by AGCOM pursuant to Regulation 2019/1150, the person concerned would have a fine imposed on it of not less than 2% and not more than 5% of that person’s turnover in the last financial year for which the accounts have been closed prior to notification of the notice of non-compliance (second sentence of Article 1(31) of Law No 249/97). |

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| 36 | Fourthly, the service providers concerned are now required to pay a financial contribution to cover the total administrative costs incurred in the exercise of the regulatory, supervisory, dispute resolution and sanctioning functions conferred on AGCOM by Law No 178 of 30 December 2020 (Article 1(66-bis) of Law No 266/05). |

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| 37 | In the second place, the referring court states that, by Decision No 200/21, AGCOM amended Decision No 666/08, Annex A to which contains the AGCOM rules on the RCO, in order to take account of the measures adopted by the Italian legislature with a view to implementing Regulation 2019/1150. |

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| 38 | That court specifies that, in order to be entered in the RCO, the service providers concerned must complete several forms relating not only to the activity carried out, but also to their organisation. Thus, they are required to communicate information on the share capital, the names of the shareholders and their respective shareholdings with voting rights, the composition and term of office of the administrative body and the identity of the legal representative and the directors. The information communicated must be updated annually. Fines are imposed for infringements of the provisions of the AGCOM rules on the RCO. |

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| 39 | In the light of those factors, the referring court considers that the obligation to pay a financial contribution and to be entered in the RCO could, in several respects, be incompatible with EU law, in particular with the principle of the freedom to provide services, Regulation 2019/1150 and several directives. |

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| 40 | With regard to Regulation 2019/1150, that court considers that there is no connection between compliance with the obligations laid down therein and the information required for entry in the RCO, which relates mainly to the ‘ownership structure’ and administrative organisation of the persons concerned. That court considers that the Italian authorities have introduced into their legal system provisions providing for a monitoring of factors inherent in those providers, which is completely different from the monitoring provided for by that regulation, which relates to their compliance with the obligations laid down by that regulation. |

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| 41 | As regards Directive 2015/1535, the referring court, referring to Articles 1 and 5 of that directive, takes the view that the national provisions requiring providers of the services concerned to be entered in the RCO specifically introduce a general requirement concerning the provision of information society services, so that, unless they have been notified to the Commission in advance, they are not enforceable against individuals. |

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| 42 | As regards the principle of the freedom to provide services, referred to in Article 56 TFEU and specified in Directives 2000/31 and 2006/123, the referring court notes that Article 3 of Directive 2000/31 establishes the principle that, in the ‘coordinated field’, within the meaning of Article 2(h) of that directive, information society services must be subject to the legal system of the Member State in which the service provider is established, and Member States may adopt measures derogating from that principle only in compliance with certain substantive and procedural conditions laid down in Article 3(4) of that directive. According to the referring court, the contested national measures do not satisfy those conditions. |

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| 43 | The referring court also points out that, under Article 16 of Directive 2006/123, Member States may not restrict the exercise of the freedom to provide services in the case of a provider established in another Member State by requiring that service provider to obtain authorisation from their competent authorities, including entry in a register, except where provided for in that directive or in other instruments of EU law. However, according to the referring court, the contested national measures do not fall within such cases. |

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| 44 | In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: \| ‘(1) \| Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (2) \| Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? \| \| --- \| --- \| \| (3) \| Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (4) \| Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (5) \| Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ \| \| --- \| --- \| | ‘(1) | Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (2) | Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? | (3) | Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (4) | Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (5) | Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ |

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| ‘(1) | Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (2) | Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? |

| (3) | Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (4) | Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (5) | Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ |

Consideration of the questions referred

The first, third and fourth questions

| 45 | By its first, third and fourth questions, which it is appropriate to examine jointly and in the first place, the referring court asks, in essence, whether Article 56 TFEU, Article 16 of Directive 2006/123 or Article 3 of Directive 2000/31 must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation 2019/1150, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

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| 46 | As a preliminary point, it should be noted that, as is apparent from Article 1(1) thereof, Directive 2006/123, adopted on the basis of Article 47(2) EC and Article 55 EC, the terms of which have been reproduced, in essence, in Article 53(1) TFEU and Article 62 TFEU respectively, is intended, inter alia, to facilitate the free movement of services. For its part, Directive 2000/31, adopted on the basis of Article 47(2) EC, Article 55 EC and Article 95 EC, the terms of which have been reproduced, in essence, in Article 53(1) TFEU, Article 62 TFEU and Article 114 TFEU respectively, has as its objective, as set out in Article 1(1) thereof, to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. |

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| 47 | Since those two directives give concrete expression to the freedom to provide services enshrined in Article 56 TFEU, if it were established that one of them precluded national measures such as those at issue in the main proceedings, there would be no need to examine the first, third and fourth questions in the light of that article. |

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| 48 | As regards Article 56 TFEU, as the Advocate General pointed out in point 6 of his Opinion, it is true that, according to the case-law, it is applicable to measures in the field of taxation, which is excluded from the scope of Directive 2000/31 by virtue of Article 1(5)(a) thereof (see, to that effect, judgment of 22 December 2022, Airbnb Ireland and Airbnb Payments UK, [C‑83/21](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&locale=en), [EU:C:2022:1018](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018), paragraph [38](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&anchor=#point38)). However, in the present case, neither the referring court nor the Italian Government argues that the contested national measures are related to the need to ensure the fulfilment of tax obligations. |

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| 49 | Furthermore, it should be noted that Article 3(1) of Directive 2006/123 provides, inter alia, that, if its provisions conflict with a provision of another European Union act governing specific aspects of access to or exercise of a service activity in specific sectors, the provision of that other act is to prevail and is to apply to those specific sectors. |

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| 50 | Having regard to the fact that Article 3 of Directive 2000/31 concerns specific aspects of access to and the exercise of the activity of an information society service, as set out, in essence, by the Advocate General in points 204 to 207 of his Opinion, if it were established, first, that national measures such as those at issue in the main proceedings fall within the scope of that provision and, secondly, that that provision precludes those measures, there would be no need to examine the first, third and fourth questions in the light of Directive 2006/123. |

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| 51 | Accordingly, it is appropriate, in the first place, to interpret Article 3 of Directive 2000/31. |

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| 52 | In that respect, it should be recalled that Article 3(1) of Directive 2000/31 states that each Member State is to ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. Article 3(2) of Directive 2000/31 states that Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. |

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| 53 | Moreover, under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to certain cumulative conditions (see, to that effect, judgment of 19 December 2019, Airbnb Ireland, [C‑390/18](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&locale=en), [EU:C:2019:1112](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112), paragraph [83](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&anchor=#point83)). |

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| 54 | As regards the ‘coordinated field’ referred to in Article 3 of Directive 2000/31, it should be pointed out that Article 2(h) of that directive defines that field as covering the requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. That field relates to requirements which the service provider must meet and which concern access to the activity of an information society service, such as qualification, authorisation or notification requirements, and the exercise of the activity of an information society service, such as requirements concerning the behaviour of the service provider, the quality or content of the service. |

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| 55 | Directive 2000/31 is thus based on the application of the principles of control in the home Member State and mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [42](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point42)). |

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| 56 | Consequently, it is the responsibility of each Member State as the Member State where information society services originate to regulate those services and, on that basis, to protect the general interest objectives referred to in Article 3(4)(a)(i) of Directive 2000/31 (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [43](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point43)). |

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| 57 | Moreover, in accordance with the principle of mutual recognition, it is for each Member State, as the Member State of destination of information society services, not to restrict the free movement of those services by requiring compliance with additional obligations, falling within the coordinated field, which it has adopted (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [44](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point44)). |

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| 58 | It follows that Article 3 of Directive 2000/31 precludes, subject to the exemptions authorised under the conditions laid down in paragraph 4 of that article, a provider of an information society service wishing to provide that service in a Member State other than that in which he or she is established from being subject to requirements in the coordinated field imposed by that other Member State. |

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| 59 | In the present case, it is common ground that the contested national measures, in so far as they require, on pain of penalties, compliance with the obligations referred to in paragraph 29 of the present judgment by providers of online intermediation services established in Member States other than the Italian Republic, impose on those providers conditions which are not laid down in the Member State in which they are established. |

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| 60 | Similarly, it is not disputed that those services fall within the scope of the ‘information society services’ referred to in Article 2(a) of Directive 2000/31. |

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| 61 | By contrast, the Italian Government submits that the obligations laid down by the contested national measures do not fall within the ‘coordinated field’ within the meaning of Article 2(h) of that directive, since, first, the service providers concerned may de facto begin and continue to provide those services without complying with the obligation to be entered in the RCO and, secondly, the obligation to transmit information to AGCOM and to pay it a financial contribution is intended to enable it to carry out its supervisory functions. Thus, such obligations would not seek to ensure that providers of such services obtain authorisation to access an information society service activity or to exercise such an activity. |

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| 62 | In that respect, as the Advocate General pointed out, in essence, in points 157 to 161 of his Opinion, as regards, first, the obligation to be entered in a register, on pain of penalties in the event of failure to comply with that obligation, the fact that, without complying with that obligation, a provider may de facto commence and continue to provide an information society service has no bearing on the need to fulfil that obligation in order to be able lawfully to exercise the activity in question. |

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| 63 | As regards, secondly, the obligation to transmit to an authority of a Member State information relating to the structure and organisation of the undertaking concerned and the obligation to pay to that authority a financial contribution, also on pain of penalties in the event of failure to comply with those obligations, the fact that they are imposed for the purposes of the supervision, by that authority, of the lawfulness of the exercise of the activity of the information society services in no way affects the scope of those obligations, pursuant to which providers of such services which are established in another Member State and which wish to provide those services in the first Member State are required to comply with the same obligations. |

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| 64 | Accordingly, contrary to what the Italian Government maintains, obligations such as those laid down by the contested national measures constitute requirements relating to the exercise of the activity of an information society service, so that those obligations fall within the ‘coordinated field’ within the meaning of Article 2(h) of Directive 2000/31. |

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| 65 | Consequently, Article 3 of Directive 2000/31 precludes measures adopted by a Member State under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority, unless those measures fulfil the conditions laid down in Article 3(4) of Directive 2000/31. |

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| 66 | That interpretation cannot be called into question by the Czech Government’s argument that Article 3 of Directive 2000/31 might not preclude such measures, in the light of the case-law relating to Article 56 TFEU, which is applicable by analogy, according to which the prohibition laid down in that article is not contravened by national legislation which is applicable to all operators exercising their activity on national territory, the purpose of which is not to regulate the conditions concerning the provision of services by the undertakings concerned and any restrictive effects of which on the freedom to provide services are too uncertain and indirect for the obligation laid down to be regarded as being capable of hindering that freedom (judgment of 22 December 2022, Airbnb Ireland and Airbnb Payments UK, [C‑83/21](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&locale=en), [EU:C:2022:1018](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018), paragraph [45](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&anchor=#point45) and the case-law cited). |

| --- | --- |

| 67 | As the Advocate General set out, in essence, in points 166 and 167 of his Opinion, on the one hand, requirements falling within the coordinated field cannot satisfy the conditions resulting from that case-law since, by definition, their purpose is to regulate access to the activity of providing an information society service and the exercise of that activity. On the other hand, by an act of secondary legislation, the EU legislature may give effect to a fundamental freedom enshrined in the FEU Treaty by creating conditions even more favourable to the proper functioning of the internal market than those resulting from primary law (see, to that effect and by analogy, judgment of 16 June 2015, Rina Services and Others, [C‑593/13](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399&locale=en), [EU:C:2015:399](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399), paragraph [40](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399&anchor=#point40)). |

| --- | --- |

| 68 | It is therefore necessary to ascertain whether national measures such as those mentioned in paragraph 65 of the present judgment satisfy the conditions laid down in Article 3(4) of Directive 2000/31. |

| --- | --- |

| 69 | To that end, in the first place, it should be noted that, as is clear from the very terms of that provision, only measures ‘taken against a given information society service’ may fall within the scope of that provision. |

| --- | --- |

| 70 | In that regard, it is important to recall that, in the judgment of 9 November 2023, Google Ireland and Others ([C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835)), the Court ruled that Article 3(4) of Directive 2000/31 must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of measures ‘taken against a given information society service’ within the meaning of that provision. |

| --- | --- |

| 71 | In the present case, subject to verification by the referring court, it appears that the contested national measures are general and abstract in scope, so that they cannot be classified as measures ‘taken against a specific information society service’ within the meaning of Article 3(4)(a) of Directive 2000/31. |

| --- | --- |

| 72 | Furthermore, under that provision, in order to be considered compliant with that provision, national measures must be necessary to ensure public policy, the protection of public health, public security or the protection of consumers. |

| --- | --- |

| 73 | Accordingly, it is appropriate to determine whether that is the case in relation to national measures adopted with the stated aim of ensuring the application of Regulation 2019/1150. |

| --- | --- |

| 74 | In that regard, it should be recalled that, according to Article 1(5) of Regulation 2019/1150, that regulation is to be without prejudice to the EU law applicable, in particular, in the area of electronic commerce. |

| --- | --- |

| 75 | Since Directive 2000/31 manifestly falls within that area, measures such as the contested national measures cannot be regarded as complying with Article 3(4)(a) of that directive, on the ground that they are intended to ensure the application of Regulation 2019/1150, unless it is established that the objective of the regulation corresponds to one of the objectives listed in that provision. |

| --- | --- |

| 76 | However, it is clear from recitals 7 and 51 of Regulation 2019/1150 that the regulation aims to establish a targeted set of mandatory rules at Union level in order to create a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users within the meaning of Article 2(1) of that regulation (‘business users’) should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market. |

| --- | --- |

| 77 | Article 1(1) of that regulation specifies that the regulation contributes to the proper functioning of that market by laying down rules to ensure that business users and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities. |

| --- | --- |

| 78 | As the Advocate General pointed out, in essence, in points 186 to 190 of his Opinion, even assuming that national measures such as the contested national measures are intended to secure the objective of Regulation 2019/1150, there is no direct link between (i) that objective and (ii) those listed in Article 3(4)(a)(i) of Directive 2000/31, referred to in paragraph 72 of the present judgment. |

| --- | --- |

| 79 | It is common ground that the objective of Regulation 2019/1150 does not concern public policy, the protection of public health or public security. |

| --- | --- |

| 80 | As far as consumer protection is concerned, it should first be noted that it does not cover the protection of businesses. Regulation 2019/1150 lays down rules on relationships between providers of online intermediation services and business users. |

| --- | --- |

| 81 | Next, it follows from recital 3 of Regulation 2019/1150 that the link between ‘the transparency of, and trust in, the online platform economy in business-to-business relations’ and ‘\[helping\] to improve consumer trust in the online platform economy’ is only indirect. |

| --- | --- |

| 82 | Finally, recital 3 of Regulation 2019/1150 states that ‘direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis’. |

| --- | --- |

| 83 | It should be added that Article 3(4) of Directive 2000/31, as an exception to the principle of control in the home Member State, must be interpreted strictly (see, by analogy, judgments of 22 November 2012, Probst, [C‑119/12](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748&locale=en), [EU:C:2012:748](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748), paragraph [23](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748&anchor=#point23), and of 21 June 2022, Ligue des droits humains, [C‑817/19](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491&locale=en), [EU:C:2022:491](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491), paragraph [70](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491&anchor=#point70)). Accordingly, that exception cannot be applied to measures which are likely, at most, to have only an indirect link with one of the objectives referred to in that provision. |

| --- | --- |

| 84 | Therefore, it cannot be inferred from the fact that national measures were adopted with the stated aim of ensuring the application of Regulation 2019/1150 that those measures are necessary to secure one of the objectives listed in Article 3(4)(a)(i) of Directive 2000/31. |

| --- | --- |

| 85 | Consequently, measures adopted by a Member State under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority do not satisfy the conditions laid down in Article 3(4)(a) of Directive 2000/31. |

| --- | --- |

| 86 | Since the contested national measures fall within the coordinated field covered by Directive 2000/31 and since the interpretation of that directive makes it possible to answer the first, third and fourth questions, as rephrased in paragraph 45 of the present judgment, there is no need, in accordance with the considerations set out in paragraphs 46 to 50 of the present judgment, also to interpret Article 56 TFEU or Directive 2006/123. |

| --- | --- |

| 87 | In the light of all the foregoing, the answer to the first, third and fourth questions is that Article 3 of Directive 2000/31 must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation 2019/1150, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

| --- | --- |

The second and fifth questions

| 88 | The second and fifth questions concern the prior notification requirements laid down in Directives 2000/31 and 2015/1535, failure to comply with which means that measures that should have been notified but were not are not enforceable against individuals. |

| --- | --- |

| 89 | However, in view of the answers given to the first, third and fourth questions, there is no need to answer the second and fifth questions. |

| --- | --- |

Costs

| 90 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (Second Chamber) hereby rules: |

| --- | --- |

| | Article 3 of 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’) |

| --- | --- |

| | must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

| --- | --- |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62022CJ0662_EN_01-E0001) ) Language of the case: Italian.

JUDGMENT OF THE COURT (Second Chamber)

30 May 2024 ( [\*1](#t-ECR_62022CJ0662_EN_01-E0001) )

(Reference for a preliminary ruling – Freedom to provide services – Providers of information society services – Obligation to be entered in the register of communications operators – Obligation to provide information on structure and organisation – Obligation to make a financial contribution – Directive 2000/31/EC – Coordinated field – Principle of control in the home Member State – Exemptions – Concept of measures ‘taken against a given information society service’ – Regulation (EU) 2019/1150 – Objective)

In Joined Cases C‑662/22 and C‑667/22,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decisions of 10 October 2022, received at the Court on 19 and 21 October 2022, in the proceedings

Airbnb Ireland UC (C‑662/22),

Amazon Services Europe Sàrl (C‑667/22)

v

Autorità per le Garanzie nelle Comunicazioni,

THE COURT (Second Chamber),

composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl (Rapporteur), J. Passer and M.L. Arastey Sahún, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | Airbnb Ireland UC, by F. Angeloni, M. Berliri, S. Borocci, G. Gelera, L. Nascimbene, I. Perego, G.M. Roberti, avvocati, and D. Van Liedekerke, advocaat, |

| --- | --- |

| – | Amazon Services Europe Sàrl, by F. Angeloni, M. Berliri, S. Borocci, G. Gelera and F. Moretti, avvocati, |

| --- | --- |

| – | the Italian Government, by G. Palmieri, acting as Agent, and by L. Delbono and R. Guizzi, avvocati dello Stato, |

| --- | --- |

| – | the Czech Government, by M. Smolek, T. Suchá and J. Vláčil, acting as Agents, |

| --- | --- |

| – | Ireland, by M. Browne, Chief State Solicitor, A. Joyce and M. Tierney, acting as Agents, and by D. Fennelly, Barrister-at-Law, |

| --- | --- |

| – | the European Commission, by L. Armati, M. Escobar Gómez, S.L. Kalėda and L. Malferrari, acting as Agents, |

| --- | --- |

after hearing the Opinion of the Advocate General at the sitting on 11 January 2024,

gives the following

Judgment

| 1 | These requests for a preliminary ruling concern the interpretation of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services ([OJ 2019 L 186, p. 57](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2019:186:TOC)), 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 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)), 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 of rules on Information Society services ([OJ 2015 L 241, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2015:241:TOC)), Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ([OJ 2006 L 376, p. 36](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2006:376:TOC)), as well as Article 56 TFEU. |

| --- | --- |

| 2 | The requests have been made in proceedings between, in Case C‑662/22, Airbnb Ireland UC (‘Airbnb’), a company incorporated under Irish law, and, in Case C‑667/22, Amazon Services Europe Sàrl (‘Amazon’), a company incorporated under Luxembourg law, and the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) (‘AGCOM’) concerning measures adopted by the latter with regard to providers of online intermediation services. |

| --- | --- |

Legal context

European Union law

Regulation 2019/1150

| 3 | Recitals 3, 7 and 51 of Regulation 2019/1150 state as follows: \| ‘(3) \| Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. \| \| --- \| --- \| … \| (7) \| A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. \| \| --- \| --- \| … \| (51) \| Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ \| \| --- \| --- \| | ‘(3) | Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. | (7) | A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. | (51) | Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(3) | Consumers have embraced the use of online intermediation services. A competitive, fair, and transparent online ecosystem where companies behave responsibly is also essential for consumer welfare. Ensuring the transparency of, and trust in, the online platform economy in business-to-business relations could also indirectly help to improve consumer trust in the online platform economy. Direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis. |

| (7) | A targeted set of mandatory rules should be established at \[European\] Union level to ensure a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users of online intermediation services should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market and to address possible emerging fragmentation in the specific areas covered by this Regulation. |

| (51) | Since the objective of this Regulation, namely to ensure a fair, predictable, sustainable and trusted online business environment within the internal market, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 \[TEU\]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.’ |

| 4 | Article 1 of that regulation states: ‘1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by laying down rules to ensure that business users of online intermediation services and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities. 2\. This Regulation shall apply to online intermediation services and online search engines provided, or offered to be provided, to business users and corporate website users, respectively, that have their place of establishment or residence in the Union and that, through those online intermediation services or online search engines, offer goods or services to consumers located in the Union, irrespective of the place of establishment or residence of the providers of those services and irrespective of the law otherwise applicable. … 5\. This Regulation shall be without prejudice to Union law, in particular Union law applicable in the areas of judicial cooperation in civil matters, competition, data protection, trade secrets protection, consumer protection, electronic commerce and financial services.’ |

| --- | --- |

| 5 | Article 2(1) of that regulation provides: ‘For the purposes of this Regulation, the following definitions apply: \| (1) \| “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. \| \| --- \| --- \| | (1) | “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (1) | “business user” means any private individual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession’. |

Directive 2000/31

| 6 | Under Article 1 of Directive 2000/31: ‘1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. … 5\. This Directive shall not apply to: \| (a) \| the field of taxation; \| \| --- \| --- \| …’ | (a) | the field of taxation; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | the field of taxation; |

| 7 | Article 2(h) of that directive provides: ‘For the purpose of this Directive, the following terms shall bear the following meanings: … \| (h) \| “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \\| (i) \\| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\\| – \\\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\\| \\\| --- \\\| --- \\\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| …’ \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| | (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| …’ | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

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| (h) | “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. \| (i) \| The coordinated field concerns requirements with which the service provider has to comply in respect of: \\| – \\| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \\| \\| --- \\| --- \\| \\| – \\| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \\| \\| --- \\| --- \\| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| …’ | (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| (i) | The coordinated field concerns requirements with which the service provider has to comply in respect of: \| – \| the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, \| \| --- \| --- \| \| – \| the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; \| \| --- \| --- \| | – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, | – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| – | the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification, |

| – | the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider; |

| 8 | Article 3 of that directive states: ‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. 2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. … 4\. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: \| (a) \| the measures shall be: \\| (i) \\| necessary for one of the following reasons: \\\| – \\\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of public health, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| public security, including the safeguarding of national security and defence, \\\| \\\| --- \\\| --- \\\| \\\| – \\\| the protection of consumers, including investors; \\\| \\\| --- \\\| --- \\\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| – \\| the protection of public health, \\| – \\| public security, including the safeguarding of national security and defence, \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| --- \\| \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| – \\| the protection of public health, \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| – \\| the protection of consumers, including investors; \\| \\| (ii) \\| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \\| \\| --- \\| --- \\| \\| (iii) \\| proportionate to those objectives\[.\] \\| \\| --- \\| --- \\| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| (iii) \| proportionate to those objectives\[.\] \| \| (b) \| before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \\| – \\| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \\| \\| --- \\| --- \\| \\| – \\| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \\| \\| --- \\| --- \\| …’ \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| | (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives\[.\] | (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| …’ | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

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| (a) | the measures shall be: \| (i) \| necessary for one of the following reasons: \\| – \\| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \\| \\| --- \\| --- \\| \\| – \\| the protection of public health, \\| \\| --- \\| --- \\| \\| – \\| public security, including the safeguarding of national security and defence, \\| \\| --- \\| --- \\| \\| – \\| the protection of consumers, including investors; \\| \\| --- \\| --- \\| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| – \| the protection of public health, \| – \| public security, including the safeguarding of national security and defence, \| – \| the protection of consumers, including investors; \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| – \| the protection of public health, \| \| – \| public security, including the safeguarding of national security and defence, \| \| – \| the protection of consumers, including investors; \| \| (ii) \| taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; \| \| --- \| --- \| \| (iii) \| proportionate to those objectives\[.\] \| \| --- \| --- \| | (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; | (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; | (iii) | proportionate to those objectives\[.\] |

| (i) | necessary for one of the following reasons: \| – \| public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, \| \| --- \| --- \| \| – \| the protection of public health, \| \| --- \| --- \| \| – \| public security, including the safeguarding of national security and defence, \| \| --- \| --- \| \| – \| the protection of consumers, including investors; \| \| --- \| --- \| | – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, | – | the protection of public health, | – | public security, including the safeguarding of national security and defence, | – | the protection of consumers, including investors; |

| – | public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, |

| – | the protection of public health, |

| – | public security, including the safeguarding of national security and defence, |

| – | the protection of consumers, including investors; |

| (ii) | taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; |

| (iii) | proportionate to those objectives\[.\] |

| (b) | before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: \| – \| asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, \| \| --- \| --- \| \| – \| notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. \| \| --- \| --- \| …’ | – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, | – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

| – | asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate, |

| – | notified the \[European\] Commission and the Member State referred to in paragraph 1 of its intention to take such measures. |

Directive 2006/123

| 9 | Article 1(1) of Directive 2006/123 provides: ‘This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.’ |

| --- | --- |

| 10 | According to Article 3(1) of that directive: ‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’ |

| --- | --- |

| 11 | Article 16 of that directive states: ‘1. Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory. Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles: \| (a) \| non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; \| \| --- \| --- \| \| (b) \| necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; \| \| --- \| --- \| \| (c) \| proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. \| \| --- \| --- \| 2\. Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements: … \| (b) \| an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; \| \| --- \| --- \| …’ | (a) | non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; | (b) | necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; | (c) | proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. | (b) | an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; |

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| (a) | non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; |

| (b) | necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; |

| (c) | proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. |

| (b) | an obligation on the provider to obtain an authorisation from their competent authorities including entry in a register or registration with a professional body or association in their territory, except where provided for in this Directive or other instruments of Community law; |

Directive 2015/1535

| 12 | Article 1(1) of Directive 2015/1535 provides: ‘For the purposes of this Directive, the following definitions apply: … \| (b) \| “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. \| \| --- \| --- \| … \| (e) \| “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. \| \| --- \| --- \| … \| (f) \| “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. \| \| --- \| --- \| …’ | (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. | (e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. | (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. |

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| (b) | “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. |

| (e) | “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. |

| (f) | “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. |

| 13 | The first subparagraph of Article 5(1) of that directive provides: ‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.’ |

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Italian law

Law No 249/97

| 14 | Legge n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 establishing the Communications Regulatory Authority and telecommunications and broadcasting standards) of 31 July 1997 (Ordinary Supplement to GURI No 177 of 31 July 1997), as amended by legge n. 178 – Bilancio di previsione dello Stato per l’anno finanziario 2021 e bilancio pluriennale per il triennio 2021-2023 (Law No 178 on the State budget for the 2021 financial year and the multiannual budget for the three-year period 2021-2023) of 30 December 2020 (Ordinary Supplement to GURI No 322 of 30 December 2020) (‘Law No 249/97’), provides, in Article 1(6)(a)(5) and (c)(14-bis): ‘The responsibilities of \[AGCOM\] are identified as follows: (a) the Infrastructure and Networks Committee has the following functions: … (5) it shall maintain the Register of Communications Operators \[(“the RCO”)\], in respect of which, pursuant to the present law, … providers of online intermediation services and online search engines offering services in Italy, even if they are not established in Italy …, shall be required to be entered … \[It\] shall adopt a regulation specifically concerning the organisation and maintenance of the \[RCO\] and the definition of criteria for determining \[which\] persons are required to register other than those already registered in the \[RCO\] on the date of entry into force of the present law; … (c) the Board: … (14-bis) shall ensure the adequate and effective enforcement of Regulation \[2019/1150\], including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information’. |

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| 15 | Article 1(31) of Law No 249/97 provides: ‘Persons who fail to comply with orders and formal notices issued by \[AGCOM\] under the present law shall be liable to a fine …. If the non-compliance concerns measures taken so far as concerns the infringement of the rules on dominant positions or pursuant to Regulation \[2019/1150\], each person concerned shall be fined a sum which shall not be less than 2% and not more than 5% of that person’s turnover in the last financial year for which the accounts have been closed prior to notification \[of the notice of non-compliance\] …’ |

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Law No 266/05

| 16 | Article 1(66-bis) of legge n. 266 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2006) (Law No 266 laying down provisions for the preparation of the annual and multiannual State budget (Finance Law 2006)) of 23 December 2005 (Ordinary Supplement to GURI No 302 of 29 December 2005), as amended by Law No 178 of 30 December 2020 (‘Law No 266/05’), provides: ‘For the year 2021, the amount of the contribution due by the providers of online intermediation services and online search engines referred to in Article 1(6)(a)(5) of Law \[No 249/97\] shall be set at a level equal to 0.15% of the revenues generated in national territory, even if those revenues are recorded in the financial statements of undertakings established abroad, relating to the value of production, which results from the financial statements for the previous year, or, for persons not required to draw up such financial statements, from equivalent elements in other accounting records which certify the total value of production. For subsequent years, any change in the level and terms of the contribution may be decided by \[AGCOM\] up to a maximum of 0.2% of the revenues assessed in accordance with the preceding sentence.’ |

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Decision No 666/08

| 17 | On 26 November 2008, AGCOM adopted delibera n. 666/08/CONS – Regolamento per l’organizzazione e la tenuta del Registro degli operatori di comunicazione (Decision No 666/08/CONS, governing the organisation and maintenance of the Register of Communications Operators) (GURI No 25 of 31 January 2009) (‘Decision No 666/08’). |

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| 18 | Article 2 of the rules for the organisation and maintenance of the RCO (‘the AGCOM rules on the RCO’), which are set out in Annex A to Decision No 666/08, lists the categories of persons who are required to be entered in the RCO. |

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| 19 | Under Article 5 of the AGCOM rules on the RCO: ‘1. The persons referred to in Article 2 of these rules shall submit to \[AGCOM\] \[their\] application for entry in the \[RCO\] … 3\. The persons referred to in Article 2, each according to its legal nature, shall submit the declarations relating to the objects of the company, the administrative body, the structure of the company and the activity carried out in accordance with Annex B \[to Decision No 666/08\]. …’ |

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| 20 | Article 24 of those rules provides: ‘Infringements of these rules shall be punished in accordance with Article 1(29) \[to\] (32) of Law \[No 249 of 31 July 1997\].’ |

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| 21 | Annex B to Decision No 666/08 concerns the declarations required for entry in the RCO. |

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Decision No 200/21

| 22 | On 17 June 2021, AGCOM adopted delibera n. 200/21/CONS – Modifiche alla delibera n. 666/08/CONS recante ‘regolamento per la tenuta del Registro degli Operatori di Comunicazione’ a seguito dell’entrata in vigore della legge 30 dicembre 2020, n. 178 – Bilancio di previsione dello Stato per l’anno finanziario 2021 e bilancio pluriennale per il triennio 2021-2023 (Decision No 200/21/CONS, amending Decision No 666/08/CONS containing the ‘rules for maintaining the Register of Communications Operators’ following the entry into force of the Law of 30 December 2020, No 178, concerning the State’s forecast balance sheet for the financial year 2021 and the multiannual balance sheet for the three-year period 2021-2023) (‘Decision No 200/21’). |

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| 23 | As set out in the preamble to Decision No 200/21: ‘… \[having regard to\] Regulation \[2019/1150\] and, in particular, Article 1(2) \[thereof\] … \[whereas\] Law \[No 178 of 30 December 2020\] provided, pursuant to Regulation 2019/1150, inter alia, for the obligation to be entered in the \[RCO\] for providers of online intermediation services and online search engines offering services in Italy, even if they are not established there …’ |

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| 24 | Article 1(1) of that decision amended the list in Article 2 of the AGCOM rules on the RCO to include the following categories of persons: ‘… m. providers of online intermediation services: natural or legal persons which, even if they are not established or resident in national territory, provide or offer to provide online intermediation services, as defined by Regulation 2019/1150, to business users established or resident in Italy; n. providers of online search engine: natural or legal persons which, even if they are not established or resident in national territory, provide or offer to provide an online search engine, as defined by Regulation 2019/1150, in the Italian language or to users established or resident in Italy. …’ |

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| 25 | Article 3 of that decision amended Annex B to Decision No 666/08, in particular by inserting the following text: ‘… Declarations concerning the shareholding of providers of electronic communications services, economic operators engaged in call centre activities, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines: \| 1. \| Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \\| (a) \\| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \\| \\| --- \\| --- \\| \\| (b) \\| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \\| \\| --- \\| --- \\| \\| (c) \\| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \\| \\| --- \\| --- \\| \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| --- \| \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| 2. \| Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ \| \| --- \| --- \| | 1. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| --- \| --- \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| --- \| --- \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| | (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. | (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; | (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). | 2. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ |

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| 1. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of joint stock companies or cooperatives, shall, when submitting their application for registration, produce a declaration, drawn up in accordance with models 5/1/RCO, 5/2/RCO, 5/3/RCO and 5/4/RCO, containing: \| (a) \| an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. \| \| --- \| --- \| \| (b) \| an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; \| \| --- \| --- \| \| (c) \| an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). \| \| --- \| --- \| | (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. | (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; | (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). |

| (a) | an indication of the share capital, the list of shareholders and the ownership of their voting rights. Companies listed on the Stock Exchange must disclose only those shareholdings carrying voting rights in excess of 2% of the share capital, indicating for each of them – using the 5/5/RCO model – the respective controlling shareholdings …. |

| (b) | an indication of the share capital, the list of shareholders and their shareholdings carrying voting rights in excess of 2% of the companies holding the shares or units in the company to be registered; |

| (c) | an indication of any fiduciary titles, interpositions of persons or the existence of other limits on the shares or units of the companies referred to in points (a) and (b). |

| 2. | Providers of electronic communications services, economic operators engaged in the activity of call centres, persons making indirect use of national numbering resources, providers of online intermediation services and providers of online search engines, in the form of a partnership, shall produce, at the time of filing the application for registration, a declaration, drawn up in accordance with model 5/3/RCO, indicating the list of their partners.’ |

Decision No 14/21

| 26 | Provvedimento presidenziale n. 14/21/PRES – recante ‘Misura e modalità di versamento del contributo dovuto all’Autorità per le Garanzie nelle Comunicazioni per l’anno 2021 dai soggetti che operano nel settore dei servizi di intermediazione online e dei motori di ricerca online’ (Presidential Decision No 14/21/PRES, on the ‘Rates and manner of payment of the contribution payable to the Communications Regulatory Authority for the year 2021 by persons operating in the online intermediation services and online search engines sector’) of 5 November 2021, ratified by AGCOM by delibera n. 368/21/CONS (Decision No 368/21/CONS) of 11 November 2021 (GURI No 304 of 23 December 2021) (‘Decision No 14/21’), specified the level and terms of payment, by providers of online intermediation services and online search engines, of the contribution provided for in Article 1(66-bis) of Law No 266/05. |

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The disputes in the main proceedings and the questions referred for a preliminary ruling

| 27 | Airbnb, which has its registered office in Ireland, operates the eponymous online property intermediation portal, which facilitates the connection of renters who have accommodation with persons seeking accommodation. Airbnb collects from the customer the payment relating to the provision of the accommodation before the start of the rental period and, retaining a commission, transfers that payment to the lessor after the rental period has begun, if there has been no challenge on the part of the lessee. |

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| 28 | Amazon, which has its registered office in Luxembourg, operates an online platform seeking to connect sellers and consumers with a view to carrying out transactions between them for the sale of goods. |

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| 29 | Following amendments to the national legal framework resulting, on the one hand, from Law No 178 of 30 December 2020 and, on the other, from Decisions No 200/21 and No 14/21, adopted by the Italian authorities inter alia with a view to ensuring the application of Regulation 2019/1150 (‘the contested national measures’), Airbnb and Amazon, as providers of online intermediation services, are now required, on pain of penalties, to be entered in a register maintained by AGCOM, the RCO, and to communicate, as a result, certain information to that authority, as well as to pay a financial contribution to it. |

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| 30 | Airbnb and Amazon each brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which is the referring court, seeking, inter alia, the annulment of Decisions No 200/21 and No 14/21. |

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| 31 | Before the referring court, Airbnb and Amazon submit that the contested national measures, in so far as they impose on them the obligations referred to in paragraph 29 of the present judgment, are contrary to the principle of the freedom to provide services, to Regulation 2019/1150 and to several directives. |

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| 32 | In that regard, that court recalls, in the first place, that, following the adoption of Regulation 2019/1150, the Italian legislature amended, by Law No 178 of 30 December 2020, Law No 249 of 31 July 1997 and Law No 266 of 23 December 2005. |

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| 33 | Thus, first, the obligation to be entered in the RCO, maintained by AGCOM, was extended to providers of online intermediation services and online search engines (‘the service providers concerned’) offering services on the territory of the Italian Republic, even if they are not established in that Member State (Article 1(6)(a)(5) of Law No 249/97). |

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| 34 | Secondly, AGCOM is responsible for ensuring that Regulation 2019/1150 is implemented, in particular by gathering information (Article 1(6)(c)(14-bis) of Law No 249/97). |

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| 35 | Thirdly, in the event of non-compliance with the measures adopted by AGCOM pursuant to Regulation 2019/1150, the person concerned would have a fine imposed on it of not less than 2% and not more than 5% of that person’s turnover in the last financial year for which the accounts have been closed prior to notification of the notice of non-compliance (second sentence of Article 1(31) of Law No 249/97). |

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| 36 | Fourthly, the service providers concerned are now required to pay a financial contribution to cover the total administrative costs incurred in the exercise of the regulatory, supervisory, dispute resolution and sanctioning functions conferred on AGCOM by Law No 178 of 30 December 2020 (Article 1(66-bis) of Law No 266/05). |

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| 37 | In the second place, the referring court states that, by Decision No 200/21, AGCOM amended Decision No 666/08, Annex A to which contains the AGCOM rules on the RCO, in order to take account of the measures adopted by the Italian legislature with a view to implementing Regulation 2019/1150. |

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| 38 | That court specifies that, in order to be entered in the RCO, the service providers concerned must complete several forms relating not only to the activity carried out, but also to their organisation. Thus, they are required to communicate information on the share capital, the names of the shareholders and their respective shareholdings with voting rights, the composition and term of office of the administrative body and the identity of the legal representative and the directors. The information communicated must be updated annually. Fines are imposed for infringements of the provisions of the AGCOM rules on the RCO. |

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| 39 | In the light of those factors, the referring court considers that the obligation to pay a financial contribution and to be entered in the RCO could, in several respects, be incompatible with EU law, in particular with the principle of the freedom to provide services, Regulation 2019/1150 and several directives. |

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| 40 | With regard to Regulation 2019/1150, that court considers that there is no connection between compliance with the obligations laid down therein and the information required for entry in the RCO, which relates mainly to the ‘ownership structure’ and administrative organisation of the persons concerned. That court considers that the Italian authorities have introduced into their legal system provisions providing for a monitoring of factors inherent in those providers, which is completely different from the monitoring provided for by that regulation, which relates to their compliance with the obligations laid down by that regulation. |

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| 41 | As regards Directive 2015/1535, the referring court, referring to Articles 1 and 5 of that directive, takes the view that the national provisions requiring providers of the services concerned to be entered in the RCO specifically introduce a general requirement concerning the provision of information society services, so that, unless they have been notified to the Commission in advance, they are not enforceable against individuals. |

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| 42 | As regards the principle of the freedom to provide services, referred to in Article 56 TFEU and specified in Directives 2000/31 and 2006/123, the referring court notes that Article 3 of Directive 2000/31 establishes the principle that, in the ‘coordinated field’, within the meaning of Article 2(h) of that directive, information society services must be subject to the legal system of the Member State in which the service provider is established, and Member States may adopt measures derogating from that principle only in compliance with certain substantive and procedural conditions laid down in Article 3(4) of that directive. According to the referring court, the contested national measures do not satisfy those conditions. |

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| 43 | The referring court also points out that, under Article 16 of Directive 2006/123, Member States may not restrict the exercise of the freedom to provide services in the case of a provider established in another Member State by requiring that service provider to obtain authorisation from their competent authorities, including entry in a register, except where provided for in that directive or in other instruments of EU law. However, according to the referring court, the contested national measures do not fall within such cases. |

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| 44 | In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: \| ‘(1) \| Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (2) \| Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? \| \| --- \| --- \| \| (3) \| Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (4) \| Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? \| \| --- \| --- \| \| (5) \| Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ \| \| --- \| --- \| | ‘(1) | Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (2) | Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? | (3) | Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (4) | Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? | (5) | Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ |

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| ‘(1) | Does Regulation \[2019/1150\] preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (2) | Does Directive \[2015/1535\] oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her? |

| (3) | Does Article 3 of \[Directive 2000/31\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (4) | Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of \[Directive 2006/123\] preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another \[Member State\], such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? |

| (5) | Does Article 3(4)(b) of Directive \[2000/31\] require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does \[that\] directive allow a private individual to object to measures not notified to the Commission being applied to him or her?’ |

Consideration of the questions referred

The first, third and fourth questions

| 45 | By its first, third and fourth questions, which it is appropriate to examine jointly and in the first place, the referring court asks, in essence, whether Article 56 TFEU, Article 16 of Directive 2006/123 or Article 3 of Directive 2000/31 must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation 2019/1150, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

| --- | --- |

| 46 | As a preliminary point, it should be noted that, as is apparent from Article 1(1) thereof, Directive 2006/123, adopted on the basis of Article 47(2) EC and Article 55 EC, the terms of which have been reproduced, in essence, in Article 53(1) TFEU and Article 62 TFEU respectively, is intended, inter alia, to facilitate the free movement of services. For its part, Directive 2000/31, adopted on the basis of Article 47(2) EC, Article 55 EC and Article 95 EC, the terms of which have been reproduced, in essence, in Article 53(1) TFEU, Article 62 TFEU and Article 114 TFEU respectively, has as its objective, as set out in Article 1(1) thereof, to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. |

| --- | --- |

| 47 | Since those two directives give concrete expression to the freedom to provide services enshrined in Article 56 TFEU, if it were established that one of them precluded national measures such as those at issue in the main proceedings, there would be no need to examine the first, third and fourth questions in the light of that article. |

| --- | --- |

| 48 | As regards Article 56 TFEU, as the Advocate General pointed out in point 6 of his Opinion, it is true that, according to the case-law, it is applicable to measures in the field of taxation, which is excluded from the scope of Directive 2000/31 by virtue of Article 1(5)(a) thereof (see, to that effect, judgment of 22 December 2022, Airbnb Ireland and Airbnb Payments UK, [C‑83/21](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&locale=en), [EU:C:2022:1018](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018), paragraph [38](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&anchor=#point38)). However, in the present case, neither the referring court nor the Italian Government argues that the contested national measures are related to the need to ensure the fulfilment of tax obligations. |

| --- | --- |

| 49 | Furthermore, it should be noted that Article 3(1) of Directive 2006/123 provides, inter alia, that, if its provisions conflict with a provision of another European Union act governing specific aspects of access to or exercise of a service activity in specific sectors, the provision of that other act is to prevail and is to apply to those specific sectors. |

| --- | --- |

| 50 | Having regard to the fact that Article 3 of Directive 2000/31 concerns specific aspects of access to and the exercise of the activity of an information society service, as set out, in essence, by the Advocate General in points 204 to 207 of his Opinion, if it were established, first, that national measures such as those at issue in the main proceedings fall within the scope of that provision and, secondly, that that provision precludes those measures, there would be no need to examine the first, third and fourth questions in the light of Directive 2006/123. |

| --- | --- |

| 51 | Accordingly, it is appropriate, in the first place, to interpret Article 3 of Directive 2000/31. |

| --- | --- |

| 52 | In that respect, it should be recalled that Article 3(1) of Directive 2000/31 states that each Member State is to ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. Article 3(2) of Directive 2000/31 states that Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. |

| --- | --- |

| 53 | Moreover, under Article 3(4) of Directive 2000/31, Member States may, in respect of a given information society service falling within the coordinated field, take measures that derogate from the principle of the freedom to provide information society services, subject to certain cumulative conditions (see, to that effect, judgment of 19 December 2019, Airbnb Ireland, [C‑390/18](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&locale=en), [EU:C:2019:1112](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112), paragraph [83](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A1112&anchor=#point83)). |

| --- | --- |

| 54 | As regards the ‘coordinated field’ referred to in Article 3 of Directive 2000/31, it should be pointed out that Article 2(h) of that directive defines that field as covering the requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. That field relates to requirements which the service provider must meet and which concern access to the activity of an information society service, such as qualification, authorisation or notification requirements, and the exercise of the activity of an information society service, such as requirements concerning the behaviour of the service provider, the quality or content of the service. |

| --- | --- |

| 55 | Directive 2000/31 is thus based on the application of the principles of control in the home Member State and mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [42](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point42)). |

| --- | --- |

| 56 | Consequently, it is the responsibility of each Member State as the Member State where information society services originate to regulate those services and, on that basis, to protect the general interest objectives referred to in Article 3(4)(a)(i) of Directive 2000/31 (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [43](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point43)). |

| --- | --- |

| 57 | Moreover, in accordance with the principle of mutual recognition, it is for each Member State, as the Member State of destination of information society services, not to restrict the free movement of those services by requiring compliance with additional obligations, falling within the coordinated field, which it has adopted (judgment of 9 November 2023, Google Ireland and Others, [C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835), paragraph [44](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&anchor=#point44)). |

| --- | --- |

| 58 | It follows that Article 3 of Directive 2000/31 precludes, subject to the exemptions authorised under the conditions laid down in paragraph 4 of that article, a provider of an information society service wishing to provide that service in a Member State other than that in which he or she is established from being subject to requirements in the coordinated field imposed by that other Member State. |

| --- | --- |

| 59 | In the present case, it is common ground that the contested national measures, in so far as they require, on pain of penalties, compliance with the obligations referred to in paragraph 29 of the present judgment by providers of online intermediation services established in Member States other than the Italian Republic, impose on those providers conditions which are not laid down in the Member State in which they are established. |

| --- | --- |

| 60 | Similarly, it is not disputed that those services fall within the scope of the ‘information society services’ referred to in Article 2(a) of Directive 2000/31. |

| --- | --- |

| 61 | By contrast, the Italian Government submits that the obligations laid down by the contested national measures do not fall within the ‘coordinated field’ within the meaning of Article 2(h) of that directive, since, first, the service providers concerned may de facto begin and continue to provide those services without complying with the obligation to be entered in the RCO and, secondly, the obligation to transmit information to AGCOM and to pay it a financial contribution is intended to enable it to carry out its supervisory functions. Thus, such obligations would not seek to ensure that providers of such services obtain authorisation to access an information society service activity or to exercise such an activity. |

| --- | --- |

| 62 | In that respect, as the Advocate General pointed out, in essence, in points 157 to 161 of his Opinion, as regards, first, the obligation to be entered in a register, on pain of penalties in the event of failure to comply with that obligation, the fact that, without complying with that obligation, a provider may de facto commence and continue to provide an information society service has no bearing on the need to fulfil that obligation in order to be able lawfully to exercise the activity in question. |

| --- | --- |

| 63 | As regards, secondly, the obligation to transmit to an authority of a Member State information relating to the structure and organisation of the undertaking concerned and the obligation to pay to that authority a financial contribution, also on pain of penalties in the event of failure to comply with those obligations, the fact that they are imposed for the purposes of the supervision, by that authority, of the lawfulness of the exercise of the activity of the information society services in no way affects the scope of those obligations, pursuant to which providers of such services which are established in another Member State and which wish to provide those services in the first Member State are required to comply with the same obligations. |

| --- | --- |

| 64 | Accordingly, contrary to what the Italian Government maintains, obligations such as those laid down by the contested national measures constitute requirements relating to the exercise of the activity of an information society service, so that those obligations fall within the ‘coordinated field’ within the meaning of Article 2(h) of Directive 2000/31. |

| --- | --- |

| 65 | Consequently, Article 3 of Directive 2000/31 precludes measures adopted by a Member State under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority, unless those measures fulfil the conditions laid down in Article 3(4) of Directive 2000/31. |

| --- | --- |

| 66 | That interpretation cannot be called into question by the Czech Government’s argument that Article 3 of Directive 2000/31 might not preclude such measures, in the light of the case-law relating to Article 56 TFEU, which is applicable by analogy, according to which the prohibition laid down in that article is not contravened by national legislation which is applicable to all operators exercising their activity on national territory, the purpose of which is not to regulate the conditions concerning the provision of services by the undertakings concerned and any restrictive effects of which on the freedom to provide services are too uncertain and indirect for the obligation laid down to be regarded as being capable of hindering that freedom (judgment of 22 December 2022, Airbnb Ireland and Airbnb Payments UK, [C‑83/21](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&locale=en), [EU:C:2022:1018](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018), paragraph [45](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A1018&anchor=#point45) and the case-law cited). |

| --- | --- |

| 67 | As the Advocate General set out, in essence, in points 166 and 167 of his Opinion, on the one hand, requirements falling within the coordinated field cannot satisfy the conditions resulting from that case-law since, by definition, their purpose is to regulate access to the activity of providing an information society service and the exercise of that activity. On the other hand, by an act of secondary legislation, the EU legislature may give effect to a fundamental freedom enshrined in the FEU Treaty by creating conditions even more favourable to the proper functioning of the internal market than those resulting from primary law (see, to that effect and by analogy, judgment of 16 June 2015, Rina Services and Others, [C‑593/13](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399&locale=en), [EU:C:2015:399](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399), paragraph [40](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A399&anchor=#point40)). |

| --- | --- |

| 68 | It is therefore necessary to ascertain whether national measures such as those mentioned in paragraph 65 of the present judgment satisfy the conditions laid down in Article 3(4) of Directive 2000/31. |

| --- | --- |

| 69 | To that end, in the first place, it should be noted that, as is clear from the very terms of that provision, only measures ‘taken against a given information society service’ may fall within the scope of that provision. |

| --- | --- |

| 70 | In that regard, it is important to recall that, in the judgment of 9 November 2023, Google Ireland and Others ([C‑376/22](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835&locale=en), [EU:C:2023:835](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A835)), the Court ruled that Article 3(4) of Directive 2000/31 must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services do not fall within the concept of measures ‘taken against a given information society service’ within the meaning of that provision. |

| --- | --- |

| 71 | In the present case, subject to verification by the referring court, it appears that the contested national measures are general and abstract in scope, so that they cannot be classified as measures ‘taken against a specific information society service’ within the meaning of Article 3(4)(a) of Directive 2000/31. |

| --- | --- |

| 72 | Furthermore, under that provision, in order to be considered compliant with that provision, national measures must be necessary to ensure public policy, the protection of public health, public security or the protection of consumers. |

| --- | --- |

| 73 | Accordingly, it is appropriate to determine whether that is the case in relation to national measures adopted with the stated aim of ensuring the application of Regulation 2019/1150. |

| --- | --- |

| 74 | In that regard, it should be recalled that, according to Article 1(5) of Regulation 2019/1150, that regulation is to be without prejudice to the EU law applicable, in particular, in the area of electronic commerce. |

| --- | --- |

| 75 | Since Directive 2000/31 manifestly falls within that area, measures such as the contested national measures cannot be regarded as complying with Article 3(4)(a) of that directive, on the ground that they are intended to ensure the application of Regulation 2019/1150, unless it is established that the objective of the regulation corresponds to one of the objectives listed in that provision. |

| --- | --- |

| 76 | However, it is clear from recitals 7 and 51 of Regulation 2019/1150 that the regulation aims to establish a targeted set of mandatory rules at Union level in order to create a fair, predictable, sustainable and trusted online business environment within the internal market. In particular, business users within the meaning of Article 2(1) of that regulation (‘business users’) should be afforded appropriate transparency, as well as effective redress possibilities, throughout the Union in order to facilitate cross-border business within the Union and thereby improve the proper functioning of the internal market. |

| --- | --- |

| 77 | Article 1(1) of that regulation specifies that the regulation contributes to the proper functioning of that market by laying down rules to ensure that business users and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities. |

| --- | --- |

| 78 | As the Advocate General pointed out, in essence, in points 186 to 190 of his Opinion, even assuming that national measures such as the contested national measures are intended to secure the objective of Regulation 2019/1150, there is no direct link between (i) that objective and (ii) those listed in Article 3(4)(a)(i) of Directive 2000/31, referred to in paragraph 72 of the present judgment. |

| --- | --- |

| 79 | It is common ground that the objective of Regulation 2019/1150 does not concern public policy, the protection of public health or public security. |

| --- | --- |

| 80 | As far as consumer protection is concerned, it should first be noted that it does not cover the protection of businesses. Regulation 2019/1150 lays down rules on relationships between providers of online intermediation services and business users. |

| --- | --- |

| 81 | Next, it follows from recital 3 of Regulation 2019/1150 that the link between ‘the transparency of, and trust in, the online platform economy in business-to-business relations’ and ‘\[helping\] to improve consumer trust in the online platform economy’ is only indirect. |

| --- | --- |

| 82 | Finally, recital 3 of Regulation 2019/1150 states that ‘direct impacts of the development of the online platform economy on consumers are, however, addressed by other Union law, especially the consumer acquis’. |

| --- | --- |

| 83 | It should be added that Article 3(4) of Directive 2000/31, as an exception to the principle of control in the home Member State, must be interpreted strictly (see, by analogy, judgments of 22 November 2012, Probst, [C‑119/12](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748&locale=en), [EU:C:2012:748](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748), paragraph [23](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A748&anchor=#point23), and of 21 June 2022, Ligue des droits humains, [C‑817/19](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491&locale=en), [EU:C:2022:491](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491), paragraph [70](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2022%3A491&anchor=#point70)). Accordingly, that exception cannot be applied to measures which are likely, at most, to have only an indirect link with one of the objectives referred to in that provision. |

| --- | --- |

| 84 | Therefore, it cannot be inferred from the fact that national measures were adopted with the stated aim of ensuring the application of Regulation 2019/1150 that those measures are necessary to secure one of the objectives listed in Article 3(4)(a)(i) of Directive 2000/31. |

| --- | --- |

| 85 | Consequently, measures adopted by a Member State under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority do not satisfy the conditions laid down in Article 3(4)(a) of Directive 2000/31. |

| --- | --- |

| 86 | Since the contested national measures fall within the coordinated field covered by Directive 2000/31 and since the interpretation of that directive makes it possible to answer the first, third and fourth questions, as rephrased in paragraph 45 of the present judgment, there is no need, in accordance with the considerations set out in paragraphs 46 to 50 of the present judgment, also to interpret Article 56 TFEU or Directive 2006/123. |

| --- | --- |

| 87 | In the light of all the foregoing, the answer to the first, third and fourth questions is that Article 3 of Directive 2000/31 must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation 2019/1150, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

| --- | --- |

The second and fifth questions

| 88 | The second and fifth questions concern the prior notification requirements laid down in Directives 2000/31 and 2015/1535, failure to comply with which means that measures that should have been notified but were not are not enforceable against individuals. |

| --- | --- |

| 89 | However, in view of the answers given to the first, third and fourth questions, there is no need to answer the second and fifth questions. |

| --- | --- |

Costs

| 90 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (Second Chamber) hereby rules: |

| --- | --- |

| | Article 3 of 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’) |

| --- | --- |

| | must be interpreted as precluding measures adopted by a Member State, with the stated aim of ensuring the adequate and effective enforcement of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, under which, on pain of penalties, providers of online intermediation services established in another Member State are subject, with a view to providing their services in the first Member State, to the obligation to be entered in a register maintained by an authority of that Member State, to communicate to that authority certain detailed information about their organisation and to pay a financial contribution to that authority. |

| --- | --- |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62022CJ0662_EN_01-E0001) ) Language of the case: Italian.

JUDGMENT OF THE COURT (Seventh Chamber)

27 April 2023 ( [\*1](#t-ECR_62022CJ0070_EN_01-E0001) )

(Reference for a preliminary ruling – Electronic commerce – Directive 2000/31/EC – Article 1 – Scope – Article 2(c) – Concept of ‘established service provider’ – Article 3(1) – Provision of information society services by a provider established on the territory of a Member State – Company established on the territory of the Swiss Confederation – Inapplicability ratione personae – Article 56 TFEU – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons – Scope – Prohibition of restrictions on the cross-frontier provision of services not exceeding 90 days per calendar year – Provision of services in Italy for a period exceeding 90 days – Inapplicability ratione personae – Article 102 TFEU – Nothing in the order for reference enabling a link to be established between the dispute in the main proceedings and any abuse of a dominant position – Inadmissibility)

In Case C‑70/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 27 January 2022, received at the Court on 1 February 2022, in the proceedings

Viagogo AG

v

Autorità per le Garanzie nelle Comunicazioni (AGCOM),

Autorità Garante della Concorrenza e del Mercato (AGCM),

intervening party:

Ticketone SpA,

THE COURT (Seventh Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, N. Wahl (Rapporteur) and J. Passer, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | Viagogo AG, by E. Apa, E. Foco, M.V. La Rosa, E. Marasà, M. Montinari and I. Picciano, avvocati, |

| --- | --- |

| – | the Italian Government, by G. Palmieri, acting as Agent, and by R. Guizzi and F. Varrone, avvocati dello Stato, |

| --- | --- |

| – | the European Commission, by M. Angeli, S. Kalėda, U. Małecka and L. Malferrari, acting as Agents, |

| --- | --- |

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

| 1 | This request for a preliminary ruling concerns the interpretation, first, of Articles 3, 14 and 15 of 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 2000 L 178, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2000:178:TOC)), read in conjunction with Article 56 TFEU, and, secondly, of Articles 102 and 106 TFEU. |

| --- | --- |

| 2 | The request has been made in proceedings between, on the one hand, Viagogo AG, a company established in Geneva (Switzerland), and, on the other hand, the Autorità per le Garanzie nelle Comunicazioni (AGCOM, Communications Regulator, Italy) and the Autorità Garante della Concorrenza e del Mercato (AGCM, Competition and Market Authority, Italy) concerning a fine of EUR 3700000 imposed on Viagogo by AGCOM. |

| --- | --- |

Legal context

The EC-Switzerland Agreement

| 3 | The European Community and its Member States, of the one part, and the Swiss Confederation, of the other, signed seven agreements on 21 June 1999 in Luxembourg (Luxembourg), including the Agreement on the free movement of persons ([OJ 2002 L 114, p. 6](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2002:114:TOC); ‘the EC-Switzerland Agreement’). By Decision of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (2002/309/EC, Euratom) ([OJ 2002 L 114, p. 1](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2002:114:TOC)), those agreements were approved on behalf of the Community. They entered into force on 1 June 2002. |

| --- | --- |

| 4 | Article 1 of the EC-Switzerland Agreement, entitled ‘Objective’, provides: ‘The objective of this Agreement, for the benefit of nationals of the Member States of the European Community and Switzerland, is: … \| (b) \| to facilitate the provision of services in the territory of the Contracting Parties, and in particular to liberalise the provision of services of brief duration …’ \| \| --- \| --- \| | (b) | to facilitate the provision of services in the territory of the Contracting Parties, and in particular to liberalise the provision of services of brief duration …’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (b) | to facilitate the provision of services in the territory of the Contracting Parties, and in particular to liberalise the provision of services of brief duration …’ |

| 5 | Article 5 of the EC-Switzerland Agreement, entitled ‘Persons providing services’, is worded as follows: ‘1 Without prejudice to other specific agreements between the Contracting Parties specifically concerning the provision of services …, persons providing services, including companies in accordance with the provisions of Annex I, shall have the right to provide a service in the territory of the other Contracting Party for a period not exceeding 90 days’ of actual work in a calendar year. …’ |

| --- | --- |

| 6 | Under Article 15 of the EC-Switzerland Agreement, entitled ‘Annexes and Protocols’, the annexes and protocols to that agreement are to form an integral part thereof. |

| --- | --- |

| 7 | Article 17 of Annex I to the EC-Switzerland Agreement, entitled ‘Persons providing services’, states: ‘With regard to the provision of services, the following shall be prohibited under Article 5 of this Agreement: \| (a) \| any restriction on the cross-frontier provision of services in the territory of a Contracting Party not exceeding 90 days of actual work per calendar year; \| \| --- \| --- \| …’ | (a) | any restriction on the cross-frontier provision of services in the territory of a Contracting Party not exceeding 90 days of actual work per calendar year; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | any restriction on the cross-frontier provision of services in the territory of a Contracting Party not exceeding 90 days of actual work per calendar year; |

| 8 | According to Article 18 of Annex I, the provisions of Article 17 of that annex are to apply to companies formed in accordance with the law of a Member State of the Community or the Swiss Confederation and having their registered office, central administration or principal place of business in the territory of a Contracting Party. |

| --- | --- |

| 9 | Article 21 of Annex I provides: ‘1 The total duration of provision of services under Article 17(a) of this Annex, whether continuous or consisting of successive periods of provision, may not exceed 90 days of actual work per calendar year. …’ |

| --- | --- |

European Union law

| 10 | Under recital 19 of Directive 2000/31: ‘The place at which a service provider is established should be determined in conformity with the case-law of the Court of Justice according to which the concept of establishment involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period; … the place of establishment of a company providing services via an Internet website is not the place at which the technology supporting its website is located or the place at which its website is accessible but the place where it pursues its economic activity; …’ |

| --- | --- |

| 11 | Article 1 of that directive, entitled ‘Objective and scope’, is worded as follows: ‘1 This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. … 4\. This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.’ |

| --- | --- |

| 12 | Article 2 of Directive 2000/31, entitled ‘Definitions’, provides: ‘For the purpose of this Directive, the following terms shall bear the following meanings: \| (a) \| “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; \| \| --- \| --- \| \| (b) \| “service provider”: any natural or legal person providing an information society service; \| \| --- \| --- \| \| (c) \| “established service provider”: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; \| \| --- \| --- \| …’ | (a) | “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; | (b) | “service provider”: any natural or legal person providing an information society service; | (c) | “established service provider”: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| (a) | “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC \[of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations ([OJ 1998 L 204, p. 37](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:204:TOC))\] as amended by Directive 98/48/EC \[of the European Parliament and of the Council of 20 July 1998 ([OJ 1998 L 217, p. 18](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1998:217:TOC))\]; |

| (b) | “service provider”: any natural or legal person providing an information society service; |

| (c) | “established service provider”: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; |

| 13 | Article 3 of that directive, entitled ‘Internal market’, states: ‘1 Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. 2\. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. …’ |

| --- | --- |

Italian law

| 14 | La Legge n. 232 – Bilancio di previsione dello Stato per l’anno finanziario 2017 e bilancio pluriennale per il triennio 2017-2019 (Law No 232 on the estimated State budget for the financial year 2017 and multiannual budget for the three-year period 2017-2019) of 11 December 2016 (GURI No 297 of 21 December 2016, Ordinary Supplement to GURI No 57), in the version applicable to the dispute in the main proceedings (‘the 2016 Law’), contains Article 1, paragraph 545 of which provides as follows: ‘In order to counter tax avoidance and evasion, and also to ensure consumer protection and guarantee public order, the sale or any other form of placement of admission tickets for entertainment activities effected by a person other than the owners of the systems for issuing those tickets, even on the basis of an appropriate contract or agreement, shall be punished – save where the act concerned constitutes a criminal offence – by the prohibition of such conduct and by administrative fines of between EUR 5000 and EUR 180000; furthermore, where the conduct in question is carried out through electronic communication networks, in accordance with the procedures laid down in paragraph 546, the punishment shall also be by removal of the contents, or, in the most serious cases, by shutting down the website through which the infringement was committed, without prejudice to actions for damages. \[AGCOM\] and the other competent authorities shall carry out the necessary investigations and interventions, acting on their own initiative or on a report from the persons concerned. In any event, no penalty shall be imposed on the sale or any other form of placement of admission tickets for entertainment activities carried out by a natural person on an occasional basis, provided that it does not have a commercial purpose.’ |

| --- | --- |

The dispute in the main proceedings and the questions referred for a preliminary ruling

| 15 | Viagogo, which has its registered office and tax domicile in Geneva, operates websites based on the intermediation between consumers for the resale of admission tickets for entertainment activities and sporting events. Once their tickets have been purchased from official issuers, such as the organisers of the performance or event concerned or the authorised distributors (‘the primary market’), some people wish to resell them. Viagogo was created in order to bring together supply and demand on the market for the sale of second-hand tickets (‘the secondary market’). |

| --- | --- |

| 16 | Given the speed with which tickets available on the primary market cease to be available, in particular due to the use of automated purchasing programmes by some users, the number of people looking for tickets, in particular for high-profile performances or events, has continued to grow and the websites dedicated to the secondary market concerned are very successful. |

| --- | --- |

| 17 | In that context, Viagogo pre-selects, on the websites which it operates by means of a platform hosted in the United States, a number of performances or events. Ticket holders, by choosing the performance or event corresponding to those tickets, may offer them for sale on those websites. Viagogo brings together potential sellers and purchasers, by offering ancillary services such as telephone and e-mail assistance, price suggestion based on software and an automated system for promoting tickets for certain performances or events. |

| --- | --- |

| 18 | Since the phenomenon described in paragraph 16 above has reached proportions judged to be worrying in Italy, in particular because of the easy opportunity to use the operation of such websites in order to launder money derived from illegal activities, and since the price at which tickets are sold on the secondary market no longer bears any relation to the price at which those tickets are offered on the primary market, the Italian legislature has implemented a policy designed to curb that phenomenon, in particular through the adoption of Article 1(545) of the 2016 Law. |

| --- | --- |

| 19 | Following a number of complaints by companies operating in the music events sector, companies selling tickets for music events on the primary market and trade associations, AGCOM carried out checks on the ‘www.viagogo.it’ site operated by the Viagogo. |

| --- | --- |

| 20 | Following those checks, by Decision No 104/20/CONS of 16 March 2020 AGCOM imposed an administrative fine of EUR 3700000 on Viagogo. Viagogo had been accused of committing 37 infringements by means of that website and a link to it on a social network, consisting in the sale between March and May 2019 of tickets for concerts and performances, without Viagogo being the owner of the systems for issuing those tickets, at prices higher than the nominal prices indicated on the authorised sales sites. |

| --- | --- |

| 21 | Viagogo brought an action for annulment of that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which dismissed that action. It lodged an appeal against the judgment at first instance in the main proceedings before the Consiglio di Stato (Council of State, Italy), the referring court. |

| --- | --- |

| 22 | In those circumstances the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: \| ‘(1) \| Does Directive \[2000/31\], and in particular Articles 3, 14 and 15 thereof, in conjunction with Article 56 TFEU, preclude the application of legislation of a Member State on sales of tickets for events on the secondary market which has the effect of barring the operator of a hosting platform operating in the \[European Union\], such as the appellant in the present case, from supplying to third-party users services advertising the sale of tickets for events on the secondary market, reserving that activity solely to sellers, event organisers or other persons authorised by the public authorities to issue tickets on the primary market through certified systems? \| \| --- \| --- \| \| (2) \| In addition, does Article 102 TFEU, in conjunction with Article 106 thereof, preclude the application of legislation of a Member State on the sale of tickets for events which reserves all services relating to the secondary market for tickets (and brokering in particular) solely to sellers, event organisers or other persons authorised to issue tickets on the primary market through certified systems, by barring from that activity information society service providers which intend to operate as a hosting provider for the purposes of Articles 14 and 15 of Directive \[2000/31\], in particular where, as in the present case, such a reservation has the effect of allowing an operator which is dominant on the primary market for the distribution of tickets to extend its dominance over brokering services on the secondary market? \| \| --- \| --- \| \| (3) \| For the purposes of European legislation and Directive \[2000/31\] in particular, can the notion of “passive hosting provider” be used only in the absence of any activity involving the filtering, selection, indexing, organisation, cataloguing, aggregation, evaluation, use, modification, extraction or promotion of the contents published by users, deemed to be illustrative indicators which do not all have to coexist since they are to be regarded in their own right as indicating business management of the service and/or the adoption of a technique for assessing user behaviour to increase their loyalty, or is it for the referring court to assess the relevance of those circumstances so that, if one or more of them exists, the neutrality of the service which leads to classification as passive hosting provider may be regarded as overriding?’ \| \| --- \| --- \| | ‘(1) | Does Directive \[2000/31\], and in particular Articles 3, 14 and 15 thereof, in conjunction with Article 56 TFEU, preclude the application of legislation of a Member State on sales of tickets for events on the secondary market which has the effect of barring the operator of a hosting platform operating in the \[European Union\], such as the appellant in the present case, from supplying to third-party users services advertising the sale of tickets for events on the secondary market, reserving that activity solely to sellers, event organisers or other persons authorised by the public authorities to issue tickets on the primary market through certified systems? | (2) | In addition, does Article 102 TFEU, in conjunction with Article 106 thereof, preclude the application of legislation of a Member State on the sale of tickets for events which reserves all services relating to the secondary market for tickets (and brokering in particular) solely to sellers, event organisers or other persons authorised to issue tickets on the primary market through certified systems, by barring from that activity information society service providers which intend to operate as a hosting provider for the purposes of Articles 14 and 15 of Directive \[2000/31\], in particular where, as in the present case, such a reservation has the effect of allowing an operator which is dominant on the primary market for the distribution of tickets to extend its dominance over brokering services on the secondary market? | (3) | For the purposes of European legislation and Directive \[2000/31\] in particular, can the notion of “passive hosting provider” be used only in the absence of any activity involving the filtering, selection, indexing, organisation, cataloguing, aggregation, evaluation, use, modification, extraction or promotion of the contents published by users, deemed to be illustrative indicators which do not all have to coexist since they are to be regarded in their own right as indicating business management of the service and/or the adoption of a technique for assessing user behaviour to increase their loyalty, or is it for the referring court to assess the relevance of those circumstances so that, if one or more of them exists, the neutrality of the service which leads to classification as passive hosting provider may be regarded as overriding?’ |

| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |

| ‘(1) | Does Directive \[2000/31\], and in particular Articles 3, 14 and 15 thereof, in conjunction with Article 56 TFEU, preclude the application of legislation of a Member State on sales of tickets for events on the secondary market which has the effect of barring the operator of a hosting platform operating in the \[European Union\], such as the appellant in the present case, from supplying to third-party users services advertising the sale of tickets for events on the secondary market, reserving that activity solely to sellers, event organisers or other persons authorised by the public authorities to issue tickets on the primary market through certified systems? |

| (2) | In addition, does Article 102 TFEU, in conjunction with Article 106 thereof, preclude the application of legislation of a Member State on the sale of tickets for events which reserves all services relating to the secondary market for tickets (and brokering in particular) solely to sellers, event organisers or other persons authorised to issue tickets on the primary market through certified systems, by barring from that activity information society service providers which intend to operate as a hosting provider for the purposes of Articles 14 and 15 of Directive \[2000/31\], in particular where, as in the present case, such a reservation has the effect of allowing an operator which is dominant on the primary market for the distribution of tickets to extend its dominance over brokering services on the secondary market? |

| (3) | For the purposes of European legislation and Directive \[2000/31\] in particular, can the notion of “passive hosting provider” be used only in the absence of any activity involving the filtering, selection, indexing, organisation, cataloguing, aggregation, evaluation, use, modification, extraction or promotion of the contents published by users, deemed to be illustrative indicators which do not all have to coexist since they are to be regarded in their own right as indicating business management of the service and/or the adoption of a technique for assessing user behaviour to increase their loyalty, or is it for the referring court to assess the relevance of those circumstances so that, if one or more of them exists, the neutrality of the service which leads to classification as passive hosting provider may be regarded as overriding?’ |

Admissibility of the request for a preliminary ruling

| 23 | In the first place, it should be borne in mind that, in order to be admissible, a request for a preliminary ruling must be necessary in order for the referring court to decide on the dispute before it (judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, [C‑561/19](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799&locale=en), [EU:C:2021:799](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799) paragraph [30](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A799&anchor=#point30) and the case-law cited), which presupposes that the provisions of EU law to which that request relates are applicable to that dispute. |

| --- | --- |

| 24 | In that regard, first, it must be noted that the three questions referred by the national court concern the interpretation of Directive 2000/31. However, that directive is not applicable ratione personae to the dispute in the main proceedings. |

| --- | --- |

| 25 | In accordance with Article 1 thereof, Directive 2000/31 seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services ‘between the Member States’. This presupposes, therefore, for that directive to be applicable ratione personae, that the services in question are provided by service providers established on the territory of a Member State, as stated in Article 3(1) of the directive. |

| --- | --- |

| 26 | In that regard, Article 2(c) of Directive 2000/31 defines ‘established service provider’ as a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. Article 2(c) further states that the presence and use of the technical means and technologies required to provide the service concerned do not, in themselves, constitute an establishment of the provider. |

| --- | --- |

| 27 | In that respect, it follows from the case-law that since application of Article 3(1) and (2) of Directive 2000/31 is thus subject to the identification of the Member State in whose territory the information society service provider concerned is actually established, it is for the national court to ascertain whether that provider is actually established in the territory of a Member State. In the absence of such establishment, the mechanism laid down in Article 3(2) of Directive 2000/31 does not apply (judgment of 15 March 2012, G, [C‑292/10](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A142&locale=en), [EU:C:2012:142](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A142), paragraph [71](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A142&anchor=#point71) and the case-law cited). |

| --- | --- |

| 28 | Similarly, the prohibition, for reasons falling within the coordinated field, of restrictions on the freedom to provide services, which Directive 2000/31 deals with, relates only, according to the express wording of Article 3(2) of that directive, to services ‘from another Member State’. |

| --- | --- |

| 29 | Admittedly, pursuant to the Agreement on the European Economic Area (EEA) of 2 May 1992 ([OJ 1994 L 1, p. 3](./../../../../legal-content/EN/AUTO/?uri=OJ:L:1994:001:TOC)), the European Economic Area (EEA) Joint Committee, by Decision No 91/2000 of 27 October 2000 amending Annex XI (telecommunications services) to the EEA Agreement ([OJ 2001 L 7, p. 13](./../../../../legal-content/EN/AUTO/?uri=OJ:L:2001:007:TOC)), extended the scope of Directive 2000/31 to the EEA, with the result that that directive also covers the States party to that agreement. However, the Swiss Confederation is not among them. Furthermore, no decision has been adopted by the EU-Switzerland Joint Committee, set up under the EC-Switzerland Agreement, with a view to extending the application of that directive to that third State. |

| --- | --- |

| 30 | It is not disputed that Viagogo is established in Geneva and has its registered office and centralises its economic activity there, notwithstanding the fact that it deploys its websites in versions accessible in various Member States of the European Union and, in particular, in Italy. The services in question are, therefore, provided from a third State by a company governed by the law of that third State. |

| --- | --- |

| 31 | It follows that, contrary to what the referring court assumes, Directive 2000/31 cannot be relied on by the applicant in the main proceedings. Since all the questions referred by that court relate to that directive, the request for a preliminary ruling is inadmissible in its entirety. |

| --- | --- |

| 32 | Secondly, moreover, it must be stated, as regards the first question, that Viagogo cannot rely on Article 56 TFEU either. |

| --- | --- |

| 33 | That article, save where an international treaty or agreement so provides, is not applicable to a company established in a State outside the European Union, even if that company provides services which nationals of certain Member States or companies established in the territory of those States may obtain (see, to that effect, judgment of 21 May 2015, Wagner-Raith, [C‑560/13](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A347&locale=en), [EU:C:2015:347](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A347), paragraph [36](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A347&anchor=#point36) and the case-law cited). |

| --- | --- |

| 34 | In the present case, the scope of the EC-Switzerland Agreement does not allow Viagogo to rely on the application of Article 56 TFEU, since the particular feature of that agreement is to provide, as regards the treatment of service providers, established in Switzerland, like providers established on the territory of a Member State, for a time limitation of 90 days per calendar year. |

| --- | --- |

| 35 | Thus, Article 1 of the EC-Switzerland Agreement makes provision, in particular, ‘to liberalise the provision of services of brief duration’, with Article 5(1) of that agreement granting Swiss service providers ‘the right to provide a service in the territory of the other Contracting Party for a period not exceeding 90 days’ of actual work in a calendar year.’ Annex I to the EC-Switzerland Agreement, which, according to Article 15 of that agreement, forms an integral part of it, includes Article 17 which prohibits ‘any restriction on the cross-frontier provision of services in the territory of a Contracting Party not exceeding 90 days of actual work per calendar year’. Furthermore, Article 18 of that annex stipulates that the provisions of Article 17 of that annex are to apply to companies formed in accordance with the law of a Member State of the Community or the Swiss Confederation and having their registered office, central administration or principal place of business in the territory of a Contracting Party. Lastly, Article 21 of that same annex states that those 90 days correspond to the total duration of provision of services, whether continuous or consisting of successive periods of provision. |

| --- | --- |

| 36 | However, in the present case, it is apparent from the documents before the Court that Viagogo provides services for a longer duration than that provided for by the EC-Switzerland Agreement. |

| --- | --- |

| 37 | First of all, by its very nature, a service provider carrying out its activity exclusively through websites confers on that activity an almost continuous, even permanent, character. In particular, with regard to an offer concerning the announcement of the sale of tickets for a given performance or event, potential purchasers will be able to come forward at any time via the website concerned. In that regard, it is not apparent from the information provided by the referring court that the website operated by the applicant in the main proceedings has, since its creation, ceased to operate at any time, as confirmed by the Italian Government, which states that ‘the intermediary service on the secondary market has been provided \[by Viagogo\] continuously throughout the calendar year’. |

| --- | --- |

| 38 | Next, it is apparent from the evidence put forward at first instance in the main proceedings that Viagogo had already been penalised by AGCOM in 2016 and that its activity did not appear to be limited in time. |

| --- | --- |

| 39 | Lastly, AGCOM’s decision of 16 March 2020, which relates specifically to the months of March to May 2019, that is to say, 92 days, refers to a period exceeding the maximum duration of 90 days laid down in the EC-Switzerland Agreement. In addition, it is apparent from the judgment at first instance in the main proceedings that the last sale that was the subject of AGCOM’s inspection took place on 7 September 2019, that is to say, in any event, well beyond the 90 days provided for in the EC-Switzerland Agreement. |

| --- | --- |

| 40 | Viagogo does not, therefore, fall within the scope ratione personae of Article 56 TFEU and, consequently, cannot rely on infringement of that article in the context of the dispute in the main proceedings, with the result that the first question, in so far as it concerns the interpretation of that article, is also inadmissible on that ground. |

| --- | --- |

| 41 | In the second place, the second and third questions lead the Court to recall, for the sake of completeness, its case-law according to which a question referred for a preliminary ruling by a national court is inadmissible where the latter does not provide the Court with the factual or legal material necessary to give a useful answer (judgment of 2 July 2015, Gullotta and Farmacia di Gullotta Davide & C., [C‑497/12](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436&locale=en), [EU:C:2015:436](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436), paragraph [26](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436&anchor=#point26)). |

| --- | --- |

| 42 | Thus, at no point in the request for a preliminary ruling does the referring court state, as regards the second question, the reasons which prompted it to inquire about the interpretation of Articles 102 and 106 TFEU, or the relationship between those articles and, in particular, the Law of 2016, contrary to the requirements laid down in Article 94(c) of the Rules of Procedure of the Court of Justice. |

| --- | --- |

| 43 | In particular, as regards Article 102 TFEU et seq., and more specifically the existence of a possible abuse of a dominant position, no reference is made by the referring court to the constituent elements of a dominant position for the purposes of Article 102 TFEU in the context of the main proceedings (see, to that effect, judgment of 12 December 2013, Ragn-Sells, [C‑292/12](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A820&locale=en), [EU:C:2013:820](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A820), paragraph [41](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2013%3A820&anchor=#point41)). Nothing is said about what that abuse of a dominant position would be or how the 2016 Law would be likely to lead to it (see, to that effect, judgment of 2 July 2015, Gullotta and Farmacia di Gullotta Davide & C., [C‑497/12](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436&locale=en), [EU:C:2015:436](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436), paragraph [25](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A436&anchor=#point25)). |

| --- | --- |

| 44 | As regards the third question, the hypothetical nature of which is evident, it must be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see, in particular, judgments of 16 December 1981, Foglia, [C‑244/80](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1981%3A302&locale=en), [EU:C:1981:302](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A1981%3A302), paragraph [18](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A1981%3A302&anchor=#point18), and of 20 January 2005, García Blanco, [C‑225/02](./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A34&locale=en), [EU:C:2005:34](./../../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A34), paragraph [28](./../../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A34&anchor=#point28) and the case-law cited). |

| --- | --- |

| 45 | Accordingly, in the light of all the foregoing considerations, the request for a preliminary ruling is inadmissible. |

| --- | --- |

Costs

| 46 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |

| --- | --- |

| | On those grounds, the Court (Seventh Chamber) hereby rules: |

| --- | --- |

| | The request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy), made by decision of 27 January 2022, is inadmissible. |

| --- | --- |

| | \[Signatures\] |

| --- | --- |

---

( [\*1](#c-ECR_62022CJ0070_EN_01-E0001) ) Language of the case: Italian.

§ 67

Autor sa môže s nadobúdateľom v licenčnej zmluve dohodnúť, že udeľuje licenciu v neobmedzenom rozsahu alebo v územne alebo vecne obmedzenom rozsahu.

Ak licenčná zmluva neurčuje rozsah licencie, platí, že licencia je udelená v rozsahu nevyhnutnom na dosiahnutie účelu zmluvy.

Ak licenčná zmluva neurčuje rozsah licencie, ani z jej účelu nevyplýva inak, platí, že

územný rozsah licencie je obmedzený na územie Slovenskej republiky,

vecný rozsah licencie je obmedzený tak, ako je to obvyklé pri danom druhu diela a spôsobe použitia diela.

Ak sa licenčná zmluva uzatvára na území Slovenskej republiky na použitie diel obsiahnutých v doplnkovej on-line službe, považuje sa za územný rozsah licencie územie všetkých zmluvných štátov, ak licenčná zmluva neurčuje inak; tým nie je dotknuté uplatnenie osobitného predpisu.26d)

§ 80

Organizácia kolektívnej správy môže rozšírenou hromadnou licenčnou zmluvou poskytnúť nadobúdateľovi súhlas len na

technické predvedenie diela alebo verejný prenos diela v prevádzkarni alebo v inom priestore prostredníctvom technického zariadenia; to nezahŕňa vysielanie, retransmisiu a sprístupňovanie verejnosti,

použitie obchodne nedostupného diela vyhotovením rozmnoženiny, verejným prenosom alebo verejným rozširovaním jeho rozmnoženiny prevodom vlastníckeho práva na nekomerčné účely,

živé predvedenie literárnych diel a vyhotovenie rozmnoženiny, verejné rozširovanie rozmnoženiny prevodom vlastníckeho práva a verený prenos literárneho diela v rozsahu potrebnom na účel propagácie živého predvedenia,

vysielanie diel vrátane vysielania prostredníctvom satelitu,

vyhotovenie rozmnoženiny literárneho diela,

nájom alebo vypožičanie rozmnoženiny diela,

verejný prenos uskutočňovaný poskytovateľom služby zdieľania obsahu on-line,

sprístupňovanie hudobného diela, literárneho diela, diela výtvarného umenia alebo periodika verejnosti,

vyhotovenie rozmnoženiny diela na účely použitia diela podľa písmena h),

vyhotovenie rozmnoženiny hudobného diela vo forme notového záznamu,

použitie diel obsiahnutých v doplnkovej on-line službe vyhotovením rozmnoženiny a verejným prenosom.

Nadobúdateľom licencie podľa odseku 1 písm. b) sa rozumie knižnica, archív, múzeum alebo zákonný depozitár podľa osobitného predpisu8a) so sídlom v Slovenskej republike.

Obchodne nedostupné dielo môže knižnica, archív, múzeum alebo zákonný depozitár podľa osobitného predpisu8a) použiť na základe rozšírenej hromadnej licenčnej zmluvy uzavretej podľa odseku 1 písm. b) aj na území zmluvného štátu.

Nadobúdateľom licencie podľa odseku 1 písm. k) sa rozumie vysielateľ so sídlom v Slovenskej republike.

§ 10d

Ak záväzkový vzťah vznikol pred 1. júnom 2014, odplata za poskytnutie peňažných prostriedkov spotrebiteľovi sa riadi podľa predpisov účinných do 31. mája 2014.

Ak dôjde k poskytnutiu peňažných prostriedkov spotrebiteľovi v období po 31. máji 2014 a pred 1. septembrom 2014, odplatou sa na účely tohto nariadenia vlády rozumie odplata obvykle požadovaná bankami a pobočkami zahraničných bánk podľa § 1 ods. 1 až 3 za úvery alebo pôžičky v čase uzavretia spotrebiteľskej zmluvy a za najvyššiu prípustnú výšku odplaty sa považuje odplata, ktorá nesmie prevýšiť dvojnásobok úrokových mier úverov pre domácnosti zverejňovaných na webovom sídle Národnej banky Slovenska ako súčasť úrokovej štatistiky za prvý mesiac kalendárneho štvrťroka predchádzajúceho uzavretiu spotrebiteľskej zmluvy; úverom alebo pôžičkou sa rozumie aj obdobný produkt, ktorý je svojou povahou najbližší forme poskytnutia peňažných prostriedkov spotrebiteľovi.

Ak záväzkový vzťah vznikol pred 1. júnom 2014 alebo vznikne pred 1. januárom 2015, písmo ustanovení spotrebiteľskej zmluvy, ako aj ustanovení obsiahnutých vo všeobecných obchodných podmienkach alebo v akýchkoľvek iných zmluvných dokumentoch súvisiacich so spotrebiteľskou zmluvou sa riadi podľa predpisov účinných do 31. mája 2014.

§ 81

Multiteritoriálnou licenčnou zmluvou na on-line použitie hudobných diel udeľuje organizácia kolektívnej správy súhlas na použitie viacerých hudobných diel vzťahujúci sa na územie viac než jedného členského štátu alebo zmluvného štátu, a to vyhotovením rozmnoženiny hudobných diel on-line a verejným prenosom hudobných diel on-line.

Na základe osobitného splnomocnenia podľa § 184 ods. 5 môže organizácia kolektívnej správy udeliť súhlas podľa odseku 1 aj na použitie hudobných diel, ku ktorým vykonáva správu majetkových práv iná organizácia kolektívnej správy.

Nadobúdateľ licencie na základe zmluvy podľa odseku 1 (ďalej len „poskytovateľ služby na on-line použitie hudobných diel“) je povinný informovať organizáciu kolektívnej správy o skutočnom použití hudobných diel, ktoré sú predmetom zmluvy podľa odseku 1. Organizácia kolektívnej správy umožní poskytovateľovi služby na on-line použitie hudobných diel poskytovať tieto informácie prostredníctvom elektronických prostriedkov.

Organizácia kolektívnej správy monitoruje použitie hudobných diel na základe zmluvy podľa odseku 1 a vedie o tomto použití záznamy.

Zmluvu podľa odseku 1 nemožno uzatvoriť na použitie hudobných diel šírením v rámci programovej služby prostredníctvom internetu, ktoré je uskutočňované simultánne s vysielaním tejto programovej služby jej vysielateľom alebo sprístupňovaním záznamu vysielania prostredníctvom internetu jeho vysielateľom.

§ 1

Odplatu pri poskytnutí peňažných prostriedkov spotrebiteľovi tvoria úrok, poplatky a akékoľvek iné odplatné plnenia alebo iné náklady, ktoré sú dohodnuté pri podpise spotrebiteľskej zmluvy a ktoré sú spojené s poskytnutím peňažných prostriedkov alebo vyžadované pri poskytnutí peňažných prostriedkov. Pri výpočte odplaty sa vychádza z predpokladu, že spotrebiteľská zmluva zostane platná dohodnutý čas a že dodávateľ a spotrebiteľ si budú plniť svoje povinnosti za podmienok a v lehotách dohodnutých v spotrebiteľskej zmluve.

Odplata podľa odseku 1 sa vyjadruje v percentách zo sumy zmluvne dohodnutých peňažných prostriedkov za rok a vypočíta sa ako súčet plnení podľa odseku 3 za rok.

Odplatu podľa odseku 1 tvoria plnenia vyjadrené v

percentách zo sumy zmluvne dohodnutých peňažných prostriedkov tak, že

opakujúce sa plnenie v percentách za iné obdobie ako jeden rok sa prepočíta na obdobie jedného roka,

jednorazové plnenie v percentách sa považuje za plnenie za rok,

opakujúce sa plnenie v percentách za rok sa považuje za plnenie za rok,

peniazoch prepočítavané na percentá zo sumy zmluvne dohodnutých peňažných prostriedkov tak, že

opakujúce sa plnenie v peniazoch za iné obdobie ako jeden rok sa prepočíta na obdobie jedného roka, vydelí sa sumou zmluvne dohodnutých peňažných prostriedkov a vynásobí sa číslom 100,

jednorazové plnenie v peniazoch sa vydelí sumou zmluvne dohodnutých peňažných prostriedkov a vynásobí sa číslom 100,

opakujúce sa plnenie v peniazoch za rok sa vydelí sumou zmluvne dohodnutých peňažných prostriedkov a vynásobí sa číslom 100,

percentách z inej sumy, ako je suma zmluvne dohodnutých peňažných prostriedkov tak, že

opakujúce sa plnenie v percentách za iné obdobie ako jeden rok sa prepočíta na obdobie jedného roka a vynásobí sa podielom sumy, z ktorej sa vypočítava plnenie, a sumy zmluvne dohodnutých peňažných prostriedkov,

jednorazové plnenie v percentách sa vynásobí podielom sumy, z ktorej sa vypočítava plnenie, a sumy zmluvne dohodnutých peňažných prostriedkov,

opakujúce sa plnenie v percentách za rok sa vynásobí podielom sumy, z ktorej sa vypočítava plnenie, a sumy zmluvne dohodnutých peňažných prostriedkov.

Na účely stanovenia najvyššej prípustnej výšky odplaty podľa § 1a sa použije priemerná hodnota ročnej percentuálnej miery nákladov bánk a pobočiek zahraničných bánk pre jednotlivé typy novoposkytnutých spotrebiteľských úverov zverejnená podľa osobitného predpisu,2a) naposledy v čase predchádzajúcom uzavretiu spotrebiteľskej zmluvy.