Luxembourg, 11 January 2024
PRESS RELEASE No 5/24
Advocate General Szpunar: a Member State cannot impose general and abstract obligations on an online service provider operating on its territory but established in another Member State
In Italy, providers of online intermediation services and search engines, such as Airbnb, Google, Amazon and Vacation Rentals are subject to certain obligations: they must be entered in a register, periodically submit various information to an administrative authority and pay a financial contribution. Penalties are imposed in case of a failure to meet those obligations.
With the exception of Expedia, which is established in the United States and simply objects to the obligation to supply information, those online service providers, established in the European Union, challenge those obligations before the Italian courts. According to the service providers, those obligations are contrary to the EU Regulation promoting fairness and transparency for business users of online intermediation services1, whilst Italy states that the law in question implements EU rules. Furthermore, the companies established in the EU consider that these obligations infringe, inter alia, the principle laid down in the Directive on electronic commerce2, according to which information society services are, in principle, subject to the law of the Member State in which the service provider is established (in this case Ireland or Luxembourg). In that context, the Italian court decided to refer questions to the Court of Justice.
According to Advocate General Maciej Szpunar, EU law and, more specifically, the Directive on electronic commerce does preclude the imposition of such general and abstract obligations on an online service provider established in another Member State. Further, and as regards the Regulation promoting fairness and transparency for business users of online intermediation services, he considers that the obligations set out in the Italian law do not constitute implementing measures for that regulation. It therefore does not justify those obligations. The objective of that regulation is to contribute to the proper functioning of the internal market by putting in place a fair, predictable, sustainable and trusted environment for online commercial transactions within the internal market. In that context, a Member State may only collect information that is relevant to its obligations under that regulation and to the objectives thereof.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
1 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.
2 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).
Source – EU Court of Justice – Email