The Court of Justice of the European Union has ruled in Joined Cases C-662/22 | Airbnb Ireland and C-667/22 | Amazon Services Europe, Case C-663/22 | Expedia, Joined Cases C-664/22 | Google Ireland and C-666/22 | Eg Vacation Rentals Ireland, and Case C-665/22 | Amazon Services Europe.
In Italy, providers of online intermediation services and search engines, (for example, Google, Amazon and Vacation Rentals) are subject to certain obligations: they must be entered in a register, periodically submit certain information to an administrative authority and pay a financial contribution. Penalties are imposed if they fail to meet those obligations.
Expedia is established in the US and objected to the obligation to supply information. The other online service providers are established in the EU and challenged all the obligations before the Italian courts. They argued that the obligations are contrary to Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services (Platform to Business Regulation). However, Italy states that the law in question implements EU rules. In addition, the companies argued that the obligations infringe the principle in the Directive on electronic commerce (2000/31/EC) under 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 and Luxembourg).
The Italian court decided to refer questions to the Court of Justice. The Advocate General issued his opinion in early 2024. He said that EU law and, more specifically, the Directive on electronic commerce, does prevent the imposition of such general and abstract obligations on an online service provider established in another Member State.
The Court of Justice has now held that EU law precludes measures such as those adopted by Italy.
Under the Directive on electronic commerce, it is the home Member State of the company providing information society services that regulates the provision of those services. Member States of destination, bound by the principle of mutual recognition, are required, except in exceptional circumstances, not to restrict the freedom to provide those services. Consequently, Italy cannot impose on providers of those services established in other Member States additional obligations which, although required for the provision of those services in that country, are not imposed in their Member State of establishment.
According to the Court of Justice, those obligations do not fall within the exceptions permitted by the Directive on electronic commerce. First, they are, subject to review by the Italian courts, of general and abstract application. Secondly, they are not necessary to protect one of the objectives of general interest referred to in the Directive. Neither are they needed to ensure adequate and effective enforcement.
