# C_2022165EN.01002901.xml

| 19.4.2022 | EN | Official Journal of the European Union | C 165/29 |
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19.4.2022

EN

Official Journal of the European Union

C 165/29

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 1 February 2022 — Viagogo AG v Autorità per le Garanzie nelle Comunicazioni, Autorità Garante della Concorrenza e del Mercato

(Case C-70/22)

(2022/C 165/38)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Viagogo AG

Respondents: Autorità per le Garanzie nelle Comunicazioni, Autorità Garante della Concorrenza e del Mercato

Questions referred

| 1. | Does Directive 2000/31/EC, (1) 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 EU, 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? |
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1.

Does Directive 2000/31/EC, (1) 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 EU, 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/EC, 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? |
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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/EC, 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/EC 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? |
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3.

For the purposes of European legislation and Directive 2000/31/EC 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?

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(1)  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).

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