Judgment;Abstract — ECLI:EU:C:2024:433
Date: 2024-05-30
Language of the case: Italian
Court formation: Second Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-663/22 – 1 
Case C-663/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
19 October 2022 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
10 October 2022 
Applicant:  
Expedia Inc. 
Defendant:  
Autorità per le Garanzie nelle Comunicazioni 
  
Subject matter of the main proceedings 
Action brought by Expedia Inc. for the annulment of Decision No 161/21/CONS 
of the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory 
Authority, Italy) (‘AGCOM’) amending Decision No 397/13/CONS of 25 June 
2013 on ‘Economic System Information’, by which AGCOM extended the 
obligation to provide economic system information (‘ESI’), already provided for 
by Decision No 397/13/CONS, to providers of online intermediation services, and 
for the annulment of other related AGCOM acts. 
Subject matter and legal basis of the request 
Interpretation of Regulation (EU) 2019/1150 and the principle of proportionality 
for the purpose of ascertaining whether (i) those rules preclude provisions of a 
Member State or measures of an independent national authority requiring foreign 
providers of online intermediation services to submit a document containing 
information that is irrelevant for the purposes of that regulation and (ii) whether 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-663/22 
 
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the information disclosed through the ESI is relevant for the adequate and 
effective implementation of Regulation 2019/1150. 
Questions referred for a preliminary ruling 
Does Regulation (EU) 2019/1150, and in particular Article 15 thereof, as well as 
the principle of proportionality, preclude legislation of a Member State or a 
measure adopted by an independent national authority – such as those indicated in 
the grounds of the order for reference – requiring foreign providers of online 
intermediation services to submit a report containing information that is irrelevant 
as regards the aims of that regulation? 
In any event, can the information requested through the submission of the ESI be 
considered relevant and instrumental for the adequate and effective 
implementation of Regulation 2019/1150? 
Provisions of European Union law relied on 
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, in particular recitals 46 and 47 and Articles 15 and 16. 
Provisions of national law relied on 
Decreto-legge 23 ottobre 1996, n. 545, ‘Disposizioni urgenti per l’esercizio 
dell’attività radiotelevisiva e delle telecomunicazioni’ (Decree-Law No 545 of 
23 October 1996 containing urgent provisions for broadcasting and 
telecommunications activities), converted into law by legge 23 dicembre 1996, n. 
650 (Law No 650 of 23 December 1996), in particular Article 1.  
Legge 31 luglio 1997, n. 249, ‘Istituzione dell’Autorità per le garanzie nelle 
comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo’ 
(Law No 249 of 31 July 1997 establishing the Communications Regulatory 
Authority and telecommunications and broadcasting standards), in particular 
Article 1, as amended by legge n. 178/2020 (Law No 178/2020) in the light of the 
entry into force of Regulation 2019/1150. 
According to those rules, AGCOM has the power to determine by its own 
measures which accounting data and other information must be disclosed to it. 
AGCOM Decision No 161/21/CONS of 12 May 2021 amending Decision 
No 397/13/CONS of 25 June 2013 on ‘Economic System Information’. Decision 
No 161/21/CONS amended the earlier Decision No 397/13/CONS by requiring all 
providers of online intermediation services, even if established or resident abroad, 
operating with business users resident or established in Italy, as well as all 
providers of online search engines, even if established or resident abroad, 
EXPEDIA 
 
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operating in the Italian language or with business users resident or established in 
Italy, to submit the ESI. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, Expedia Inc. (‘the applicant’), is a company based in the United 
States that operates online platforms providing online hotel and travel booking 
services. 
2 By its action, the applicant seeks the annulment of AGCOM Decision 
No 161/21/CONS, by which the obligation to submit the ESI was extended to 
providers of online intermediation services operating in the Italian market, a 
category to which the applicant considers it belongs. 
The essential arguments of the parties in the main proceedings 
3 The applicant is of the view that the disclosure requirements imposed on it under 
Decision No 161/21/CONS are unlawful. In that regard, the applicant claims that 
Regulation 2019/1150 does not allow an additional procedural burden to be placed 
on European or non-European operators. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 The referring court states that the ESI is an annual declaration that 
communications operators, including providers of online intermediation services, 
are obliged to submit. It covers various company details and financial data relating 
to the activity carried out by the data subjects, in order to gather the information 
necessary for the specific purposes provided for by the applicable legislation (for 
example, for the purposes of verifying anti-concentration limits, analysing the 
market and any dominant positions, filing annual reports and updating the 
statistics for communications operators). 
5 By Decision No 161/21/CONS, AGCOM imposed also on online service 
providers the requirement to submit the ESI and thus relevant and specific 
information about their financial position. For example, entities providing online 
intermediation services must disclose ‘total e-commerce marketplace revenue’ and 
‘subscription fees and fixed fees for the use of the e-commerce marketplace 
platform by users’. 
6 AGCOM justifies that extension by explaining that it is necessary for the purpose 
of gathering relevant information annually and carrying out activities aimed at 
ensuring the adequate and effective enforcement of Regulation 2019/1150. 
7 Any failure to submit the ESI or any disclosure of inaccurate information incurs a 
penalty. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-663/22 
 
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8 In those circumstances, the referring court doubts whether the obligation to submit 
the ESI, provided for in the abovementioned national rules, complies with 
Regulation 2019/1150. In that regard, Article 15 of that regulation confers on 
Member States the task of ensuring the adequate and effective enforcement of 
Regulation 2019/1150. In addition, Article 1 of Law No 249/1997 confers 
exclusively on AGCOM the task of ensuring the adequate and effective 
enforcement of Regulation 2019/1150, which promotes 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. 
9 In that context, since the ESI involves the submission of information mainly 
relating to the revenue of providers of online intermediation services, which gives 
no indication as to compliance with the obligations laid down in Regulation 
2019/1150 and as to the transparency and fairness of the service providers’ 
relationships with business users, the referring court considers that the legislation 
at issue has introduced a different type of supervision, which conflicts with that 
envisaged for the implementation of the regulation. In addition, such supervision 
is incapable of achieving the objective pursued by Regulation 2019/1150, since it 
concerns the financial position of the service providers and not their compliance 
with the obligations laid down in that regulation so as to ensure transparency and 
fairness of contractual relations with business users. 
10 The question is relevant since, if a direct conflict is found between the obligation 
to submit the ESI and the regulation, the AGCOM decision could be considered 
vitiated.