Opinion of the Advocate General — ECLI:EU:C:2025:552
Date: 2025-07-10
Language of the case: Italian

Summary C-797/23 – 1 
Case C-797/23 
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: 
21 December 2023 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
12 December 2023 
Applicant: 
Meta Platforms Ireland Limited 
Defendant: 
Autorità per le Garanzie nelle Comunicazioni 
  
Subject matter of the main proceedings 
Action brought by Meta Platforms Ireland Limited (‘the applicant’) before the 
Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, 
Lazio) (‘the TAR Lazio’) against Resolution No 3/23/CONS of the Autorità per le 
Garanzie nelle Comunicazioni (the Italian Communications Authority) 
(‘AGCOM’) which laid down the criteria for determining fair compensation for 
the online use of press publications 
Subject matter and legal basis of the request 
The reference for a preliminary ruling, made pursuant to Article 267 TFEU by the 
TAR Lazio, seeks to ascertain whether Article 43-bis of the legge sul diritto 
d’autore (the Law on Copyright) and AGCOM Resolution No 3/23/CONS are 
compatible with (i) Article 15 of Directive (EU) 2019/790 and (ii) the principles 
of freedom to conduct a business (Articles 16 and 52 of the Charter of 
Fundamental Rights of the European Union), free competition (Article 109 TFEU) 
and proportionality 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-797/23 
 
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Questions referred for a preliminary ruling 
1. May Article 15 [of Directive (EU) 790/2019 of the European Parliament and of 
the Council of 17 April 2019 on copyright and related rights in the Digital Single 
Market and amending Directives 6/9/EC and 2001/29/EC (the European Union 
Copyright Directive; ‘the EUCD’)] be interpreted as precluding the introduction 
of provisions of national legislation, such as those laid down in Article 43-bis of 
[Law No 633 of 22 April 1941] and those laid down in [Resolution 
No 3/23/CONS of the Autorità per le Garanzie nelle Comunicazioni of 19 January 
2023], in so far as: 
(a) for the benefit of publishers and in addition to the exclusive rights referred to 
in Article 15 of the EUCD, remuneration (fair compensation) obligations are 
imposed on [information society service providers (ISSPs)]; 
(b) those ISSPs are required: 
– to enter into negotiations with publishers, 
– to provide those publishers and the regulatory authority with the information 
necessary to determine fair compensation, and 
– not to restrict the visibility of the publisher’s content in search results 
pending completion of negotiations; 
(c) the regulatory authority (AGCOM) is given: 
– supervisory and sanctioning powers, 
– the power to identify the benchmark criteria for determining fair 
compensation, 
– the power to determine, in the absence of agreement between the parties, the 
exact amount of fair compensation; 
2. Does Article 15 of the EUCD preclude provisions of national legislation, such 
as those referred to in Question 1 above, that impose an obligation on [ISSPs] to 
disclose data, an obligation that is monitored by the national regulatory authority 
and non-compliance with which leads to administrative penalties becoming 
applicable? 
3. Do the principles of freedom to conduct a business, referred to in Articles 16 
and 52 of the Charter of Fundamental Rights of the European Union, of free 
competition, referred to in Article 109 TFEU, and of proportionality, referred to in 
Article 52 of the Charter of Fundamental Rights of the European Union, preclude 
provisions of national legislation, such as those referred to above, which: 
(a) introduce rights to remuneration in addition to the exclusive rights referred to 
in Article 15 of the EUCD, the implementation of which is accompanied by the 
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imposition, referred to above, of an obligation on [ISSPs] to enter into 
negotiations with publishers, an obligation to provide publishers and/or the 
national regulatory authority with the information necessary to determine fair 
compensation, and an obligation not to restrict the visibility of the publisher’s 
content in search results pending such negotiations; 
(b) confer on that national regulatory authority: 
– supervisory and sanctioning powers, 
– the power to identify the benchmark criteria for determining fair 
compensation, 
– the power to determine, in the absence of agreement between the parties, the 
exact amount of fair compensation? 
Provisions of European Union law relied on 
Directive (EU) 2019/790 of the European Parliament and of the Council of 
17 April 2019 on copyright and related rights in the Digital Single Market and 
amending Directives 96/9/EC and 2001/29/EC, in particular recital 1, recital 83 
and Article 15 
Charter of Fundamental Rights of the European Union, Articles 16 and 52 
Article 109 TFEU 
Provisions of national law relied on 
Legge 22 aprile 1941, n. 633 (legge sul diritto d’autore) (Law No 633 of 22 April 
1941 (the Law on Copyright)), Article 43-bis: 
‘1. Publishers of press publications, whether they are individuals or members of 
an association or consortium, shall have, in respect of the online use of their press 
publications by providers of the information society services referred to in 
Article 1(1)(b) of decreto legislativo 15 dicembre 2017, n. 223 (Legislative 
Decree No 223 of 15 December 2017), including media monitoring and press 
review undertakings, the exclusive rights of reproduction and communication 
referred to in Articles 13 and 16. 
2. “Press publication” means a collection composed mainly of literary works of a 
journalistic nature […] 
3. “Publishers of press publications” means persons who, whether individually, in 
association or as members of a consortium, publish the publications referred to in 
paragraph 2 in the course of an economic activity, even if they are established in 
another Member State. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-797/23 
 
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[…] 
8. For the online use of press publications, information society service providers 
shall pay fair compensation to the persons referred to in paragraph 1. Within 
60 days of the date of entry into force of this provision, [AGCOM] shall adopt a 
regulation identifying the benchmark criteria for determining the fair 
compensation referred to in the first sentence, taking into account, inter alia, the 
number of online consultations of the article, the years of activity and the market 
share of the publishers referred to in paragraph 3 and the number of journalists 
employed, as well as the costs incurred by both parties in respect of investment in 
technologies and infrastructure, and the economic benefits accruing to both parties 
from publication in terms of visibility and advertising revenue. 
9. Negotiations, with a view to the conclusion of a contract for the use of the 
rights referred to in paragraph 1, between information society service providers – 
including media monitoring and press review undertakings – and the publishers 
referred to in paragraph 3 shall also take into account the criteria laid down in the 
regulation referred to in paragraph 8. During the negotiations, information society 
service providers shall not restrict the visibility of the publishers’ content in search 
results. […] 
10. Without prejudice to the right to bring an action before the ordinary courts 
referred to in paragraph 11, if no agreement on the amount of compensation is 
reached within 30 days of the request to open negotiations by one of the parties 
concerned, either party may apply to [AGCOM] and ask that authority to 
determine fair compensation, setting out its financial proposal in its request. 
Within 60 days of the request of the party concerned, […] [AGCOM] shall 
indicate, on the basis of the criteria laid down in the regulation referred to in 
paragraph 8, which of the financial proposals made comply with those criteria or, 
where it considers none of the proposals to be compliant, it shall set out the 
amount of fair compensation of its own motion. 
11. Where, following the determination of fair compensation by [AGCOM], the 
parties do not conclude a contract, either party may bring the matter before the 
chamber of the ordinary court specialising in business matters […] 
12. Information society service providers, including media monitoring and press 
review undertakings, are required to make available, at the request of the party 
concerned, […] or at the request of [AGCOM], the data necessary for the 
determination of the amount of fair compensation. Compliance with the obligation 
referred to in the first sentence shall not exempt the publishers referred to in 
paragraph 3 from the obligation to respect the confidentiality of commercial, 
industrial and financial information of which they have become aware. 
Compliance with the obligation imposed on service providers to provide 
information shall be monitored by [AGCOM]. In the event of failure to provide 
such data within 30 days of a request made pursuant to the first sentence, 
[AGCOM] shall impose an administrative fine on the non-compliant entity of up 
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to 1% of turnover in the last financial year ending prior to the notification of the 
challenge. 
[…] 
14. The rights referred to in this Article shall expire two years after the press work 
is published […] 
Delibera n. 3/23/CONS del 19 gennaio 2023, Regolamento in materia di 
individuazione dei criteri di riferimento per la determinazione dell’equo 
compenso per l’utilizzo online di pubblicazioni di carattere giornalistico di cui 
all’articolo 43-bis della legge 22 aprile 1941, n. 633 (AGCOM Resolution 
No 3/23/CONS of 19 January 2023, Regulation on the identification of benchmark 
criteria for determining fair compensation for the online use of press publications, 
as set forth under Article 43-bis of Law No 633 of 22 April 1941). 
That resolution: 
– identifies the criteria to be used to determine the amount of fair 
compensation (Article 4); these include the definition of a calculation basis 
using the advertising revenue of information society service providers 
(‘ISSPs’) resulting from the online use of the publisher’s press publications; 
– lists the obligations to make the data available; 
– defines AGCOM’s inspection powers and provides for the imposition of an 
administrative fine on non-compliant entities (Article 5); 
– governs the procedure for asking AGCOM to determine the amount of fair 
compensation and the rules of the relevant procedure, including the 
possibility for that authority to set that amount unilaterally (Articles 8 to 12) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant provides European users, including Italian users, with a range of 
online services, including Facebook, accessible via the website 
www.facebook.com and via applications for mobile devices. Some press 
publishers share extracts from or links to their content on their Facebook Page, 
together with a link that directs users to the publisher’s website. Individual 
Facebook users may thus access complete publications on that website and may 
also comment on the publisher’s post or share it on their own Facebook profile, 
thus generating additional traffic to the publisher’s website. 
2 Article 1 of Legislative Decree No 177 of 8 November 2021 inserted an 
Article 43-bis into the Law on Copyright. On 19 January 2023, on the basis of, 
inter alia, paragraph 8 of Article 43-bis, AGCOM adopted Resolution 
No 3/23/CONS. 
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3 Taking the view that that legislation is contrary to EU law and to the Italian 
Constitution, the applicant has brought an action against the resolution in question 
before the TAR Lazio. AGCOM and the Federazione Italiana Editori Giornali (the 
Italian Federation of Newspaper Publishers) have joined the proceedings, 
contending that the action should be dismissed. 
The essential arguments of the parties in the main proceedings 
4 The applicant submits that Article 43-bis of the Law on Copyright, on the basis of 
which Resolution No 3/23/CONS was adopted, differs significantly from 
Article 15 of Directive 2019/790 in the following respects: 
– it introduces a right to remuneration (‘fair compensation’) for newspaper 
publishers, not provided for in Article 15; 
– it lays down significant restrictions on the contractual freedom of economic 
operators; 
– it provides for the possibility to ask AGCOM to determine the amount of 
fair compensation, in the event that negotiations between the parties fail, on 
the basis of a set of vague and arbitrary criteria; 
– it introduces an obligation not to restrict the visibility of publishers’ content 
in search results during the negotiations, and imposes data disclosure 
obligations on ISSPs; 
– it grants AGCOM sanctioning powers with regard to the obligations 
imposed on ISSPs to make data available. 
5 In support of its action, the applicant relies, inter alia, on the following pleas in 
law: 
(a) Incompatibility of Article 43-bis of the Law on Copyright and Resolution 
No 3/23/CONS with EU law. 
The applicant states that, while Article 15 of Directive 2019/790 gives newspaper 
publishers the contractual freedom to decide whether to refuse or grant a free 
licence, Article 43-bis [of the Law on Copyright] has introduced a right to 
remuneration which takes the form of an obligation to contract that significantly 
restricts the contractual freedom of economic operators and to which an obligation 
to make payment is linked. The applicant also alleges infringement of the 
prohibition on ‘gold plating’ (introducing or maintaining regulatory levels above 
the minimum levels required by the European directives), resulting in the 
reduction of competition to the detriment of undertakings and citizens, and 
infringement of the freedom to conduct a business. Furthermore, in the applicant’s 
view, the obligations imposed on ISSPs are in breach of the principle of 
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proportionality and impede, or render significantly less attractive, the provision of 
services in Italy by companies established in other Member States. 
(b) Breach of the ‘country of origin’ principle and the principle of free movement 
of services, whereby an ISSP is subject to the legislation and jurisdiction of the 
authorities of the Member State in which it is established (and not to the different 
laws and authorities of the Member States of the European Union in which it 
provides services). However, the applicant argues that Article 43-bis and 
Resolution No 3/23/CONS impose on ISSPs not established in Italy, such as the 
applicant, national obligations additional to those imposed by the Member State of 
establishment. 
(c) Failure to notify the European Commission under Directive 2015/1535: the 
applicant submits that Article 43-bis and Resolution No 3/23/CONS do not apply 
to it since they were not notified to the Commission under Articles 5 and 6 of 
Directive 2015/1535, even though they established a technical regulation requiring 
prior notification. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The referring court notes that Article 43-bis of the Law on Copyright has 
introduced provision for fair compensation, the determination of which is the 
subject of negotiations between the parties (ISSPs and publishers). Failure to 
reach an agreement, after 30 days have elapsed, gives each party the option of 
approaching AGCOM, which, within 60 days of being so approached, is to 
indicate, on the basis of the criteria laid down in Resolution No 3/23/CONS, 
which of the financial proposals made complies with those criteria, or, where it 
considers none of the proposals to be compliant, is to set out the amount of fair 
compensation of its own motion. According to the referring court, the 
determination of fair compensation by AGCOM may introduce a restriction on the 
parties’ contractual freedom and may infringe the principle of freedom to conduct 
a business. 
7 It also notes that Article 43-bis of the Law on Copyright introduces a third party, 
namely AGCOM, with the following powers: regulatory powers (identifying the 
benchmark criteria for determining fair compensation); decision-making powers 
(setting the amount of fair compensation); executive powers (imposing an 
obligation on the parties to make available ‘the data necessary for the 
determination of the amount of fair compensation’) and sanctioning powers. 
8 The referring court notes that it is apparent from a comparison with Directive 
2019/790 that Article 43-bis strengthens the EU regulatory framework, not only 
by inserting a fundamental economic aspect (which is not provided for in 
Article 15 of the directive) but also by laying down a set of obligations for ISSPs 
and powers for the national regulatory authority, which not only have no basis in 
EU law, but also, above all, raise doubts as to the compatibility of the Italian 
legislation with that directive. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-797/23 
 
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9 The referring court observes that such doubts have also been raised by the 
Autorità Garante della Concorrenza e del Mercato (the Italian Competition 
Authority), which has stated that the provision contained in Article 43-bis appears 
to exceed the limits set by the EU legislature by introducing elements not 
provided for by EU law and by providing for negotiating mechanisms that restrict 
the contractual freedom of economic operators. That authority has also stated that 
Directive 2019/790 is sufficiently detailed and that any additional level of 
regulation could compromise the homogeneity of the application of that directive 
in the Member States. 
10 The referring court then refers to the judgment of the Court of Justice in Case 
C-401/19 (in particular, paragraphs 32, 46, 63, 65, 66 and 67) concerning the 
interpretation of Article 17 of Directive 2019/790 and, therefore, the obligations 
of online content-sharing service providers for the purposes of copyright 
protection. The referring court considers that Articles 15 and 17 of that directive 
are very similar, and stresses that the judgment referred to above points out the 
key importance of compliance with the principle of proportionality. 
11 In particular, the referring court points out that the Court of Justice has stated that 
‘where several fundamental rights and principles enshrined in the Treaties are at 
issue, the assessment of observance of the principle of proportionality must be 
carried out in accordance with the need to reconcile the requirements of the 
protection of those various rights and principles at issue, striking a fair balance 
between them’ (paragraph 66) and that, ‘in order to satisfy the requirement of 
proportionality, the legislation which entails an interference with fundamental 
rights must lay down clear and precise rules governing the scope and application 
of the measure in question and imposing minimum safeguards, so that the persons 
whose exercise of those rights is limited have sufficient guarantees to protect them 
effectively against the risk of abuse. That legislation must, in particular, indicate 
in what circumstances and under which conditions such a measure may be 
adopted, thereby ensuring that the interference is limited to what is strictly 
necessary’ (paragraph 67). 
12 The referring court considers that it is essential to verify the compatibility of the 
provisions of national legislation with the principle of proportionality, as 
interpreted by the Court of Justice. According to the referring court, the setting of 
fair compensation, payable by ISSPs to publishers, might not be proportionate, not 
only with regard to the protection of the right to communication and/or 
information, but also, above all, with regard to the homogenisation of press 
publications (protected by provision for fair compensation, in addition to 
exclusive rights), in relation to copyright-protected content (which is also 
published online). The referring court considers that the significant powers of 
intervention granted to AGCOM might also be characterised as disproportionate. 
13 A comparison between the provision laid down in Article 15 of Directive 
2019/790 and the provisions contained in Article 43-bis of the Law on Copyright 
and AGCOM Resolution No 3/23/CONS leads the TAR Lazio to make a reference 
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to the Court of Justice for a preliminary ruling. The questions which it has 
identified are, in its view, relevant for the purpose of resolving the dispute before 
it.