Information;Order — ECLI:EU:C:2024:420
Date: 2024-05-17
Language of the case: French
Court formation: Seventh Chamber
Subject matter: State aids;Competition;Agreements, decisions and concerted practices;Right of establishment;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: France

Anonymised version 
Translation C-190/23 – 1 
Case C-190/23 
Request for a preliminary ruling 
Date lodged:  
17 February 2023 
Referring court:  
Tribunal Judiciaire de Paris (France) 
Date of the decision to refer:  
17 February 2023 
Applicant:  
Le Procureur de la République de Paris: Section S2 
Defendants:  
VGG AG 
VGG ENTERTAINMENT INC 
Dan A. 
SAS M. Trade 
SASU D. 
SAS T. Logistique 
Arthur C. 
SAS S. 
Grégory B. 
David C. 
David M. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2023 – CASE C-190/23 
 
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IE 
CID 
  
REQUEST FOR A 
PRELIMINARY RULING 
FROM THE COURT OF JUSTICE 
OF THE EUROPEAN UNION 
[…] 
ANONYMISATION OF THE REQUEST 
The investigating judges decided to submit this request anonymously pursuant to 
Article 95 of the Rules of Procedure of the Court of Justice. The request concerns 
a question formulated at the pre-trial judicial investigation stage, and thus in a 
procedure which is not public and whose content is accessible only to the parties, 
in accordance with Article 11 of the code de procédure pénale (French Code of 
Criminal Procedure). 
The defendants in the pre-trial judicial investigation are ticket resale websites for 
sporting, cultural and commercial events. Their names will be abbreviated in this 
request. 
I. PARTIES TO THE MAIN PROCEEDINGS AND THEIR 
REPRESENTATIVES 
1. The Procureur de la République de PARIS (State Prosecutor, Paris) […] 
2. VGG AG […] 
3. VGG ENTERTAINMENT INC […] 
4. A. Dan and SAS M. TRADE 
5. SASU D. represented by its chairman A. Dan 
6. K. Armand […] 
7. SAS T. LOGISTIQUE and its legal representative C. Arthur 
8. SASU S. and its representative Grégory B 
9. C. David 
VGG 
 
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10. M. David 
11. SARL C, legal representative: A. Michel as managing director 
[…] 
II. SUBJECT MATTER OF THE DISPUTE AND RELEVANT FACTS 
5. Investigations have been carried out into the ticketing sector for cultural and 
sporting events following numerous complaints filed by event organisers and 
producers or individuals who consider themselves aggrieved by the commercial 
practices employed on the websites www.___.fr and www.__.com. These 
websites are owned by the VGG Group, a corporate group that includes, inter alia, 
VGG Entertainment Incorporated and VGG AG. 
6. VGG Entertainment Inc. is a company incorporated in the United States, 
registered in the state of Delaware, which only hosts the website www.__.fr. 
7. VGG AG is a company incorporated in Switzerland, registered in the Canton 
of Geneva since 5 January 2012, which hosts, inter alia, the website www.__.com. 
8. The abovementioned companies host various websites offering two types of 
services: 
• where VGG has obtained the express permission of the event 
organisers, those event organisers may use its websites to sell tickets 
directly for events at whatever price they choose; 
• the various websites can be used to trade ‘second-hand’ tickets, where 
buyers and sellers buy and sell tickets to different sporting, cultural 
and commercial events. 
9. VGG’s rapid growth was contentious. 
On the one hand, there were problems with consumers, since VGG did not always 
perform the necessary checks given the significant growth in transactions. 
Between 30 January 2017 and 3 January 2018, hundreds of consumers filed 
complaints with the Service National des Enquêtes (French National Investigation 
Service) at the Direction générale de la concurrence, de la consommation et de la 
répression des fraudes (French Directorate-General for Competition Policy, 
Consumer Affairs and Fraud Control) (DGCCRF) and/or directly with the Public 
Prosecutor’s Office, in connection with sales on the websites www.___.fr and 
www.___.com. The complaints concerned, inter alia: 
• bank accounts being debited by more than the amount stated at the end 
of the ordering process; 
• tickets with a much lower face value than the price paid; 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2023 – CASE C-190/23 
 
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• the names of third parties featuring on the tickets received. 
10. Second, the emergence of VGG companies in the ticketing sector has 
prompted a reaction from the various players in the ‘primary market’, namely the 
producers, organisers or owners of the rights of exploitation of the shows or 
events. 
11. These primary market players include organisations such as Prodiss (French 
national union of producers, broadcasters, festivals and performance venues), 
UEFA (European Union of Football Associations), Foot Unis, UFC QUE 
CHOISIR (a consumer association) and Théâtre du Châtelet. 
12. Those entities have filed complaints or have brought civil actions by joining 
the pre-trial judicial investigation. They consider the activities of the VGG 
companies to be detrimental to the certainty of both the market and consumers. 
13. The background to this dispute, which is before the criminal courts, is the 
liberalisation of the highly lucrative ticketing market. The VGG companies 
contest the legal framework for that market. 
14. After completing its enquiries and interviews, the National Investigation 
Service at the DGCCRF forwarded a report to the State Prosecutor of Paris under 
Article 40 of the French Code of Criminal Procedure. The report, which is dated 
4 January 2018, alleges conduct characterised as: 
• the sale and attempted sale of tickets at a price higher than the price 
fixed and advertised at concerts subsidised by the State, departments or 
municipalities (Article 1 of the loi du 27 juin 1919 (Law of 27 June 
1919) prohibiting the touting of theatre tickets); 
• the sale, offer for sale or presentation with a view to sale or provision 
of the means for the sale of admission tickets to a sporting, cultural or 
commercial event or a live show, in the usual way and without the 
authorisation of the producer, organiser or owner of the rights of 
exploitation of that event or show (Article 313-6-2 of the code pénal 
(French Criminal Code)). 
15. By bills of indictment and supplementary applications of 4 June, 8 August, 
6 December 2018, 31 May 2019, 15 March and 6 November 2020, the public 
prosecutor referred the case to an investigating judge to gather evidence on 
misleading commercial practices and the unlawful resale of tickets. Another case 
file prepared for an earlier complaint seeking to join a civil action to proceedings 
was the subject of a joinder. 
16. On 27 September 2021, a judicial investigation was opened after strong or 
concordant evidence was found which made it probable that the VGG companies 
could have committed or been complicit in the commission of the 
abovementioned offences. 
VGG 
 
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17. On that basis, they […] were heard on the substance of the case on 
10 December 2021. 
18. The VGG companies acknowledged the complaints of misleading 
commercial practices and were taking steps to compensate consumers who had 
purchased tickets. However, they contested the merits of the prosecution for 
unlawful resale. 
19. […]. 
21. Furthermore, the VGG companies contested the conventionality of the 
French legal texts prohibiting ticket resale – namely Article 1 of the Law of 
27 June 1919 prohibiting the touting of theatre tickets and Article 313-6-2 of the 
French Criminal Code, derived from loi No 2012-348 (Law No 2012-348) of 
12 March 2012 aimed at facilitating the organisation of sporting and cultural 
events – on the grounds that they were likely to infringe several principles and 
legal texts derived from EU law. In their observations of 4 May 2022 and 
14 November 2022, the VGG companies produced academic reports and set out 
their arguments for partial removal of the need to adjudicate according to which: 
• The ticket sales that the VGG companies are alleged to have made, in 
so far as they are based on a prohibition on the sale of such tickets, 
interferes with the exercise of economic activities within the European 
Union and falls within the scope of EU law, entitling the VGG 
companies to rely on the provisions of Article 49 of the Charter of 
Fundamental Rights and Articles 52 and 56 TFEU; 
• Article 1 of the Law of 27 June 1919 and Article 313-6-2 of the French 
Criminal Code are contrary to Articles 52 and 56 TFEU in so far as 
they prohibit the resale or facilitation of the resale between European 
natural or legal persons, situated in two different Member States, of 
tickets purchased on the primary market, and this in a disproportionate 
manner in view of the legitimate justifications provided for in 
Article 52 TFEU and the overriding reasons in the public interest; 
• Article 313-6-2 of the French Criminal Code is contrary to 
Article 49(3) of the Charter of Fundamental Rights of the European 
Union because it provides for excessive penalties in view of the minor 
nature of the offences committed; 
• Article 1 of the Law of 27 June 1919 is contrary to Article 49(1) of the 
Charter of Fundamental Rights of the European Union because it does 
not allow interested parties to know whether their sale or transfer 
relates to a subsidised ticket or a ticket offered on favourable terms or 
the defendants to know the exact penalty incurred, since the penalty is 
expressed in old francs without a specific reference to the applicable 
legal texts; 
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• Article 313-6-2 of the French Criminal Code is contrary to 
Article 49(3) of the Charter of Fundamental Rights of the European 
Union because it creates uncertainty for a person providing the means 
for the sale of admission tickets to an event or a show, since that 
person is unable to know whether the seller has obtained the 
authorisation of the producer, organiser or owner of the rights of 
exploitation, even though the concept of organiser is not clearly 
defined by the applicable legal texts. 
22. The VGG companies therefore proposed that the questions referred for a 
preliminary ruling as set out below should be referred to the Court of Justice of 
the European Union, since the principle of primacy and direct effect of EU law 
requires the criminal court to establish that the criminal legislation applicable to 
the case complies with the Treaties, and in particular the guarantees, freedoms and 
legal texts of the European Union, where they are directly applicable. 
III. REGULATION 
23. Classification of the charges brought against the VGG companies by the 
investigating judge on 27 September 2021 and for which they remain under 
prosecution: 
- ‘having sold, above face value, tickets for subsidised concerts or 
events’; an offence under Article 1 of the Law of 27 June 1919 
prohibiting the touting of theatre tickets; 
- ‘having sold, offered for sale and presented with a view to sale of 
admission tickets to live shows in the usual way and without the 
authorisation of the producers; to the detriment, inter alios, of UEFA, 
Théâtre du Châtelet, Prodiss and Première Ligue’; an offence under 
Article 313-6-2 of the French Criminal Code; 
- ‘having substantially altered the economic behaviour of the consumer, 
in this case by offering for sale admission tickets for events with 
misleading information such as: 
- a reduced price throughout the booking process, 
- the fact that the tickets will only be available for a limited period, 
- the seller’s status, or 
- the absence of any explanation that the ticket sold will not be in 
the consumer’s name but in the name of a third party, without 
mentioning that the tickets are being resold’; an offence under Articles 
L. 121-2 to L. 121-4 and L. 132-2 of the code de la consommation 
(French Consumer Code) on misleading commercial practices. 
VGG 
 
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24. The prevention of misleading commercial practices is recognised in 
principle by the VGG companies, which have taken the steps of offering 
consumers compensation and changing the layout of their platform to provide 
consumers with more information. 
25. By contrast, the following provisions are contested in the light of EU law 
and principles, and require the interpretation of the Court of Justice of the 
European Union. 
IV. PROVISIONS OF NATIONAL LAW APPLICABLE TO THE FACTS OF 
THE DISPUTE 
26. Article 1 of the Law of 27 June 1919 prohibiting the touting of theatre 
tickets: 
‘Anyone convicted of having sold or transferred, or of having attempted to sell or 
transfer, at a price higher than the price fixed and advertised in theatres and at 
concerts subsidised or otherwise offered on favourable terms by the State, 
departments or municipalities, or in return for a premium of any kind, tickets 
purchased from the box office or sales office of said theatres or concerts, shall be 
liable to a fine of between sixteen (old) francs and five hundred (old) francs. In the 
event of a repeat offence within three years of the last conviction, the fine may be 
increased to 3 750 francs.’ 
27. Article 313-6-2 of the French Criminal Code, derived from Law 
No 2012-348 of 12 March 2012 aimed at facilitating the organisation of 
sporting and cultural events: 
‘The act of selling, offering for sale or presenting with a view to sale or transfer or 
providing the means for the sale or transfer admission tickets to a sporting, 
cultural or commercial event or to a live show, in the usual way and without the 
authorisation of the producer, organiser or owner of the rights of exploitation of 
such event or show, shall be liable to a fine of EUR 15 000. Said fine shall 
increase to EUR 30 000 in the event of a repeat offence. 
For the application of the first subparagraph, any ticket, document, message or 
code, in any form or medium, serving as proof of having obtained from the 
producer, organiser or owner of the rights of exploitation the right to be admitted 
to the event or show, shall be deemed an admission ticket.’ 
V. RELEVANT NATIONAL CASE-LAW AND PENDING QUESTION 
REFERRED FOR A PRELIMINARY RULING FROM THE COURTS OF 
OTHER MEMBER STATES OF THE EUROPEAN UNION 
28. […] [Arguments on a priority question of constitutionality, a question of 
French constitutional law irrelevant to these proceedings.] 
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35. To our knowledge, the national criminal courts have not given a ruling on 
the conventionality of Article 313-6-2 of the French Criminal Code or Article 1 of 
the Law of 27 June 1919. 
36. Conversely, it should be pointed out that the Italian Council of State, in 
proceedings initiated by the Autorità per le garanzie nelle comunicazioni (Italian 
Communications Regulatory Authority) (AGCOM) against VGG, referred three 
questions to the Court of Justice for a preliminary ruling pursuant to Article 267 
TFEU (Case C-70/22, currently pending before the Court).  
37. However, it is worth noting that the questions referred for a preliminary 
ruling concern the conflict between Italian legal provisions and Directive 
2000/31/EC and Articles 102 and 106 TFEU. 
VI. GROUNDS FOR THE ORDER FOR REFERENCE 
38. Position of the VGG companies: 
39. The VGG companies take the view that they cannot be prosecuted or sent 
for trial for the offences provided for and prohibited by Article 1 of the Law of 
27 June 1919 and Article 313-6-2 of the French Criminal Code, since they are 
manifestly contrary to EU law and in particular Articles 52 and 56 TFEU, 
Article 49(1) and (3) of the Charter of Fundamental Rights of the European Union 
and the principle of legal certainty enshrined by the Court of Justice of the 
European Union as a general principle of EU law. 
VII. QUESTIONS REFERRED 
40. Must Article 56 TFEU be interpreted as allowing the national authorities to 
apply legislation derived from Article 1 of the French Law of 27 June 1919 
prohibiting the touting of theatre tickets and Article 313-6-2 of the French 
Criminal Code introduced by the Law of 12 March 2012, in so far as those 
provisions have the effect of prohibiting, save in exceptional cases, the resale or 
facilitation of the resale between European natural or legal persons, situated in 
two different Member States, of tickets purchased on the primary market? 
41. Must Articles 56 and 52 TFEU and the associated overriding requirements 
in the public interest be interpreted as allowing the national authorities, on the 
basis of legislation derived from Article 1 of the French Law of 27 June 1919 
prohibiting the touting of theatre tickets and Article 313-6-2 of the French 
Criminal Code introduced by the Law of 12 March 2012, to justify restrictions 
that do not seem capable of effectively protecting the objectives relied on, such as 
the protection of public policy and consumer protection, or that are 
disproportionate in view of the alternative measures that could be envisaged? 
VGG 
 
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42. Must Article 49(3) of the Charter of Fundamental Rights of the European 
Union be interpreted as permitting fines of EUR 15 000 and, in the event of a 
repeat offence, EUR 30 000 to be imposed on anyone infringing Article 313-6-2 
of the French Criminal Code, introduced by the French Law of 12 March 2012, in 
view of the restrictive nature of the legislative measures put in place and the minor 
nature of the offences committed? 
43. Must the principle of legal certainty enshrined by the Court of Justice of the 
European Union as a general principle of European Union law, and Article 49(1) 
of the Charter of Fundamental Rights of the European Union enshrining the 
principle that offences and penalties must be defined by law, be interpreted as 
allowing Article 1 of the French Law of 27 June 1919 to be maintained, which 
does not allow interested parties to know whether their sale or transfer relates to a 
subsidised ticket or a ticket sold on favourable terms, when they could be 
criminally liable for that fact, and does not allow the defendants to know the exact 
penalty incurred, since that penalty is expressed in old francs without a specific 
reference to the applicable legal texts? 
44. Must the principle of legal certainty enshrined by the Court of Justice of the 
European Union as a general principle of European Union law, and Article 49(1) 
of the Charter of Fundamental Rights of the European Union enshrining the 
principle that offences and penalties must be defined by law, be interpreted as 
precluding the application of Article 313-6-2 of the French Criminal Code, which 
creates uncertainty for a person presenting or providing the means for the sale of 
admission tickets to an event or a show since that person is unable to know 
whether the seller has obtained the authorisation of the producer, organiser or 
owner of the rights of exploitation, even though the concept of organiser is not 
clearly defined in the applicable legal texts? 
45. Does Article 313-6-2 of the French Criminal Code contribute to a high level 
of consumer protection as required by EU law and enshrined in Article 38 of the 
Charter of Fundamental Rights of the European Union, since that provision of 
criminal law makes it possible to tackle ticket speculation by unauthorised 
intermediaries? 
46. Is the prohibition of the resale of tickets by a person who is not the organiser 
or producer of the event or a person authorised to do so, established by 
Article 313-6-2 of the French Criminal Code, not contrary to the principle of open 
competition enshrined in EU law (Articles 101 to 109 TFEU)? 
47. Does Article 313-6-2 of the French Criminal Code not grant an exclusive 
right to the organisers of events contrary to Article 106(1) TFEU, in so far as it 
confers on those organisers a monopoly over the sale of their tickets? 
[…]