Opinion of the Advocate General — ECLI:EU:C:2024:18
Date: 2024-01-11
Language of the case: Italian
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-662/22 – 1 
Case C-662/22 
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:  
Airbnb Ireland UC 
Defendant:  
Autorità per le Garanzie nelle Comunicazioni 
  
Subject matter of the main proceedings 
Action brought by Airbnb Ireland Unlimited Company for the annulment of (i) 
Decision No 200/21/CONS of the Autorità per le Garanzie nelle Comunicazioni 
(Communications Regulatory Authority, Italy) (‘AGCOM’) of 17 June 2021 
requiring providers of online intermediation services and providers of online 
search engines to be entered in the register of communications operators and (ii) 
related acts, including AGCOM Decision No 666/08/CONS. 
Subject matter and legal basis of the request 
Interpretation of the principle of freedom to provide services laid down in 
Article 56 TFEU and Article 16 of Directive 2006/123/EC, of Article 3 of 
Directive 2000/31/EC and of Regulation (EU) 2019/1150 for the purpose of 
ascertaining whether they preclude national provisions that require providers of 
online intermediation services and providers of online search engines to be 
entered in a register, which in turn gives rise to other financial and administrative 
obligations for those service providers, failure to comply with which results in the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-662/22 
 
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imposition of penalties; interpretation of Article 3(4)(b) of Directive 2000/31 and 
Directive (EU) 2015/1535 for the purpose of ascertaining whether Member States 
are obliged to notify the Commission of the measures requiring those service 
providers to be registered and whether private individuals may object to measures 
not notified to the Commission being applied to them. 
Questions referred for a preliminary ruling 
- Does Regulation (EU) 2019/1150 preclude a national provision that, in order to 
promote 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, requires providers of online 
intermediation services and providers of online search engines to be entered in a 
register, which involves the communication of relevant information about their 
organisation and payment of a financial contribution, a failure to comply with 
which results in the imposition of penalties? 
- Does Directive (EU) 2015/1535 oblige Member States to notify the Commission 
of measures that require providers of online intermediation services and providers 
of online search engines to be entered in a register, which involves the 
communication of relevant information about their organisation and payment of a 
financial contribution, a failure to comply with which results in the imposition of 
penalties? If so, does the directive allow a private individual to object to measures 
not notified to the Commission being applied to him or her? 
- Does Article 3 of Directive 2000/31/EC preclude the adoption by national 
authorities of provisions that, in order to promote 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, 
impose additional administrative and financial obligations on operators 
established in another European country, such as entry in a register, which 
involves the communication of relevant information about their organisation and 
payment of a financial contribution, a failure to comply with which results in the 
imposition of penalties? 
- Does the principle of freedom to provide services laid down in Article 56 TFEU 
and Article 16 of Directive 2006/123/EC preclude the adoption by national 
authorities of provisions that, in order to promote 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, 
impose additional administrative and financial obligations on operators 
established in another European country, such as entry in a register, which 
involves the communication of relevant information about their organisation and 
payment of a financial contribution, a failure to comply with which results in the 
imposition of penalties? 
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- Does Article 3(4)(b) of Directive 2000/31/EC require Member States to notify 
the Commission of measures requiring providers of online intermediation services 
and providers of online search engines to be entered in a register, which involves 
the communication of relevant information about their organisation and payment 
of a financial contribution, a failure to comply with which results in the imposition 
of penalties? If so, does the directive allow a private individual to object to 
measures not notified to the Commission being applied to him or her? 
Provisions of European Union law relied on 
Article 56 TFEU; 
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’), 
in particular recital 22 and Articles 2 and 3;  
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market, in particular Articles 16 and 
19; 
Directive (EU) 2015/1535 of the European Parliament and of the Council of 
9 September 2015 laying down a procedure for the provision of information in the 
field of technical regulations and of rules on Information Society services, in 
particular Articles 1 and 5; 
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. 
Case-law of the Court of Justice relied on 
Judgments in Cases C-194/94, C-215/01 and C-390/18.  
Provisions of national law relied on 
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), as amended 
(following the entry into force of Regulation 2019/1150) by legge 30 dicembre 
2020, n. 178, ‘Bilancio di previsione dello Stato per l’anno finanziario 2021 e 
bilancio pluriennale per il triennio 2021-2023’ (Law No 178 of 30 December 2020 
on the State budget for the 2021 financial year and the multiannual budget for the 
three-year period 2021-2023).  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-662/22 
 
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For the purposes of this reference for a preliminary ruling, the resulting rules are 
as follows: 
- according to the legislation, 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, 
must be guaranteed; 
- it is an obligation for providers of online intermediation services and providers 
of online search engines offering services in Italy, even if they are not established 
there, to be entered in the Register of Communications Operators (‘the RCO’); 
- in the event of non-compliance with the measures adopted by the authority 
pursuant to Regulation 2019/1150, each entity concerned will incur a fine of not 
less than 2% and not more than 5% of its turnover for the previous financial year; 
- the entry in the RCO gives rise to an obligation to pay an annual contribution 
intended to cover the operating costs of AGCOM as the regulatory and 
supervisory authority. 
Legge 23 dicembre 2005, n. 266, ‘Disposizioni per la formazione del bilancio 
annuale e pluriennale dello Stato’ (legge finanziaria 2006) (Law No 266 of 
23 December 2005, ‘Provisions for the preparation of the annual and multiannual 
State budget’) (2006 Finance Law), in particular Article 1(66-bis), which concerns 
the financial contribution to AGCOM’s operations which those service providers 
are obliged to pay. 
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 stipulating 
that providers of online intermediation services and providers of online search 
engines must also send Economic System Information (ESI). 
AGCOM Decision No 200/21/CONS of 17 June 2021 amending Decision 
No 666/08/CONS on the rules for maintaining a register of communications 
operators following the entry into force of Law No 178 of 30 December 2020 on 
the State budget for the 2021 financial year and the multiannual budget for the 
three-year period 2021-2023. Decision No 200/21/CONS, in accordance with the 
provisions of Article 1(515) of Law No 178/2020, amended the earlier Decision 
No 666/08/CONS by requiring providers of online intermediation services and 
providers of online search engines to be entered in the RCO. Moreover, that 
obligation is accompanied by the following further obligations: 
- the completion of various forms describing both the activity carried out by the 
obliged entity and how that entity is organised (information about the share 
capital, names of the shareholders, composition and term of the administrative 
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body). The information communicated must be updated annually and 
administrative penalties apply in the event of non-compliance. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, Airbnb Ireland Unlimited Company, which is based in Ireland (‘the 
applicant’), offers online intermediation services in the short-term property rental 
sector. 
2 By its action, the applicant seeks the annulment of Decision No 200/21/CONS of 
17 June 2021, by which AGCOM, pursuant to Article 1(515) of Law 
No 178/2020, amended its earlier Decision No 666/08/CONS by requiring 
providers of online intermediation services and providers of online search engines 
to be entered in the RCO. Said registration in turn gives rise to obligations for 
those service providers to provide information and pay financial contributions. 
The service providers incur penalties in the event of non-compliance with those 
obligations. The obligations to provide information consist in completing various 
forms about the obliged entity’s business activities and organisation, while the 
payment obligations consist in paying an annual contribution intended to cover 
AGCOM’s operating costs. 
The essential arguments of the parties in the main proceedings 
3 The applicant submits that both the contested decision and the national legislation 
applicable in the present case infringe Regulation 2019/1150, Directive 2015/1535 
and Directive 2000/31, as well as the principle of freedom to provide services. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 The referring court has doubts as to whether the obligation to be entered in the 
RCO, which is imposed on providers of online intermediation services and search 
engines by Law No 249/1997 (as amended by Law No 178/2000) and by 
AGCOM Decision No 668/08/CONS (as amended by Decision 
No 200/21/CONS), complies with Articles 15 and 16 of Regulation (EU) 
2019/1150. The obligation to be entered in the RCO amounts, in essence, to 
supervision of the service providers’ ownership and administrative structures. 
Such supervision, first, is not the same as the verification, required by Regulation 
(EU) 2019/1150, of compliance with the obligations laid down in the regulation 
and, second, is contrary to the objective pursued by that regulation – namely to 
ensure the transparency and fairness of contractual relations with business users. 
5 The referring court also recalls that Directive 2015/1535 lays down a procedure 
for the provision of information in the field of rules on information society 
services to ensure as much transparency as possible as regards national initiatives 
and to allow the Commission to supervise them, in order to safeguard the principle 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-662/22 
 
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of the free movement of goods and services. Since, first, the services provided by 
the abovementioned service providers come within the category of information 
society services and, second, the rules on the obligation to be entered in the RCO, 
applicable to those service providers, specifically introduce a general requirement 
for the operation of information society services, those rules should have been 
notified to the Commission. In the view of the referring court, in the event of non-
compliance with the obligation to notify the Commission, the rules in question do 
not apply to private individuals. 
6 The referring court also doubts whether the obligation to be entered in the RCO 
complies with Article 3 of Directive 2000/31 (‘Directive on electronic 
commerce’), given that such an obligation may constitute, in the light of that 
directive, an unlawful restriction on the free movement of information society 
services. The obligation pertains to the pursuit of the activity of information 
society services within the meaning of that directive; it also applies to service 
providers established in Member States other than Italy and creates an additional 
administrative burden and significant financial obligations for those service 
providers. In addition, the services in question do not come within the exempt 
categories provided for in Article 2 of Directive 2000/31, nor do they satisfy the 
conditions set out in Article 3 of that directive which allow the Member State to 
impose restrictions. Moreover, the obligations to provide information about the 
undertaking’s subjective situation and to pay financial contributions seem 
disproportionate to the objective of promoting fairness and transparency for 
business users of online intermediation services. 
7 The referring court also has doubts as to whether the obligation to be entered in 
the RCO complies with the principle of freedom to provide services enshrined in 
Article 16 of Directive 2006/123 (‘Services Directive’). That directive provides 
that Member States may not restrict the freedom to provide services in the case of 
a provider established in another Member State, in particular by imposing an 
obligation to obtain an authorisation from the competent authorities. In the present 
case, the obligation to be entered in the RCO imposed on undertakings established 
in another Member State is liable to affect the freedom to provide services, since it 
gives rise to financial and administrative costs which could distort the internal 
market and delay, complicate or make more onerous the provision of services in 
the host Member State. 
8 Lastly, the referring court points out that the obligation to be entered in the RCO 
is liable to restrict the free movement of information society services provided by 
an entity established in another Member State. In that regard, the second indent of 
Article 3(4)(b) of Directive 2000/31 provides that the Commission and the 
Member State in which the undertaking is established must be notified of the 
intention to take such measures. According to the referring court, in the event of 
non-compliance with the obligation to notify the Commission, the measure at 
issue cannot be applied to private individuals. 
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9 The questions referred are relevant because if it were ascertained that a direct 
conflict existed between the obligation to be entered in the RCO and EU law, the 
national legislation at issue would have to be disapplied and the service providers 
would not be required to fulfil the obligation laid down therein.