Judgment;Summary — ECLI:EU:C:2024:435
Date: 2024-05-30
Language of the case: Italian
Court formation: Second Chamber
Subject matter: Right of establishment;Internal market - Principles;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-665/22 – 1 
Case C-665/22 
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:  
21 October 2022 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
10 October 2022 
Applicant:  
Amazon Services Europe SARL 
Defendant:  
Autorità per le Garanzie nelle Comunicazioni 
  
Subject matter of the main proceedings 
Action brought by Amazon Services Europe SARL (‘the applicant’) for the 
annulment of (i) AGCOM Decision No 161/21/CONS of 12 May 2021 amending 
Decision No 397/13/CONS of 25 June 2013 on ‘Economic System Information’ 
and (ii) related acts, including AGCOM Decision No 397/13/CONS of 25 June 
2013 on ‘Economic System Information’. 
Subject matter and legal basis of the request 
Interpretation of the principle of freedom to provide services enshrined in 
Article 56 TFEU and Article 16 of Directive 2006/123/EC, Directive 2000/31/EC 
and Regulation (EU) 2019/1150 for the purpose of ascertaining whether those 
rules preclude national provisions that impose additional administrative and 
financial obligations on providers of online intermediation services and providers 
of online search engines, even if established in another European country, 
including the transmission of a report containing relevant information about their 
revenue, non-compliance with which results in a fine; interpretation of Regulation 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/22 
 
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(EU) 2019/1150 for the purpose of ascertaining whether the revenue data of those 
service providers, submitted by means of Economic System Information (‘ESI’), 
are relevant in view of the objective pursued by that regulation; interpretation of 
Article 3 of Directive 2000/31/EC and Directive (EU) 2015/1535 for the purpose 
of ascertaining whether Member States are obliged to notify the Commission of 
measures imposing said obligations to provide information on those service 
providers 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, for the 
specific purpose of ensuring the adequate and effective implementation of that 
regulation, including by gathering relevant information, requires providers of 
online intermediation services and providers of online search engines to regularly 
communicate relevant information about their revenue? 
- On the basis of Regulation 2019/1150, can the information required in the 
context of the Economic System Information, mainly relating to revenue earned, 
be considered relevant and instrumental for the objective pursued by that 
regulation? 
- Does Directive (EU) 2015/1535 require Member States to notify the 
Commission of measures requiring providers of online intermediation services 
and providers of online search engines to submit a report containing relevant 
information about their revenue, non-compliance with which gives rise to a fine? 
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 implement Regulation 2019/1150, lay 
down additional administrative and financial obligations for operators, established 
in another European country but operating in Italy, such as the communication of 
a report containing relevant information about their revenue, non-compliance with 
which gives rise to a fine? 
- Does the principle of freedom to provide services enshrined in Article 56 TFEU 
and Article 16 of Directive 2006/123/EC and Directive 2000/31 preclude the 
adoption by national authorities of provisions that, in order to implement 
Regulation 2019/1150, lay down additional administrative and financial 
obligations for operators established in another European country, such as the 
submission of a report containing relevant information about their revenue, non-
compliance with which gives rise to a fine?  
- 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 submit a report containing relevant 
AMAZON SERVICES EUROPE 
 
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information about their revenue, non-compliance with which gives rise to a fine? 
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 5 TEU; 
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 Article 16; 
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. 
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), 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).  
For the purposes of this reference for a preliminary ruling, the resulting rules are 
as follows: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/22 
 
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- 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; 
- providers of online intermediation services and providers of online search 
engines offering services in Italy, even if they are not established there, are 
obliged to pay an annual contribution intended to cover the operating costs of 
AGCOM as the regulatory and supervisory authority; 
- 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; 
- AGCOM has the power to determine by its own measures which accounting data 
and other information must be transmitted to it by the communications operators 
referred to in Decree-Law No 545/1996. 
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, 
operating in the Italian language or with business users resident or established in 
Italy, to submit the ESI. The obligation to submit the ESI, established for the 
specific purpose of ensuring the adequate and effective enforcement of Regulation 
(EU) 2019/1150, involves disclosing relevant and specific information about the 
financial position of those service providers. 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’. 
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 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 Register of 
Communications Operators (‘RCO’).  
AMAZON SERVICES EUROPE 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, Amazon Services Europe SARL, based in Luxembourg, offers an 
online platform that connects sellers and consumers so that they can engage in 
transactions for the sale of goods (Marketplace service). 
2 By its application initiating proceedings, the abovementioned company challenged 
Decision No 161/21/CONS of 12 May 2021, by which AGCOM amended the 
earlier Decision No 397/13/CONS for the purpose of gathering relevant 
information on an annual basis and carrying out activities aimed at ensuring the 
adequate and effective enforcement of Regulation 2019/1150, requiring providers 
of online intermediation services and providers of online search engines to submit 
the ESI. 
The essential arguments of the parties in the main proceedings 
3 The applicant claims that the contested decision infringes Regulation 2019/1150, 
Directives 2015/1535 and 2000/31/EC, 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 submit the ESI, 
imposed on providers of online intermediation services and providers of search 
engines by AGCOM Decision No 397/13/CONS (as amended by Decision 
No 161/21/CONS), complies with Articles 15 and 16 of Regulation 2019/1150. 
The obligation to submit the ESI involves the disclosure of information primarily 
relating to the service providers’ revenues. That disclosure, first, gives no 
indication as to compliance with the obligations laid down in Regulation 
2019/1150 or as to the transparency and fairness of the service providers’ 
relationships with business users and, second, is contrary to the objective pursued 
by that regulation to ensure the transparency and fairness of contractual 
relationships 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 
of the free movement of goods and services. Since, first, the services provided by 
the applicant come within the category of information society services and, 
second, the AGCOM decision on the obligation to transmit the ESI, the scope of 
which includes online intermediation services and online search engines, 
introduces a general requirement for the operation of information society services, 
that measure 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 measure at issue cannot apply to private individuals. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-665/22 
 
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6 The referring court also has doubts as to whether the obligation to submit the ESI 
complies with the principle of freedom to provide services enshrined in Directive 
2000/31 (‘Directive on electronic commerce’). 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. The referring court observes that, 
according to EU law, in order to guarantee freedom to provide services and legal 
certainty for suppliers and users, such information society services should in 
principle be subject to the law of the Member State in which the service provider 
is established. In the present case, the obligation to submit the ESI imposed on 
undertakings established in another Member State may constitute, in the light of 
that directive, an unlawful restriction on the free movement of information society 
services since, first, such an obligation increases the administrative burden on 
those undertakings And, second, the services in question do not come within the 
exempt categories provided for in Article 2 of Directive 2000/31/EC and do not 
satisfy the conditions set out in Article 3 of that directive which allow the Member 
State to impose restrictions.  
7 The referring court also has doubts as to whether the obligation to submit the ESI 
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 make the pursuit of an activity on their territory subject only to 
requirements that conform to the principles of non-discrimination, necessity and 
proportionality. The principle of necessity requires that the requirements be 
justified for reasons of public policy, public security, public health or the 
protection of the environment, while the principle of proportionality requires that 
the requirements be suitable for attaining the objective pursued and must not go 
beyond what is necessary to attain that objective. In the present case, the 
obligation to submit the ESI is liable to affect the freedom to provide services, 
since it entails significant reporting requirements, non-compliance with which 
incurs financial penalties. According to the referring court, the obligation to 
submit the ESI is irrelevant for the protection of the interests referred to in 
Directive 2006/123 and disproportionate to the purpose of Decision 
No 161/21/CONS, which is to implement Regulation (EU) 2019/1150 and fulfil 
the obligations laid down therein. 
8 Lastly, the referring court points out that the obligation to submit the ESI 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.