Opinion of the Advocate General — ECLI:EU:C:2025:928
Date: 2025-11-27
Language of the case: Italian

Summary C-421/24 – 1 
Case C-421/24 
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: 
14 June 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
11 June 2024 
Appellant: 
Autorità per le Garanzie nelle Comunicazioni (AGCOM) 
Respondent: 
Google Ireland Limited 
  
Subject matter of the main proceedings 
The Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory 
Authority, Italy; ‘AGCOM’) challenges before the Consiglio di Stato (Council of 
State, Italy) the judgment of the Tribunale Amministrativo Regionale per il Lazio 
(Regional Administrative Court, Lazio; ‘the TAR Lazio’) which upheld the action 
brought by Google Ireland against the decision by which AGCOM had imposed a 
financial penalty on it for advertising and promoting gambling sites in violation of 
the applicable Italian legislation. 
Subject matter and legal basis of the request 
Article 267 TFEU. Interpretation of Article 1(5) and Article 14 of Directive 
2000/31/EC. In particular: liability regime for hosting providers; applicability of 
Article 14 of Directive 2000/31/EC to hosting providers with respect to activities 
of online advertising of games or bets with monetary winnings and to advertising 
of gambling. Hosting provider which has entered into a commercial partnership 
agreement with a ‘content creator’. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-421/24 
 
2  
Questions referred for a preliminary ruling 
1. Under Article 1(5) of Directive 2000/31/EC, is the liability regime for hosting 
providers laid down in Article 14 of that directive applicable to activities relating 
to the online advertising of games or betting with monetary winnings and to the 
advertising of gambling? 
In the event that the Court of Justice answers the first question in the affirmative 
(that is to say by holding that Directive 2000/31/EC does also apply to the liability 
of hosting providers for the advertising of games or betting with monetary 
winnings and to advertising of gambling), the Court of Justice is requested, 
pursuant to Article 267 TFEU, to rule additionally on the following question: 
2. Is the liability regime laid down in Article 14 of Directive 2000/31/EC 
applicable to a hosting provider such as Google in relation to content published by 
the owners of YouTube channels with whom Google has concluded the 
commercial partnership agreement described above? 
Provisions of European Union law relied on 
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’): 
recitals 16, 21 and 42, and Articles 1, 14 and 15. 
Provisions of national law relied on 
Decreto legislativo 9 aprile 2003, n. 70 – Attuazione della direttiva 2000/31/CE 
relativa a taluni aspetti giuridici dei servizi della società dell’informazione nel 
mercato interno, con particolare riferimento al commercio elettronico (Legislative 
Decree No 70 of 9 April 2003 implementing Directive 2000/31/EC on certain 
legal aspects of information society services in the Internal Market, with particular 
reference to electronic commerce): Articles 1 and 16. In particular, the latter 
article introduces a ‘lighter’ liability regime for hosting providers, as provided for 
in Article 14 of the Directive on electronic commerce: 
Article 16 (Liability for storage of information activities – hosting) 
‘1. Where an information society service is provided that consists of the storage 
of information provided by a recipient of the service, the service provider shall not 
be liable for the information stored at the request of a recipient of the service, on 
condition that:  
(a) the provider does not have actual knowledge of illegal activity or information 
and, as regards claims for damages, is not aware of facts or circumstances from 
which the illegal activity or information is apparent; 
AGCOM 
 
3 
(b) the provider, upon obtaining such knowledge or awareness from the competent 
authorities, acts expeditiously to remove or to disable access to the information. 
2. The provisions of paragraph 1 shall not apply when the recipient of the 
service is acting under the authority or the control of the provider. 
3. The competent judicial or administrative authority may require, including as 
a matter of urgency, that the service provider, in the exercise of the activities 
referred to in paragraph 1, prevents the infringements committed or brings them to 
an end.’ 
Decreto-Legge 12 luglio 2018, n. 87 – Disposizioni urgenti per la dignità dei 
lavoratori e delle imprese 2018 (Decree-Law No 87 of 12 July 2018 on urgent 
provisions for the dignity of workers and undertakings 2018 (‘the Dignity 
Decree’): Article 9. That article prohibits any form of advertising, including 
indirect advertising, in relation to games or betting with monetary winnings and 
gambling, however carried out and by any means, and introduces an 
administrative fine in the event of the infringement of that prohibition, payable by, 
inter alia, the ‘owner of the means or the site on which those advertisements are 
broadcast’, of an amount equal to 20% of the value of the sponsorship or 
advertising and, in any event, not less than EUR 50 000. It gives AGCOM the 
power to apply those penalties. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By decision of 19 July 2022, AGCOM imposed a fine on Google Ireland Limited 
(‘Google’) of EUR 750 000.00 and ordered it to remove a large number of videos 
from the video-sharing platform ‘YouTube’, for having promoted, in breach of 
Article 9 of the Dignity Decree, numerous internet sites for games with monetary 
winnings through five channels, containing more than 500 videos uploaded on 
YouTube, belonging to a ‘content creator’, called ‘Spike’, with whom Google had 
signed a commercial partnership contract. 
2 Google challenged AGCOM’s decision before the TAR Lazio, which upheld its 
action, annulling the contested decision. Consequently, AGCOM brought an 
action before the Council of State, the referring court, for the annulment of the 
judgment of the TAR Lazio. 
The essential arguments of the parties in the main proceedings 
3 AGCOM submits, first, that Directive 2000/31/EC does not apply to the present 
case since that directive excludes from its scope (Article 1(5)) gambling activities 
which involve wagering a stake with monetary value in games of chance. 
Consequently, the prohibition laid down in Article 9 of the Dignity Decree also 
applies to the hosting provider. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-421/24 
 
4  
4 Secondly, AGCOM challenges the judgment under appeal in so far as the TAR 
Lazio refers to its previous judgment which, in its view, is irrelevant in so far as it 
concerned advertisements published by Google through the service known as 
GoogleAds whereas, in the present case, Google signed a commercial partnership 
contract with the ‘content creator’. It claims that that contractual relationship is 
established following a check, which is even identified as being ‘human’ in 
nature, by Google, which examines the ‘theme’ of the channel which is the subject 
of the contractual proposal and assesses whether the conditions for concluding the 
agreement are met. That preliminary check makes Google aware of the ‘basic 
themes’ of the channel and, therefore, of the infringement committed. 
5 Google challenges AGCOM’s arguments by submitting that Directive 2000/31/EC 
should apply to the present case since it is not the ‘owner of the means of 
broadcasting within the meaning of the Dignity Decree, it is a passive hosting 
provider and it is not aware of the illegality of the videos at issue, the contents of 
which are, moreover, not manifestly illegal. 
6 In support of its claims Google puts forward the following arguments: in the first 
place, the fact that the conditions for the application of the Dignity Decree are not 
met, in so far as, first of all, there is no advertising contract or consideration for 
the ‘advertising’ carried out through the channels at issue and the associated 
advertisements do not have any connection with the subject matter of the videos at 
issue, do not concern gaming and betting activities and are not challenged by 
AGCOM; in addition, there is no ad personam contract with the ‘content creator’ 
in so far as adhesion to the partnership agreement takes place through the 
acceptance by the user of an adhesion contract drawn up unilaterally by Google; 
next, the latter is not aware of the existence of advertising contracts between Spike 
and the gambling websites; illegal videos do not enrich Google and instead harm 
it; adhesion to the YouTube partnership programme does not entail increased 
broadcasting of videos of the ‘content creator’, who bears the sole liability; lastly, 
Google did not participate with awareness or intent in the illegal conduct at issue, 
having done everything possible to prevent the broadcasting of advertising 
messages relating to gambling and having removed the videos at issue as soon as 
it received AGCOM’s communication about their alleged illegality. 
7 In the second place, Google relies on the non-advertising nature of the videos at 
issue, which merely contain information on gambling. 
8 In the third place, Google relies on the lack of a monitoring obligation and the 
restriction of freedom of expression in so far as it, as a hosting provider, is not 
subject to any obligation to check the content of videos; in its view, the decision at 
issue imposes censorship and restricts the freedom of expression of users and 
Google’s freedom to provide services. 
9 In the fourth place, Google alleges, in the alternative, infringement of 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 
AGCOM 
 
5 
technical regulations and of rules on Information Society services. In its view, the 
Dignity Decree must be disapplied because it is contrary to Articles 14 and 15 of 
Directive 2000/31/EC by virtue of the primacy of European law over national law, 
and the failure to notify it to the Commission under Directive 2015/1535. 
10 Lastly, Google challenges, further in the alternative, the quantification of the 
penalty on the ground that it is disproportionate and disregards the determination 
criteria laid down by law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 As regards the first question referred for a preliminary ruling, the referring court 
states, first of all, that the Italian legislation was introduced in order to combat 
compulsive gambling (ludomania), an objective which is considered to be 
particularly important and worthy of protection, not only by the national 
legislature, but also under EU law, as demonstrated by European Commission 
Recommendation 2014/478/EU of 14 July 2014 on principles for the protection of 
consumers and players of online gambling services and for the prevention of 
minors from gambling online. 
12 In order to determine the relevance of the question, the referring court observes 
that the videos at issue appear to be suited to advertising gambling and websites 
where it is possible to play for money, also considering that in those videos the 
user Spike wears a T-shirt, which is clearly visible to viewers, indicating his 
website. 
13 The referring court recalls, moreover, that it held in an earlier judgment that 
Article 14 of Directive 2000/31/EC does not apply to the advertising of online 
gambling, but that that precedent differs from the present case because in that case 
Google could be classified as an active hosting provider, which made it possible to 
exclude in any event the application of Article 14 of Directive 2000/31/EC. 
14 In order to ascertain Google’s liability in the present case, it is necessary for the 
referring court to determine whether Directive 2000/31/EC and, in particular, 
Article 14 thereof, which provides for a ‘lighter’ or ‘privileged’ liability regime 
for hosting providers, is applicable. 
15 Since it is a question concerning the interpretation of EU law in respect of which 
there is no precedent in the case-law of the Court of Justice, the referring court 
considers that the conditions for referring the question to the Court of Justice 
under Article 267 TFEU are met. 
16 As regards the substance of the question, the referring court notes that, first, in 
support of the argument on the applicability of Article 14 of Directive 2000/31, 
put forward by Google, it follows from the wording of Article 1(5)(d) of that 
directive, which refers to gambling ‘activities’, rather than to a specific field, as in 
the case of the ‘field of taxation’, that the exclusion for which it provides does not 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-421/24 
 
6  
concern the liability regime for hosting providers, but only providers of gambling 
services. 
17 That argument is also supported by a passage in the European Commission 
document accompanying the ‘Communication from the Commission to the 
European Parliament […] Towards a comprehensive [European] framework for 
online gambling’ in which, with reference to Directive 2000/31, it is stated that 
‘while Article 1(5)(d) excludes gambling activities which involve wagering a 
stake with monetary value in games of chance, including lotteries and betting 
transactions from the scope of the directive the liability regime for information 
society service providers hosting or transmitting illegal content, Articles 12 to 15 
of the Directive, also applies to gambling-related content’. 
18 Furthermore, Regulation (EU) 2022/2065, Article 6 of which replaces Article 14 
of Directive 2000/31/EC, does not mention gambling and, therefore, even if that 
act is not applicable ratione temporis to the present case, it should be taken into 
account in the interpretation of Directive 2000/31/EC. 
19 Secondly, in support of the inapplicability of Article 14 of Directive 2000/31/EC, 
the second clause of recital 21 to that directive provides that ‘the coordinated field 
covers only requirements relating to on-line activities such as on-line information, 
on-line advertising, on-line shopping, on-line contracting …’. Thus, ‘on-line 
advertising’ is also considered to be an ‘on-line activity’ and, since the European 
legislature excluded from the scope of the directive ‘information society services’ 
activities’ relating to ‘gambling activities which involve wagering a stake with 
monetary value in games of chance, including lotteries and betting transactions’, it 
must be held that it intended to exclude all activities relating to that field, 
including their online advertising. 
20 The referring court states that, if the Court of Justice were to hold that Article 14 
of Directive 2000/31/EC does not apply to the liability of hosting providers for the 
advertising of games or betting with monetary winnings as well as to the 
advertising of gambling, it would have to determine the liability regime applicable 
to the hosting provider on the basis of the general EU and national rules and 
principles applicable to administrative offences and penalties. Thus, it notes that 
the possible exclusion from the liability regime laid down in Article 14 of 
Directive 2000/31 does not mean that the hosting provider has strict liability or, in 
any event, ‘unlimited’ liability for any content published by third parties on the 
platform, but instead that the standard of care required of the hosting provider in 
that field must be identified. 
21 As regards the second question referred for a preliminary ruling, raised in the 
event that the Court of Justice answers the first question in the affirmative, the 
referring court notes, first of all, that Article 14 of Directive 2000/31 provided for 
an exemption from the ordinary liability regime for hosting providers, on the 
condition that the service provider does not have actual knowledge of illegal 
activity or information and, as soon as it becomes aware of it, having been 
AGCOM 
 
7 
informed of it by the competent authorities, acts expeditiously to remove the 
information. 
22 It notes that that lighter liability regime must apply only to passive hosting 
providers and not also to active hosting providers. In that regard, the referring 
court cites the case-law of the Court of Justice which held that ‘in that regard, it 
follows from recital 42 in the preamble to Directive 2000/31 that the exemptions 
from liability established in that directive cover only cases in which the activity of 
the information society service provider is “of a mere technical, automatic and 
passive nature”, which implies that that service provider “has neither knowledge 
of nor control over the information which is transmitted or stored”’ (judgments of 
23 March 2010, Google France and Google, C-236/08 to C-238/08, 
EU:C:2010:159, paragraph 113; 12 July 2011, L’Oréal and Others, C-324/09, 
EU:C:2011:474, paragraph 113; 7 August 2018, SNB-REACT, C-521/17, 
EU:C:2018:639, paragraph 47; and 22 June 2021, YouTube, C-682/18 and 
C-683/18, EU:C:2021:503, paragraphs 115 and 116). It notes, moreover, that the 
case-law of the Court of Justice also assigns an important role in that regard to the 
possible activity carried out by the internet provider in optimising its customers’ 
online sales, where it states that ‘the mere fact that the operator of an online 
marketplace stores offers for sale on its server, sets the terms of its service, is 
remunerated for that service and provides general information to its customers 
cannot have the effect of denying it the exemptions from liability provided for by 
Directive 2000/31’ and that ‘where, by contrast, the operator has provided 
assistance which entails, in particular, optimising the presentation of the offers for 
sale in question or promoting those offers, it must be considered not to have taken 
a neutral position between the customer-seller concerned and potential buyers but 
to have played an active role of such a kind as to give it knowledge of, or control 
over, the data relating to those offers for sale. It cannot then rely, in the case of 
those data, on the exemption from liability referred to in Article 14(1) of Directive 
2000/31’ (judgments of 12 July 2011, L’Oréal and Others, C-324/09, 
EU:C:2011:474, paragraphs 115 and 116, and of 7 August 2018, SNB-REACT, 
C-521/17, EU:C:2018:639, paragraph 48). 
23 That approach of the Court of Justice was reiterated in the European Commission 
Communication COM(2017) 555 of 28 September 2017, headed ‘Tackling Illegal 
Content Online. Towards an enhanced responsibility of online platforms’. 
24 Specifically, the referring court seeks to ascertain whether Article 14 of Directive 
2000/31 must also apply to an operator such as Google when it enters into a 
‘commercial partnership’ contract with ‘content creators’ of YouTube channels. 
To that end, it describes the functioning of that ‘partnership’, as is apparent from 
the documents before the Court, as set out below. 
25 The ‘commercial partnership’ agreement is signed between Google and the 
‘content creator’ who owns a YouTube channel following a request submitted by 
the latter which is followed by a check, by Google, of the ‘content creator’s’ 
compliance with certain requirements. It also checks the ‘content creator’s’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-421/24 
 
8  
compliance with the policies by examining the content of the channel. The 
following is stated at https://support.google.com/youtube/answer/1311392?hl=it: 
‘our reviewers will check your channel and content against our policies. Since 
they can’t check every video, our reviewers may focus on your channel’s: Main 
theme; Most viewed videos; Newest videos; Biggest proportion of watch time; 
Video metadata (including titles, thumbnails, and descriptions); Channel’s 
“About” section’. That check is conducted by Google within approximately thirty 
days and may include a human review, although it does not carry out a full check 
of every single video on a channel in any circumstances. 
26 Once the commercial agreement has been entered into, the ‘content creator’ 
obtains the status of ‘Verified Partner’ and consequently has a share of the 
revenue received by Google in relation to the advertising broadcast before the 
viewing of each video. 
27 By virtue of the participation in Google’s monetisation procedure, the creator also 
has the possibility of allowing users to subscribe to its channel, the fee for which 
is collected directly by Google, and the user obtains advantages from that 
subscription, which vary according to the type of subscription chosen. 
28 Next, the referring court notes that in an earlier case specifically concerning the 
activity carried out by Google via the YouTube platform (in a case concerning 
copyright infringements), the Court of Justice stated that, in order to determine the 
active nature of the hosting provider, the national court must ascertain whether 
YouTube ‘beyond merely making [its] platform available, [contributes] to giving 
the public access to [protected] content in breach of copyright’ (judgment of 
22 June 2021, YouTube, C-682/18 and C-683/18, EU:C:2021:503, paragraphs 107 
and 108). 
29 In those circumstances, the referring court states that there are indications from 
which it may be concluded that Google carries out an activity in addition to 
‘merely making its platform available’, in so far as it enters into a commercial 
partnership agreement with the owner of the YouTube channel following a review 
of the content of the channel, collects the subscriptions to the channel paid by the 
users, and shares with the owner of the channel the profits derived from the 
advertisements made in the context of the YouTube channel, thereby incentivising 
that owner to increase the number of views of its channel. 
30 Those activities, moreover, are in addition to the ordinary activities carried out by 
Google – aimed at increasing content views and, therefore, profits – of indexing of 
content and profiling of users which, although they are in themselves compatible 
with a ‘passive’ role of the hosting provider (judgment of 22 June 2021, YouTube, 
C-682/18 and C-683/18, EU:C:2021:503, paragraph 114), become relevant, 
according to the referring court, if they are added to the additional activities 
carried out by the platform. 
AGCOM 
 
9 
31 The referring court states that, in the present case, Google’s activity is not limited 
‘to the technical process of operating and giving access to a communication 
network over which information made available by third parties is transmitted or 
temporarily stored, for the sole purpose of making the transmission more efficient’ 
(recital 42, Directive 2000/31/EC). The overall activities carried out by Google in 
the context of the commercial partnership therefore delineate its role as not merely 
‘neutral’ and ‘passive’. 
32 Therefore, according to the referring court in the present case, Google should be 
classified as an active hosting provider with the result that the liability regime 
under Article 14 of Directive 2000/31/EC ought not to apply. 
33 Lastly, the referring court states that, if the Court of Justice reaches the same 
conclusion, it will have to determine Google’s possible liability for the 
administrative offence alleged against it by identifying the liability regime 
applicable to the hosting provider in the present case.