Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 21 December 2023 – Meta Platforms Ireland Limited v Autorità per le Garanzie nelle Comunicazioni
(Case C-797/23, Meta Platforms Ireland)
Language of the case: Italian
Referring court
Tribunale Amministrativo Regionale per il Lazio
Parties to the main proceedings
Applicant: Meta Platforms Ireland Limited
Defendant: Autorità per le Garanzie nelle Comunicazioni
Questions referred
May Article 15 [of Directive 790/2019 1 (‘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 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?
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1     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 (OJ 2019 L 130, p. 92).