Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 27 November 2025 (1)
Case C‑421/24
Autorità per le Garanzie nelle Comunicazioni (AGCOM)
v
Google Ireland Limited
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
( Reference for a preliminary ruling – Directive 2000/31/EC – Article 1(5)(d) – Advertising of gambling – Article 14(1) – Exemption from liability of intermediary hosting services – Partnership agreement between a hosting service provider and a user )
I.      Introduction
1.        A Member State has decided to prohibit all forms of advertising of gambling
on its territory. Given the lack of harmonisation in
this
area and
the recognition of the harmful consequences of gambling for individuals and society, such a prohibition may,
in principle, be
permitted under EU law.
2.        A different question concerns enforcement of such a prohibition, specifically against whom. In particular, the discretion conferred on Member States in the gambling sector must be balanced against
the free movement of information society services, under Directive 2000/31/EC. (2)
3.        Can a total ban on the advertising of gambling be enforced against a hosting service provider that operates a video-sharing platform storing third-party content containing such advertising? That is the question raised in the present reference for a preliminary ruling. In order to settle the question, the Court of Justice is invited first
to examine whether Directive 2000/31 applies to the activity of that hosting service provider. If so, it will next
need to consider whether such a service provider falls within the scope of the exemption from liability laid down in Article 14(1) of that directive. In the affirmative, it will finally
be required to assess whether the service provider satisfies the conditions for relying on that legal provision.
II.    Legal framework
A.      European Union law
4.        Recitals 12, 21 and 42 of Directive 2000/31 are worded as follows:
‘(12)      It is necessary to exclude certain activities from the scope of this Directive, on the grounds that the freedom to provide services in these fields cannot, at this stage, be guaranteed under the Treaty or existing secondary legislation; …
…
(21)      …
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 …
…
(42)      The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is 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; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.’
5.        Article 1(5) of that directive provides:
‘This Directive shall not apply to:
(a)      the field of taxation;
(b)      questions relating to information society services covered by Directives 95/46/EC [(3)] and 97/66/EC [(4)];
(c)      questions relating to agreements or practices governed by cartel law;
(d)      the following activities of information society services:
–        the activities of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority,
–        the representation of a client and defence of his interests before the courts,
–        gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions.’
6.        Under Article 2(h)(i) of that directive:
‘The coordinated field concerns requirements with which the service provider has to comply in respect of:
…
–        the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider’.
7.        According to Article 3(1) and (2) of that directive:
‘1.      Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.
2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’
8.        Section 4 of that directive is entitled ‘Liability of intermediary service providers’. Article 14 thereof, headed ‘Hosting’, provides, in paragraphs 1 and 2:
‘1.      Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not 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 … or
(b)      the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2.      Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.’
B.      Italian law
9.        Article 9 of decreto-legge n. 87 – Disposizioni urgenti per la dignità dei lavoratori e delle imprese (Decree-Law No 87 – Urgent provisions for the dignity of
workers and undertakings) of 12 July 2018 (GURI No 161 of 13 July 2018; ‘Decree-Law No 87/2018’)
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. It also introduces an administrative fine in the event of 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 further gives the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy; ‘AGCOM’) the power to apply those penalties.
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
10.      By decision of 19 July 2022 (‘the contested decision’),
AGCOM imposed on Google Ireland Limited (‘Google’) a fine of EUR 750 000 for having promoted numerous websites for games with monetary winnings on the video-sharing platform YouTube, in breach of Article 9 of Decree-Law No 87/2018. In particular, AGCOM found that 630 videos (‘the videos at issue’) were uploaded to five channels belonging to the
content creator
Spike, with which Google had signed a commercial partnership agreement within the framework of the YouTube Partnership Programme (YPP). Accordingly, AGCOM ordered Google to remove those videos from YouTube, as well as any other videos shared by Spike that were similar in content to those identified in the contested
decision. Further to
the contested decision, Google deleted the videos at issue from YouTube.
11.      Google challenged the
contested
decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which upheld the action. That court considered that the features of Google’s activity relied on by AGCOM were insufficient to prevent Google from benefiting from the exemption from liability provided for under Italian legislation transposing Article 14 of Directive 2000/31.
12.      AGCOM appealed that judgment before the Consiglio di Stato (Council of State, Italy), the referring court. It submitted, first, that Directive 2000/31 does not apply to the present case, since
Article 1(5)(d)
thereof excludes from its scope ‘gambling activities’
that involve wagering a stake with monetary value in games of chance. Consequently, the prohibition laid down in Article 9 of Decree-Law No 87/2018
is enforceable against
hosting service providers. Secondly, even if Google’s
activity were not excluded from the scope of Directive 2000/31, the exemption from liability laid down in Article 14(1) of that directive would not apply, due to the
commercial partnership agreement signed between Google and the content creator.
13.      For its part, before the referring court, Google claims that Article 1(5)(d) of Directive 2000/31 covers only online gambling service providers. By contrast, it does not include hosting service providers. In so far as concerns the application of Article 14(1) of that directive, Google argues that it is a ‘passive’ hosting service provider and that it was not aware of the illegality of the videos at issue. In particular, it submits that there is no ad personam contract with the content creator since the latter becomes part of the YPP merely by accepting a standard contract drawn up unilaterally by Google.
14.      As regards, first, the exclusion of gambling activities from the scope of Directive 2000/31, the referring court considers that, in the light of recital 21 thereof, all activities related to the gambling sector, including online advertising, are to be excluded from the scope of that directive.
15.      Secondly, should the Court find that Directive 2000/31 applies to the activities of hosting services, the referring court seeks to clarify whether, in the circumstances of the present case, Google falls within the scope of the exemption from liability laid down in Article14(1) of that directive.
16.      In that regard, the referring court points out that that regime is to apply to ‘passive’ hosting service providers only.
17.      Against this background, the referring court highlights the following main features of the partnership agreement signed between Google and a content creator under the YPP framework.
–        The agreement is entered into following a request by a content creator and a prior examination conducted by Google. First of all, Google examines whether the content creator meets the thresholds to be eligible for the YPP: to have 1 000 subscribers with 4 000 valid public watch hours in the past 12 months, or to have 1 000 subscribers with 10 million valid public shorts views in the past 90 days. (5) Moreover, Google assesses if the content creator lives in a country/region in which the YPP is available, and if the channel has no active ‘Community Guidelines strikes’. (6)
–        Likewise, according to ‘The YouTube Partner Programme overview and eligibility’ webpage, Google’s ‘automated systems and human reviewers will review [the] channel as a whole to make sure that it follows all of [Google’s] policies and guidelines’. This review may take one month. (7)
–        In particular, as part of its ‘YouTube channel monetisation policies’, Google conducts regular checks ‘to see whether monetising channels follow these policies’. (8) These checks are conducted by reviewers, who check the channel and content against YouTube’s policies. Since reviewers cannot check every video, they might focus on the channel’s main theme, most viewed videos, newest videos, biggest proportion of watch time, video metadata (including titles, thumbnails and descriptions), and the channel’s ‘About’ section. (9)
–        Once the commercial partnership agreement has been signed, the content creator
acquires the status of ‘Verified Partner’. Verified Partners
obtain a share of the revenue received by Google from advertisements broadcast to viewers of their videos.
Moreover, by virtue of participating in Google’s monetisation policy, content creators
may offer membership to their channel, the fee for which is collected directly by Google.
Users obtain advantages from that membership, which vary according to the type and price of the subscription chosen. These advantages may consist, inter alia, in access to exclusive content, live streaming limited to subscribers, or online chat.
18.      Having regard to those features of the YPP, the referring court takes the view
that Google may not be merely ‘neutral’ or ‘passive’ and, consequently, that it may fall outside the scope of Article 14(1) of Directive 2000/31.
19.      In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Under Article 1(5) of Directive [2000/31], 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 …:
(2)      Is the liability regime laid down in Article 14 of Directive [2000/31] 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?’
20.      Written observations were submitted by Google,
the Belgian, Czech, Italian and Portuguese Governments,
and the European Commission. The same parties, with the exception of the Czech Government, attended the hearing held on 10 September 2025.
IV.    Analysis
A.      The first question
1.      Preliminary remarks
21.      From the outset, although the wording of the first question may suggest otherwise, YouTube is undeniably
a multi-thematic video-sharing platform not specifically devoted to sharing gambling-related content.
22.      Moreover, before the referring court, Google relies on the non-advertising nature of the videos at issue, stating that they merely contain information on gambling.
The referring court, however,
considers that those videos do contain advertising of gambling. Indeed, both the wording and the grounds of the first question appear to rely on that assumption. In the light of the division of tasks between the Court and the national courts, the latter having exclusive jurisdiction to assess the facts before them, (10) I propose that the Court rely on that assumption too.
23.      It thus follows that, by its first question, the referring court is essentially asking whether
Article 1(5)(d) of Directive 2000/31 should be interpreted as meaning that the activity of a hosting service provider consisting of storing videos containing advertising of gambling falls within the scope of that directive.
2.      Assessment
(a)    The general framework of Directive 2000/31
24.      In order to answer the first question referred, I will
first of all provide a brief description of the main principles underpinning Directive 2000/31.
25.      In accordance with Article 1(1) of
Directive 2000/31, that directive
seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. To that end, as stated in Article 1(2)
thereof, it approximates certain national provisions on information society services relating to the internal market (Article 3); the establishment of service providers (Chapter II, Section 1); commercial communications (Chapter II, Section 2); electronic contracts (Chapter II, Section 3); the liability of intermediaries (Chapter II, Section 4); and codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States (Chapter III).
26.      In that regard, the ‘internal market’ clause enshrined in Article 3 of Directive 2000/31 is based on the application of the principles of control in the home Member State and mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (‘the country
of
origin principle’). (11) For their part, Chapters II and III of that directive seek to harmonise certain specific aspects of electronic commerce. (12)
(b)    The exclusion of gambling activities from the scope of Directive 2000/31
27.      Article 1(5) of Directive 2000/31 lists certain ‘fields’, ‘questions’ and ‘activities’ that are excluded from the scope of that directive. These terms all indicate a broad scope. (13)
28.      Moreover, the use of the plural (‘the following activities’) suggests that
Article 1(5)(d) of Directive 2000/31
includes more activities than merely offering games of chance via the internet itself. (14)
29.      By contrast, the usual meaning in everyday language of the term
‘gambling activities’ does not appear to include the activities of hosting services. Indeed, ‘hosting’ consists of the storage of information provided by, and at the request of, a recipient of the service. (15) The core aspect of that activity is storing information, irrespective of its gambling-related nature. This means that that
activity is not specific to the gambling sector.
30.      The objective
of excluding certain activities from the scope of Directive 2000/31
further supports this interpretation. Indeed, it follows from that directive’s proposal that ‘it is not possible to guarantee the freedom to provide services between Member States given the lack of mutual recognition or sufficient harmonisation to guarantee an equivalent level of protection of general interest objectives’. (16) The same logic stems from recital 12 of that directive. (17)
31.      It thus follows that Article 1(5)(d)
of Directive 2000/31 seeks to prevent,
in particular,
the application of the country of origin principle
to the activities listed therein, so that destination Member States may still apply the requirements stemming from their legislation, without being bound to the principle of mutual recognition. (18)
32.      In the specific case of gambling, the Court has emphasised that legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. The Court has also acknowledged the morally and financially harmful consequences associated with betting and gaming for the individual and for society. In the absence of EU harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure consumer protection and the preservation of public order. (19) These are clearly sector-specific interests, which are completely unrelated to the activities of hosting services.
33.      It is true that the Court has also considered that advertising forms part of a policy of controlled expansion of gambling activities, in order to channel them into regulated and authorised circuits and thus fight illegal gambling. (20) This may be interpreted as meaning that advertising of gambling is a ‘gambling activity’ for the purposes of Article 1(5)(d)
of Directive 2000/31.
As highlighted by the referring court, that interpretation may be supported by Article 2(h)(i) and recital 21 of that directive, pursuant to which the requirements regarding the quality or content of a service include those applicable to its advertisement. (21)
34.      However, in my opinion, in order to allow Member States to pursue a policy of controlled expansion of gaming, it is neither adequate nor necessary to further exclude the activity of a hosting service provider consisting of storing videos containing advertising of gambling from the scope of
Directive 2000/31. In the same vein, the objective of the exclusion laid down in Article 1(5)(d) thereof, referred to in
points 30 to
32 of this Opinion, is not affected if that activity falls within the scope of that directive.
35.      It thus follows that, as observed
by the Commission, while Article 1(5)(d) of Directive 2000/31 excludes gambling activities from the scope of that directive, Articles 12 to 15 thereof also apply to hosting gambling-related content. (22)
36.      The adoption of the Digital Services Act
appears
to have confirmed this approach. Article 89(1) of the Digital Services Act
removed
Articles 12 to 15 of Directive 2000/31. At the same time, Articles 4 to 6 and 8 of the Digital Services Act essentially reproduce Articles 12 to 15 of that directive (as confirmed by Article 89(2) of the Digital Services Act). Significantly, that act does not contain any exclusion of gambling activities from its scope, which means that gambling activities remain
excluded from the country-of-origin principle, by virtue of Directive 2000/31. By contrast, gambling-related content is subject to Article 6 of the Digital Services Act, which corresponds to Article 14 of that directive.
37.      In short, the activities of offering games of chance via the internet and, potentially,
of advertising gambling are those
envisaged by Article 1(5)(d) of Directive 2000/31. A video-sharing platform does not engage in either of these activities;
it therefore falls within the scope of that directive.
38.      This does not prevent the Italian rule prohibiting the advertising of gambling from being enforced against information society service providers offering genuine advertising
of gambling services.
This is due to the fact that these services
are excluded from the scope of Directive 2000/31 by virtue of Article 1(5)(d) thereof and, therefore, from the country of origin principle.
39.      A further methodological remark may be made. I believe that, at this stage, one should not seek to determine whether, in practice, the hosting service provider controls the content that it stores. That assessment is required under Article 14(1) of Directive 2000/31, as a provider which controls the information it stores is not covered by that provision. By contrast, for the purposes of Article 1(5)(d) of that directive, it is sufficient to conclude that the activity at issue consists of storing information, irrespective of its content, at the request of the recipient of the service. (23)
40.      Accordingly, my proposed reply to the first question is that Article 1(5)(d) of Directive 2000/31 must be interpreted as meaning that the activity of a hosting service provider consisting of storing videos containing advertising of gambling falls within the scope of that directive.
B.      The second question
1.      The general scheme of Article 14(1) of Directive 2000/31
41.      If the Court replies
to the first question
in the affirmative, it will have to determine whether the activity of a hosting service provider such as Google, which involves storing content of third parties
with which
it has concluded a commercial partnership agreement, falls within the scope of Article 14(1) of Directive 2000/31.
42.      That provision establishes an exemption from liability of hosting service providers in relation to content stored on their platforms by third parties.
43.      As interpreted by the Court, that provision essentially requires a two-step analysis. (24)
44.      First, in order to fall within the scope of Article 14(1) of Directive 2000/31, a service provider must provide an information society service that consists of ‘hosting’ within the meaning of Article 14
thereof; (25) moreover, its conduct must be limited to that of
an ‘intermediary service provider’. (26)
45.      Secondly, paragraph 1(a) and (b) of that provision
determine whether the exemption from liability can be relied upon in a specific case. (27) In order for that to be the case, the provider must not have actual knowledge of illegal activity (subparagraph (a)) or, upon obtaining such knowledge, acts expeditiously to remove or to disable access to the information (subparagraph (b)).
46.      In that regard, as I will develop below, for the purposes of ascertaining whether the conduct of the service provider is limited to that of
an intermediary (first step), one should essentially focus on whether
the service provider controls content stored on its platform by virtue of how its business model is designed and operated. If that is not the case, one should proceed to the second step, which requires an analysis of the provider’s knowledge of the illegal nature of specific content. (28)
47.      That has relevant implications.
48.      First, as clarified by the Court in its judgment in YouTube and Cyando, the conditions
for
considering that
subparagraph (a) or (b) of Article 14(1) of Directive 2000/31 are not fulfilled
are particularly stringent, as they ultimately determine that a hosting service provider may be found liable for specific illegal content uploaded
to
its platform by a user. (29) Such a high threshold is not required to assess whether the provider controls content uploaded to
its platform
by a third party. Skipping
the first step would therefore result in undesirable situations:
certain service providers that inherently interfere with and control content on account of their business model could
nonetheless
escape liability by arguing that they lacked actual knowledge of specific illegal content.
49.      Secondly, and similarly, subparagraphs (a) and (b) appear unsuitable
for
addressing
the specificities of the business model of a platform that may prevent it from ultimately relying on the exemption from liability. Blurring the distinction between the two steps would thus
risk rendering the business model of a given platform mostly irrelevant.
50.      That
said, the two steps are certainly related. The first step essentially works as a ‘filtering’ mechanism and is a pre-condition for subparagraphs (a) and (b) to apply. (30)
2.      The relevant test for classification as an intermediary hosting service provider
51.      According to the case-law, in order for a service provider to fall within the scope of Article 14(1) of Directive 2000/31, it is essential that it be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive. (31)
52.      In that regard, it follows from recital 42
of Directive 2000/31 that the exemptions from liability established therein 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’. (32)
53.      The Court has thus inferred from that recital 42
that it is necessary to examine whether the role played by the operator is neutral, that is to say, whether its conduct is merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores, or whether, on the contrary, that operator plays an active role that gives it knowledge of or control over that content. (33)
54.      In this regard, I note that, in his Opinion in L’Oréal and
Others, Advocate General Jääskinen argued that recital 42
of Directive 2000/31 should only concern
Article 12 (‘Mere conduit’) and Article 13 (‘Caching’), the criteria it sets being unsuitable
as regards Article 14. (34) It has also been advanced that,
in the judgment in
L’Oréal and
Others, the Court implicitly followed the Advocate General’s approach, since it did not refer to that recital. (35)
55.      My view is that the debate is overblown. In the judgment in
L’Oréal and Others, the Court, despite not specifically mentioning recital 42
of Directive 2000/31, reaffirmed the test
developed in paragraph 114 of the judgment in Google France. (36) Furthermore, in its judgment in YouTube and Cyando, the Court explicitly referred to
that recital. (37) Finally, recital 18 of the Digital Services Act has developed and clarified recital 42 of that directive by precisely ‘codifying’
the case-law that relies on the latter recital for the purposes of interpreting Article 14 of that directive. It is therefore clear that the test resulting from that recital, as interpreted by the Court, also applies to hosting service providers.
56.      That said, I concur with Advocate General Jääskinen’s view that, taken in isolation,
‘neutrality’ may
not be the most appropriate test for determining whether a hosting service provider is covered by Article 14(1)
of Directive 2000/31. (38) Indeed, it is debatable whether hosting service providers
could ever be considered entirely ‘neutral’. In principle,
a hosting service provider which
derives advertising revenue from its platform is interested in increasing the
number of users and views. Likewise, the dichotomy of the passive or active role
appears to be insufficient in addressing the activities conducted by a hosting service provider, especially in such an ever-changing field. In any event, it seems to me that, pursuant to the case-law, both neutrality and passivity envisage a business model that is a priori based on a
lack of ‘knowledge of or control over content’. (39) In essence, neutrality and passivity should be understood by reference
to
the content that creators upload to a platform.
57.      What kind of intervention on the part of a hosting service provider may thus place it outside the scope of Article 14(1)
of Directive 2000/31? In order to answer this question, I suggest,
first,
focusing on the criteria of knowledge of or control over content, as well as the lack thereof, in accordance with existing case-law. In the light of the circumstances of the present case, I will then propose a clarification of the meaning of some of these
criteria.
(a)    The criteria of knowledge of or control over content
58.      The case that gave rise
to the judgment in Google France concerned the
activity of the paid referencing service ‘AdWords’. That service enables any economic operator, by means of the reservation of one or more keywords, to obtain the placing
of an advertising link to its site, in the event of a correspondence between one or more of those words and those entered in Google’s search engine by an internet user. That advertising link appears under the heading ‘sponsored links’, which is displayed either on the right-hand side of the screen, to the right of the natural results, or on the upper part of the screen, above the natural results. (40)
59.      When examining whether that activity was covered by Article 14(1) of Directive 2000/31, the Court found that the role played by Google in the drafting of the commercial message which accompanied the advertising link or in the establishment or selection of keywords was relevant. (41) This essentially means that an operator that takes part in drafting, creating or selecting content falls outside the scope of that provision.
60.      The case that gave rise to the judgment in L’Oréal and
Others concerned an electronic marketplace operated by eBay International AG (‘eBay’), on which listings of goods are offered for sale by persons who have created a seller’s account. eBay charges a percentage fee on completed transactions and enables prospective buyers to bid for items offered by sellers, as well as to buy them for a fixed price. Sellers can also set up online shops on its sites. In some cases,
eBay
assists sellers in order to enhance their offers for sale, to set up online shops, to promote and increase their sales. It also advertises some of the products sold on its marketplace using search engine operators such as Google to trigger the display of advertisements. (42)
61.      Given these features of eBay’s marketplace, the Court affirmed that where
an 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. (43)
62.      Finally, in the judgment in
YouTube and Cyando, the Court considered, in particular, whether Article 14(1) of Directive 2000/31 covers the activity of an online platform, such as YouTube, on which users can upload their own videos free of charge and make them available to other internet users. (44) I would point out
that that
case essentially concerned YouTube’s ‘ordinary’ provision of hosting services, that is to say, outside the YPP framework that is under discussion in the present proceedings.
63.      The Court found, in particular, that a video-sharing platform that does not intervene in the creation or selection of content uploaded to its platform by users and does not view or monitor that content before it is uploaded, that content being uploaded to that platform automatically, may fall within the scope of Article 14(1) of Directive 2000/31. (45)
(b)    The criteria of lack of knowledge of or control over content
64.      In
the judgment in
L’Oréal and
Others, the Court found that the mere fact that an operator of an online marketplace 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. (46)
65.      In the judgment in
Youtube and Cyando, the Court pointed out that the fact
that the operator of a video-sharing platform, such as YouTube, implements technological measures aimed at detecting, among the videos communicated to the public via its platform, content which may infringe copyright, does not mean that, by doing so, that operator plays an active role giving it knowledge of and control over the content of those videos, unless information society service providers that adopt measures which seek specifically to combat such infringements are to be excluded from the rules on exemption from liability under Article 14(1) of Directive 2000/31. (47)
66.      Likewise, in interpreting the condition set forth in Article 14(1)(a) of Directive 2000/31, the Court found that the fact that the operator of an online content-sharing platform
automatically indexes content uploaded to that platform, that that platform has a search function and that it recommends videos on the basis of users’ profiles or preferences is not a sufficient ground to conclude that it has actual knowledge of illegal activity or information. (48) A fortiori, as I argued in my Opinion in Russmedia
Digital and Inform Media Press, nor are those circumstances capable of excluding that operator from the scope of the exemption from liability provided for in Article 14(1) of that directive. (49)
(c)    Clarification of certain criteria and application to the present case
67.      As outlined above, a hosting service provider may fall outside the scope of Article 14(1) of Directive 2000/31 by (i) participating in drafting, creating and selecting content; (ii) monitoring or reviewing content before its upload;
or (iii) optimising it.
68.      Conversely, a hosting service provider may fall within the scope of that legal provision even if (i) it is remunerated for that service; (ii) it implements technological measures to detect illegal content; or (iii) it offers certain displaying functions on its platform.
69.      Two of those
criteria
are
of particular relevance in the present proceedings: the optimisation of the presentation of content and the remuneration aspect. I will therefore focus on them.
(1)    The ‘optimisation’ criterion
70.      ‘Optimisation’ is an obscure criterion which can be interpreted in many ways. In particular, one may argue that by offering Verified Partners additional functionalities
for their channels, such as live streaming, exclusive content and online chat, (50) YouTube ‘optimises’ the content creator’s offer.
71.      However, I do not think that that was the meaning intended by the Court in its judgment in L’Oréal and
Others. As has already been
argued by Advocate General
Saugmandsgaard Øe in his Opinion in Youtube and Cyando, (51) that criterion should be understood by taking into account the specific features of eBay’s activity.
72.      In fact, eBay provided selective and personalised
assistance to certain users by improving the content of their offers for sale, assisting them to set up online shops and directly promoting their offers
through third-party services. It was in this context that the Court referred to optimisation and promotion of offers for sale as a sign of control over content.
73.      By contrast, when considering whether the activity of eBay fell within the scope of Article 14(1) of Directive 2000/31, the Court did not attribute any relevance to the fact that that online marketplace allegedly defined different categories of sellers depending on their selling performance. (52)
74.      It thus appears that, when using the term optimisation, the Court had in mind the activities of hosting services directly interfering with content uploaded by users. By way of the assistance provided to certain users, the hosting provider
inevitably exercises control over content.
75.      Subject to confirmation by the referring court, namely by reference to the terms of the contract framing the YPP as well as to the way they are negotiated, no such assistance appears to be offered to Verified Partners. They are
simply offered, on an equal basis, the same
additional functionalities of the video-sharing platform, (53) which do not directly influence the content they create and upload to that platform.
76.      Thus, to my mind, defining different categories of content creators is not in itself problematic, provided that, within each category, no personalised treatment
is offered to specific content creators. In providing such treatment, the service provider would necessarily interact with content in such a way that goes beyond merely storing it. In turn, this affords the service provider control over that content.
77.      It is therefore useful to distinguish between ‘technical or display optimisation’ and ‘content optimisation’, since only the latter renders Article 14(1)
of Directive 2000/31 inapplicable. (54)
78.      In my opinion, that distinction already results from the judgment in YouTube and Cyando. As I have already mentioned above, it is clear from that judgment that indexing content, creating a search function and recommending
videos based on users’ profiles or preferences are not sufficient grounds
not to apply Article 14(1)
of Directive 2000/31. (55)
79.      In my view, there is no substantive difference between these features of YouTube’s activity considered by the Court in the
judgment in YouTube and Cyando and those at issue in the present proceedings. Therefore, they shall both form part of the ‘display optimisation’ category.
80.      The additional functionalities linked to the YPP
in fact appear to be a natural development in the information society service provided by a video-sharing platform such as YouTube. (56) They improve user experience and thus tend to increase the number of clicks, which is inherent in the business model of any video-sharing platform. If that remains within the boundaries of display optimisation
then the activity
continues to be that of an intermediary. Increasing the number of clicks only becomes problematic if, in order to do so, the platform influences the content itself.
81.      That interpretation is in line with the objectives of promoting innovation (57) and safeguarding freedom of expression and information of users, (58) which led to the adoption of the rules on exemption from liability enshrined in Articles 12 to 15 of Directive 2000/31. Indeed, a broad interpretation of the optimisation criterion, such as that described in point 70 of this Opinion, would probably discourage platforms
from developing
new ways of displaying content shared by content creators
that may potentially interest users. (59)
82.      Furthermore, three contextual remarks indicate that a certain level of control over content may in fact be inevitable.
83.      First, pursuant to Article 12(3), Article 13(2) and Article 14(3) of Directive 2000/31, national authorities may require that the service provider terminate or prevent an infringement. (60) This necessarily entails having a certain level of control over content, without the possibility of relying on the exemption from liability being lost. (61)
84.      Secondly,
and despite relying on recital 42 of Directive 2000/31 to establish the conditions under which a hosting service provider falls within the scope of Article 14 of that directive, the Court appears to accept that that service inherently requires a higher level of control over content (62) when compared to
‘mere conduit’ and ‘caching’. (63)
85.      Thirdly, the control over content test must
be applied in the light of what is often referred to as the
‘good Samaritan clause’, evoked by the Court in the
judgment in YouTube and Cyando (64) and currently enshrined in Article 7 of the Digital Services Act.
86.      That said, I acknowledge that the increasing complexity of activities performed
by video-sharing platforms, as highlighted by the referring court, makes it extremely difficult
to distinguish between activities that influence content and those that do not. (65)
87.      In order to assist the referring court in such a task, it is worth considering a few different scenarios.
88.      A video-sharing platform can assist
content creators in
reaching a certain number of subscribers, namely by providing them with statistics of topics that are of interest for users, making suggestions on which videos to upload based on those preferences, and advising on how to phrase the channel’s description. (66) In my opinion, these are clear examples
of ‘optimisation’ resulting in control over content, within the meaning of the case-law.
89.      Finally, I would like to focus on another feature of the YPP. It is apparent from the order for reference that Google’s reviewers may examine the channel of the content creator, namely by reviewing a sample of the videos uploaded thereto. (67) In the light of the interpretation of the ‘optimisation’ criterion that I am proposing, such examinations do not in themselves show any influence on the part of Google over the content uploaded by Verified Partners. What matters is what reviewers do following those examinations: do they suggest certain content edition? Do they ask that some videos be deleted? Do
they approve some partners over others based on the content of their channels?
If so, Google’s activity may fall outside the scope of Article 14(1) of Directive 2000/31.
90.      Against that background, it is apparent from the information before the Court that Google does not check or monitor the content of videos before they are uploaded by users. Google appears only to examine videos that already exist on the creator’s channel. (68) Pursuant to the criteria defined in the judgment in
YouTube and Cyando, (69) that suggests
a lack of control over content.
91.      In conclusion, subject to confirmation by the referring court, Google does not appear to engage in any optimisation of content uploaded to its video-sharing platform in the context of the YPP.
(2)    ‘Remuneration’
92.      The Belgian, Italian and Portuguese Governments
have essentially argued in the present proceedings that the mere fact that Google shares the revenues generated by
advertising and by membership of their channels with Verified Partners renders Article 14(1)
of Directive 2000/31 inapplicable. In essence, by sharing revenues with content creators, Google is not neutral.
93.      I do not share this view.
94.      At the outset, I would recall that the Court has expressly ruled out that remuneration automatically excludes the activity of a hosting service provider from the scope of Article 14(1) of Directive 2000/31. (70)
95.      In order to assess whether there are reasons to take a different approach in the present proceedings, I propose to examine the terms under which the operators concerned in the judgments in Google France, in L’Oréal and Others and in YouTube and Cyando were remunerated. I will argue that there appears to be no substantial difference between those cases and the case at hand.
96.      As regards the AdWords referencing service system, a fee was payable by advertisers for each click on the advertising link. (71)
97.      As to eBay’s marketplace, it was common ground that eBay received
remuneration inasmuch as it charged
a percentage on transactions completed on the basis of offers for sale. Sharing revenues with users
was thus inherent to eBay’s business model.
98.      In
the case that gave rise to the judgment in YouTube and Cyando, it was common ground that YouTube derived
advertising revenue from its platform and enabled
both content creators and copyright holders to benefit from that revenue. (72) No reference was made to revenues resulting from channel memberships. (73)
99.      In the case of
Cyando AG, its
file-hosting and file-sharing platform
offered
all internet users, free of charge, storage space for uploading files.
Each time a file was uploaded, Cyando automatically created
a download link which allowed
direct access to the file concerned and automatically sent
that link to the user who uploaded it.
Users could
share those download links
on the internet, thus allowing other internet users to access the files stored on Cyando’s platform. The downloading of files from Cyando’s platform was
free of charge. However, the quantity and speed of downloads varied according to the type of subscription (paid or unpaid). I would point out that, under a so-called partnership programme, Cyando paid remuneration to users who had
uploaded files according to how many times those files were
downloaded by other users. (74)
100. Thus, the fact that a platform shares revenues with certain of its users does not appear to be anything new. Remarkably, the financial model of Cyando’s platform resembled the YPP at issue in the present proceedings. Yet, that did not lead the Court to conclude that Cyando fell outside the scope of Article 14(1) of Directive 2000/31. (75)
101. It thus follows that, in and of itself, sharing revenues with content creators may not exclude a hosting service provider from the scope of that provision.
102. That said, it cannot be excluded that the
possibility of sharing the success and profits of the channels hosted by a platform may encourage it to influence the content of those channels. It is for the referring court to examine if that is the case, relying on factors such as those identified, in particular,
in points 75 to 80 and 88 to 90 of this Opinion.
(d)    Conclusion
103. As a reminder, the following features of the YPP were brought to the Court’s attention by the referring court: the signature of a commercial partnership agreement only with certain users; examination of a sample of the videos uploaded by content creators; additional features of the platform only available for Verified Partners; and revenue sharing.
104. Bearing in mind the criteria examined in the present section, it seems to me that none of those features is such as to afford Google control over content uploaded by content creators to YouTube, within the meaning of Article 14(1) of Directive 2000/31.
3.      Article 14(2) of Directive 2000/31
105. That conclusion is not called into question by Article 14(2) of Directive 2000/31, pursuant to which ‘paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.’
106. According to the explanations provided by the Commission during the legislative process, ‘authority and control of the provider referred to contractual relationship’. (76)
107. However, in my view, the mere existence of a contractual relationship between a service provider and a user is manifestly insufficient to render Article 14(1)
of Directive 2000/31 inapplicable. In order to establish whether the user is acting under the authority or the control of the provider, the specific terms of the contract must be examined.
108. In particular, it must be determined whether, by virtue of that contract, an individual relationship between the service provider and each of its users
is established.
109. That appears to be the case, ‘for example, where the provider of an online platform that allows consumers to conclude distance contracts with traders determines the price of the goods or services offered by the trader’. In that scenario, ‘it could be considered that the trader acts under the authority or control of that online platform’ (recital 23 of the Digital Services Act).
110. By contrast, as I have stated in point 75 of this Opinion, this does not appear to be the case of the partnership agreement signed between Google and all its Verified Partners.
4.      Article 14(1)(a) and (b) of Directive 2000/31
111. If it is established that the activity of Google falls within the scope of Article 14(1)
of Directive 2000/31, it will only be exempted from liability if it satisfies
one of the two conditions enshrined in subparagraphs (a) and (b)
of that article.
112. Whether one of those conditions is satisfied
in a given case depends entirely on the facts. Therefore, it is a matter that
falls within the jurisdiction of national courts, subject to the interpretative guidance provided by the Court.
113. As regards the condition laid down in Article 14(1)(a) of Directive 2000/31, the Court has in particular clarified that that condition cannot be regarded as not being satisfied solely on the ground that that operator is aware, in a general sense, that its platform is also used to share illegal content. The Court thus concluded that ‘actual knowledge of illegal activity or information’ refers to specific illegal information and activities. (77)
114. In my opinion, in ascertaining whether Google has actual knowledge of specific illegal information, the referring court should pay particular attention to the examinations conducted by Google reviewers. Indeed, in the judgment in L’Oréal and
Others, the Court found that the provider can obtain such knowledge of the illegal nature of the content, inter alia, through its own-initiative investigations. (78) Moreover, I would point out that in
the case that gave rise to the judgment in YouTube and Cyando, where no such verifications were at issue, Google appeared to merely have
abstract knowledge that protected content was being made available illegally on its platform.
115. In
carrying out such an assessment, relevant circumstances include the type of illegal content at issue. I note, in that regard, that the case that gave rise to the judgment in YouTube and Cyando concerned content that infringed intellectual property rights. The present case, by contrast, concerns content that contains
advertising of gambling, which is prohibited under Italian law. Considering this specific type of illegal content, it should also be assessed
whether, by examining, inter alia, the theme of the channel, the most recent videos and the most viewed videos, Google becomes aware of such specific illegal content. In that connection, the fact that the channel in question is entirely devoted to gambling, as pointed out
by the Italian Government
during the hearing,
may indicate that, through the examinations conducted by its reviewers, Google acquired knowledge of specific illegal content. This is all the more the case since Google has developed extensive guidelines for users concerning gambling and gambling-promoting content. Those guidelines include country-specific recommendations, including Italy. (79) Finally, it may be appropriate to ascertain whether the videos actually examined by reviewers in the present case allowed Google to acquire specific knowledge of illegal content.
116. If the referring court concludes that, through the examinations conducted by its reviewers, Google has acquired actual knowledge of specific illegal content, the condition laid down in Article 14(1)(b) of Directive 2000/31 will also not be met. Indeed, if that is the case, then when it became aware of the illegal content (while conducting such examinations), Google did not ‘[act] expeditiously to remove or to disable access to the information’.
117. Therefore, my proposed reply to the second question is that
the activity of a hosting service provider, which involves storing content of third parties
with which it has concluded a commercial partnership agreement, falls within the scope of Article 14(1) of Directive 2000/31, provided that the precise terms under which that agreement was negotiated, and the
clauses thereof, are not such as to afford the hosting service provider knowledge of or control over the content stored on its platform. If, through the examinations conducted by its reviewers, such a hosting service provider acquires actual knowledge of specific illegal content, which is a matter for the referring court to determine, the conditions laid down in subparagraphs (a) and (b) of that provision
cannot
be met.
V.      Conclusion
118. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Consiglio di Stato (Council of State, Italy) as follows:
(1)      Article 1(5)(d) of 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)
must be interpreted as meaning that the activity of a hosting service provider consisting of storing videos containing advertising of gambling falls within the scope of that directive.
(2)      The activity of a hosting service provider, which involves storing content of third parties with which it has concluded a commercial partnership agreement, falls within the scope of Article 14(1) of Directive 2000/31,
provided that the precise terms under which that agreement was negotiated, and the
clauses thereof, are not such as to afford the hosting service provider knowledge of or control over the content stored on its platform. If, through the examinations conducted by its reviewers, such a hosting service provider acquires actual knowledge of specific illegal content, which is a matter for the referring court to determine, the conditions laid down in subparagraphs (a) and (b) of that provision
cannot
be met.
1      Original language: English.
2      Directive 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) (OJ 2000 L 178, p. 1).
3      Directive of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).
4      Directive of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ 1998 L 24, p. 1).
5      See the following webpage: https://support.google.com/youtube/answer/72851?hl=en-GB&co=GENIE.Platform%3DAndroid&sjid= 14318423154464006262-EU.
6      See the following webpage: https://support.google.com/youtube/answer/2802032.
7      See the following webpage: https://support.google.com/youtube/answer/72851?hl=en-GB&co=GENIE.Platform%3DAndroid&sjid= 14318423154464006262-EU.
8      In that regard, in its webpage headed ‘YouTube Channel Monetisation Policies’ (https://support.google.com/youtube/answer/1311392?hl=en-GB&ref_topic= 9153642&sjid= 14318423154464006262-EU), Google specifies that ‘these policies apply to anyone either in or looking to apply to the YouTube Partner Programme’; see also here: https://support.google.com/youtube/answer/72851?hl=en-GB&co=GENIE.Platform%3DAndroid&sjid= 14318423154464006262-EU.
9      See the following webpage: https://support.google.com/youtube/answer/1311392?hl=en-GB&ref_topic= 9153642&sjid= 14318423154464006262-EU.
10      Judgment of 16 March 1978, Oehlschläger (104/77, EU:C:1978:69, paragraph 4). See also judgment of 1 August 2025, T. and Others (C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23, EU:C:2025:592, paragraph 121).
11      Judgments of 9 November 2023, Google Ireland and Others (C‑376/22, EU:C:2023:835, paragraph 42), and of 30 May 2024, Airbnb Ireland and Amazon Services Europe (C‑662/22 and C‑667/22, EU:C:2024:432, paragraph 55). See also Crabit, E., ‘La directive sur le commerce électronique : le projet “Méditerranée”’_Revue du droit de l’Union européenne, Vol. 4, Bruylant, Bruxelles, 2000, pp. 749 to 833, at p. 759.
12      See, in that regard, my Opinion in Joined Cases WebGroup Czech Republic and Others (C‑188/24 and C‑190/24, EU:C:2025:709, points 54 and 55).
13      See, with regard to the ‘field of taxation’, judgment of 27 April 2022, Airbnb Ireland (C‑674/20, EU:C:2022:303, paragraph 29 and the case-law cited). Article 2(2) of Directive 2006/123/EC of
the
European
Parliament
and
of
the
Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) also lists certain ‘activities’ to which that directive does not apply. See, in that regard, judgment of 15 October 2015, Grupo Itevelesa and Others (C‑168/14, EU:C:2015:685, paragraph 45).
14      The Court appears to use the terms ‘games of chance’, ‘gambling’ and ‘betting and gaming’ interchangeably. See, in that regard, among others, judgment of 8 September 2010, Stoß and Others (C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, ‘the judgment in Stoß and Others’, EU:C:2010:504, paragraphs 77, 79, 80 and 82). For ease of reference, I will apply the same method.
15      Article 14(1) of Directive 2000/31 and Article 3(g)(iii) of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31 (Digital Services Act) (OJ 2022 L 277, p. 1) (‘the Digital Services Act’).
16      Proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market (COM(1998) 586 final), p. 32.
17      Article 2(2)(h) of Directive 2006/123 establishes an equivalent exclusion of gambling activities from its scope. In that context, recital 25 of that directive states that ‘gambling activities, including lottery and betting transactions, should be excluded from the scope of this Directive in view of the specific nature of these activities, which entail implementation by Member States of policies relating to public policy and consumer protection.’ See also, in that regard, my Opinion in AUTOTECHNICA FLEET SERVICES (C‑278/22, EU:C:2023:401, point 38, footnote 11).
18      I would point out that the activities listed in Article 1(5)(d) are excluded from the scope of Directive 2000/31 in its entirety, including the country of origin principle under Article 3 and Chapters II and III of that directive. However, as the proposal for that directive shows (see point 30 of this Opinion), the main objective of that exclusion is to preserve discretion of destination Member States in activities lacking mutual recognition, such as gambling.
19      Judgment of 2 March 2023, Recreatieprojecten Zeeland and Others (C‑695/21, EU:C:2023:144, paragraph 14 and the case-law cited). See also the judgment in Stoß and Others (paragraph 76 and the case-law cited).
20      The judgment in Stoß and Others (paragraph 101 and the case-law cited). Concerning bans on advertising of gambling imposed by Member States on gaming establishments, see judgment of 2 March 2023, Recreatieprojecten Zeeland and Others (C‑695/21, EU:C:2023:144).
21      See, in that regard, judgment of 1 October 2020, A (Advertising and sale of medicinal products online) (C‑649/18, EU:C:2020:764, paragraphs 53 and 59).
22      Commission Staff Working Document – Online gambling in the Internal Market – Accompanying the document – Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions – Towards a comprehensive framework for online gambling (SWD(2012)
345 final), p. 17.
23      I acknowledge that, in its observations, the Commission implicitly submits that the concept of ‘host’ under Article 14(1) of Directive 2000/31 presupposes a lack of control over the content stored. However, I believe that that requirement is only relevant for the purposes of determining whether the exemption from liability laid down in that provision applies.
24      See, in that regard, judgments of 12 July 2011, L’Oréal and Others (C‑324/09, ‘the judgment in L’Oréal and Others’, EU:C:2011:474, paragraphs 118 and 119), and of 22 June 2021, YouTube and Cyando (C‑682/18 and C‑683/18, ‘the judgment in YouTube and Cyando’, EU:C:2021:503, paragraphs 109 and 110). See also my Opinions in Russmedia Digital and Inform Media Press (C‑492/23, EU:C:2025:68, point 53) and in Joined Cases WebGroup Czech Republic and Others (C‑188/24 and C‑190/24, EU:C:2025:709, point 236).
25      It appears to be undisputed that these two conditions are met in the present case. See, to that effect, judgments in YouTube and Cyando (paragraphs 103 and 104) and of 26 April 2022, Poland v Parliament and Council (C‑401/19, EU:C:2022:297, paragraph 28).
26      See, in that regard, Wilman, F., The Responsibility of Online Intermediaries for Illegal User Content in the EU and the US, Edward Elgar Publishing, 2020, p. 35, and Wilman, F.,
Kalėda, S. and Loewenthal, P-J., The EU Digital Services Act, Oxford University Press, 2024, pp. 52 and 53 (commenting on Articles 4 to 6 of the Digital Services Act; in that regard, see point 36 of this Opinion). See also, in the same vein, Opinion of Advocate General Saugmandsgaard Øe in Joined Cases YouTube and Cyando (C‑682/18 and C‑683/18, ‘the Opinion of Advocate General Saugmandsgaard Øe in YouTube and Cyando’, EU:C:2020:586, points 141 and 148).
27      See Wilman, F., Kalėda, S. and Loewenthal, P-J., footnote 26, op. cit., p. 52.
28      See, specifically on the distinction between steps one and two, Wilman, F., footnote 26, op. cit., p. 35. See also Van Eecke, P., ‘Online service providers and liability: A plea for a balanced approach’, Common Market Law Review, Vol. 48, 2011, pp. 1455 to 1502, at p. 1472, who distinguishes between ‘general knowledge’ and ‘specific knowledge’. For the sake of clarity, in this Opinion I will mostly refer to ‘control over content’ when examining whether Google falls within the scope of Article 14(1) of Directive 2000/31.
29      See point 113 of this Opinion. I recall, in that regard, that Article 14 of Directive 2000/31 concerns any kind of liability, including criminal liability.
30      The second question for a preliminary ruling appears to only concern the scope of Article 14(1) of Directive 2000/31, that is to say, the intermediary role of the hosting service provider (first step of the analysis). However, in order to provide the national court with a useful answer, I will also consider whether one of the two conditions enshrined in subparagraphs (a) and (b) of that provision may be satisfied (second step of the analysis).
31      See judgment of 23 March 2010, Google France and Google (C‑236/08 to C‑238/08, ‘the judgment in Google France’, EU:C:2010:159, paragraph 112), and the judgment in L’Oréal and Others (paragraph 112).
32      See the judgments in Google France (paragraph 113) and in YouTube and Cyando (paragraph 105).
33      See judgment of 11 September 2014, Papasavvas (C‑291/13, EU:C:2014:2209, paragraph 41). See also the judgment in YouTube and Cyando (paragraph 106 and the case-law cited).
34      Opinion of Advocate General Jääskinen in L’Oréal and Others (C‑324/09, EU:C:2010:757, points 138 to 141).
35      See, among others, Wilman, F., footnote 26, op. cit., p. 30.
36      See the judgment in L’Oréal and Others (paragraph 113).
37      See the judgment in YouTube and Cyando (paragraph 105).
38      Opinion of Advocate General Jääskinen in L’Oréal and Others (C‑324/09, EU:C:2010:757, point 146).
39      See, in that regard, Kuczerawy, A., ‘Active vs. passive hosting in the EU intermediary liability regime: time for a change?’, KU Leuven Centre for IT & IP Law (blog), 2018; and Riordan, J.,
The Liability of Internet Intermediaries, Oxford University Press, Oxford, 2016, p. 404.
40      See the judgment in Google France (paragraph 23). Natural results are essentially those that are displayed on a search engine in decreasing order of relevance following a search by an internet user on the basis of one or more words (see that judgment, paragraph 22).
41      See the judgment in Google France (paragraph 118).
42      See the judgment in L’Oréal and
Others (paragraphs 28, 29 and 31). Concerning the use by eBay of Google’s AdWords service to promote the products on sale on its website, see also paragraphs 39, 84 and 85 thereof.
43      See the judgment in L’Oréal and
Others (paragraph 116).
44      See the judgment in YouTube and Cyando (paragraph 19).
45      See the judgment in YouTube and Cyando (paragraphs 92 and 109).
46      See the judgment in L’Oréal and
Others (paragraph 115). Regarding remuneration, see also the judgment in Google France (paragraph 116).
47      See the judgment in YouTube and Cyando (paragraph 109).
48      See the judgment in YouTube and Cyando (paragraph 114).
49      See my Opinion in Russmedia Digital and Inform Media Press (C‑492/23, EU:C:2025:68, point 53).
50      See point 17 of this Opinion.
51      See points 158 and 159 of that Opinion.
52      See, in that regard, Opinion of Advocate General Jääskinen in L’Oréal and Others (C‑324/09, EU:C:2010:757, point 26).
53      In that regard, according to Google, there are around three million Verified Partners.
54      The Opinion of Advocate General Saugmandsgaard Øe in YouTube and Cyando (points 160 and 162). See also Riordan, J., footnote 39, op. cit., p. 409.
55      See point 66 of this Opinion. See also the Opinion of Advocate General Saugmandsgaard Øe in YouTube and Cyando (point 157).
56      See, in that regard, recital 40 of Directive 2000/31.
57      Proposal for a directive (COM(1998) 586 final), footnote 16, op. cit., p. 4. See also Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee – First Report on the application of Directive 2000/31 (COM(2003) 702), p. 13.
58      See recitals 9 and 46 of Directive 2000/31. See also the judgment in YouTube and Cyando (paragraph 113).
59      See recital 16 of the Digital Services Act. See also Wilman, F., Kalėda, S. and
Loewenthal, P‑J., footnote 26, op. cit., p. 72, and Husovec, M., Injunctions against Intermediaries in the European Union, Cambridge University Press, 2017, p. 55.
60      See, in relation to Article 14(3) of Directive 2000/31, the judgment in YouTube and Cyando (paragraph 131).
61      See, in that regard, Stalla-Bourdillon, S. and Thorburn, R.,
‘The scandal of intermediary: acknowledging the both/and dispensation for regulating hybrid actors’, in Petkova, B. and
Ojanen, T. (eds.), Fundamental Rights Protection Online: the Future Regulation of Intermediaries, Edward Elgar, 2019, p. 157.
62      See the judgment in Google France (paragraphs 26 and 115), where no attention was paid to the fact that, concerning the AdWords referencing service, the order in which advertising links were displayed was determined according to, inter alia, the maximum price per click and the quality of the ad as assessed by Google.
63      Recital 43 of Directive 2000/31; see also judgment of 15 September 2016, Mc Fadden (C‑484/14, EU:C:2016:689, paragraphs 60 to 63), and Van Eecke, P., footnote 28, op. cit., p. 1463.
64      See point 65 of this Opinion.
65      See also, in that regard, Stalla-Bourdillon, S. and Thorburn, R., footnote 61, op. cit., p. 149.
66      See, in that regard, point 59 of this Opinion, referring to the judgment in Google France (paragraph 118). See also Van Eecke, P., footnote 28, op. cit., p. 1472.
67      See point 17 of this Opinion.
68      See, in that regard, my Opinion in Russmedia Digital and Inform Media Press (C‑492/23, EU:C:2025:68, point 60).
69      See point 63 of this Opinion.
70      See the judgments in Google France (paragraph 116) and in L’Oréal and
Others (paragraph 115).
71      See the judgment in Google France (paragraph 25).
72      See the judgment in YouTube and Cyando (paragraph 96).
73      The Opinion of Advocate General Saugmandsgaard Øe in YouTube and Cyando (point 142).
74      See the judgment in YouTube and Cyando (paragraphs 41 to 43). See also the Opinion of Advocate General Saugmandsgaard Øe in YouTube and Cyando (point 31).
75      See, in that regard, the judgment in YouTube and Cyando (paragraph 109).
76      See Outcome of proceedings of the Working Party on Economic Questions (Information Society services) on 15-25 February 1999, Council document 6251/99 (1999), p. 4.
77      See the judgment in YouTube and Cyando (paragraphs 111 and 112).
78      See paragraph 122 of that judgment.
79      See the following webpage: https://support.google.com/adspolicy/answer/15132179?hl=en-GB&sjid= 5810413720643412243-EU.