62023CJ0797_RES
Case C‑797/23
Meta Platforms Ireland Limited
v
Autorità per le Garanzie nelle Comunicazioni
(Request for a preliminary rulingfrom the Tribunale Amministrativo Regionale per il Lazio (Italy))
Judgment of the Court (Grand Chamber) of 12 May 2026
(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive (EU) 2019/790 – Article 15 – Protection of press publications concerning online uses – National legislation providing for the publishers of those publications to be entitled to ‘fair compensation’ – Obligations imposed on information society service providers – Powers conferred on an independent administrative authority – Charter of Fundamental Rights of the European Union – Article 16 – Freedom to conduct a business – Limitation on the exercise of that freedom – Article 52(1) – Justification – Weighing of that freedom against other fundamental rights – Article 11(2) – Freedom and pluralism of the media – Article 17(2) – Protection of intellectual property)
Acts of the institutions – Directives – Implementation by Member States – Discretion of the Member States to regulate the substantive law of the exclusive rights of reproduction and making available to the public – None – Detailed rules for the implementation of those rights – Discretion of the Member States – Limits – Respect for the essence of those rights and observance of the objectives set out by the directive
(Art. 288, third para., TFEU; European Parliament and Council Directives 2001/29, Arts 2 and 3(2), and 2019/790, Art. 15(1))
(see paragraphs 49-53)
Approximation of laws – Copyright and related rights – Directive 2019/790 – Harmonisation of certain aspects of copyright and related rights in the information society – Rights of reproduction and of making available to the public – National legislation providing for the publishers of press publications to be entitled to fair compensation – Obligations imposed on information society service providers – Powers conferred on public authority – Whether permissible – Conditions – Need for prior consent of publishers for the use of their publications – Possibility for those publishers to refuse or grant authorisation to use those publications free of charge – No payment obligation for service providers in case publications are not used – Observance of the principle of proportionality
(Charter of Fundamental Rights of the European Union, Arts 16 and 52; European Parliament and Council Directive 2019/790, Art. 15)
(see paragraphs 60-66, 78, 81-83, operative part)
Approximation of laws – Copyright and related rights – Directive 2019/790 – Harmonisation of certain aspects of copyright and related rights in the information society – National legislation imposing on information society service providers obligations to provide certain data, subject to an administrative fine, and not to limit the visibility of publications – Restriction on the freedom to conduct a business – Whether permissible – Conditions – Restriction laid down by law – Respect for the essence of the right invoked – Pursuit of an objective of general interest recognised as such by the European Union – Observance of the principle of proportionality – Conditions met
(Charter of Fundamental Rights of the European Union, Arts 16 and 52; European Parliament and Council Directive 2019/790, Art. 15)
(see paragraphs 90-101)
Résumé
Hearing a request for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), the Court, sitting as the Grand Chamber, rules for the first time on the extent of the discretion enjoyed by the Member States in the context of the transposition of Article 15 of Directive 2019/790. (
1
)
The Italian legislature transposed that provision with Article 43-bis of the Law on Copyright (
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) which provides, in favour of publishers of press publications, the right to fair remuneration for the online use of their publications and establishes a system intended to ensure that remuneration. The Italian legislation thus requires information society service providers to enter into negotiations with the publishers concerning that remuneration, without limiting the visibility of their contents in search results during the negotiations, and to provide the data necessary for calculating the remuneration. It also entrusts the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) (AGCOM) with the task of laying down the criteria for that remuneration, determining it in the event of disagreement, and ensuring compliance with the obligation to provide information incumbent on providers, including by means of penalties.
On 19 January 2023, AGCOM adopted Decision No 3/23/CONS on the basis of that law. That decision lays down the criteria for determining the fair compensation payable to publishers by information society service providers for the online use of press publications. Meta Platforms Ireland Ltd, which is such a service provider, brought an action before the referring court seeking annulment of AGCOM’s decision.
Entertaining doubts as to the compatibility of the national legislation with EU law, that court decided to ask the Court about the interpretation of Article 15 of Directive 2019/790 and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Findings of the Court
In the first place, as regards Article 15 of Directive 2019/790, the Court recalls that that provision (
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) requires Member States to guarantee to publishers of press publications the exclusive rights of reproduction of those publications and making them available to the public. Although those States do not have any discretion to regulate the substantive law, they nevertheless, when transposing those rights, enjoy discretion as to how they are to be implemented.
The Court states that the detailed rules for implementation cannot, however, have the effect of altering the substantive law, in particular in terms of and scope, and must be fully compatible with both the general objective of that directive and the specific objective of Article 15 thereof.
In that regard, the Court states, first, that the general objective of that directive is to harmonise the laws of the Member States on copyright and related rights, while keeping a high level of protection of those rights and contributing to the achievement of a well-functioning and fair marketplace for copyright. As regards the objective of Article 15 of Directive 2019/790, the Court states that the introduction into EU law of the rights enshrined in that article aims, inter alia, to address the problems that publishers face in licensing the online uses of their publications by information society service providers and to ensure that they may recoup the investments required by the production of those publications.
Second, the Court notes that the exclusive rights enshrined in Article 15 are preventive in nature, in the sense that any use of press publications falling within the scope of that article requires prior authorisation from the publishers of such publications. Although, given that preventive nature, publishers may make the authorisation to use their publications subject to any remuneration which they deem appropriate, the Court also stresses that they must be able to grant free of charge the authorisation for online uses of their press publications and to prohibit such uses. At the same time, information society service providers must, for their part, retain the freedom to decide on such use. Thus, no payment obligation may be imposed on them under Article 15 of Directive 2019/790 where they do not use nor intend to use those press publications.
In the present case, the Court notes, first of all, that it is for the referring court to assess whether the national legislation at issue, which provides for the right of publishers to obtain fair remuneration, meets those requirements.
Next, the Court states that the obligations imposed on service providers by that legislation, namely the obligation to provide the data necessary for the determination of the amount of remuneration and the obligation to refrain from limiting the visibility of press publications in the search results during negotiations, contribute to the attainment of the objectives of Directive 2019/790 and Article 15 thereof, by strengthening the level of protection intended by that directive and, in particular, Article 15 thereof. In that regard, the Court explains that only those providers possess the relevant information for the economic value of the online use of press publications to be assessed, which places the publishers of those publications in a weaker negotiating position as regards the determination of their remuneration.
Therefore, those obligations make it possible to ensure that negotiations between providers and publishers are fair and that the publishers are able to decide freely and on the basis of all relevant information whether and, if so, in return for what remuneration, they may wish to grant providers authorisation to reproduce press publications or make them available to the public.
Last, as regards the powers conferred on AGCOM by the national legislation at issue, the Court finds that, in addition to the role of that authority in determining the amount of the remuneration, providers and publishers remain free not to conclude a contract. It adds that the power of that authority to monitor compliance with the obligation to provide information incumbent on providers and to penalise any infringements cannot be regarded as contrary to Article 15, subject to observance of the principle of proportionality.
In the second place, as regards Articles 16 and 52 of the Charter, the Court considers that national legislation which provides for ‘fair compensation’ which is understood to be consideration freely determined by the parties cannot be regarded as containing a limitation on the exercise of the providers’ freedom to conduct a business. However, the obligations to provide certain data and not to limit the visibility of publications incumbent on those providers and the powers conferred on AGCOM in that regard are liable to limit the exercise of that freedom.
After finding that the national legislation at issue, in so far as it merely limits the possibility for service providers to assert their interests in the context of a contractual relationship, cannot undermine the essence of the freedom to conduct a business, the Court examines observance of the principle of proportionality.
In that regard, it notes, first of all, that that legislation is appropriate for achieving the objective which it pursues. Next, it is not obvious that there are less restrictive measures capable of achieving that objective just as effectively. Last, as regards, in particular, the obligation incumbent on service providers to provide certain data, the Court notes, first, that the data to be communicated appear to be limited to those necessary for the determination of any remuneration payable to publishers, the latter having to respect the confidentiality of commercial, industrial and financial information. Second, the penalty that may be imposed for failure to comply with that obligation takes account of the provider’s financial capacity, thus not placing a manifestly unreasonable burden on it. The imposition of such an obligation therefore appears proportionate to the objective pursued, since it is capable of striking a fair balance between the fundamental rights and freedoms concerned: the freedom to conduct a business guaranteed in Article 16 of the Charter, on the one hand, and the right to intellectual property enshrined in Article 17(2) of the Charter and the right to freedom and pluralism of the media guaranteed in Article 11(2) of the Charter, on the other.
Accordingly, the Court rules that Article 15 of Directive 2019/790 and Articles 16 and 52 of the Charter do not preclude national legislation which confers on publishers a right to fair remuneration in return for the authorisation to use their publications granted to information society service providers, which imposes certain obligations on those providers and which empowers a public authority to define the benchmark criteria to be used to determine that remuneration and to monitor compliance with one of the obligations as well as to penalise non-compliance, provided, on the one hand, that that legislation does not deprive publishers of the possibility of refusing to grant such authorisation, or that of granting such authorisation free of charge, and that it does not impose on providers any payment obligation unrelated to the use of such publications, and, on the other, that the obligations and any penalties imposed on them observe the principle of proportionality.
(
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)	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).
(
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)	Article 43-bis of legge n. 633 – Protezione del diritto d’autore e di altri diritti connessi al suo esercizio (Law No 633 for the protection of copyright and other rights relating to its exercise) of 22 April 1941 (GURI No 166 of 16 July 1941), in the version applicable to the dispute in the main proceedings (‘Article 43-bis’).
(
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)	Read in conjunction with Articles 2 and 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).