Case C‑663/22

Expedia Inc.

v

Autorità per le Garanzie nelle Comunicazioni

(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio)

Judgment of the Court (Second Chamber) of 30 May 2024

(Reference for a preliminary ruling – Regulation (EU) 2019/1150 – Articles 1, 15, 16 and 18 – Objective – Application – Monitoring – Review – Measures adopted by a Member State – Obligation to provide information on the economic situation of a provider of online intermediation services)

Approximation of laws – Electronic commerce – Regulation 2019/1150 – Online intermediation services – Measures adopted by a Member State – Obligation imposed on providers of such services to provide, on pain of penalties, information relating to their economic situation – Justification for the adequate and effective enforcement of that regulation – Absence

(European Parliament and Council Regulation 2019/1150, recitals 7, 46 and 51 and Arts 1(5), 15, 16 and 18)

(see paragraphs 41-44, 47, 52-58, operative part)

Résumé

On a reference for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), the Court of Justice interprets, for the first time, Regulation 2019/1150 ( 1 ) by providing clarification of the discretion available to the Member States when adopting national measures in order to ensure the adequate and effective enforcement of that regulation. ( 2 )

Expedia Inc., a company whose registered office is in Seattle (United States of America), manages IT platforms allowing the provision of online accommodation and travel reservation services. As an online intermediation service provider in Italy, it is subject to the obligation to send to the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) (‘AGCOM’) a document entitled ‘informativa economica di sistema’ (Economic System Information), ( 3 ) in which information on its economic situation must be inserted. Failure to send that declaration to AGCOM or the communication of inaccurate data are subject to penalties.

Since the referring court had doubts as to the compatibility of such an obligation with EU law, it decided to ask the Court, in essence, whether Regulation 2019/1150 must be interpreted as justifying the adoption by a Member State of measures under which, on pain of penalties, providers of online intermediation services are subject, with a view to providing their services in that Member State, to the obligation to send periodically to an authority of that Member State a document relating to their economic situation, in which it is necessary to set out a large amount of information relating, inter alia, to the revenues of those providers.

Findings of the Court

As a preliminary point, the Court recalls that, in so far as the implementation of certain provisions of a regulation so requires, the Member States may, under certain conditions, adopt measures for its implementation.

In the present case, the Court aims to identify the objective pursued by Regulation 2019/1150 and the provisions thereof that confer a role on the Member States for its implementation.

In the first place, the Court notes that Regulation 2019/1150 ( 4 ) imposes on the service providers concerned specific obligations relating to the transparency and fairness of the conditions applied to business users of online intermediation services ( 5 ) and lays down provisions concerning the out-of-court and judicial resolution of disputes between such providers and those business users. Thus, the information which the Member States may be called upon to provide to the European Commission, under Articles 16 and 18 of Regulation 2019/1150, must be relevant for the purpose of enabling that institution to monitor the development of relations, in particular, between providers of online intermediation services and those business users or to draw up reports on the evaluation of that regulation.

Since the objective of Regulation 2019/1150 is to establish a fair, predictable, sustainable and trusted environment for online business operations within the internal market, in which business users of online intermediation services are afforded appropriate transparency, fairness and effective redress possibilities, the information gathered by the national authorities can be classified as ‘relevant’, within the meaning of Articles 16 and 18 of that regulation, only if it has a sufficiently direct link with that objective. By contrast, a Member State cannot, under the application of Regulation 2019/1150, gather arbitrarily selected information on the ground that it may subsequently be requested by the Commission in the exercise of its task of monitoring and reviewing that regulation, since that regulation does not require the Member States to gather, on their own initiative, such information.

In the second place, where a Member State entrusts an administrative authority with the task of monitoring, in accordance with Article 15 of Regulation 2019/1150, the enforcement of that regulation, the information which that authority may gather, in exercising that task, is appropriate for attaining the objective of that regulation only if it has a sufficiently direct link with it. That is not the case for information relating to the economic situation of providers of online intermediation services with regard to the objective of Regulation 2019/1150. The information required of the service providers on the basis of Regulation 2019/1150 must concern the conditions of the service provided, in order, inter alia, to enable the competent authorities to know and assess the fairness of the contractual conditions laid down by those providers to business users of online intermediation services within the European Union. The link between, on the one hand, the economic situation of a provider of such services and, on the other hand, the arrangements under which those services are provided for the benefit of those business users, assuming that they exist, can only be indirect.

Consequently, the Court considers that Regulation 2019/1150 does not justify, with a view to the adequate and effective implementation of that regulation, the adoption by a Member State of measures under which, on pain of penalties, providers of online intermediation services are subject, for the purposes of providing their services in that Member State, to the obligation to send periodically to an authority of that Member State a document relating to their economic situation, in which it is necessary to set out a large amount of information relating, in particular, to the revenue of those service providers.

( 1 ) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57).

( 2 ) It should be noted that the judgments delivered on the same day in Joined Cases C‑662/22 and C‑667/22, Airbnb Ireland and Amazon Services Europe, Joined Cases C‑664/22 and C‑666/22, Google Ireland and Eg Vacation Rentals Ireland, and in Case C‑665/22, Amazon Services Europe, which concern, inter alia, the interpretation of Regulation 2019/1150, concern an issue similar to that at issue in the present case. However, those judgments focus on the interpretation 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’) (OJ 2000 L 178, p. 1), and its relationship with that regulation.

( 3 ) Following amendments made to the legal framework adopted by the Italian authorities, and, inter alia, the adoption by AGCOM of delibera n. 161/21/CONS – Modifiche alla delibera n. 397/13 del 25 giugno 2013‘Informativa Economica di Sistema’ (Decision No 161/21/CONS on Modifications to Decision No 397/13 of 25 June 2013‘Economic System Information’).

( 4 ) See recitals 7 and 51 and Article 1(1) of Regulation 2019/1150.

( 5 ) See Article 2(1) of Regulation 2019/1150.