Provisional text

delivered on 5 June 2025 (1)

Case C‑345/24

Autorità per le Garanzie nelle Comunicazioni (AGCOM)

BRT SpA,

Federazione Italiana Trasportatori (FEDIT),

Associazione Italiana dei Corrieri Aerei Internazionali (AICAI),

DHL Express (Italy) Srl,

TNT Global Express Srl,

Fedex Express Italy Srl,

United Parcel Service Italia Srl,

Amazon Italia Transport Srl,

Amazon Italia Logistica Srl,

Amazon EU Sàrl,

intervening parties:

Amazon Italia Transport Srl,

Amazon Italia Logistica Srl

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

( Reference for a preliminary ruling – Parcel delivery services – Directive 97/67/EC – Articles 22 and 22a – Regulation (EU) 2018/644 – Article 4 – Imposition of information obligations – Legal basis – Limits – Principle of proportionality )

In 2022, the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy; ‘AGCOM’) (2) imposed a series of information obligations on undertakings providing parcel delivery services in Italy.

Some of those undertakings challenged AGCOM’s decision in a court of first instance, which upheld their claims. AGCOM has brought an appeal against the judgments at first instance before the Consiglio di Stato (Council of State, Italy), which, in short, asks the Court of Justice the following:

–Whether the legal basis authorising the imposition of the information obligations is found in Regulation (EU) 2018/644 (3) or in Directive 97/67/CE. (4) If it is found in Regulation 2018/644, it has doubts regarding the validity of its scope.

–Within what limits an NRA is able to impose such obligations.

I.Legislative framework

A.European Union law

1.Directive 97/67

Article 2 provides:

‘For the purposes of this Directive, the following definitions shall apply:

1.postal services: services involving the clearance, sorting, transport and distribution of postal items;

1a.postal service provider: undertaking that provides one or more postal services;

…’

Article 3(7) is worded as follows:

‘The universal service as defined in this Article shall cover both national and cross-border services.’

Article 22(2), first subparagraph, reads:

‘The [NRAs] shall have as a particular task ensuring compliance with the obligations arising from this Directive, in particular by establishing monitoring and regulatory procedures to ensure the provision of the universal service. They may also be charged with ensuring compliance with competition rules in the postal sector.’

Article 22a provides:

1.‘1. Member States shall ensure that postal service providers provide all the information, in particular to the national regulatory authorities, including financial information and information concerning the provision of the universal service, namely for the following purposes:

(a)for [NRAs] to ensure conformity with the provisions of, or decisions made in accordance with this Directive,

(b)for clearly defined statistical purposes.

2.…The information requested by the [NRA] shall be proportionate to the performance of its tasks. …

…’

2.Regulation 2018/644

According to recital 13:

‘Currently, postal services are regulated by [Directive 97/67]. … This Regulation therefore complements, in so far as cross-border parcel delivery services are concerned, the rules set out in [Directive 97/67] …’

Article 2 (‘Definitions’), (5) point 3, states: ‘“parcel delivery service provider” means an undertaking that provides one or more parcel delivery services with the exception of undertakings established in one Member State alone, that only provide domestic parcel delivery services as part of a sales contract and as part of the contract personally deliver goods that are subject of that contract to the user’.

Article 4 (‘Provision of information’) states:

‘…

3.By 30 June of each calendar year, all parcel delivery service providers shall submit to the [NRA] of the Member State in which they are established the following information, unless that [NRA] has already requested and received it:

(a)the annual turnover in parcel delivery services for the previous calendar year in the Member State in which they are established, broken down into domestic, incoming and outgoing cross-border parcel delivery services;

(b)the number of persons working for them over the previous calendar year involved in the provision of parcel delivery services in the Member State in which they are established, including breakdowns showing the number of persons by employment status, and in particular, those working full-time and part-time, those who are temporary employees and those who are self-employed;

(c)the number of parcels handled over the previous calendar year in the Member State in which they are established, broken down into domestic, incoming and outgoing cross-border parcels;

(d)the names of their subcontractors, together with any information that they hold concerning the characteristics of parcel delivery services provided by those subcontractors;

(e)where available, any publicly accessible price list applicable on 1 January of each calendar year for parcel delivery services.

…

5.The [NRAs] may impose information requirements additional to those referred to in paragraphs 1 and 3, provided that they are necessary and proportionate.

6.Paragraphs 1 to 5 shall not apply to any parcel delivery service provider which had over the previous calendar year on average fewer than 50 persons working for it and involved in the provision of parcel delivery services in the Member State in which that provider is established, unless that provider is established in more than one Member State. [An NRA] may include in the threshold of 50 persons the persons working for the parcel delivery service provider’s subcontractors.

7.Notwithstanding paragraph 6, [an NRA] may request the information to be submitted under paragraphs 1 to 5 by any parcel delivery service provider which employed over the previous calendar year on average between 25 and 49 persons where the specificities of the Member State concerned so require and provided that it is necessary and proportionate to ensure conformity with this Regulation.’

Article 5 (‘Transparency of cross-border tariffs’), paragraph 1, provides:

‘All cross-border parcel delivery service providers other than those excluded by Article 4(6) and (7) shall provide the [NRA] of the Member State in which they are established with the public list of tariffs applicable on 1 January of each calendar year for the delivery of single-piece postal items, other than items of correspondence, falling within the categories listed in the Annex. That information shall be provided by 31 January of each calendar year.’

Article 6 (‘Assessment of cross-border single-piece parcel tariffs’) states:

1.‘1. On the basis of the public lists of tariffs obtained in accordance with Article 5, the [NRA] shall identify, for each of the single-piece postal items listed in the Annex, the cross-border tariffs of the parcel delivery service provider that originates in its Member State and that are subject to a universal service obligation that the [NRA] objectively considers necessary to assess.

2.The [NRA] shall objectively assess, in accordance with the principles in Article 12 of [Directive 97/67], the cross-border tariffs identified under paragraph 1 in order to identify those cross-border tariffs that it considers to be unreasonably high. In that assessment, the [NRA] shall in particular take into account the following elements:

(a)the domestic and any other relevant tariffs of the comparable parcel delivery services in the originating Member State and in the destination Member State;

…’

B.National law. Legislative Decree No 261 of 22 July 1999 (6)

In accordance with Article 2(4), the NRA for the postal sector:

‘… performs, with complete independence to make assessments and decisions, the following functions:

(a)regulation of postal markets;

…

(d)adoption of regulations with regard to access to the postal network and related services, setting of tariffs for the sectors regulated and promotion of competition in postal markets;

(e)monitoring, supervision and verification of compliance with postal service quality standards, including through third parties;

(f)oversight … of compliance with obligations imposed by the universal service provider and obligations arising from licences and authorisations, in particular as regards the general conditions for the provision of postal services;

(g)analysis and monitoring of postal markets, in particular as regards the price of the services, including the establishment of an observatory for that purpose.’

Article 14 bis reproduces, almost verbatim, Article 22a of Directive 97/67.

II.Facts, disputes and questions referred for a preliminary ruling

According to the order for reference, (7) ‘with Decision No 94/22/CONS, of 31 March 2022, concerning ‘Regulatory obligations in the parcel delivery services market’, AGCOM imposed certain (symmetrical) information obligations on large and medium-sized undertakings operating in the parcel delivery services market, to increase the level of supervision relating to the conditions for the provision of postal services, the contractual conditions regulating relations between the undertakings carrying out the different stages of the service and also conditions of employment, to which are added some specific (asymmetrical) information obligations which AGCOM has decided to impose solely on Amazon, due to the critical points detected in the analysis of the parcel delivery services market’.

Decision No 94/22/CONS thus includes:

–General information obligations aimed at operators which, having certain characteristics, are authorised to provide postal parcel delivery services to the public (8) (Article 1).

–Specific information obligations aimed at Amazon, which are in addition to the general obligations (Article 2).

With regard to the first category of operators, AGCOM required them to send it, annually, the following:

(a)information relating to the financial conditions of the services offered to the public;

(b)the reference financial conditions (average prices) for certain groups of business customers identified on the basis of annual turnover;

(c)the contracts in force governing their commercial relations with the undertakings in the sector which contribute to the provision of the postal service;

(d)a declaration regarding compliance with working conditions, in respect of all persons involved in the provision of the service and at all levels of the network organisation;

(e)the standard-form contracts used for personnel belonging to the different categories at each organisational level.

With regard to the specific information obligations imposed on Amazon, AGCOM required that undertaking to send it the following:

(a)the average price that retailers participating in the Amazon Logistics programme (Fulfillment by Amazon: FBA) were invoiced for the distribution service;

(b)the average unit price paid to Delivery Service Partners (DSPs) for the distribution service; and

(c)the average unit price paid to other parcel delivery operators for the distribution service.

By means of four separate actions, the Associazione Italiana dei Corrieri Aerei Internazionali (AICAI), DHL Express Italy Srl, TNT Global Express Srl, Fedex Express Italy Srl, United Parcel Service Italia Srl, BRT SpA and the Federazione Italiana Trasportatori (FEDIT) (together, ‘the operators other than Amazon’) and Amazon Italia Transport Srl, Amazon Italia Logistica Srl and Amazon EU Sàrl (together, ‘Amazon’) brought a challenge to Decision No 94/22/CONS before the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy; ‘the Lazio Administrative Court’).

In four different judgments, the Lazio Administrative Court upheld the four actions and set aside the contested decision:

–With regard to the operators other than Amazon, according to the order for reference, the Lazio Administrative Court ‘noted, in the first place, the inadequate nature of the investigation leading to Decision [No 94/22/CONS]. In particular, AGCOM had introduced information obligations in B2B (“business-to-business”) sectors in which the investigation carried out had not identified any issues which would justify regulatory intervention. On the hand, issues had been identified above all (or solely) in the B2C (“business-to-consumer”) sector’.

–With regard to the specific information obligations imposed on Amazon, the Lazio Administrative Court upheld the action because [the contested decision] lacked a ‘sound’ legal basis.

AGCOM has brought an appeal against the judgments at first instance before the Consiglio di Stato (Council of State), which has referred four questions to the Court of Justice for a preliminary ruling, the first, second and fourth of which (9) are transcribed below:

(1)‘(1) Does [Regulation 2018/644], with regard to the collection of information, apply as such only to cross-border delivery service providers or, in general, to all parcel delivery service providers, subject to specific exclusions relating to individual provisions?

(2)If the answer to [the first question] is that it applies only to cross-border delivery service providers, does [Directive 97/67], or do the so-called “implied powers”, provide the legal basis for the [NRAs] to impose, in any event, on delivery service providers, even non-cross-border ones, general obligations to provide information?

…

(4)To what extent (including from the perspective of necessity and proportionality) can the [NRA] impose obligations to provide information on parcel delivery service providers and, in particular, is it possible to impose, on all providers without distinction, obligations to provide information concerning:

(i)the conditions applied to different types of customers;

(ii)the contracts which govern the relations between the individual undertaking that provides the parcel delivery service and the undertakings which, in various ways, according to the specificities of the sector, contribute to providing that service;

(iii)the [financial] conditions and the legal protection afforded to workers employed in various capacities in providing the service?’

III.Procedure before the Court of Justice

The request for a preliminary ruling was received at the Court on 10 May 2024.

AICAI and Others, Amazon, BRT, FEDIT, the Italian Government, the European Parliament, the Council of the European Union and the European Commission have lodged written observations. All those parties appeared at the public hearing held on 26 March 2025.

23.As instructed by the Court, I shall not address the third question referred in this Opinion.

IV.Analysis

A.The first question referred

24.The referring court wishes to know whether Regulation 2018/644 ‘with regard to the collection of information, [applies] as such only to cross-border delivery service providers or, in general, to all parcel delivery service providers, subject to specific exclusions relating to individual provisions’.

1.Relevance of the question

25.According to Amazon, the question is irrelevant, since the original dispute does not concern the applicability of Regulation 2018/644 to cross-border parcel delivery services. In its view, it should be reformulated to determine whether Regulation 2018/644 ‘may, or may not, constitute an appropriate legal basis for the NRAs to impose additional information obligations relating to non-cross-border matters’. (10)

26.It is for the referring court – and not the parties to the dispute – to assess the need for the questions it refers to the Court of Justice and to specify their content. (11)

27.The Consiglio di Stato (Council of State) considers that the proceedings a quo concern the information obligations imposed by the contested decision and that, in those proceedings, doubts are raised ‘inter alia’, (12) regarding ‘the existence and, if it exists, the scope of the power of the [NRA] to impose such obligations …, starting with the situation of providers of non-cross-border parcel delivery services, such as Amazon’. (13)

28.Viewed in that way, the question is relevant. Given its doubts regarding the lawfulness of the obligations imposed on parcel delivery service providers, it is legitimate for the referring court to inquire, first of all, as to the scope of Regulation 2018/644. The answer to that question would allow it to know whether the provisions of that regulation relating to information obligations extend to all providers of those services, whether national or cross-border.

29.The question, I repeat, is not irrelevant if it is not possible for the referring court to discern, clearly, the legal basis of the power exercised by AGCOM. All the more so because, as that court adds, ‘it would seem that AGCOM in the past has ruled out the possibility of the power to impose information obligations being derived from Regulation 2018/644, while, in the present dispute, it maintains the contrary’. (14)

2.Assessment of the substance

30.Regulation 2018/644, as summarised by its title, deals with cross-border parcel delivery services. It is to that category of services that the majority of its provisions relate.

31.In particular, according to Article 1 of Regulation 2018/644, that regulation ‘lays down specific provisions to foster better cross-border parcel delivery services, in addition to those laid down in [Directive 97/67], concerning …’.

32.Points (b) and (c) of Article 1 of Regulation 2018/644 refer, respectively, to ‘transparency of tariffs, and assessment of tariffs for certain cross-border parcel delivery services …’ and to ‘information for consumers made available by traders concerning cross-border parcel delivery services’.

33.Other provisions of Regulation 2018/644 also deal exclusively with providers of cross-border parcel delivery services. That is the case with Article 5 (transparency of cross-border tariffs), Article 6 (assessment of cross-border single-piece parcel tariffs) and Article 7 (information to consumers regarding cross-border delivery options and charges).

34.Those provisions taken together would, at first glance, seem to imply the inapplicability of Regulation 2018/644 to non-cross-border parcel delivery services. Other provisions of the same regulation, however, permit a contrary view as far as information obligations are concerned.

35.First, Article 1 of Regulation 2018/644 also lists among its purposes ‘regulatory oversight related to parcel delivery services’, without referring solely to cross-border services and, therefore, also including national services.

36.Second, by regulating the information that parcel delivery service providers are to submit to the NRA of the Member State in which they are established, Article 4(1) and (3) of Regulation 2018/644 is aimed, generally and explicitly, at ‘all’ parcel delivery service providers (emphasis added). It does not, therefore, distinguish between national and cross-border service providers.

37.The definition of ‘parcel delivery service provider’ contained in Article 2(3) of Regulation 2018/644 confirms that interpretation. Similarly, the notion of ‘postal service provider’ in Article 2(1a) of Directive 97/67 (‘undertaking that provides one or more postal services’) does not limit that notion to national services either. In accordance with Article 2, first subparagraph, of Regulation 2018/644, that definition from Directive 97/67 also applies for the purposes of that regulation.

38.Third, Articles 5, 6 and 7 of Regulation 2018/644 concern a certain type of information (relating to tariffs or contracts) which only those parcel delivery service operators offering those services in their cross-border business have to provide. However, that information is in addition to that stipulated, for all operators without distinction, in Article 4(1) and (3) of that regulation. Articles 5, 6 and 7, then, are provisions aimed at a specific group, among all parcel delivery service providers, both national and cross-border, as a whole.

39.The national or cross-border nature of the parcel delivery service may be relevant for the purposes of Regulation 2018/644. However, as I previously stated, not as a criterion for defining the scope with regard to information obligations – restricting them to providers of cross-border parcel delivery services – but rather in order to specify the information which one or other group of operators must provide.

40.It is true, as I have just stated, that Regulation 2018/644, in some of its provisions, deals with the specific situation of operators that provide cross-border services. However, that does not prevent it from stipulating that all operators in the sector, whatever the national or cross-border nature of the service they provide, are subject to the information obligations laid down in Article 4 of that regulation.

41.The criterion established by Article 4(1) and (3) of Regulation 2018/644, concerns, then, from a literal point of view, the substantive nature of the service provided and not the national or cross-border nature of its provision.

42.In my opinion, Article 4(3)(c) of Regulation 2018/644 supports that interpretation: parcel delivery operators, when providing information regarding the number of parcels handed over in the Member State in which they are established, are to break it down into ‘domestic … [and] cross-border parcels’. According to the regulation itself, then, the information obligation extends to domestic parcels.

43.From the point of view of its purpose, the objective behind the information obligation imposed on parcel delivery operators is more likely to be achieved if the NRAs, who are the recipients of that information, have information for both national and cross-border services, in order to be able to carry out their designated functions. (15) Those data would allow them to have a fuller – and not fragmentary – idea of the sector they supervise and the market they have to analyse.

44.Accordingly, in my view, as far as the provision of information is concerned, Regulation 2018/644 applies to all parcel delivery service providers, whether those services are national or cross-border.

B.The second question referred

45.The referring court poses the second question referred in the event that the answer to the first confirms that Regulation 2018/644 applies only to providers of cross-border parcel delivery services.

46.However, in my view, the second question is relevant, whatever the answer to the first.

47.The Consiglio di Stato (Council of State) wishes to know whether ‘[Directive 97/67], or [whether] the so-called “implied powers”, provide the legal basis for the [NRAs] to impose, in any event, on delivery service providers, even non-cross-border ones, general obligations to provide information’.

48.The possible application of Directive 97/67, as amended by Directive 2008/6, affects the information obligations that may be imposed on parcel delivery service providers.

49.In my opinion, even if the legal basis provided by Regulation 2018/644 did not exist, the imposition of information obligations on providers of non-cross-border parcel delivery services could be based on Directive 97/67. There is no longer any dispute that those parcel delivery services may be classified as postal services. (16)

50.As recital 13 of Regulation 2018/644 states, Directive 97/67 ‘establishes common rules governing the provision of postal services and the universal postal service’. Similarly, recital 2 of Directive 2008/6 recalls that Directive 97/67 ‘established a regulatory framework for the postal sector at Community level, including measures to guarantee a universal service’.

51.The scope of Directive 97/67 thus includes all postal service providers (17) and not only providers of the universal service. Moreover, as the Commission observes, (18) Article 3(7) of Directive 97/67 includes both national and cross-border services in the universal postal service.

52.Starting from that premiss, Article 22a of Directive 97/67 provides that Member States are to ensure that postal service providers provide all the information, in particular to the [NRAs], including financial information and information concerning the provision of the universal service. (19)

53.Once again, the reference to postal service providers is made without distinguishing between national and cross-border services. Such generalisation is all the more necessary because, as the same provision specifies, the aim is for the NRAs ‘to ensure conformity with the provisions of, or decisions made in accordance with [Directive 97/67]’.

54.To the extent that ‘the provisions of [Directive 97/67]’ concern providers of non-cross-border postal services, it is logical that information of a general nature should also be able to be gathered from such providers. That point is emphasised in recital 51 of Directive 2008/6: ‘National regulatory authorities need to gather information from market players in order to carry out their tasks effectively.’

55.Furthermore, as the Commission maintained at the hearing, Directive 97/67 does not preclude the national legislation that transposes it from conferring on the NRAs the power to request more extensive information than that referred to in the directive itself (provided that it is proportionate to what is needed by the NRAs in order to fulfil their mission).

56.In short, Direct 97/67 allows information obligations of a general nature to be imposed on all providers of postal services, whether national or cross-border, including parcel delivery services.

C.The fourth question referred

57.With the fourth question referred, the referring court wishes to know ‘to what extent’ the NRA is able to impose information obligations on parcel delivery service providers. In particular, whether it is lawful to impose ‘[information obligations] on all providers without distinction’, concerning certain conditions and contracts (to which I shall refer later).

58.Consistent with the response that I have proposed to the first two questions referred, like the Commission, I consider the relevant provisions for answering the fourth to be Article 4(3) and (5) of Regulation 2018/644 and Article 22a of Directive 97/67.

59.Those provisions set out, on the one hand, the information which Regulation 2018/644 and Directive 97/67 expressly state must be sent to the NRAs; and, on the other hand, the additional information which the NRAs may request from parcel delivery service providers. In addition to both, there is, where relevant, the information which the NRAs request on the basis of national rules. (20)

60.I shall deal, first, with the characteristics of the mandatory information and of the additional information which the NRAs may request, and, second, with the consequences of that analysis for the response to the referring court.

1.Mandatory information for the purposes of Regulation 2018/644 and Directive 97/67

61.The information which all operators are obliged to submit, annually, to the NRAs is listed in Article 4(3) of Regulation 2018/644 (21) and relates to the five categories of information that I have already transcribed. (22)

62.The wording of Article 22a of Directive 97/67 is more open and does not detail what type of information is to be provided on a mandatory basis.

63.Moreover, in accordance with Directive 97/67 (Article 22(2)), the NRAs may, if they have been entrusted with it, have the task of ensuring compliance with competition rules in the postal sector. (23) In that scenario, it would be mandatory for undertakings in the sector to send the information that usually has to be provided to the authorities responsible for protecting competition.

2.Additional information which the NRAs may request

64.Directive 97/67 does not contain any explicit rule regarding obligations in respect of additional information. Given the broad terms of Article 22a of that directive, which emphasises the proportionality of the information requested, it is the NRAs that have to assess, according to that rule, the relevance of their requests for information.

65.On the other hand, in accordance with Article 4(5) of Regulation 2018/644, the NRAs ‘may impose information requirements additional to those referred to in paragraphs 1 and 3, provided that they are necessary and proportionate’.

66.To be added to the above is the information which the NRAs are authorised to request on the basis of national legislation.

3.Limits on the requirement for information in the present case

67.In the fourth question referred, the referring court raises two issues:

–First, it wishes to know ‘to what extent (including from the perspective of necessity and proportionality) … the [NRA] [is able to] impose obligations to provide information on parcel delivery service providers’.

–Second, it wishes to know whether ‘in particular, [it is] possible to impose, on all providers without distinction, obligations to provide information’, concerning three categories of conditions applied (or contracts entered into) by the operators of parcel delivery services.

68.The first of the two questions that I have just transcribed is excessively broad. In my opinion, a question worded in those terms invites the Court to give a response that would, necessarily, extend to all kinds of ‘limits’, whether they have a bearing on the outcome of the dispute or not. Such a proposition exceeds the remit of the Court in the context of Article 267 TFEU. (24)

69.In order to offer the referring court a useful response and avoid excessively abstract considerations, it is preferable to focus on the information that AGCOM required. (25) The ‘[information obligations imposed] on all providers without distinction’ referred to in the second part of this question referred coincide, substantially, with those required by AGCOM in Article 1 of Decision No 94/22/CONS.

70.However, as all of the parties to the dispute acknowledged at the hearing, it does not fall to the Court of Justice, but rather to the Italian courts, to assess whether the information requested in that decision does or does not comply with the applicable provisions. I shall, then, confine myself to giving my opinion on how, in general, those obligations fit in with the rules of EU law referred to.

(a)Information of a commercial nature

In the case of certain parcel delivery operators, classified according to certain parameters, AGCOM imposed information obligations relating to: (a) the ‘financial conditions’ of the services offered to the public; (b) the ‘reference financial conditions (average prices)’ for certain groups of business customers; and (c) the ‘contracts in force governing commercial relations with the undertakings in the sector … which contribute to the provision of the postal service’. (26)

72.In principle, that information requirement could fall within the obligation to submit the information referred to in either Article 4(3) of Regulation 2018/644 or Article 22a of Directive 97/67.

73.As regards, in particular, the reference financial conditions for certain customers and the contracts in force with other undertakings in the sector, (27) the referring court will be able to assess whether the request for information is based on the powers of AGCOM in relation to competition in the postal sector. (28)

74.Article 22(2) of Directive 97/67 provides that, in addition to ensuring compliance with the obligations arising from that directive, the NRAs ‘may also be charged with ensuring compliance with competition rules in the postal sector’.

75.The referring court will, then, have to determine whether the national legislation actually entrusts AGCOM with functions relating to the protection of competition, a contention which Amazon rejects. It will have to clarify whether, by entrusting AGCOM with the ‘promotion of competition in postal markets’, Article 2(4)(d) of Legislative Decree No 261/1999 authorises that NRA to gather information which, as in the case of that at issue here, may be relevant in order to learn about conditions in the postal market, as a necessary prerequisite for promoting competition. The ‘promotion’ of competition in the postal sector can hardly be achieved without detailed knowledge of the situation in that market, which only the actors involved in it are able to provide.

(b)Information of a commercial nature

76.AGCOM required those same parcel delivery service providers on which it had imposed obligations in respect of commercial information to send it: (a) ‘a declaration regarding compliance with working conditions, in respect of all persons involved in the provision of the service and at all levels of the network organisation’; and (b) ‘the standard-form contracts used for personnel belonging to the different categories at each organisational level’. (29)

77.The referring court, in light of the characteristics of the information requested, will have to clarify, first, whether such employment-related information falls within the limits of Article 4(3)(b) of Regulation 2018/644. (30)

78.As a general rule, that type of information allows an NRA to assess the situation of the workers of the undertakings providing parcel delivery services and, therefore, to comply with the obligation to break down the number of persons who have worked for them, in accordance with Article 4(3)(b) of Regulation 2018/644.

79.Likewise, the referring court will be able to assess, where necessary, whether such employment-related information is covered by Article 22a of Directive 97/67. Pursuant to that provision, postal service providers are to provide ‘all the information’ necessary to verify ‘conformity with the provisions of … this Directive’. In particular, ‘the provisions’ of Directive 97/67 include:

–The establishment of ‘monitoring and regulatory procedures to ensure the provision of the universal service’ (Article 22(2)).

–In the case of providers of services which fall outside the scope of the universal service, [the need] to guarantee compliance with the ‘essential requirements’ defined in Article 2(19) of Directive 97/67. They include ‘respect for the terms and conditions of employment [and] social security schemes’.

–The granting of authorisations to postal service providers made subject to, or imposing, an obligation to respect working conditions laid down by national legislation (Article 9(2), second subparagraph, fifth indent). (31)

4.Interim conclusion

80.It follows from what I have just set out that the information required by AGCOM under the heading ‘General information obligations’ in Article 1 of Decision No 94/22/CONS could have as its basis either Article 4(3) and (5) of Regulation 2018/644 or Article 22a of Directive 97/67.

81.Given that the ‘specific information obligations’ imposed on Amazon by Article 2 of Decision No 94/22/CONS are, in reality, merely a detailed specification of one of the general obligations contained in Article 1(2) and (3) of that decision, the same legal basis may be applied to them.

82.If the referring court finds that certain of those obligations are based on the relevant provisions of Regulation 2018/644 and Directive 97/67, it will also have to examine their necessity and proportionality.

83.The information referred to in Article 4(3) of Regulation 2018/644 extends, in short, to the annual turnover, the number of persons employed, the number of parcels handed over or the names of the subcontractors. The requirement for that information is justified by Regulation 2018/644 on the basis of the oversight powers conferred on the NRAs. It is, then, the EU legislature itself which, in respect of those powers, makes the judgment as to the necessity and proportionality of that information, and the validity of that rule has not been disputed.

84.That is not the case with information other than that stated in Article 4(3) of Regulation 2018/644. The ‘[additional] information requirements’ which the NRAs may impose pursuant to Article 4(5) of that regulation are to be assessed in each case (when challenged), in order to establish whether they are ‘necessary and proportionate’. Both criteria are also referred to in Article 22a of Directive 97/67: the information must be necessary (paragraph 1) and proportionate to the performance of the tasks of the NRA (paragraph 2).

85.Accordingly, the necessity and proportionality test set out in recital 51 of Directive 2008/6 should be applied to the request for information (‘requests for information should be proportionate and not impose an undue burden on undertakings’).

86.The order for reference makes almost no reference to the criteria of necessity and proportionality, which does not make it easy to examine them. Nevertheless, it is possible to offer the court a quo some guidance in that regard.

5.Necessity of the information requested

87.The necessity (32) of the information at issue depends on whether, without having it, the NRAs are unable to exercise the powers conferred on them effectively.

88.While it is for the referring court to assess the necessity of AGCOM having that information with the level of exactitude requested, the considerations set out above incline me to accept that, in principle, the effective performance of the functions entrusted to the postal sector NRAs could depend on having such information, since:

–To ensure compliance with the obligation to respect the terms and conditions of employment and social security schemes, it is necessary to obtain a declaration from the operator regarding the working conditions of those involved in the provision of the service (fourth of the general obligations), as well as the standard-form contracts used for personnel (fifth of the general obligations).

–The need to know the average prices of the services for certain business customers (second general obligation and the three specific obligations imposed on Amazon) may, in principle, be linked to the functions of an NRA in relation to competition, whether they relate to promotion or ensuring compliance. As I have already said, certain functions require in-depth knowledge of the situation in the market.

–The information relating to the contracts in force governing commercial relations with undertakings in the sector (third of the general obligations) could also be regarded as necessary for AGCOM to be able to rule on certain critical points emerging from its analysis of the parcel delivery services market.

6.Proportionality of the requirement

89.If the necessity of the information requested were proved, it would still be necessary to determine whether, in view of the extent or complexity of the information, it complied with the proportionality rule. As I have already noted, the NRAs should not issue requests for information which impose an undue burden on undertakings.

90.Reading the judgments under appeal, it emerges that, in the original proceedings, the Lazio Administrative Court carried out a detailed examination of the information obligations imposed and analysed their proportionality. Adjudicating on whether the assessments of the court of first instance in that regard are correct or not is the exclusive competence of the Consiglio di Stato (Council of State).

91.In particular, the written observations of BRT and Amazon, as significant operators, and the bodies (FEDIT and AICAI), which represent their members, had focused on that question.

92.They all maintained, to greater or lesser extent and with differing degrees of emphasis, that the information described in the fourth question referred was unfeasible for the undertakings in organisational and financial terms and in terms of personnel. The Italian Government argued the contrary.

93.In my opinion, which in large part coincides with that of the Commission, (33) the Court of Justice is not in a position to rule on these points, the assessment of which is matter only for the referring court. That was acknowledged by all parties at the hearing, including the Italian Government.

94.It is for the referring court to clarify whether, given the extent and the level of detail of the information requested, compliance with the obligations at issue implies a burden that is not excessive and is manageable for the undertakings concerned, or whether the intended objective can be achieved with less onerous measures. (34)

V.Conclusion

95.In the light of the foregoing considerations, I propose that the Court of Justice should respond to the first, second and fourth questions referred by the Consiglio di Stato (Council of State, Italy) as follows:

(1)Regulation (EU) 2018/644 of the European Parliament and of the Council of 18 April 2018 on cross-border parcel delivery services

must be interpreted as meaning that it applies, with regard to the information requested by the national regulatory authorities, and subject to specific exclusions relating to individual provisions, to all parcel delivery service providers, whether those services are national or cross-border.

(2)Article 4(3) and (5) of Regulation 2018/644 and Article 22a of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008,

must be interpreted as meaning that they do not preclude the national regulatory authorities imposing information obligations on parcel delivery service providers in relation to:

(i)the conditions applied to different types of customers;

(ii)the contracts which govern the relations between the individual undertaking that provides the parcel delivery service and the undertakings which, in various ways, according to the specificities of the sector, contribute to providing that service;

(iii)the [financial] conditions and the legal protection afforded to workers employed in various capacities in providing the service,

provided that the obligations imposed are necessary to carry out the functions assigned to the national regulatory authority, that they are proportionate and that they do not impose an undue burden on undertakings, which it is for the referring court to clarify.

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Original language: Spanish.

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AGCOM acts as the national regulatory authority (‘NRA’) in that sector.

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Regulation of the European Parliament and of the Council of 18 April 2018 on cross-border parcel delivery services (OJ 2018 L 112, p. 19).

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Directive of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14). In this Opinion, I shall use the version amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 (OJ 2008 L 52, p. 3).

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The first subparagraph of this provision provides: ‘For the purposes of this Regulation, the definitions in Article 2 of [Directive 97/67] and in points 1, 2 and 5 of Article 2 of Directive 2011/83/EU [of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64)] apply.’

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Decreto legislativo n.º 261 – Attuazione della direttiva 97/67/CE concernente regole comuni per lo sviluppo del mercato interno dei servizi postali comunitari e per il miglioramento della qualità del servizio (Legislative Decree No 261 transposing Directive 97/67/EC on common rules for the development of the internal market of Community postal services and the improvement of quality of service), of 22 July 1999 (GURI (Official Gazette of the Italian Republic) No 182, of 5 August 1999, p. 4) (‘Legislative Decree No 261/1999’).

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Paragraph 1, Facts.

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Operators which employ at least fifty workers in postal activities and which, for at least three consecutive years, have achieved an annual turnover, in respect of activities falling within the scope of postal services, in excess of EUR 10 million.

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See point 23 of this Opinion.

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Paragraph IV, point (i), of Amazon’s written observations. It states that an assessment should be made as to whether those additional obligations: (i) can be imposed on operators that do not provide cross-border services and focus on the national sphere; and (ii) can be justified by possible competition problems purely at the national level, bearing no relation to cross-border services.

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Recently, for example, the judgment of 12 December 2024, Getin Holding and Others (C‑118/23, EU:C:2024:1013, paragraph 87).

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Paragraph 17.2 of the order for reference.

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Loc. cit.

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Paragraph 17.4 of the order for reference.

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See recital 51 of Directive 2008/6: ‘national regulatory authorities need to gather information from market players in order to carry out their tasks effectively.’

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The cases which gave rise to the judgment of 31 May 2018, Confetra and Others (C‑259/16 and C‑260/16, EU:C:2018:370), concerned the classification as postal service providers, within the meaning of Article 2(1a) of Directive 97/67, of two categories of undertaking: those offering road haulage and freight-forwarding services, on the one hand, and those offering express mail services, on the other. In that judgment (paragraph 30), the Court of Justice recalled that ‘postal services’ include services involving the clearance, sorting, transport and distribution of postal items.

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Judgment of 31 May 2018, Confetra and Others (C‑259/16 and C‑260/16, EU:C:2018:370, paragraph 34).

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Paragraph 41 of the Commission’s written observations. In support of that view, it cites the judgment of 16 November 2016, DHL Express (Austria) (C‑2/15, EU:C:2016:880, paragraph 26): ‘… it is clear from the travaux préparatoires for Directive 2008/6 that the EU legislature intended to remove not only the remaining obstacles to full market opening for certain universal service providers but also all other obstacles to the provision of postal services.’

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There is nothing to prevent the request for information being directed, jointly, at all or a category of market operators. Article 22a(2) of Directive 97/67 allows for both individual and collective requests.

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20As was highlighted at the hearing, given the harmonising nature of Directive 97/67, there is no bar on Member States conferring more powers on the NRAs than those provided for in that directive.

21The information required pursuant to Article 4(1) of Regulation 2018/644 (identification details of the service provider, characteristics and description of the services offered, and also the terms and conditions for the provision of those services, including details of complaints procedures for users and any potential limitations of liability) is of no interest for the purposes of this dispute.

22Point 9 of this Opinion.

23The circumstances that provided the basis for the ruling in the judgment of 30 May 2024, Expedia (C‑663/22, EU:C:2024:433), relied on by Amazon and BRT to support their argument, are absent in this case. As may be gathered from paragraph 56 of that judgment, the information requested in that case, relating to the economic situation of service providers, did not have ‘a sufficiently direct link with the objective’ of 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). Regarding the identification of possible distortions of competition, in that same paragraph, the Court of Justice held that Regulation 2019/1150 did not have that objective. In this request for a preliminary ruling, on the other hand, there is both a direct link with the objective of the legislation applied and the (permissible) conferral on the postal sector NRAs of powers in relation to competition.

24For that reason, I shall not spend too much time on the ‘limits’ that may arise from compliance with rules relating to consumer protection, the protection of personal data or the confidentiality of the information supplied. Nor shall I examine whether, from the point of view of Italian law, Article 18 bis of Legislative Decree No 261/1999 makes compliance by postal sector operators with their obligations as employers subject to the oversight of a national authority other than AGCOM.

25I understand that to be the expectation of the Consiglio di Stato (Council of State), which, in order to narrow the scope of its question, refers, ‘in particular’, to certain information obligations at issue in the proceedings a quo.

26Article 1(1), (2) and (3) of Decision No 94/22/CONS.

27With regard to the information obligation referred to in point (a), that is, that relating to the financial conditions of the services offered to the public, AGCOM maintains that those conditions are subject to the duty of publication arising from another AGCOM decision, No 413/14/CONS.

28According to the order for reference, that seems to be the deciding factor in Decision No 94/22/CONS, in which AGCOM, ‘above all looking ahead, concluded that there was a potential risk of harm to the competitive dynamics of the sector. In order to reduce that risk, it has introduced the information obligations …’ (paragraph 17.1 of the order for reference). Similarly, paragraph 17.7 of that order, which transcribes AGCOM’s considerations.

29Article 1(4) and (5) of Decision No 94/22/CONS.

30In accordance with Article 4(3)(b) of Regulation 2018/644, the mandatory information which ‘all parcel delivery service providers’ are to submit to the NRAs includes ‘the number of persons working for them over the previous calendar year involved in the provision of parcel delivery services in the Member State in which they are established, including breakdowns showing the number of persons by employment status, and in particular, those working full-time and part-time, those who are temporary employees and those who are self-employed’.

31An obligation which, according to the judgment of 16 November 2016, DHL Express (Austria) (C‑2/15, EU:C:2016:880, paragraph 27), also affects services falling outside the scope of the universal service.

32In my opinion, a discussion of the ‘degree of necessity’ to be used as a baseline would not be appropriate. It is true that, even in judgments of the Court of Justice, a distinction has been drawn at times between the ‘necessary’ and the ‘strictly necessary’. In reality, though, I think that the use of the syntagm ‘strictly necessary’ is a literary device (specifically, a pleonasm) which adds emphasis to what is said, but does not alter its substance. Strictly speaking, in the binary opposition necessary/unnecessary there is no tertium genus. I cannot see any significant differences between the ‘necessary’ and the ‘indispensable’.

33Paragraph 52 of its written observations.

34For example, using information which, for other reasons, is already in the hands of the Italian public authorities, as Amazon insisted at the hearing. In its judgment of 28 September 2023, No 14370/2023 (paragraph 9), the Lazio Administrative Court describes how AGCOM, in a request for information of 16 December 2022, had acknowledged that the requirement for better means of learning about the structure of the network could be satisfied simply be sending standard contracts used to govern commercial relations with the various categories of sub-provider. That obligation, the Lazio Administrative Court adds, is ‘significantly less burdensome’ than that stated in Article 1(3) of the contested decision.